2004797 (Migration)

[2020] AATA 2431

2004797 (Migration) [2020] AATA 2431 (18 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004797

MEMBER:Peter Vlahos

DATE:18 March 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 18 March 2020 at 12:15pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – breach of condition 8101 – applicant failed to uphold visa conditions – work unlawfully – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to her – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.221, 050.223

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 4 March 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 10 March 2020 on the basis that that the applicant did not meet the requirements of cl.50.223 and 51.211.The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments

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

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 is granted a Bridging E (Class WE) visa.

   Visa History and the background of the applicant.

7. The applicant is a citizen of Malaysia and originates from Penang. She is [age] years of age and is not married. She has family living in Malaysia which consists of her older sister and brother and maternal grandmother. Her parents are both deceased. While in Malaysia, the applicant told the Tribunal that she worked as a ‘[specified occupation].’

8. The applicant arrived in Australia [in] January 2015 on a Tourist visa [and] on 21 April 2015 she applied for a Student visa [and] was granted a BVA (Bridging visa) on 21 April 2015. On 30 July 2015 the applicant was granted her [Student visa]. On 3 August 2016 the applicant’s Student visa [ceased]. The applicant remained an unlawful non-citizen until she lodged her Protection visa on 26 August 2019. The applicant was also granted the accompanying BVC (Bridging visa C) which allowed the applicant to remain in Australia on the condition she did not work. On 4 March 2020 following an Australian Border Force (ABF) operation, the applicant was found and charged with a breach of condition 8101 and was subsequently detained pursuant to s.189 of the Act and held in detention.

   Whether the applicant will abide by conditions - cl.050.223

9. 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.

10. 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].

11. 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].

12. 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].

13. At the hearing, the Tribunal did not have to determine any amounts for a security bond because the Department’s delegate did not determine that the applicant had the means or resources to provide such a monetary guarantee.

14. Therefore, the Tribunal in its turn dealt with the applicant’s oral evidence and submissions on the basis that it was to consider a grant of BVE (Bridging visa E) with conditions attached namely, the mandatory condition 8101 the holder not engage in work in Australia and the discretionary conditions 8207 the holder must not engage in any studies or training in Australia, 8401 the holder must report to a place or places at a time or times specified by the Minister and 8506 the holder must notify the Department two working days in advance of any change in the holder’s address.

15. The Department’s delegate concluded that based on the applicant’s recent visa history, she was not consider as displaying the ability of adhering to any mandatory or discretionary visa condition.

16. The Tribunal noted that the applicant had not complied with the conditions of her Student visa when it was granted to her and claimed she did not because her parents could not assist her with money. She also claimed that she wanted to return to Malaysia but could not do so because of two issues (i) the political situation in Malaysia was unstable especially for ethic Chinese (like the applicant) and (ii) her brother had issues with illegal moneylenders who had threatened him and family members if the loan procured by her brother was not immediately paid. These matters are pending in the applicant’s Protection visa application which awaiting final determination by the Tribunal.

17. The Tribunal asked the applicant why she was apprehended in a place of work when her BVC specifically advised against work. Her response was that she was working but not for monetary remuneration but instead was provided with three meals a day and ‘filling in’ for ‘a friend’ who had to go to [another country] to help her husband who was in detention there. The applicant was adamant that she was not paid money and was not working.

18. The applicant told the Tribunal that she would not work if she was granted her BVE and that she had sufficient funds (AUD$[amount]) to sustain her until her Protection visa was determined by the Tribunal.

19. The Tribunal noted indeed, the length of time the applicant was a unlawful non-citizen. It was noted that the applicant was without a proper immigration status for approximately three years until she applied for her Protection visa and associated BVC. It is further noted by the Tribunal that her BVC was granted with conditions – no work – which the applicant did not adhere to.

20. In all, the Tribunal is not satisfied that the applicant would comply with the mandatory condition 8101 or any other discretionary conditions which might attach to the issue of another bridging visa. Therefore, the Tribunal does not find that the applicant should be provided with a BVE with conditions, she would (based on her period within the community as an unlawful non-citizen) refuse to comply.

21. 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 meetcl.050.223.

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

23. 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

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

    Peter Vlahos
    Member