2001715 (Migration)

[2020] AATA 828

2001715 (Migration) [2020] AATA 828 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001715

MEMBER:Sean Baker

DATE:14 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2020 at 9:51am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Tribunal’s jurisdiction – notification of decision – hand delivery to applicant – defective notification to authorised recipient – review application made within time – abide by conditions imposed – no criminal conduct requirement – subject of serious criminal charges – pending trial – granted bail – breach of bail conditions – immigration history – involvement in a false relationship scheme – provision of false information in visa application – attempt to circumvent Australia’s immigration laws – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 66, 73, 359AA, 494D
Migration Regulations 1994 (Cth), r 5.02; Schedule 2, cls 050.212, 050.223, 050.613A; Schedule 8, Conditions 8101, 8401, 8506, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

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 17 January 2020. 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 23 January 2019 on the basis that the delegate did not accept that the applicant would comply with conditions that would be imposed on the visa. The applicant provided a copy of the delegate’s decision.

4. The applicant appeared before the Tribunal on 7 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Luganda and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant will abide by conditions that would be imposed on the visa.

   Jurisdiction

7. The first issue that must be determined however is whether the Tribunal has jurisdiction in this case. The Tribunal proceeded on the initial view that it may not have jurisdiction to consider the case on the basis that the application for review was lodged out of time.

8. The information before the Tribunal is that the applicant was hand delivered the notification letter and decision record on 23 January 2020. A courtesy copy, containing only the notification letter, was emailed to the applicant’s authorised recipient, his representative, on the same date. I find that hand delivery of the applicant satisfies r.5.02, containing as it did all of the required information under s.66. However, notification on this date to the authorised recipient was clearly defective, not containing the decision record nor any statement of the reasons for the refusal that would satisfy s. 66(2)(c). The authorised recipient was only properly notified of the decision, including the notification letter and the decision record, on 30 January 2020.

9. Sections 494A to 494D set out when a person is notified of a decision. The scheme in these provisions allows for certainty in deciding when a person has been notified of a decision. S.494D requires the Minister to give to an authorised recipient, instead of an applicant, any document they would otherwise have given to that applicant. I can see no way in which the situation described above complies with s. 494D. I note for completeness that ss.494B and s.494D, forming part of the Act, must take precedence over the regulations under principles of statutory construction, and I further note that Departmental policy states that r 5.02 is not available where there is a prescribed method for giving a document and specifically refers to visa refusals. It also states that as a matter of law, notification of a refusal must be given to the authorised recipient but a copy should be given to the applicant.[1] I find here that the Department did not provide proper notification (i.e. all of the elements of s.66) to the authorised recipient until 30 January 2020. Whilst the Department complied with r.5.02, there is no basis that I can see to conclude that that is sufficient to establish that notification has been effected so that the time began to run for application to the Tribunal. I find that notification occurred only on 30 January 2020 when the applicant’s authorised recipient was properly notified of the decision.

   [1] POLICY - MIGRATION ACT - Code of procedure Instructions - Notification requirements – ‘Notifying Detainees’ and ‘If an authorised recipient is appointed’.

10. On this basis, the application lodged with the Tribunal on 30 January 2020 is within time and the Tribunal has jurisdiction.

    Grounds for applying for the bridging visa

11. 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.

12. 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.For the reasons below, the applicant meetscl.050.212.

13. 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.

14. ‘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.

15. As set out in the delegate’s decision, and as confirmed by the applicant at the hearing, the applicant has made an application for a substantive visa which is before the Tribunal and therefore has not been finally determined.

16. Accordingly, the applicant meets cl.050.212(3).

    Whether the applicant will abide by conditions - cl.050.223

17. 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.

18. 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].

19. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

20. In this case, cl.050.613A applies because the applicant has applied for a Protection visa, and is not in a class of persons specified by the Minister by instrument in writing for the purposes of cl.050.613A(1)(b). This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

21. 8401   

    The holder must report:

    (a)      at a time or times; and

    (b)      at a place;

    specified by the Minister for the purpose.

22. 8506   

    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

23. 8564   

    The holder must not engage in criminal conduct.

    I made the applicant aware that, in addition to these conditions which I considered it appropriate to impose, the following condition was a mandatory condition:

24. 8101   

    The holder must not engage in work in Australia.

25. The applicant indicated that he understood the conditions. He confirmed he had read and understood the delegate’s decision.

26. I discussed with the applicant information from the delegate’s decision that he had been charged with serious offences [in] April 2018:

    • [number] counts of Sexual Assault;

    • Recklessly cause injury;

    • Unlawful assault (aggravated);

    • [number] counts of Rape;

    • [number] other charges;

    • Sexual assault;

    • Intentionally cause injury;

    • [number] counts of common law assault.

27. I indicated that I appreciated that these charges were yet to be heard and that he was next expected in Court in relation to these charges [in] May 2020 for a [number] Day trial in the [named] Court to hear these charges. I informed the applicant of the privilege against self-incrimination.

28. The applicant agreed with this information but said that he was innocent and had not committed any of these offences. He said that the charges had been manufactured by his former partner.

29. I explained to the applicant the s.359AA process. I explained that I needed to put this information as it was potentially adverse and in my view was not clearly explained in the delegate’s decision. The information as put is that the charges relate to allegations that the applicant has sexually assaulted and/or raped two women, and the Police decided that there was sufficient evidence to charge the applicant with very serious offences against both women. The applicant indicated he understood the information.

30. I explained that the relevance of this information was that it may indicate a possible pattern of conduct which would lead the Tribunal to hold concerns that the applicant may engage in conduct including harassment or sexual assault of these or other women if released from detention, in breach of condition 8564. The applicant indicated he understood the relevance of the information. I explained that the consequence of this being relied upon was that, subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision that is under review. The applicant indicated he understood the consequence of the information being relied upon. He asked for a short break to confer with his representative, which was granted.

31. After the break he responded, explaining that when he arrived in Australia with [number of] children, the mother of the children was the one who was sponsoring him and when they fell out and went to the family court, this was then these allegations were made.

32. I confirmed with the applicant that he had travelled to Australia from Uganda with [number of] children he had claimed to be his own, who were subsequently shown by a DNA test not to be his biological children. He said that there was still an ongoing matter in the family court over access to the children, and that they were currently living with their mother.

33. He said that the second woman the charges related to was brought to him by the mother of the children as this second woman was an Australian citizen, and the plan was that this second woman would marry the applicant so that he could remain in Australia.

34. He said that then when the family fell out, the two women combined their effort and one accused him of sexual assault and the other of rape. He had denied all the charges, the magistrate or prosecution brought evidence but the [court] gave him bail on the grounds that he was not a dangerous person to the community as it was being alleged.

35. I asked him to confirm that he was saying the plan had been that he would marry this second woman so he could remain in Australia and he said that was correct. I asked why she was going to marry him and the applicant said the woman was to be paid [amount of] AUD because if the woman married him, the mother and children would get to stay in Australia.

36. I asked him to explain this, who would get to stay in Australia if he married the second woman. He responded that he and the children would get to stay in Australia. I noted that he appeared to be saying that he would have gotten to remain in Australia so there appeared to be a benefit to him. He said that at his first interview with Immigration he came with the second woman as his girlfriend, his lawyer was present and the second woman was to give evidence as his girlfriend but was not allowed in the interview room as they said if they needed her they would call her. The applicant’s lawyer clarified that the second woman had come to that interview as a support person, not a witness.

37. I asked who was going to pay the [amount of] AUD. The applicant said the mother of the children was to pay. I asked why she would pay that money and he said because the children would benefit from their father if he remained in Australia. He said that she had come in 2014 and her claims were refused and that is how he came, he arrived 2 years later. I asked again why the mother would pay when it appeared that he would be the beneficiary of the arrangement. He said it was because of the children.

38. I noted to the applicant that from what he had explained, it appeared that he has been involved in a serious attempt to circumvent Australia’s immigration laws by having someone paid to achieve a migration outcome as his non-genuine spouse. I explained that this may be relevant to my consideration of whether he would abide by conditions on the visa, and I outlined that the Courts had indicated that when considering his likely conduct, the Courts had specified that relevant considerations may include the applicant’s past immigration history and any breaches of immigration laws.

39. The applicant responded that at the time he had been new to the country and he didn’t know about immigration laws, he was being guided by the mother of the children and now he knew how serious immigration laws are. I noted that I was not sure that a person needed to know much about immigration laws to know that the arrangement he had described was not legitimate. He said this was the case to some extent.

40. I indicated that the applicant may wish to speak with his representative but that I would first put to him further information.

41. I explained that the information before me indicated that when the applicant travelled to Australia from Uganda, he had claimed to be married to the mother of the children, and had included a false date of birth for her in this application. The applicant indicated he understood the information. I explained that the relevance of this information was that this information may, with other concerns raised, indicate a pattern of untruthfulness in his immigration history, which may lead me to have concerns that he does not consider immigration requirements serious and would not comply with conditions. The applicant indicated he understood the relevance of the information. I explained that the consequence of this being relied upon was that, subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision that is under review. The applicant indicated he understood the consequence of the information being relied upon. The applicant elected to respond after a short adjournment, which was granted.

42. The applicant responded that the payment arrangement had been between the children’s mother and the second woman, so that he could get to stay in Australia with the children. After he took the children’s mother to the family court, the women came up with the allegations. In relation to the visa application, the applicant said that the children’s mother’s family are very powerful and she had a lot of connections and she arranged for his travel to Australia, hiring a travel company to do a lot of the work. He said he had a receipt there to show that money was sent through a friend of hers. When they arrived in Australia the children’s mother was on top of things and directing everything as she had been in Australia for two years at that stage and he was new to Australia.

43. I raised with the applicant the information in the delegate’s decision that he had breached his bail through contacting a witness, and my concern that this may indicate a pattern of behaviour in engaging in conduct which led to criminal charges. He responded that he had made a mistake and he had had to pay for it for a whole year in corrections at [Prison 1]. When he was there he didn’t wish to go back again, he did not think he would ever be contacting a witness ever again.

44. I asked the applicant where he would live if he was released on the bridging visa and he said he would reside with [Mr A].

45. I took evidence from [Mr A]. He said he had known the applicant for almost three years, coming to know him through community gatherings and also his then girlfriend or wife, because in the community they always had gatherings and functions [Mr A] said that one of his roles in the community was to look after new people in Melbourne, and because the applicant needed the children he had provided support. [Mr A] said that he would take care of all the applicant’s needs, and he and his family stood by ready to give him assistance until his cases were resolved. He said that this would include the applicant living at his house, food and water and another basic needs as well.

46. When asked if there was anything else he wished to say [Mr A] said that he understood the applicant had criminal charges and he felt sorry for what the applicant is going through. [Mr A] had visited the applicant in immigration detention and had been supporting him.

47. The applicant told me of an incident at the detention centre in which his roommate had attempted to sexually assault him. He complained to Serco and to Victoria Police. He provided at the hearing a letter from Serco indicating that the complaint had been investigated and Victoria police advised Serco that there were no grounds to pursue the matter further and charges would not be pursued. I asked the applicant if he had been moved and he said he had but they were still in the same compound and he was having difficulties with seeing this person and was not having meals

48. The applicant’s representative highlighted that the grant of a bridging visa would allow the applicant to be involved in his criminal and immigration matters; currently he was limited in his ability to prepare his case with his representatives. The representative noted that his physical and mental health may deteriorate if he was to remain in detention.

1. Further time was provided for a post hearing submission given that the evidence at hearing had revealed a potential issue not raised previously, being the proposed marriage arrangement for a visa outcome issue.

2. Two submissions from the applicant’s representative on the substantive issues (emails were exchanged in relation to the jurisdiction issue but they are not relevant to the substantive issues) have been made to the Tribunal and it is helpful to summarise them here.

3. In the first submission, the previous decision of the delegate is analysed and the submission addresses issues relating to condition 8101 and 8564, specifically support for the applicant, and the previous breach of bail, that the applicant had been released once more on bail, that he was remorseful for breaching bail, and that the witness the applicant had contacted in breach of his bail conditions has absconded from Australia. the submission set out several other considerations, including that the refusal of a bridging visa despite the grant of bail would be fundamentally at odds with the presumption of innocence, his refugee matter has not been conclusively determined, as noted by his representative at the hearing he would be able to be more involved in his ongoing matters if released, and that his mental health may deteriorate in immigration detention. Attached to this submission were two statutory declarations from [Mr A] and [Mr B] in which they undertook to support the applicant if released, and that the applicant is a person of good character and they have not experienced circumstances to suspect otherwise. Also attached was his current bail undertaking

4. The post hearing submission was received 12 February 2020. On 14 February 2020 the representative confirmed these were the final submissions. In the submission the representative addressed the concern I noted to the applicant that given the serious nature of the alleged offending, I needed to consider whether he posed a risk of re-offending if he were to be released from detention, and indicated there had been two separate women involved in the charges placed on the applicant. The submission noted that the applicant had been forthcoming about an arrangement before the mother of the children and the second woman for the payment of [amount of] AUD for the second woman to marry the applicant to remain in Australia on a partner visa. The submission argues the response indicates the women were associates, the applicant is honest, and the charges are isolated to the particular relationship he had with the two women, and not indicative that he would pose a risk to woman at large if he were to be released. The submission discussed the payment arrangement arguing the applicant had a passive role due to his reliance on the mother of the children, he was new to Australia and all legal advice in relation to migration matters was sourced from her, and that there was a power dynamic between the mother of the children and the applicant. The submission goes on to state that the reason it was arranged that the applicant would remain in Australia was because the mother of the children had had her visa refused and could not add the children as dependants. It is argued that despite the imputation that the applicant has complete disregard for the law and migration processes, the applicant’s limited migration knowledge, full trust in the mother of the children and his fear of returning to Uganda indicate reliance and obedience to the mother of the children and his diminished intention to circumvent migration procedures.

5. The submission goes on to state that the information in the applicant’s visitor visa was filled out by the mother of the children and because of her powerful family she was able to arrange for the applicant and children to travel to Australia, and in support of this claim they have provided a receipt for payment dated, it is claimed, [November] 2016 to a woman who worked in the consulate in [Country 1] and who facilitated the applicant’s travel. The submission states that the applicant asserts he will comply with all conditions imposed, and the witness confirmed he would assist the applicant. the submission claims part of the reason he was granted bail a second time was because of the previous harm and abuse the applicant suffered whilst in [Prison 1], and the submission attached a ‘separation of prisoner’ form, the submission also referred to the complaint made by the applicant to Serco. The submission argued that prolonged incarceration and detention has a strong bearing on the applicant’s willingness to comply with visa conditions.

6. I have had careful regard to all of the information before me. The information before me indicates that the applicant is the subject of serious criminal charges relating to offences it is alleged he committed against two women. These offences have been set down for trial in May 2020. They amount to unproven charges which must be tested, and determined, by a Court.

7. The applicant claims that these allegations are false and that the charges have resulted from false statements from the mother of the children and the second woman who is an associate of hers. He claims that this is because there was an arrangement between the three of them that did not work out, and because of the family court matters between him and the mother of the children. I note that even if this explanation is true, it provides only a possible motive for his claim that the allegations are not true, it does not establish this. This is properly a matter for the Court to determine. 

8. The applicant has conceded, and the evidence is clear, that he engaged in conduct which led to his bail being revoked. His conduct in contacting a witness is of some concern, indicating a disregard for the conditions placed on his bail by the applicant. I have had regard to the applicant’s statements at the hearing that he would not again breach bail in this manner, and the arguments in the submissions relating to this. Whilst I have regard to this information, I note that the applicant did not indicate remorse or an appreciation of the reasons why this conduct is of concern in the justice system, rather he expressed how this had affected him. I continue to have concerns with this past conduct of the applicant.

9. A further, significant concern arose only at the hearing. This is the evidence given by the applicant that there was an arrangement for the applicant to be married to the second woman in order for the applicant to lodge a partner visa and be granted rights to remain in Australia for himself and the children. What the applicant has described as being planned represents a very serious breach of immigration laws where a false relationship, entered into for financial gain for the second woman, is used to satisfy the requirements for the grant of a visa, leading to damage to the integrity of the visa system. What was planned was a serious form of immigration fraud.

10. Secondly, related to this concern, the applicant has also conceded that false information was provided in his visa application to travel to Australia. I have had regard to his explanations for this and the receipt provide – the receipt does no more than establish that an amount was paid to an individual, it does not establish anything beyond that, in particular it does not establish that this money was for the purpose claimed.

11. The applicant places the blame for both the false marriage scheme and the false information in his visa application at the feet of the mother of the children, claiming he had only ‘diminished intention to circumvent migration procedures.’ He has claimed that because of his lack of knowledge of Australia and the immigration laws, his trust of the mother of the children and her powerful Ugandan family, and his fear of returning to Uganda all contributed.

12. But in both cases, the applicant has benefitted, or stood to benefit, directly. He has sought to position these actions as being the actions of the mother of the children in order to have her children come to, and then stay in, Australia. I do not find this a convincing or compelling explanation of the facts. The fact is that the applicant benefitted from being able to travel to Australia, and would have benefitted from remaining in Australia under the false marriage arrangement. I do not accept, given that he would have benefitted, that he was acting solely at the direction of the mother of the children. I do not accept that he does not bear some culpability for these actions even if it were accepted that these schemes were devised by the mother of the children, because he has stood to gain directly. I consider that the information and my assessment of the information is that in both of these cases the applicant has disregarded immigration laws.  I do not accept that lack of awareness of the specifics of the law excuses his conduct, in terms of false information provided in his own visa application, nor in a scheme in which he stood to gain a migration advantage from a false marriage. I do not accept the claim that he had a diminished intention – as he conceded at the hearing, a person does not need to know the details of the immigration laws to know that a visa application based on a relationship in which one person is paid to claim to be in that relationship is illegitimate. I do not accept that his trust of the mother of the children, nor his claimed fear of returning to Uganda explain or excuse his actions. I find that the applicant’s actions, and the plan in which he intended to be involved to remain in Australia, demonstrate intent on his part to subvert Australia’s immigration laws.

13. I have had regard to the evidence of the witness, and to the statutory declarations, and I accept that these people would support the applicant and that they find him to be of good character, but this does not outweigh the direct evidence provided to me by the applicant of his willingness to breach immigration laws with the false relationship scheme.

14. I have had regard to the claims of the applicant that he was assaulted in [Prison 1] and in detention, and I have considerable sympathy for the applicant. But again, this does not outweigh my considerable concerns with the evidence of his willingness to breach immigration laws.  Similarly, I accept that if he were released from detention, he would be able to more actively be involved in his criminal and immigration matters, and that detention may lead to a deterioration of his mental and physical health. But I must assess whether he will comply with conditions if granted a visa, and his evidence of his willingness to breach immigration laws leads me to have grave doubts.

15. Taking all of the above into account, I have carefully considered my assessment of the applicant’s likely conduct if he is granted a bridging visa with the conditions attached. I have taken into account that he has serious charges against him, but that these are charges only at this stage and are not proven. I have taken into account that he has breached conditions of bail. I find this significant because there is some parallel between bail conditions and conditions on a bridging visa – both are intended to act as controls on the actions of the person who is granted a delimited degree of liberty in the community. Both sets of conditions are designed to balance liberty with a framework in which the person is expected to behave, and both rely on the applicant taking them seriously and complying with them. in the case of his bail conditions, he did not, and I consider this significant. I accept that he was re-granted bail, but I found him to lack any insight into his breach or why this is significant to the administration of justice, his evidence focusing instead on the personal cost to him.

16. I have placed greatest weight on the evidence he gave at hearing that he was to enter into a false relationship to gain a visa outcome. I find that this indicates a disregard of immigration laws and a willingness on his part to breach laws where it benefits him.

17. For these reasons I have no confidence that, were the applicant to be granted the bridging visa with the conditions as imposed, that he would comply with any of these conditions where it did not suit him. He has demonstrated, in his actions in breaching bail conditions, and in his involvement in the false relationship scheme, to disregard immigration and criminal laws. I have very serious doubts that the applicant would feel bound by the conditions at all. I find I can have no faith in the applicant complying with the conditions that would be imposed.

18. 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.

    Conclusion

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

20. 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

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

    Sean Baker
    Member