1931449 (Migration)

[2019] AATA 6119

1931449 (Migration) [2019] AATA 6119 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931449

MEMBER:Peter Vlahos

DATE:15 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 15 November 2019 at 6.53am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – past immigration history – unlawful non-citizen – possibility of a bond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8505

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 October 2019. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 1 November 2019 on the basis that the applicant did not meet the requirements of cl. 050.223.

4. The applicant appeared before the Tribunal on 14 November 2019 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether [the applicant] is granted a Bridging E (Class WE) visa.

   Visa History and background of the applicant

8. [The applicant] is a national of Malaysia and originates from Sarawak. He is [age] years of age. He has family in Malaysia currently living which consists of his parents, and older sister. He has one brother (age was not identified) currently living in Australia. The applicant completed his schooling in Malaysia and was before he left Malaysia, working in his father’s business as [Occupation 1]. On 5 September 2015, the applicant was granted a [Tourist visa] and he arrived in Australia (Perth) [in] September 2015. [In] December 2015, his Tourist visa expired and the applicant became a unlawful non-citizen.

9. [In] October 2019 the applicant was apprehended by the Australian Federal Police and detained pursuant to s.189 (1) of the Act (as Amended).

10. On 29 October 2019, the applicant made an application for a Protection visa which has not yet been determined.

    Whether the applicant will abide by conditions - cl.050.223

11. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

12. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

13. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

14. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

15. At the hearing, the applicant was asked by the Tribunal whether and how he would ensure that he would abide by any condition imposed on his release from detention on a Bridging visa. His response was that he would be totally compliant with any conditions imposed by the Tribunal.

16. The Tribunal identified four (4) conditions that would attach to any issuance a Bridging visa in the applicant’s name namely conditions: 8101(no work), 8207(no study), 8401 (report as directed) and 8505(reside at a specific place).

17. The applicant told the Tribunal that he had no problem in fulfilling those conditions. In response, the Tribunal asked the applicant how he explained his intention to fulfil these conditions, when he had remained ‘illegal’ in the community for four years and would have continued to do so, if he had not been discovered randomly and by chance by the Australian Federal Police. The applicant explained to the Tribunal that prior to his apprehension by the Police, he had made two attempts to legalise his stay in Australia by seeking the help of friends – to help him apply for a protection visa. The applicant recalled two attempts having been made which were aborted because the so called friends did nothing and defrauded the applicant of money.

18. The applicant indicated that he sought to apply for a Protection visa because he did not want to return to Malaysia because he was a homosexual and feared for his life, had been abused, threatened and harassed and had been told by his parents it was better and safe for him to remain in Australia.

19. Nevertheless, while the Tribunal might sympathise with the applicant’s current predicament and the reasons he presented to the Tribunal as to why he remained unlawful until his apprehension by the police, it does not provide the Tribunal with an assurance that if provided with a Bridging visa E the applicant would abide by any conditions imposed. Indeed, the applicant has neglected for four years to maintain a lawful status in this country which is a main condition of any entrant in Australia from another country.

20. The Tribunal discussed with the applicant each condition to determine whether compliance would be forthcoming and in the opinion of the Tribunal based on the applicant’s responses was that no compliance with any condition would occur. The applicant provided little details about his brother (saying he was currently working at a [business]) and he provided very little details as to where he would reside.

21. The Tribunal also explored the possibility of a bond as a means of guaranteeing compliance with all conditions imposed but again, the applicant spoke of seeking assistance from his parents and did not provide any reassurance whether that financial assistance would be provided. Though, his parents, the Tribunal was told had paid for the applicant’s Protection application but no evidence of this was provided before the Tribunal.  Hence, the Tribunal is not satisfied that the applicant will abide by any condition or conditions imposed on him if he were granted a Bridging E visa. His remaining illegal within the community for four years is an indication of his potential (if released without some security) not to abide by any conditions imposed by this Tribunal.

22. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

23. The Tribunal also finds on the evidence before it that the applicant has neither the means or funds to ensure his compliance to any conditions imposed by this Tribunal with a considerable monetary security bond.

24. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

25. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Peter Vlahos
    Member