2006894 (Migration)

2006894 (Migration) [2020] AATA 2459 (21 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2006894
MEMBER:Michael Ison
DATE:21 April 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 21 April 2020 at 12:26pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no study requirement – no work requirement – engaged in cash-in-hand work – lack of candour – reporting and notification requirements – history of non-engagement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 195A, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A; Schedule 8, Conditions 8101, 8207, 8401, 8506
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

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).
Background
The [applicant is] a [age] year old Indian national. The applicant arrived in Australia [in] April 2009 as the holder of a dependent [Student] visa. The primary visa hold was the applicant’s then wife, now ex-wife.
The applicant’s dependent Student visa was cancelled on 6 September 2010 after the applicant’s ex-wife informed the Department they were no longer in a dependent relationship.
On 4 February 2020 the applicant applied for a Protection (Class XA) (Subclass 866) visa which was refused by a delegate of the Minister on 19 March 2020. The applicant has applied for a review of the delegate’s decision, which will be heard by the Tribunal, differently constituted.
The applicant first applied for a Bridging E (Subclass 050) visa on 4 February 2020. That application was refused by a delegate of the Minister on 10 February 2020 and was affirmed on review by this Tribunal, differently constituted, on 20 February 2020.
The applicant submitted this, his second, Bridging E visa application on 1 April 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 which requires the Minister to be satisfied that if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
The applicant provided the Tribunal with a copy of the primary decision. The decision to refuse to grant the visa was made on 6 April 2020 on the basis that the delegate was not satisfied the applicant would comply with conditions 8101 not work in Australia, 8401 report as directed and 8506 notify the Department two days in advance of any change in address.
On the morning of the hearing the applicant’s representative sent a submission to the Tribunal that included an 11 page written submission, extracts from the applicant’s passport and 27 pages of supporting documents. These documents included statutory declarations sworn by the applicant’s de facto partner [Ms A] and [Ms B], both declared on 17 February 2020 and letters of financial and other support from [Mr C] and [Mr D], both dated 8 February 2020. The submission also enclosed extracts of passports for [Ms A], her father [Mr E], [Ms B], [Mr C] and [Mr D]. Financial information including bank account statements and pay advices and other financial information and supporting documents were provided for [Ms A], [Mr C] and [Mr D]. [Ms A] provided pay advices and a letter of reference from her full time job as a [Occupation 1] and pay advices from her part time job as an [Occupation 2]. [Mr C] provided pay advices from his employment as a [Occupation 3]. [Mr D] provided personal and business bank accounts from his [business].
The Tribunal also received a copy of at least part[1] of the Department’s file for the applicant’s application. That file included a copy of the primary decision, updated letters of support for the applicant from [Mr C] dated 2 April 2020 and [Mr D] dated 3 April 2020, updated pay advice and bank account statements from [Ms A] and a delegate’s decision dated 10 February 2020 to refuse to grant the applicant a Bridging E visa in response to his application dated 4 February 2020.
[1] It is up to the Department officer scanning or copying the Department file as to how much of that file is provided to the Tribunal. The Tribunal does not assume it has been provided with the complete Department file.
The submission from the applicant’s representative dated 17 April 2020 also referred to a statutory declaration from [Mr E] and bank account statements he provided, but only the latter were included in the submission provided to the Tribunal. From the submission and the copy of the decision of a delegate on the applicant’s 4 February 2020 application for a Bridging E visa, the Tribunal was able to establish the statutory declaration of [Mr C] as confirming [Mr C] had supported the applicant financially in the past and was able to continue doing so in the future.
During the Tribunal hearing the applicant’s representative confirmed this submission was prepared and submitted to the Tribunal, differently constituted, when it heard the applicant’s application for review of the decision to refuse his 4 February 2020 application for a Bridging E visa and that the submission had been amended for this application but still contained dates and references referring to the applicant’s February application for a Bridging E visa.
Tribunal hearing
The applicant appeared before the Tribunal on 17 April 2020 to give evidence and present arguments.
The Tribunal had arranged with the Melbourne Immigration Transit Accommodation centre (MITA) for the applicant to appear by video. On the day of the hearing MITA could not establish a video link. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal asked the applicant whether he had any concerns about conducting the hearing by telephone. The applicant told the Tribunal he had no problem in proceeding in such a manner.
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 participated in the hearing by telephone.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s decision and the roles of both the interpreter as an aid to communication and the applicant’s representative during the hearing. The Tribunal informed the applicant that it would allow the applicant and his representative an opportunity to each address the Tribunal toward the end of the hearing on any matter they felt was relevant to the applicant’s review.
Toward the end of the hearing the applicant’s representative raised concerns with the Tribunal about the quality of some of the interpretation during the hearing. The Tribunal sought clarification from the representative about her concerns. The representative told the Tribunal “not much” but there were a “few answers” that were not interpreted exactly, she had made notes of those answers and she experienced both the applicant’s and the interpreters voices “dropping out” during the hearing.
The Tribunal considered the representative’s submission and asked the representative whether she thought her concerns were of such significance that a fresh hearing was required or whether she could address her concerns by written submissions. The representative told the Tribunal she did not think a fresh hearing was required and as she had taken notes each time she had concerns about the quality of the interpretation of the applicant’s answers she could address those concerns in written submissions. The representative offered to provide these written submissions by midday on 20 April 2019. The Tribunal agreed to this. The Tribunal asked the applicant’s representative whether she believed the applicant had a fair hearing to which the representative replied yes.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On the same day after the hearing the applicant’s representative provided a copy of the birth certificate for the applicant’s daughter that stated [Ms A] is her mother and the applicant her father.
On 20 April 2020, the applicant’s representative requested and was granted additional time by the Tribunal to provide the further written submission referred to in paragraph 18 of these reasons.
In the evening of 20 April 2020, the applicant’s representative provided a further two page written submission that stated in part:
Upon discussion with the applicant he is satisfied with the interpretation and don’t want to comment further on it. (sic)
In that submission the applicant’s representative provided another copy of the birth certificate for the applicant’s daughter and four updated pay advices for [Ms A] for the period from 17 February 2020 to 12 April 2020. These pay advices confirm that [Ms A] has been working full time in [Occupation 2] for the period covered by the pay advices.
The Tribunal has considered all of the information before it, including the evidence of the applicant at hearing, the written submissions from the applicant and the information on the Tribunal file and the Tribunal’s copy of the Department’s file.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the applicant eligible for a Bridging E visa?
In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 Bridging visa, which are set out in cl.050.2 of Schedule 2 to the Regulations.
An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212.
Immigration status of the applicant - cl.050.211
Clause 050.211 provides:
(1)The applicant is:
(a)  an unlawful non-citizen; or
(b)  the holder of a Bridging E (Class WE) visa; or
(c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2)The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
The applicant must continue to satisfy this criterion at the time of decision: cl.050.221
The Tribunal is satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
The grounds for seeking the visa - cl.050.212
At the time of the Bridging E visa application, the applicant must meet one of the alternative criteria set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations.
The applicant must continue to satisfy this criterion at the time of this decision: cl.050.221.
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.
Subclause 050.212(3) provides:
(3)     An applicant meets the requirements of this subclause if:
(a)  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
(b)  the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
In relation to this requirement the delegate of the Minister found:
I am satisfied that you meet the requirements in subclause 050.212(3) because at the time of application you had made a Protection (class XA) (subclass 866) visa application that had not been finally determined.
The applicant’s evidence to the Tribunal is that he applied for a Protection visa on 4 February 2020, which was refused by a delegate of the Minister on 19 March 2020 and the applicant has appealed that decision to the Tribunal, which has not yet heard and determined the matter. The Tribunal accepts this evidence.
The Tribunal is satisfied on the evidence before it that the applicant meets cl.050.212(3) because the applicant has applied for a Protection visa which is a substantive visa that can be granted if the applicant is in Australia and that application has not been finally determined.
The requirement to be interviewed by an authorised officer - cl.050.222
Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).
The information before the Tribunal is that the applicant was interviewed by an officer authorised for the purposes of cl.050.222 in relation to this Bridging E visa application on 2 April 2020.
For these reasons, the Tribunal finds that the applicant meets cl.050.222.
Determinative issue – abide by any conditions attached to the Bridging E visa
Clause 050.223 of Schedule 2 to the Regulations states:
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
The issue in this case therefore is will the applicant abide by any conditions that would be imposed on any Bridging E visa that may be granted to him.
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 the unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]. The Tribunal explained this to the applicant during the hearing.
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 the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
The conditions that must or may, depending on the applicant’s circumstances, be imposed on a Bridging E visa are set out in cl.050.6 of Schedule 2 to the Regulations, which contains clauses 050.611 to 050.620.
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 this paragraph. For the purposes of cl.050.613A(1)(b) the Minister in an instrument known as IMMI 15/026 specified any person granted a Bridging E visa under s.195A of the Act as the relevant class of persons. There is no information before the Tribunal to indicate that the applicant has been granted a Bridging E visa under s.195A of the Act.
Clause 050.613A provides that condition 8101 must not engage in work in Australia must be imposed unless condition 8116 is imposed. Condition 8116 was not imposed by the delegate.
Clause 050.613A provides that the decision maker can impose any one or more of the following conditions on a Bridging E visa granted to a non-citizen under clause 050 of the Regulations:
·8116 – must not work other than by engaging in an activity specified in a legislative instrument made by the Minister for this clause;
·8201 – study limitation;
·8207 – no study or training in Australia;
·8401 – report at time and place specified by the Minister;
·8402 – report within 5 working days of grant to Immigration and every week thereafter;
·8505 – live at the address the applicant specified before the grant of the visa;
·8506 – notify Immigration in advance of any change in address;
·8507 – pay the costs of the visa holder’s detention;
·8508 – make a valid application for a visa that can be granted in Australia;
·8510 – show Immigration the visa holder’s passport or obtain a passport;
·8511 – show an officer a ticket for overseas travel;
·8512 – leave Australia by the date specified by the Minister; and
·8548 – not engage in any study or training in Australia for more than 4 months.
Clause 050.618 provides that in addition to any other condition imposed, condition 8564 (not engage in criminal conduct) may also be imposed. Clauses 050.619 and 050.620 provide for the imposing of conditions in particular circumstances that are not relevant in this review.
The Tribunal considered the application of each of these visa conditions in the applicant’s circumstances.
The Tribunal considers that the following conditions should be imposed on any Bridging E visa granted to the applicant:
·8207      The holder must not engage in any studies or training in Australia;
·8401      The holder must report at a time and place specified by the Minister; and
·8506      The holder must notify Immigration at least 2 working days in advance of any change to the holder’s address;
These are the same conditions the delegate considered reasonable to impose in the applicant’s circumstances.
The Tribunal asked the applicant if he had any objection to any of these conditions being imposed if a Bridging E visa was granted to him. The applicant responded that he did not and would comply with any conditions imposed on a Bridging E visa granted to him.
Condition 8207 – not engage in any studies or training in Australia
The Tribunal is satisfied that the applicant will abide by condition 8207 as the evidence before the Tribunal is that the applicant has not engaged in any studies or training in his over 10 years in Australia.
There is no evidence before the Tribunal of the applicant having a present or future intention to engage in any study or training in Australia.

For these reasons, the Tribunal finds the applicant will abide by condition 8207.
Condition 8101 – not work in Australia
The applicant explained his background circumstances. His evidence is that he comes from a rural background in India with his mother passing away when he was 4 years old and his father passing away in 2013. He is the youngest child of his parents and has siblings in India but they do not talk to him because they blame him in part for their father’s death on the basis his father became stressed and depressed when the applicant became separated from his wife and then their father subsequently died, his siblings took all the property in India that should belong to the applicant, they do not accept his current relationship with [Ms A] and he says he fears he will be killed if he returns to India.
The applicant told the Tribunal that after arriving in Australia in April 2009 he worked in a [business] in [Suburb 1] from approximately November 2011 to June 2012 before attending the Indian embassy in Melbourne to renew his Indian passport early in 2012, whereupon he was told his dependent Student visa had been cancelled. The applicant says he knew nothing of this and contacted his wife who was studying and living in Brisbane at the time and she told him it must be a technical issue that she would have addressed.
The applicant told the Tribunal his wife then stopped returning his calls so he travelled to Brisbane to see her and found she was living in a relationship with someone else and did not want to live with the applicant. They subsequently divorced.
The applicant told the Tribunal he stopped working at this time and has not worked since. The applicant returned to Melbourne in what he says was a “very depressed” condition and contacted his family, but only months later his father died and communication from his family, being his siblings, ceased.
The applicant says during this time, being 2012 to late 2016, he was living with [Ms B] and her family. In her statutory declaration declared on 17 February 2020, [Ms B] declares:
·That I know [the applicant] since Year 2011.
·That he is my God Brother
·That I supported him financially from year 2013 – 2017.
·That he used to stay with me and my family during above mentioned years.
·That I am ready to provide him financial support for as long as is required.
·That I know him and his very well.
·That he is very loving and caring father. (sic) [Italics in the original]
The Tribunal accepts this evidence.
The applicant told the Tribunal that even though he knew he did not hold a visa from 2012, he was “very much depressed” at this time, he did not know what to do and did not contact the Department to seek advice or seek advice from other sources to regularise his immigration status in Australia.
The applicant told the Tribunal during this time he also had the financial support of childhood friends from India, including [Mr C] and [Mr D]. As noted in paragraphs 8 and 9 of these reasons, [Mr C] and [Mr D] both provided evidence of their incomes and financial resources and the Tribunal accepts that they have been and are in a position to offer the applicant financial and other support.
The applicant described how during this time he spent time at a local Sikh temple where he met [Ms A] in early 2017 and they quickly commenced a relationship with their daughter being born in [month] [year]. The applicant has lived with [Ms A] since early 2017. In her statutory declaration declared on 17 February 2020, [Ms A] declared:
·That I am in relationship with [the applicant]
·That We first met at [Suburb 2], Sikh temple on 5.01.2017
·That Since 30.01.2017, we both committed to a shared life together to the exclusion of all others.
·That We both have a daughter together, [name and birth date deleted].
·That I have been taking care of all financial obligations since then where as my Partner [the applicant] is stay at home Dad.
·That [the applicant] is very responsible father as well as partner.
·That it is my responsibility to provide adequate means to support for my husband’s
·That I assure that he will abide all the conditions on his visa, if granted.
·That I am responsible for compliance by my husband with all conditions under which he will be allowed to stay in Australia.
·That I would like to sponsor him to release from the MITA Centre. I will provide him the
·accommodation, food, medical expenses and other related costs and to ensure that he will be supported by me and he will comply with the visa condition.
·That I will also be willing to pay the security bond to the Department of Home Affairs as you request (sic) [Italics in the original]
The applicant told the Tribunal that [Ms A] holds a Bridging A (Subclass 010) visa and intends to apply for permanent residency to live and work in Australia, that their daughter is a dependent on [Ms A]’s visa and that both [Ms A] and their daughter are named on his Protection visa application. The applicant’s representative clarified that [Ms A] and the applicant’s daughter are not named on his Protection visa application and the applicant’s daughter does not hold an Australian visa. The applicant told the Tribunal that his representative knows everything in relation to these matters. The Tribunal accepts the representative’s submissions in this regard.
The applicant told the Tribunal that [Ms A] worked full-time as a [Occupation 1] for [Company 1] and on weekend’s worked as a [Occupation 2] in an [workplace] operated by [Company 2]. This is consistent with the supporting evidence provided and referred to in paragraphs 8 and 9 of these reasons and the Tribunal accepts this evidence.
The applicant told the Tribunal that during the COVID-19 pandemic [Ms A] has been stood down as a [Occupation 1] but has continued to work full time as a [Occupation 2], which is considered an ‘essential service’. This evidence is also consistent with the supporting evidence provided and referred to in paragraphs 8 and 9 of these reasons and the Tribunal accepts this evidence.
The applicant told the Tribunal that he has always been the primary carer for their daughter they are very close as he was always with his daughter and since he has been detained in immigration detention it has been very hard for him, for [Ms A] and for their daughter who constantly video calls the applicant and wants to see and speak to the applicant.
The applicant told the Tribunal that while his wife is working full-time during the COVID-19 pandemic and tries to care for their daughter while he is in immigration detention she is under great stress and also suffering depression.
When the Tribunal discussed the current care arrangements for their daughter the applicant told the Tribunal that [Ms A]’s parents are both currently in Australia and have been assisting with the care of their daughter.
The Tribunal accepts that the applicant and [Ms A] are in a committed relationship, the applicant has been the primary carer for their daughter, that [Ms A] has been the primary income earner for their family and the detention of the applicant is causing considerable hardship for [Ms A], for their daughter and for the applicant.
The Tribunal read the following extract from the delegate’s decision to the applicant during the hearing and asked for his response:
Following routine interaction with Victoria Police on 28/01/20 you were detained as you did not hold a visa. During the ‘Located Person Interview’ the detaining officer asked you if you had worked knowing that you did not have a visa. You stated ‘I am not going to lie here. Whenever I get a cash job I do it’. On 06/02/20 during an interview you advised that you would sometimes get work from friends performing cash jobs [in Occupation 4]’. At interview on 02/04/20 you stated that the interpreters had made mistakes interpreting what you said. You reiterated that you had not worked since 2012.
The applicant responded that he told the interpreters during both interviews that he would help his friends who helped support him by [performing specified tasks], but he was not paid for such work and there was no financial arrangement attached to it, it was just friends helping each other. He told the Tribunal he was suffering depression at the time and may not have expressed himself clearly, but the interpreters made it sound like he was working casually.
The Tribunal explained that providing services such as [specified tasks] for friends who are financially and in other ways supporting the applicant is, even if they are not directly paying him at the time he did those things, still considered to be working under the migration law in Australia. The applicant told the Tribunal he had no knowledge of such matters and it was just friends helping each other.
The Tribunal shared information during the hearing with the applicant that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review in accordance with the procedure set out in s.359AA of the Act.
The relevant information was from the decision of a delegate of the Minister dated 10 February 2020 to refuse the applicant’s first application for a Bridging E visa. The Tribunal read to the applicant the following excerpt from the decision:
I then asked about your history of working unlawfully during your time in Australia. You advised that you would sometimes get work from friends performing cash in the hand work [in Occupation 4]. I asked why you chose to work while being fully aware that you didn’t have permission to do so. You advised that you felt you needed to work because had expenses including supporting your girlfriend and young daughter and that you couldn’t ask your friends to pay these expenses because it is humiliating. I asked whether you had any other money in Australia other than the $635 cash you had on you when you were detained. You advised that you did not.
I put it to you that if released from detention, this feeling of humiliation from relying on your friends to support you that previously led you to work unlawfully will return. I put it to you that should this subsequent need to work would also return and would be too compelling to resist. I put it to you that you would very likely return to work to support yourself and your family.
You replied by saying that when you first came to Australia you had no issues but eventually you incurred debts, your marriage broke down, your visa was cancelled, and all these factors forced you into a position that you had no choice but to engage in paid work. I put it to you that all of these factors are still relevant and if released from detention you would still have no choice but to work. You replied by saying it’s a very hard life and that you can’t return to India.
The Tribunal explained both the relevance of the information to the applicant’s review and the consequences for his review if the Tribunal relied upon that information and the applicant acknowledged to the Tribunal following each of those explanations that he understood each.
The Tribunal offered the applicant additional time to consider the information before responding to or commenting upon it. The applicant requested additional time which the Tribunal agreed to, adjourning the hearing for a short period and allowing the applicant to discuss the information disclosed to him with his representative.
Upon the resumption of the hearing the applicant told the Tribunal that he told the previous delegate that his childhood friends were helping him in Australia and he was just helping them in return, including doing things like [specified tasks]. The applicant told the Tribunal he was not working and will comply with any and all conditions imposed upon any Bridging E visa granted to him.
The Tribunal found the applicant’s evidence of not working since mid-2012 to be unconvincing. The independent evidence before the Tribunal is that on two separate occasions the applicant has admitted to working for cash. These occasions, according to the decisions of delegates of the Minister dated 10 February 2020 and 6 April 2020, were during the Located Persons Interview conducted on 28 January 2020 after the applicant was apprehended by Victoria police earlier that day and on 6 February 2020 when the applicant was interviewed by the delegate who refused his first application for a Bridging E visa.
The Tribunal does not accept the applicant’s explanation that the interpreters present at each interview misinterpreted what he said. During both interviews the applicant is said to have stated he worked for cash, not just that he did work for friends. When the Tribunal asked the applicant about the very specific admissions he is noted as having made in the decision of the delegate dated 10 February 2020 and which the Tribunal read to him, the applicant did not refute or deny what the first delegate had written but resorted to his explanation that he was just helping out friends and not working.
The Tribunal notes that the birth certificate of the applicant’s daughter states that [Ms A]’s occupation is “[Occupation 2]” and the applicant’s occupation is “[Occupation 4]”.
While the Tribunal accepts that the applicant has significant support including financial support, in the community through his partner [Ms A], her father [Mr E] and his childhood friends [Mr C] and [Mr D], the Tribunal has no confidence that the applicant will not work if he is granted a Bridging E visa.
The Tribunal’s lack of confidence arises from the applicant’s oral evidence that he has not worked in Australia since 2012 compared to the independent information before the Tribunal, based mainly on the applicant’s own admissions and also on information the applicant provided to the Tribunal, including having his occupation recorded as ‘[Occupation 4]’ on his daughter’s birth certificate. The Tribunal finds that the applicant has undertaken cash work during his time in Australia and since at least 2012 has known he did not have the lawful right to work (or live) in Australia and has chosen to work knowing that each time he did so he breached Australia’s migration laws.
The applicant’s lack of candour about his work history in Australia means that the Tribunal does not know the extent of the applicant’s breaches of Australia’s migration law in this regard, but they are likely extensive as the evidence before the Tribunal indicates the applicant has worked throughout his time in Australia, including since he became aware he did not hold a visa and did not have any right to work in Australia. The applicant’s lack of candour also informs the Tribunal that the applicant has not accepted responsibility for his breaches of Australia’s migration laws and therefore has no remorse for his actions. This leads the Tribunal to find that the applicant will not abide by condition 8101 must not work in Australia in future if he is granted a Bridging E visa.
For these reasons the Tribunal finds that the applicant would not abide by condition 8101 must not work in Australia.
The Tribunal will address whether the applicant will abide by condition 8401 and condition 8506 concurrently in these reasons.
Condition 8401 Must report at a time and place specified by the Minister
The Tribunal read the following extract from the delegate’s decision to the applicant during the hearing and asked for his response:
You stated that you did not want to return to India and that you could not return because someone would harm you and possibly kill you. At interview you stated that if your AAT appeal was unsuccessful with regards to your unsuccessful Protection visa application you will fight your case in the Courts. This option is open to you. However, given your history of non-compliance and your statements it appears you are determined not to depart Australia. As you have clearly demonstrated your willingness to ignore Australian immigration law at your convenience I am not satisfied that you would engage with the department if and when you were required to do so. I have full confidence that had you not been located by Victoria Police you would still remain in the community with no intentions to engage with the department. Therefore I cannot be satisfied that you will comply with condition 8401.
The applicant responded that if he is told to leave Australia and has no other option then he will have to go back to India. He told the Tribunal that he will abide by whatever decision the Tribunal makes but reiterated that he will comply with any conditions placed on a Bridging E visa granted to him.
Condition 8506 Must notify Immigration of any change to the holder’s address
The Tribunal read the following extract from the delegate’s decision to the applicant during the hearing and asked for his response:
I find that you purposely evaded engagement with the department to avoid detention and possible removal from Australia. Given your history of non-engagement I find that if released from detention you would likely engage in similar behaviour at your convenience. Therefore I am not satisfied that you would comply with condition 8506.
The applicant responded by reiterating that he will abide by all conditions imposed on any Bridging E visa granted to him.
There are two difficulties for the Tribunal in accepting the applicant’s evidence that he will comply with conditions 8401 and 8506. Firstly, that the Tribunal did not find the applicant to be a candid and honest witness, particularly in relation to his evidence about his work history in Australia.
Secondly, the applicant has a long history of not engaging with the Department in Australia and in choosing to do so, to breach Australia’s immigration laws by continuing to reside in Australia when he knew he did not have the right to do so and also by working in Australia when he knew he did not have the right to do so, at the very least from 2012 onwards.
The applicant’s explanation for these circumstances is that he suffered from depression for three to four years after his father’s death in mid-2013 and that at the time of his daughter’s birth in [year] they had a lawyer migration agent who did not advise them properly. On the applicant’s evidence it was not until he was introduced to his current representative, after he had been detained, that he was advised to apply for a Protection visa and a Bridging E visa and if granted a Bridging E visa he hopes to be granted work rights but has sufficient support in the community that he does not need to work.
On the applicant’s evidence he became aware in early 2012 that he did not hold a visa. For the next eight years he did not engage with the Department to address that issue or inform the Department of his address. In fact, the applicant was only detected and detained when stopped for a routine interaction with Victoria police. The applicant’s evidence of suffering depression, for which he has provided no medical or supporting evidence, of being poorly advised and of simply not knowing what to do, does not individually or collectively satisfactorily explain his failure to engage with the Department and his decisions to breach Australia’s immigration laws in multiple ways over a very extended period of time.
For these reasons the Tribunal finds that the applicant will not abide by condition 8401 report at a time and place specified or condition 8506 notify Immigration of any change of address.
Other matters

100. During the hearing the applicant referred to [Ms A] seeking permanent residency in Australia. The applicant also stated during the hearing that he could provide evidence to support a Partner visa application. As [Ms A] is not an Australian citizen or permanent resident at the time of this decision, it is not apparent to the Tribunal on what basis the applicant could seek a Partner visa at present.

101. However, these references in the applicant’s evidence caused the Tribunal to consider whether the applicant was simply telling the Tribunal whatever he thought was necessary to obtain the migration outcome he seeks, rather than telling the Tribunal the truth about his past history in Australia in particular. In the applicant’s present circumstances the immediate migration outcome he seeks is to be granted a Bridging E visa as this will enable him to be released from immigration detention and be reunited with his daughter and partner, which understandably appeared to be of great importance to the applicant.
102. The Tribunal also considered if the applicant’s longer term migration outcome he is seeking through applying for both a Bridging E visa and a Protection visa is to be able to stay in Australia long enough until [Ms A] is either granted permanent residency or has exhausted her options in seeking same. The Tribunal acknowledges that if [Ms A] were granted permanent residency then the applicant may be able to become a dependent visa holder or seek a Partner visa and that it would not be unlawful for the applicant to do so.
103. What the applicant’s evidence gave the Tribunal cause to try to assess, was whether such aims in terms of migration outcomes could be affecting the applicant’s evidence before the Tribunal and therefore be relevant to the Tribunal’s assessment of whether the applicant genuinely intends to and will abide by the conditions that may attach to any Bridging E visa granted to him.
104. Ultimately, the Tribunal formed the view that it had not discussed these issues with the applicant in sufficient detail or have sufficient other evidence to form a decided view on whether these matters affected the applicant’s evidence before the Tribunal. For these reasons, the Tribunal makes no adverse findings in this regard against the applicant.
Conclusion
105. 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.
106. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
107. 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
108. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2020] AATA 2459

21 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal