2011107 (Migration)

[2020] AATA 3702

2011107 (Migration) [2020] AATA 3702 (13 July 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011107

MEMBER:Ann Duffield

DATE:13 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 13 July 2020 at 4.09pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant failed to uphold visa conditions – applicant made no genuine attempt to make arrangements to depart Australia – remaining in Australia unlawfully for over 10 years – work unlawfully for a long period – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A; Schedule 8, Visa Conditions 8101, 8207, 8506, 8401

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 applied for the visa [in] July 2008. 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 was made on 3 July 2020 on the basis that the delegate, having considered the applicant’s immigration history and extensive periods of unlawfulness, formed the view that the applicant would not abide by any visa conditions associated with any visa he may be granted.

4. The applicant appeared before the Tribunal on 10 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. The applicant is a citizen of China who first arrived in Australia in July 2008 as the holder of a temporary [visa] which permitted him to do specific work for a specific period of time. [Later in] July 2008 the applicant applied for a protection visa and was granted a number of bridging visas in association with that application and subsequent reviews until November 2009. Between November 2009 and February 2020, the applicant remained in the community unlawfully with no access to work rights.

8. He has applied for a bridging visa in relation to a further Federal Circuit Court review of the protection visa application lodged in 2008. The applicant has not informed the court that the matter for which he is seeking review had already been dealt with by the judiciary right up to the High Court. Those appeals to the Federal Circuit Court; the Federal Court and the High Court were all dismissed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant will comply with the conditions placed on any visa that he may be given.

   Whether the applicant will abide by conditions - cl.050.223

10. 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.

11. 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].

12. 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.

13. In this case clause cl.050.613A is relevant as it 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 one 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.

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

    a.8101 – visa holder must not engage in work in Australia

    b.8207 – visa holder must not engage in any studies or training in Australia

    c.8506 – visa holder must notify the immigration department at least 2 working days in advance of any change in the visa holder’s address

    d.8401 – the holder must report at a time and place specified by the Minister for the purpose

15. The Tribunal asked the applicant if he was aware of the circumstances which caused him to be detained and the reasons why he remained in Australia living and working unlawfully for over ten years. The applicant did not express any remorse about his unlawfulness but expressed surprise and disappointment that he was detained when he applied for a bridging visa. The applicant told the Tribunal that he followed advice from friends who told him that he could have more stable work if he applied for a bridging visa. The Tribunal asked the applicant if he understood that he had lodged an appeal with the Federal Circuit Court in relation to the refusal to grant him a protection visa.

16. The applicant did not give any indication that he knew or was aware that he had lodged an appeal to the Federal Court or what the appeal was in relation to. It seems to the Tribunal that the applicant has no concern whatsoever about anything other than remaining in Australia by whatever means possible. To this end he appears to have instructed others acting on his behalf to ensure he remains in whatever way he ca even if this involves deceit and the misrepresentation of his circumstances. He has shown no concern or remorse for the fact that he has deceived the courts, the immigration department and others in order to continue to lodge unmeritorious appeals or that he has been working and living in Australia unlawfully for more than 10 years. He told the Tribunal that he did not approach the department because he didn’t want to be detained.

17. The applicant told the Tribunal that he has signed an application to be returned to China, but the department has not sent him back yet. He says that being locked up is too much to bear and he just wants to go home. The Tribunal put to the applicant that his past history suggests that he will continue to do whatever he wants in order to remain in Australia and work unlawfully. The applicant assured the Tribunal that he would abide by the conditions of the bridging visa.

18. The applicant is currently without a fixed address, having given up a room he was renting when he was detained. He claimed to have no significant personal possessions and told the Tribunal that he would receive the support of friends in [Suburb 1]. The Tribunal is not satisfied that these arrangements are conducive to the applicant being willing or able to comply with the visa condition that he notify the immigration department in advance of a change in address or that he would be willing and able to report at a time or place specified by the minister.

19. The applicant had known for the entirety of his residency in Australia after he lodged and failed in his protection visa application in 2008 that he has resided and lived here unlawfully. Far from showing any remorse about this, the applicant was affronted that he should be detained or be expected to know anything about his visa status or the applications currently before the court in relation to a matter that had already been heard.

20. Having considered the matters in their entirety, the Tribunal is not satisfied that the applicant will abide by any of the conditions that may be placed on a bridging visa if it is granted.

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 meet cl.050.223.

22. CONCLUSION

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

24. 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

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

    Ann Duffield
    Senior Member