2006919 (Migration)

[2020] AATA 2525

2006919 (Migration) [2020] AATA 2525 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006919

MEMBER:Nathan Goetz

DATE:17 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 17 April 2020 at 2:00pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – breach of condition 8101 – applicant failed to uphold visa conditions – worked unlawfully for a long period – a proven criminal history over two years – criminal charges – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 19
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A, 050.618; Schedule 8, Conditions 8101, 8401, 8506, 8564

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Kenya and arrived in Australia [in] July 2016 as the holder of a student visa which had been granted on 12 July 2016. This visa was to last until 15 September 2019.

3. On 7 January 2019 the applicant’s student visa was cancelled as he had not been enrolled in an educational court since [January] 2018. As a result of the cancellation of his student visa, the applicant became an unlawful non-citizen in Australia.

4. The applicant was detained under s.189(1) of the Act [in] February 2020. He participated in a located person interview that day and was subsequently transferred to [a] Detention Centre where he remains to date.

5. On 31 March 2020 the applicant applied for a protection visa. As part of that application, an application for an associated bridging visa was generated on 1 April 2020. The applicant was interviewed by the delegate on 2 April 2020 in connection with the bridging visa application. The delegate refused to grant the bridging visa to the applicant on 3 April 2020. The applicant applied to the Tribunal for a review of the bridging visa refusal decision on 8 April 2020. He provided the Tribunal with the delegate decision.

6. The applicant appeared by audio-visual link at a Tribunal hearing on 17 April 2020 so he could give evidence and present arguments. The applicant was not represented by a registered migration agent.

   RELEVANT CRITERION FOR THIS BRIDGING VISA DECISION

7. The applicant applied for a bridging visa which would regularise his migration status while his protection visa is considered. The protection visa application has not yet been determined by the Department. The granting of the bridging visa would allow the applicant to be released from immigration detention because he would no longer be an unlawful non-citizen. He would be at liberty in the community while the protection visa application was being considered.

8. At the time that the applicant applied for the bridging visa, 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. This clause is met if the decision maker is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

   Whether the applicant will abide by conditions - cl.050.223

9. 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 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.

12. As the applicant has applied for a substantive bias that has not been finally determined (cl.050.212(3)), the applicable bridging visa conditions can be found in cl.050.613A. This clause states that condition 8101 must be imposed, but that conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed. An applicable condition can also be found in cl.050.618. That clause provides that in addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.

13. The Tribunal considers that in the circumstance of this case, the conditions to impose are:

    8101:   The holder must not engage in work in Australia

    8401:The holder must report (a) at a time or times; and (b) at a place; specified by the Minister for the purpose

    8506:The holder must notify Immigration at least 2 working days in advance of any change in the holder's address

    8564:The holder must not engage in criminal conduct

14. At the Tribunal hearing, the applicant said that he understood those conditions and that he would abide by them. The applicant was asked how the Tribunal could be confident that the applicant would abide by those conditions. The applicant told the Tribunal hearing that he is on bail and if broke the above conditions he would also break his bail conditions. He said he had learned his lesson and did not want to do what he had done before.

    FINDINGS AND REASONS

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

    Will the applicant comply with condition 8101 and not work?

16. The applicant told the delegate that he had been working as a [labourer] while he was an unlawful non-citizen (from [January] 2019 until he was detained [in] February 2020). The applicant told the Tribunal that he done this work, but that it was on an oncall basis. The Tribunal notes that while the applicant was on his student visa, he was subject to a condition 8105. This allowed the applicant to engage in work in Australia for no more than 40 hours a fortnight during any fortnight when the holder's course of study or training is in session. The applicant told the Tribunal that while he was on his student visa he worked but stopped doing so in February 2018 because his work was connected to his studies. The applicant provided the Tribunal with letters both dated 13 December 2017 from [Employer 1]to confirm his previous employment. The applicant told the Tribunal hearing that he had told his educational provider at the start of 2018 that he was going to have a break from his studies, and told the Tribunal hearing that he was told by his educational provider that they would cancel his certificate of enrolment if he was going to have a break from his studies. The applicant told the Tribunal hearing that he went to the Department about this matter and he was advised by the Department that he would need to wait for the cancellation to occur before he could do anything. The applicant told the Tribunal hearing that he never heard anything from the Department about the cancellation of his student visa until he was remanded in custody in January 2020 and the court duty lawyer got the Department to resend the cancellation notice. The applicant told the Tribunal hearing that he understood that the cancellation notice had been emailed to him, but he never received that email.

17. The Tribunal really struggles to accept the applicant’s narrative. If he knew that his educational provider was going to cancel his enrolment, and went to the Department to discuss this issue, it is not believable that the applicant would be unaware that his student visa had been cancelled until he was arrested in January 2020. There is nothing persuasive before the Tribunal to support the proposition that the applicant was not notified by email of the cancellation decision once it was made. The Tribunal is satisfied that the applicant feigned ignorance of the cancellation decision as a means to explain why he did not either depart Australia or attempt to regularize his migration status. Further, the applicant had worked during his period of unlawfulness, and the work was clearly not in connection with his studies. He had no work rights other than those imposed by condition 8105. The Tribunal is satisfied that the applicant engaged in work not connected with his course because he knew that his student visa was cancelled.

18. Given that he had been working until was detained in immigration detention, the Tribunal asked the applicant how he would now be able to support himself in the community without working. He told the Tribunal hearing that his brother [would] provide him with financial support. The Tribunal notes that the applicant’s brother provided a written statement to the Tribunal where he declared that he would financially support his brother and attached an accompanying bank statement. The Tribunal notes that the letter did not confirm that the applicant’s brother was currently employed, and the bank statement ends in December 2019. The Tribunal accepts that the bank statement does show regular income described as wages from [Organisation 1], which the Tribunal understands to be a community support organisation.

19. The applicant told the Tribunal hearing that his brother was a[a specified occupation]. However, in light of the fact that there was employment letter submitted by the applicant’s brother, and no current bank statement, the Tribunal cannot be satisfied that the applicant’s brother remains employed and possesses the financial capability to support both himself and the applicant if the applicant was released on a bridging visa. If the applicant’s brother continued to remain employed, the Tribunal is satisfied that the applicant’s brother would have provided current evidence about this fact. The concern about the applicant’s ability to access financial support is compounded by the fact that the applicant had submitted to the Tribunal a request for fee reduction in connection with his review application. In that request, the applicant declared that he received nil financial support from any family or other people. Had the applicant’s brother been in a financial position to previously support the applicant, or been able to financially support the applicant in the future, the applicant would not have submitted a fee reduction request.

20. The Tribunal does not accept the applicant’s explanation that he filed a fee reduction request because he thought anyone in detention could have their review fees reduced to $100. The form makes clear that the applicant is to detail the financial support provided by family members. The applicant’s claim that his brother had previously financially supported him by assisting him with rent, clothes, food and buying a car is undermined by the fact that the applicant was working previously, and undermined by the contents of his fee reduction request form. The Tribunal is not satisfied that the applicant was previously financially supported by his brother, and is not satisfied that the applicant’s brother will financially support the applicant in the future. Had the applicant’s brother financially supported the applicant as claimed in the past, the Tribunal is satisfied that the applicant would not have been working when he had no work rights as an unlawful non-citizen. The Tribunal is not satisfied that the applicant will be able to support himself in the community on a bridging visa without working.

21. The Tribunal is not satisfied that the applicant will abide by condition 8101.

    Will the applicant comply with conditions 8401 and 8506 and report to the Department and notify it of any change of address?

22. The applicant has been an unlawful non-citizen since his student visa was cancelled on 7 January 2019. He had not departed Australia, nor had he approached the Department to regularise his migration status once his student visa was cancelled. The applicant only became known to the Department when he was detained by authorities as an unlawful non-citizen. Further, the applicant’s previous student visa included condition 8533. This required the applicant to notify his education provider of any change of address. As conceded by the applicant at the Tribunal hearing, he had not told his education provider of his change of address when he moved to an address in [Suburb 1](where he lived from [January] 218 to [August] 2018), nor when he moved to an address in [Suburb 2] (where he lived from [September] 2018 until [September] 2019). These addresses only became known to the Department when the applicant provided his residential history as part of his protection visa application.

23. The applicant told the Tribunal hearing that this was down to the fact that his property was with his brother at his brother’s residential address and that the applicant was moving between addresses. That does not change the fact that the applicant did not advise his education provider of the changes in his address during the life of his student visa. Had he done so, the education provider would have advised the Department of this per s.19 of the Education Services for Overseas Students Act 2000 (Cwth). The Tribunal’s past behaviour in not advising the appropriate authorities of his change of address, suggests to the Tribunal that he will not do so again in the future. The fact that the applicant did not approach the Department to regularise his migration status once his student visa was cancelled suggests to the Tribunal that the applicant will not report as directed in the future, especially if he is directed to report in the event that his protection visa application is unsuccessful and the Department seeks to make arrangements for the applicant to be removed from Australia.

24. The Tribunal is not satisfied that the applicant will abide by conditions 8401 and 8506.

    Will the applicant comply with condition 8564 and not engage in criminal conduct?

25. As noted in the delegate decision, the applicant has been charged with offences that are currently listed at [Court 1] [in] April 2020.

26. The applicant told the Tribunal hearing that he was arrested by police in January 2020. He was remanded in criminal custody until February 2020. He was then released by [Court 1] on bail and is to appear again at court [in] April 2020. When he was released on bail from criminal custody, he was detained in immigration detention where he remains to date. The applicant provided to the Tribunal three Statement of Material Facts concerning the charges he is currently facing.

27. According to the Statement of Material Facts in Brief [number deleted], it is alleged that [in] November 2019 the applicant and the complainant, who had been in a domestic relationship for several months, were at a friend’s house in [Suburb 3]. The applicant and the complainant got into an argument and the complainant decided to leave the premises. The applicant followed the complainant and continued with aggressive behaviour towards her. In the early hours of [date] November 2019, the applicant caught up with the victim outside another premises and blocked her way, asking for her house key. When the complainant denied this request, the applicant became more aggressive and took hold of the complainant, forcing her to the ground and pinning her down. [Details deleted].

28. According to the Statement of Material Facts in Brief [number deleted], it is alleged that [in] December 2019 at [a specified time] the applicant was driving a [vehicle]. The applicant was stopped and asked to give his name. He gave the name of [Name 1] with a date of birth of [date]. At the time of driving, the applicant was not authorised to drive due to non-payment of fines. He was charged with providing false or misleading personal information concerning the name he provided to police, and charged with driving while he had no authority to do so.

29. According to the Statement of Material Facts in Brief [number deleted], it is alleged that [in] January 2020 the applicant was driving a [vehicle]. The applicant was stopped and asked to give his name. He gave the name of [Name 2] with a date of birth of [date]. At the time of driving, the applicant was not authorised to drive due to non-payment of fines. The applicant was bailed for these matters to appear at [Court 1] [in] December 2019 but he failed to appear. He was charged with providing false or misleading personal information concerning the name he provided to police, charged with driving while he had no authority to do so, and charged with breaching bail.

30. The Tribunal gave the applicant a warning that he did not have to answer any questions about these outstanding matters if his answers would incriminate him. The Tribunal did ask the applicant about the failure to answer bail charge, which disclosed that the applicant had been granted bail [in] November 2019 and had failed to appear at court [in] December 2019. The applicant told the Tribunal that he had been granted bail by the police to attend court [in] December 2019 but he forgot to attend because his brother was coming for a visit. This answer concerned the Tribunal greatly because it demonstrated that the applicant had little regard for orders requiring him to attend places on certain dates. The Tribunal is not satisfied that a person who has been granted bail to attend court could easily forget that he was required to attend court. The Tribunal is satisfied that the applicant deliberately failed to attend his court date, which resulted in a warrant being issued for his arrest.

31. The applicant told the Tribunal hearing that apart from the cases listed on [date] April 2020, he had no criminal history. This immediately concerned the Tribunal about whether the applicant was a truthful witness. The applicant had in fact provided the Tribunal with his criminal history when he provided the Tribunal with the Statements of Material Facts.

32. The applicant’s criminal history is detailed as follows:

    ·     [Court 1] found the applicant guilty of driving while he had no authority to do so [in] May 2018 and fined him $200.

    ·     [Court 1] found the applicant guilty of driving while he had no authority to do so [in] August 2018 and fined him $400, disqualifying his licence for 9 months from [September] 2018.

    ·     [Court 2] found the applicant guilty of driving while he had no authority to do so [in] August 2018 and fined him $300.

    ·     [Court 1] found the applicant guilty of failing to comply with a notice to surrender his vehicle [in] August 2018 and fined him $500.

    ·     [Court 1] found the applicant guilty of drink driving where he recorded a reading of 0.08 [in] February 2019 and fined him $550, disqualifying his licence for 7 months.

    ·     [Court 1] found the applicant guilty of failing to obey an order given by an officer and fined him $500.

1. The Tribunal put to the applicant that he had not told the Tribunal the truth about his criminal history. When the Tribunal detailed the criminal history as outlined, the applicant appeared surprised by this history. The Tribunal is satisfied that the applicant was feigning ignorance about his criminal history, because he told the Tribunal hearing that while he was in criminal custody, he had applied to have the fines wiped due to financial circumstances. It is impossible for the Tribunal to accept that the applicant would not know about his criminal history while at the same time making arrangements for the fines imposed in connection with that history to be wiped.

2. The Tribunal is satisfied that the applicant’s explanation that he did not know about this criminal history because he thought that the above matters were those that were listed [in] April 2020 was an attempt by the applicant to get out of his demonstrated untruth to the Tribunal about his previously proven offending. The Tribunal is satisfied that the applicant did not realise that he sent his criminal history to the Tribunal and thought that telling the Tribunal hearing he had no criminal history would help him be granted a bridging visa. This demonstrates that the applicant has a flexible approach to the truth and that he is prepared to say, or not say, whatever he thinks will assist him.

3. The Tribunal accepts that the matters as detailed in the Statements of Material Facts are not proven against the applicant. The applicant may be emphatic that he is not guilty of the charges against him, but the witnesses may be emphatic that he is. The only authority which can make this assessment is a court. What the Tribunal can be satisfied about is that as the criminal charges are ongoing, the there is a reasonable prospect of conviction for these offences, because a prosecution would not be continued if this is not the case[1]. Given that there remain these outstanding criminal matters, and the fact that the applicant has a proven criminal history over two years, the Tribunal is not satisfied that the applicant will not engage in criminal conduct if he is granted a bridging visa. The Tribunal is not satisfied that because a court has granted the applicant bail that means that the applicant will not engage in criminal conduct. A legislative test for bail is not the same consideration required by the Tribunal.

   [1] Statement of Prosecution Policy and Guidelines, WA Director of Public Prosecutions, at paragraph 31 >

   The Tribunal is not satisfied that the applicant will abide by condition 8564.

   CONCLUSION

4. The applicant has shown no regard for Australia’s laws. He has persistently driven a motor vehicle when not allowed to do so, engaged in drink driving and failed to follow lawful orders as demonstrated by his criminal history. He has demonstrated an indifferent approach to his bail condition, where he admits that he failed to attend court [in] December 2019. He has not advised the appropriate authorities of changes in his residential addresses, not presented to the Department when his student visa was cancelled, not left Australia when his visa expired, been an unlawful non-citizen in Australia for almost 12 months, and only engaged with the Department to regularise his migration status after he was detained by the authorities. Further, the applicant has a demonstrated a need to work to support himself financially. He has criminal matters outstanding which are very serious. All of these factors point to the conclusion that the applicant will not abide by any conditions imposed on a bridging visa.

5. 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.

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

7. 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

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

   Nathan Goetz
   Member