2002681 (Migration)

[2020] AATA 672

2002681 (Migration) [2020] AATA 672 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2002681

MEMBER:Antonio Dronjic

DATE:20 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 20 February 2020 at 10:41am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – protection-related bridging visa – conditions to be imposed and whether applicant will comply with them – past immigration history – lengthy unlawful stay with no attempt to resolve status – multiple changes of residence without notifying department – occasional work for cash – credibility – inconsistent evidence – offers of financial support from partner and friends – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 73

Migration Regulations 1994 (Cth), Schedule 2, cll 050.212(3), 050.211, 050.223, 050.613A, Schedule 8, conditions 8101, 8401, 8506

CASE

VAAN of 2001 v MIMA (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 4 February 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 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212 and cl.050.223.

3. The decision to refuse to grant the visa was made on 10 February 2020 on the basis that the delegate was not satisfied the applicant will comply with conditions to which the visa would be subject.

4. On 17 February 2020, the applicant’s representative submitted:

   ·Legal submissions dated 15 February 2020;

   ·A copy of the birth certificate of the applicant’s [child] dated [Date 1] stating inter alia that the applicant’s occupation is [Job task];

   ·A copy of the protection visa application acknowledgement letter dated 4 February 2020;

   ·A copy of a statutory declaration signed by Ms [A], the applicant’s partner, dated 17 February 2020;

   ·A copy of Ms [A]’s ANZ bank statement from [October] 2019 to [December] 2019 as evidence of available funds;

   ·A copy of Ms [A]’s pay-slips as evidence of her employment and earnings;

   ·A copy of a letter from [Employer] as evidence of Ms [A]’s employment;

   ·A copy of the passport of Mr [B] – Ms [A]’s father living in India;

   ·A copy of Mr [B]’s bank statements from India;

   ·A copy of a letter from Mr [C] dated [February] 2020 indicating his willingness to support the applicant financially if he was to be released from detention;

   ·A copy of the passport of Mr [C];

   ·A copy of a letter from Mr [D] dated [February] 2020 indicating his willingness to support the applicant financially if he was to be released from detention;

   ·A copy of the passport of Mr [D];

   ·A copy of Mr [D]’s bank statement of [January] 2020 and documentary evidence of his income;

   ·A copy of a statutory declaration signed by Ms [E] dated [February] 2020 indicating her willingness to provide financial support to the applicant; and

   ·A copy of the passport of Ms [E].

5. The applicant appeared before the Tribunal on 18 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] and Ms [E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the Tribunal hearing.

6. At the commencement of the hearing the Tribunal explained to the applicant that the first issue before it is to consider whether the ground for the bridging visa E (BVE) was made out. If the Tribunal is satisfied that the applicant meets one of the alternative grounds set out in cl.050.212, it will then consider what conditions should be imposed if the bridging visa is to be granted and whether the applicant will abide by the conditions.

7. The Tribunal informed the applicant that it will consider the following conditions to be imposed in the circumstances of this case if the bridging visa is to be granted and whether the applicant will abide by those conditions:

   ·8101 – The holder must not engage in work in Australia.

   ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose.

   ·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address.

8. The Tribunal explained those conditions to the applicant. The applicant stated that he intends to comply with all of the above stated conditions if granted a BVE. The Tribunal indicated that in making its decision, it will consider the applicant’s immigration history, his evidence, evidence of his witnesses and other material held on the Tribunal and Departmental files.

9. The applicant’s representative submitted a copy of the DFAT country information report for India dated 17 October 2018.

10. The applicant is [age] years of age and a citizen of India. His siblings live in India and his parents have passed away. In India, the applicant completed high school and worked as a farmer on his parents’ land. He does not own property in India under his name. He gave evidence that, after his father passed away, he has had no contact with his siblings as they blame him for his father’s illness and death.

11. He first came to Australia [in] April 2009 as a holder of a student visa, being a dependant family member of his ex-wife, Ms [F], who was the primary visa holder. After approximately six months, the applicant relocated from Brisbane to Melbourne in order to find employment. His then wife remained in Brisbane. The applicant gave evidence he worked at a [workplace] in Melbourne from November 2011 until July 2012.

12. [In] September 2010, his student visa was cancelled under s.116 of the Act as his former wife informed the Department that the relationship between her and the applicant had ended. In his evidence, the applicant claims that he only became aware that his student visa was cancelled in January 2012, when he attempted to renew his Indian passport. He gave evidence that ‘someone from the shop outside the Indian Embassy’ told him that he no longer holds an Australian visa.

13. The Tribunal enquired as to whether the applicant contacted the Department when he found out that he no longer holds a valid visa and attempted to legalise his status in Australia. The applicant stated that he did not. He stated that he contacted his former wife and was told that it is only a ‘technical problem’ with his visa. He gave evidence that he went to Brisbane in July or August 2012 only to find out that his ex-wife was living with another partner.

14. In August 2012, the applicant returned to Melbourne. He did not contact the Department or attempt to legalise his visa status in Australia because he was depressed. He did not inform the Department of his address. He claims that he did not work in Australia from August 2012 until the present time.

15. The Tribunal observed that, according to the primary decision record submitted to the Tribunal by the applicant, during the interview he stated that he sometimes gets work from friends ([doing a job task]) and gets paid in cash, that he needed to work because he had expenses including supporting his partner and young [child] and that he couldn’t ask his friends to pay these expenses because it is humiliating. The applicant denied that he made such a statement during the interview held on 6 February 2020.

16. The applicant confirmed in his evidence that he was stopped by the police [in] January 2020 while he was driving a car belonging to his current partner but denied that he told the police that he is self-employed as a [job task 2] and working for cash.

17. The Tribunal indicated that it is difficult to accept that he did not work in Australia from August 2012 until he was detained by the police in January 2020. The Tribunal pointed out the inconsistency in his statements given during the interview with the delegate and at the hearing and explained the possible consequences of the Tribunal’s finding that he may not be a credible witness.

18. In January 2017, the applicant commenced a relationship with Ms [A], his current partner and mother of his child born on [Date 2]. For the past 18 months, they have been living in a three-bedroom house at a [Suburb 1] address, sharing the accommodation with other people. They pay a monthly rent of $800.00.

19. Ms [A] is a holder of a bridging visa ‘A’ granted on the basis of her judicial review application lodged at the Federal Circuit Court in December 2018. She was previously married to an Indian national who initiated divorce proceedings in India in 2017. She has been living in Australia since May 2009 and has completed various courses in Australia as a holder of several student visas. She and her former husband separated in 2016.

20. The applicant’s [child] does not hold an Australian visa permitting her to stay in Australia. According to the applicant’s evidence, approximately one week before the hearing, Ms [A] applied at the Indian Embassy to have a passport issued for their [child]. Neither his partner nor his [child] is included in his protection visa application lodged with the Department on 4 February 2020.

21. The Tribunal enquired if the applicant applied for a new passport at the Indian Embassy. The applicant’s representative explained that the applicant was not able to apply for an Indian passport because he does not have a valid visa to stay in Australia and because he lodged a protection visa application.

22. The Tribunal asked the applicant what he will do if his protection visa application is not successful. The applicant stated that it is not an option to go back to India and that he will appeal the Department’s decision if it refuses to grant him a protection visa.

23. In her evidence, Ms [A] confirmed that she signed the statutory declaration of [date] February 2020 and that everything stated in the declaration is true and correct. She reiterated her willingness to support the applicant financially if he is to be released from immigration detention. Ms [A] gave evidence that she and the applicant commenced a relationship in January 2017 and soon after moved together to a rented property at [Suburb 2], Victoria.

24. The witness claims that she knew nothing about the applicant’s visa status until February or March 2018 when she made enquiries as to how to apply for her [child]’s Indian passport. It was only at this time that she learned that the applicant does not have a visa permitting him to stay in Australia. She stated in her evidence that the applicant has not worked in Australia since they started their relationship in January 2017. She gave evidence that the applicant looks after their [child] while she is at work.

25. Ms [E] stated in her evidence that the applicant is her husband’s friend. They knew each other from India. She confirmed that she signed the statutory declaration dated [February] 2020 and that everything stated in the declaration is true and correct.

26. Ms [E] stated that the applicant came to Melbourne in 2011 looking for a job. Her husband tried to help the applicant find employment but was not successful. She stated that she is not aware that the applicant worked at a [workplace] until July or August 2012.

27. She gave evidence that the applicant was living with her family at a rented [Suburb 3] property from 2011 until 2017. The applicant did not pay rent. Nor did he financially contribute for food or any other household expenses. To the best of her knowledge, the applicant was not working during the period he lived with her family.

28. The applicant’s representative submitted that Mr [D] provided a written statement indicating his willingness to support the applicant financially if he is to be released from detention together with documentary evidence related to his income. The Tribunal acknowledged the receipt of this evidence and indicated that it is willing to accept that Mr [D], Ms [E] and Ms [A]’s father (Mr [B]) are willing to provide financial support for the applicant if he is to be released from immigration detention.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The grounds for seeking the visa – cl.050.212

30. 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.

31. In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

32. Based on the evidence before it, including the Department’s records and applicant’s oral evidence the Tribunal is satisfied that the applicant has an ongoing protection visa application.

    Whether the applicant will abide by conditions – cl.050.223

33. 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.

34. 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].

35. 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.

36. In this case, cl.050.613A applies as the applicant has applied for a protection visa on or after 1 July 1997. This clause prescribes that, in addition to mandatory condition 8101, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 – The holder must not engage in work in Australia.

    ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose.

    ·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address

37. The Tribunal considered that the applicant’s immigration history speaks against his current claims that he will comply with conditions placed on his visa. The applicant has been in Australia since April 2009. His student visa was cancelled by the Department [in] September 2010 as he was no longer in a relationship with his former spouse, Ms [F]. For nine and a half years, the applicant remained unlawfully in Australia.

    Condition 8101

38. The applicant gave evidence that he worked at a [workplace] located in Melbourne from 2011 to July or August 2012. He claims that he did not work at all from August 2012 till January 2020 when he was detained. The Tribunal does not accept this claim and finds it to be inconsistent with the applicant’s statements given during the detention interview held on 6 February 2020, as recorded in the primary decision record submitted to the Tribunal by the applicant.

39. According to the primary decision record, during the interview the applicant stated that he sometimes gets work from friends ([doing a job task]) and gets paid in cash, that he needed to work because he had expenses including supporting his partner and young [child] and that he couldn’t ask his friends to pay these expenses because it is humiliating. He further stated that he will request some work rights as he needed to earn money to support his [child] who resides with his partner in the community.

40. The applicant confirmed in his evidence that he was stopped by the police [in] January 2020 while he was driving a car belonging to his current partner but denied that he told the police that he is self-employed as [an Occupation] and working for cash as recorded in the police record of immigration detention.

41. The Tribunal observes that the applicant submitted a copy of his [child]’s birth certificate dated [Date 1] where it was stated that the applicant’s occupation is ‘[Job task]’.

42. The Tribunal finds the applicant not to be a credible witness. The Tribunal finds that the applicant attempted to give misleading evidence about his work history in Australia in an effort to bolster his case. The Tribunal does not accept the applicant’s claim that he did not work in Australia from August 2012 until he was detained by the police in January 2020.

43. The applicant stated that he has no savings and is currently financially supported by his partner and friends. The Tribunal accepts that the applicant’s partner, Mr [D], Ms [E] and Ms [A]’s father Mr [B] are willing and capable of providing financial support to the applicant if he was to be released from immigration detention. However, given the applicant’s immigration history, previous breaches of immigration laws, the significance of the migration laws that were breached and the wilfulness with which those laws had been breached, the Tribunal has formed the view that the applicant will not abide by condition 8101.

    Conditions 8401 and 8506

44. According to the primary decision record, when the applicant’s student visa was cancelled [in] September 2010, he remained unlawfully in the community until [January] 2020.

45. Even if the Tribunal accepts that the applicant only became aware that his visa was cancelled in January 2012 when he approached the Indian Embassy in order to apply for a new passport, the Tribunal finds that the applicant made no attempts to engage with the Department to resolve his immigration status for more than eight years. If it was not for a random vehicle intercept by Victoria Police [in] January 2020, the applicant would most likely continue to be residing in Australia illegally.

46. Based on the evidence before it, the Tribunal finds that the applicant has failed to present himself to the Department from September 2010. He made no efforts to rectify his unlawful status. Given the applicant’s immigration history and his previous actions, the Tribunal has formed the view that he will not abide by condition 8401.

47. The applicant did not approach the Department to apply for another visa or make arrangements to depart Australia. He did not inform the Department of changes of his residential address. Given the applicant’s history of evading engagement with the Department, the Tribunal finds that the applicant will not comply with condition 8506.

1. 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.

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

3. 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

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

   Antonio Dronjic
   Member