1935008 (Migration)

[2019] AATA 6592

1935008 (Migration) [2019] AATA 6592 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division  

CASE NUMBER:  1935008  

MEMBER:Mr S Norman

DATE:23 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 December 2019 at 4:28pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – long period of stay in Australia as unlawful non-citizen – false information provided to police – criminal charges – lack of respect for Australian laws – no substantive visa application lodged – strong intention to remain in Australia – physical injury – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 48, 73, 189
Migration Regulations 1994 (Cth), Schedule 1, Item 1305(3)(c), Schedule 2, cls 051.211, 050.212, 050.221

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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 5 December 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.050.212.

3. The decision to refuse to grant the visa was made on 9 December 2019 on the basis that the applicant was determined not to have met the time of application criteria (cl.050.212).

4. The applicant appeared before the Tribunal on 20 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] (the applicant’s partner). The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

5. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In their decision, the delegate noted the applicant had first arrived in Australia [in] February 2012 as the holder of a Temporary [visa]. That visa was valid until 23 March 2012. However, on 23 March 2012, the applicant had lodged an application for a [second temporary] visa and he was granted an associated Bridging visa A (BVA) on the same day. On 20 June 2014, the applicant’s [second temporary] visa was refused by the Department, and the applicant’s associated BVA ceased on 29 July 2014.

8. On 30 July 2014, the applicant became an unlawful non-citizen (UNC) in the Australian community; and the applicant had then been living unlawfully in the Australian community since that time.

9. [In] November 2019, the applicant was located by the [State 1] Police during a Random Breath Test. After a status check with the Immigration and Status Service (ISS), he was identified as a UNC and detained pursuant s.189 of the Act. He was then transferred to [a detention centre], where he currently remains. After the Random Breath Test, and on advice from the Police, the applicant had been charged with the following offences and he was required to attend the [Named] Court [in] January 2020:

   ·     [Charge 1]  

   ·     [Charge 2]

10. While in [the detention centre], the applicant lodged an application for a Bridging visa E (BVE) on Form 1008. On the same day, the BVE application was sighted by the Detention Review Officer as required by Item 1305(3)(c) of Schedule 1 of the Migration Regulations.

11. When the above had been put to the applicant for comment at hearing, he conceded it was correct.

    The grounds for seeking the visa - cl.050.212

12. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

13. In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212 (and based on the evidence before it, the Tribunal accepts the applicant does not meet any alternative criteria). That being said, for the reasons below, the applicant does not meet cl.050.212(3); or cl.050.212.

    Substantive visa application

14. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

15. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

16. On his BVE, the applicant advised the basis for that application was ‘Application for a substantive visa’. In support of the BVE, the applicant lodged:

    ·     Discharge report for the applicant from [Named] Hospital[1]

    ·     [Specialist] appointment letter for the applicant

    ·     [Specified] Report for the applicant

    ·     Statement from [Ms A] (the applicant’s partner[2]) dated 11 December 2019 and statutory declaration[3]  -  and referring to inter alia the [surgery] in May 2019; an intention to lodge a visa application; and that ‘the reasoning behind not submitting the application for a BVE earlier was … because he was fighting for his life in a hospital stay for [a number of] days’ in and around May 2019 – that he still attends for six monthly medical checks – and he cannot suffer [specified] trauma, including through sport

    ·     Tenancy Agreement of [Ms A]

    ·     [State 1] birth certificate of [Ms A]

    ·     [Document] of [Ms A]

    ·     Payslips of [Ms A]

    [1] Tribunal – from folio 15.

    [2] Tribunal – from folio 9.

    [3] Tribunal – folio 8. b

17. The delegate noted the applicant said he intended to lodge an application for a [third temporary] visa at the Detention Client Interview (DCI) on 2 December 2019. However, the delegate also noted that at the time of their decision, Department records did not indicate the applicant had any ongoing substantive visa applications. Further, and as noted above, the applicant had an application for a [different temporary] visa refused on a prior occasion, and he was subject to s.48 of the Act (bar) – which prevented him from lodging another [temporary] visa during his uninterrupted stay in Australia.

18. With the Tribunal, the applicant lodged:

    ·     a statutory declaration dated 19/12/2019, from Ms [A].[4] Ms [A] (the applicant’s partner) said she would care for the applicant if he was to be released, provide him with financial support, and ensure he abided by Australian immigration regulations. She also “gave her assurance of maintaining the relationship and that if it fails she will notify the Department”.

    ·     A letter dated 18 December 2019 from the applicant.[5] The applicant said his first relationship was prearranged, as per his custom; there was no commitment, interest or communication on his part to fulfil the relationship; his “heart was not set on it”; he entered the relationship with his current partner in 2015 (Ms [A]); there is a “very big difference between his previous application to the one now, that being he is in love with the spouse”; he had emergency [surgery] in May 2019; he still needs to be monitored and undergo future tests for another 12 months; and it is “a risk of being in detention as he needs to prevent any harm that could cause risk of any injuries to his [specified body part]”.

    [4] Tribunal – folio 33.

    [5] Tribunal – folio 32.

19. The applicant also lodged a Medical Attendance document dated [in] December 2019.[6] That referred to the applicant attending a medical appointment on that day; that he had recovered from a [injury] in July 2019; that he required [specified] injury rehabilitation and further investigation; this would continue for over the next 12 months. The doctor also said that he did not believe similar services could be provided in Tonga.

    [6] Tribunal – folio31.

20. A second medical certificate dated 19/11/12,[7] stated inter alia the applicant has ongoing. [side-effects]. Prior to his injury, the applicant worked as a [Occupation 1], and played [sport], with aspiration to play professionally. It was also said the applicant had ‘important functional rehabilitation goals which can be supported’ at a named Sydney hospital. He also should receive ‘relevant therapies’ to support his vocational goals. He is also not allowed to participate in ‘[certain activities] for another five months’ and it is ‘critical that he undergoes’ the treatment being offered. It was also stated there were ‘highly specialised services in Sydney that would not be available to him’ in Tonga.

    [7] Tribunal – folio 34.

21. The Department delegate noted that the applicant had resided unlawfully in Australia since his BVA ceased on 29 July 2014; and that he did not seek to engage with immigration, or otherwise seek to regularise his migration status, since that time (prior to being located by the [State 1] Police). The delegate believed that if the applicant had not been located by the [State 1] Police, he may have continued to reside unlawfully in the Australian community. Further, the delegate believed the applicant’s apparent willingness to provide false information to the [State 1] police, along with the length of time he resided unlawfully in Australia, may indicate a disregard for Australian laws.

22. After then noting the applicant had not provided any material evidence that he would depart Australia, and given all the evidence considered (including that he was in a relationship with his Australian citizen partner), the delegate was satisfied the applicant had a strong intention to remain in Australia, lawfully or otherwise.

23. Next, the delegate said that no other grounds were lodged (or identified) that the applicant would meet the time of application criteria as per cl.050.212. As such the delegate was not satisfied the applicant met cl.050.212. After then noting the applicant was not an eligible non-citizen as set out in cl. 051.211 of Schedule 1 of the Regulations, the delegate refused to grant the applicant a BVE.

24. When discussed at hearing, the applicant (and his partner), advised that he had worked as a [Occupation 1] prior to his May 2019 [injury] (a spontaneous [specified injury]); but since that time he had (possibly) worked only on one or two occasions in ‘[specified] work’ on a [specified] site. He was still engaged in his rehabilitation process, and though he had some identified impediments (as noted in the medical reports), it was hoped that he could recover sufficiently to again engage in [sports], after five or more months.

25. With respect to the (first) [temporary] visa application, the applicant said his relatives had pre-arranged a marriage with another person (as was their custom); however, he did not wish to commit to that relationship. None-the-less, the [visa] was lodged and subsequently finalised by a Department decision maker. The applicant’s assistant at hearing said the first [temporary] visa application was false and should be (words to the effect) expunged. After some discussion, it transpired that no previous claim or complaint to this effect had been made. The assistant did not suggest the applicant was part of any migration fraud (regarding the first [temporary] visa). Be that as it may, the Tribunal said this issue (the validity of the first [temporary] visa) was not before it, and I did not propose to consider it further (at the BVE hearing).  

26. Next, the applicant said he intended to regularise his migration status in early 2019, though shortly thereafter he suffered a serious [injury] (the medical and other evidence satisfied the Tribunal the claimed injury was serious). However, this does not explain or justify why he did not seek to regularise his migration status in the more than 4 ½ years prior to this time. The assistant at hearing said the applicant could not afford to pay for a migration agent during this period. The Tribunal noted that in its experience, applicant’s may be able to access the knowledge within their ex-patriate community in Australia about regularising their migration status and nothing in this case indicated the present applicant would not have been able to do this. Further, and perhaps more importantly, the mere fact of not being able to afford a migration agent, does not justify residing unlawfully in Australia, particularly as in this case, for over 4 ½ years prior to the [injury], and over five years at the time the applicant was detained by the [State 1] Police.

27. At hearing, the Tribunal noted the delegate was concerned with the lengthy period of time the applicant remained in Australia as a UNC, and the fact he had provided false information to the police, indicated a lack of respect for Australian laws. The applicant said he had not engaged in any criminal activity prior to this time. The applicant’s partner also said that she had cared for the applicant during his serious [surgery] in May 2019, and had continued to care for him since that time. She was concerned with his ongoing health in detention; and as noted at hearing, the Tribunal was satisfied that her care and concern were genuine. As also noted at hearing, the Tribunal must consider a range of issues prior to deciding the case.

28. That being said, first, the Tribunal is concerned that the applicant unlawfully resided in the Australian community for a lengthy period of time. Second the Tribunal is concerned the applicant provided false information to the [State 1] Police. As noted at hearing, this indicated an apparent disregard for Australian law (though as noted above the applicant said he had not committed any other offence).

29. Next, the applicant did say that he was concerned that he may suffer a further [specified] injury if he is hurt while in detention. However, he had managed to work on one or two occasions only, since leaving hospital after his [injury]. He also was prepared to drive a motor vehicle after departing hospital and was doing so when he was located by the [State 1] Police. The Tribunal was also advised the applicant had brought to the attention of persons in [the detention centre] (including medical staff), that he had a [specified] injury that was being treated, and the applicant was able to attend for scheduled and other medical treatment. The Tribunal also noted that in its experience, it was not common for persons to suffer [specific] injuries at [the detention centre]. The applicant’s partner said that as the chief carer for the applicant, she felt responsible for his ongoing safety, and she felt better able to care for his dietary and other needs than she believed he may receive in detention. The Tribunal accepts this may be correct.

30. However, the applicant was subject to s.48 of the Migration Act (“Non-citizen refused a visa or whose visa cancelled may only apply for particular visas” – also see r.2.12 of the Regulations). As stated at hearing, the delegate noted the applicant had not lodged any substantive visa applications at the time of their decision; and neither the applicant nor his agent advised the Tribunal the applicant had lodged a substantive visa application at the time of the Tribunal hearing (the Tribunal understands the s.48 bar would prevent the applicant lodging a further Partner visa application). The Tribunal accepts the applicant and his partner, would wish the applicant to be able to remain lawfully in Australia. However, at the time of the Tribunal hearing, being some three weeks after he was detained by the [State 1] Police, no further substantive visa application had been lodged.

31. The Tribunal notes the delegate was satisfied the applicant had a strong intention to remain in Australia, lawfully or otherwise. That said, and given that no substantive visa application had been lodged, though the applicant now had access to an assistant, and given the other adverse findings herein, the Tribunal is not prepared to give the applicant the benefit of the doubt. The Tribunal therefore finds that at the time of the Bridging visa application the applicant has not made, or will make, a valid application for a substantive visa that can be granted in Australia.

32. Accordingly, the applicant does not now meet cl.050.212(3)].

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

34. 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

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

    Mr S Norman
    Member