2006435 (Migration)

[2020] AATA 1974

2006435 (Migration) [2020] AATA 1974 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006435

MEMBER:Nathan Goetz

DATE:6 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 April 2020 at 12:13pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applied for judicial review – abide by conditions imposed – reporting and notification requirements – failure to disclose previous judicial review proceedings – deliberate disregard for obligations – migration history – unlawful non-citizen – no work requirement – employment history – decision under review affirmed

LEGISLATION
Federal Circuit Court Rules 2001 (Cth), r 44.05
Migration Act 1958 (Cth), ss 48A, 73, 486D
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A, 050.618; Schedule 8, Conditions 8101, 8207, 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. On 30 March 2020 the applicant applied for the bridging visa. 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).

3. On 31 March 2020 the delegate refused to grant the visa on the basis that the applicant did not meet cl.050.233. The same day, the applicant applied to the Tribunal for a review of the refusal decision. He included a copy of the delegate decision.

4. The applicant consented in writing to holding the hearing at 2pm on 3 April 2020. The applicant appeared at the Sydney registry of the Tribunal that day by telephone link from immigration detention. His migration agent [Mr A] appeared by telephone link as well. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is a citizen of China and first arrived in Australia [in] July 2008 as the holder of a temporary work visa.

6. On 14 July 2008 the applicant lodged a protection visa application. He was granted a bridging visa to regularise his migration status in Australia while his protection visa was being considered. On 11 October 2008 the Department refused to grant the applicant the protection visa.

7. On 5 November 2008 the applicant applied to the Refugee Review Tribunal for a review of the refusal decision. On 24 February 2009 the Tribunal affirmed the decision to refuse the protection visa.

8. On 25 March 2009 the applicant lodged judicial review proceedings in the Federal Magistrates’ Court against the decision of the Tribunal. [In] June 2009 that Court dismissed the application for [review].

9. On 25 June 2009 the applicant lodged proceedings in the Federal Court against the decision of the Federal Magistrates’ Court. [In] August 2009 that Court dismissed the application for [review].

10. On 9 September 2009 the applicant lodged a special leave application in the High Court. On 7 October 2009 the applicant withdrew this application. On 4 November 2019 the bridging visa that he had been granted in connection with his protection visa application and reviews ceased. The applicant became an unlawful non-citizen.

11. On 19 May 2010 the applicant initiated a request for the Minister to lift the s.48A bar that prohibited him from applying for another visa while he was in Australia’s migration zone.

12. On 24 May 2010 the applicant was granted a bridging visa because he advised the department that he was seeking Ministerial Intervention. This regularised the applicant’s migration status. This bridging visa lasted until 7 June 2010.

13. On 7 June 2010 the applicant was granted a bridging visa connected with his request for the Minister to lift the s.48A bar. This bridging visa was valid until 24 June 2010 and was conditional upon the applicant attending an interview with the Department. The applicant failed to attend this interview and as a result the bridging visa ceased. He became an unlawful-non citizen the following day.

14. On 23 February 2011 the Minister refused to lift the s.48A bar.

15. On 29 January 2020 the applicant lodged another application for judicial review with the Federal Circuit Court against the decision of the Tribunal to affirm the decision to refuse the protection visa. That matter is [case number] and is listed at [a] registry of the Federal Circuit Court with a directions hearing date [in] June 2021.

16. When he lodged his judicial review application, the applicant also applied for a bridging visa. This was refused by the Department on 18 February 2020. The applicant lodged an application for review of the refusal decision with the Tribunal on the same day. On 27 February 2020 the Tribunal affirmed the decision not to grant the applicant a bridging visa.

17. On 30 March 2020 the applicant applied for a new Bridging E visa that was refused by the Department the same day. That is the decision that is the subject of this decision of the Tribunal.

    Whether the applicant will abide by conditions - cl.050.223

18. 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.

19. 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].

20. 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.

21. In this case, cl.050.613A applies because the applicant has applied for judicial review of a decision to refuse to grant the protection visa and the judicial proceedings (including any proceedings on appeal) have not been completed: cl.050.212(3A)(b)(i). Clause 050.618 may also be applied. This clause allows for the imposition of condition 8564 in addition to any other conditions imposed by any other division.

22. Clause 050.613A provides that if condition 8101 or 8116 applied to the last visa held by the applicant, that condition must be imposed on any bridging visa granted to the applicant. The same clause also provides that 1 or more of conditions 8104, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548 may be imposed on the bridging visa.

23. In the circumstances of this case, the Tribunal considers that it must impose the following conditions:

    ·     8101: The holder must not engage in work in Australia. This is a mandatory condition because the last visa held by the applicant had this condition.

    ·     8207: The holder must not engage in any studies or training in Australia. This is a discretionary condition and should be imposed because the applicant has lodged a protection visa, not a student visa. If the applicant wished to study, he should have applied for a student visa. A protection visa should not be used as a back door to allow an applicant to engage in study or training in Australia.

    ·     8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. This condition is discretionary and should be imposed because the applicant has been an unlawful non-citizen in Australia and it is reasonable to expect the Department to know his whereabouts at all times.

    ·     8401: The holder must report: (a) at a time or times; and (b) at a place; specified by the Minister for the purpose. This condition is discretionary and should be imposed because the applicant has been an unlawful non-citizen in Australia and it is reasonable to expect the Department to know his whereabouts at all times.

    ·     8564: The holder must not engage in criminal conduct. This condition is discretionary and should be imposed because it is reasonable to expect that any non-citizen in Australia not commit criminal offending.

24. These were the same conditions considered appropriate by the delegate. At the Tribunal hearing, the applicant indicated that he understood the conditions that the Tribunal was considering, and told the Tribunal he would comply with those conditions.

25. There is no evidence before the Tribunal that the applicant has committed any criminal offending while during his time in Australia. There is no evidence before the Tribunal that the applicant has engaged in any study or training during his time in Australia. The Tribunal is satisfied that the applicant would comply with conditions 8207 and 8564 if he was granted the bridging visa.

26. However, the Tribunal has serious concerns that the applicant would not abide by conditions 8101, 8506 and 8401 if he was granted the bridging visa for the following reasons.

27. The Tribunal considered the circumstances of the applicant lodging his recent judicial review proceedings. The applicant and his migration agent confirmed to the Tribunal that the applicant had used the migration agent to draft the application to the Federal Circuit Court. The application did not disclose that the form was prepared by the migration agent. The migration agent told the Tribunal that this was not disclosed because he did not have ongoing carriage of the matter. What concerned the Tribunal most about the application was that it did not disclose the previous application that had been made to the Federal Circuit Court in 2009 concerning the Tribunal’s decision to affirm the refusal decision. On Page 4 of the Federal Circuit Court form, there is a section that required the applicant to do so: s.486D of the Act requires that information to be provided and the rule 44.05 of the Federal Circuit Court Rules requires that an application must be in the completed in accordance with the approved form. The migration agent told the Tribunal that he was unaware of the applicant’s previous court proceedings concerning the Tribunal decision of 2009. The migration agent had only commenced acting for the applicant two months ago when he was retained by the applicant to lodge the judicial review application and subsequent bridging visa applications. The Tribunal asked the applicant to explain why the information about his previous court proceedings had been left out of the application to the Federal Circuit Court. The applicant told the Tribunal that he did not know why this was the case. His agent had done the form for him. The Tribunal noted to the applicant that he was the one who knew his migration history. The applicant responded that he was told by a friend that he could apply for this visa.

28. The applicant was unable to provide any persuasive argument to explain why Federal Circuit Court application omitted the previous court history of the same protection visa refusal decision. The Tribunal accepts that the migration agent, who is also a solicitor, would not mislead the Tribunal and accepts that the migration agent was unaware of the long history concerning the protection visa refusal decision. The Tribunal therefore concludes that the applicant withheld any information about the previous court proceedings from his migration agent and from the Federal Circuit Court as a means of ensuring that the applicant’s case, which had already been the subject of proceedings in the Federal Circuit Court, Federal Court and High Court, would not be identified as a case that had already been litigated and listed swiftly to be disposed of by the Court. This demonstrates to the Tribunal that the applicant is quite calculated and willing to hide relevant information to achieve a favourable migration outcome, namely delaying his proceedings in the Federal Circuit Court until [at least] June 2021. In the Tribunal’s view, if the applicant was willing to not comply with the requirement in s.486D, he demonstrates a deliberate disregard for his obligations and will adopt the same disregard for any conditions imposed on his bridging visa that he feels are not in his interest.

29. The Tribunal has also considered the applicant’s migration history in Australia. He was an unlawful non-citizen from June 2010. This followed unsuccessful proceedings in the High Court. He remained unlawful following a refusal by the Minister to refuse to allow the applicant to apply for a further protection visa. He had not departed Australia once he became an unlawful non-citizen, nor once the Minister had decided not to lift the s.48A bar.  While the Tribunal accepts the submission from the migration agent that the applicant had attended on the Department in 2020 to regularise his migration status and was not located through an attendance by Border Force or an arrest by police in connection with criminal offending, the answers about the applicant’s future intentions troubled the Tribunal. The applicant told the Tribunal initially that he did not want to return to China and wished to remain in Australia. He told the Tribunal that if his matters were unsuccessful in the courts, he would continue to appeal. He told the Tribunal that he would not voluntarily return back to China. However, later in his evidence, the applicant clearly became attuned to the Tribunal’s thinking that if he was claiming that he would not return to China, the Tribunal may form a view that if he was unsuccessful in his appeals, he would again become unlawful because he had demonstrated no desire to return to China. The applicant then told the Tribunal that he would ‘probably go back’ if he was unsuccessful in his appeal. The Tribunal then asked if he was now willing to return to China, why he had no done so when his matters were finalised in 2010. The applicant then told the Tribunal that if he was not allowed to remain in Australia, why was he still here? The Tribunal found the applicant to be a very difficult witness in this regard. Later, the applicant told the Tribunal that the reason he stay in Australia was for casual work.

30. In the event that the applicant is unsuccessful in his judicial review application to the Federal Circuit Court, or any subsequent application to another court concerning those proceedings, the Tribunal is satisfied that the applicant will not depart Australia and will not comply with any directions to attend on the Department or advise the Department where he lives. The Tribunal is satisfied that the applicant will hide himself in the community and would only present himself again to the Department if he believes that doing so will secure him a positive migration outcome, such as allowing him to remain in Australia. Any compliance by the applicant with his visa conditions would be conditional on the applicant remaining in Australia subject to a visa. In the event that he is not allowed to do so, the Tribunal is satisfied that the applicant will not report as directed, and will not tell the Department where he is living, because the applicant has no intention of ever departing Australia.

31. For the above reasons, the Tribunal is not satisfied that the applicant will comply with conditions 8506 or 8401.

32. The Tribunal also has concerns about the applicant’s claimed intention not to work if he was granted the bridging visa. Given he told the Tribunal that he did not return to China previously because he stayed in Australia for casual work, the Tribunal’s view was that the applicant would work again if he was released on the bridging visa. The applicant told the Tribunal that his last job was in November 2019 as a [Occupation 1]. He stopped working because he was only working as a casual. He could not get more work because he was unlawful. He worked the whole time that he was unlawful in Australia.

33. The applicant told the Tribunal that he would support himself with his savings and he would ask for support from his friends. His friend’s mother, who he referred to as [Ms A], would support him. The Tribunal notes that the applicant provided a copy of her passport, [phone bills], and most recent tax returns as evidence that she could support him. The applicant’s evidence about the support offered by [Ms A] was vague and not persuasive. He was unable to adequately explain to the Tribunal why [Ms A] would financially support him now when he had not been working since November 2019 and there was no evidence of her past financial support. It would be reasonable to expect that [Ms A] would have previously supported him if she was willing to support him now. This was curious when the applicant told the Tribunal that he had known [Ms A] for two years through her daughter. His only knowledge about [Ms A]’s work is that she was a business person. There was no written statement provided by [Ms A] to confirm that she would financially support the applicant if he was released on a bridging visa. Nor did the applicant provide any documentation, such as bank statements, to confirm his savings as evidence that he could support himself without working.

34. The Tribunal is not satisfied that if the applicant was granted the bridging visa he would be able to support himself without working. Given his evidence that he could no longer work because he was unlawful, the Tribunal’s view is that the applicant applied for a bridging visa to regularise his migration status in order to convince potential employers that he was able to work while in Australia. The applicant demonstrated a long standing work history. The Tribunal is satisfied that he will continue to work if he is granted the bridging visa. For this reason, the Tribunal is not satisfied that the applicant would comply with condition 8101.

    CONCLUSION

35. The Tribunal is not satisfied that the applicant would comply with all conditions that would be applied to his bridging visa. Although the migration agent submitted that the applicant would be able to arrange a security bond between $20,000 and $30,000 to ensure compliance with conditions, the Tribunal is not satisfied that any security amount would act as an incentive for the applicant to comply with his visa conditions, even if such sums were available. There was no evidence by way of documentation that this money was available to the applicant but even if there was, the Tribunal’s view is that the applicant’s immigration history, past employment, and willingness to be less than truthful regarding his past court cases, demonstrate that the applicant has little regard for his obligations under the Act.

36. The migration agent also asked the Tribunal to consider the fact that there is a COVID-19 pandemic at the present time, and that this should be a reason to release the applicant from immigration detention. The Tribunal asked the migration agent to explain how the COVID-19 pandemic would act as an incentive for the applicant to comply with bridging visa conditions, but was unable to provide any argument to support such a finding. Instead, the Tribunal understands that the migration agent was asking the Tribunal to take into account the pandemic as a reason to release the applicant from immigration detention. However, the Tribunal is not considering a question such as ‘should the applicant be detained or not?’ The Tribunal’s task is to consider whether the applicant would abide by conditions if granted a bridging visa. As is clear from the Tribunal’s concerns noted in this decision, the Tribunal is not satisfied that he would.

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.

   Nathan Goetz
   Member