2012011 (Migration)

2012011 (Migration) [2020] AATA 3363 (31 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2012011
MEMBER:Michael Ison
DATE:31 July 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 31 July 2020 at 7:49pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – application for protection visa not finally determined – abide by conditions of bridging visa – no work requirement – reporting and notification requirements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 116
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.222, 050.223, 050.613A; Schedule 8, Conditions 8101, 8401, 8506
CASE
Applicant VAAN of 2001 v MIMA (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 [Name] who is a [age] year old Malaysian national. The applicant arrived in Australia [in] December 2015 as the holder of a Subclass 601 visa. On 12 March 2016 the applicant was granted a [Student] visa which was cancelled on 20 November 2017 under s.116(1)(b) of the Act because the applicant was found to have not complied with a condition of that visa.
On 14 July 2020 the applicant was located by the Department during the execution of a search warrant at particular premises and the applicant, as an unlawful non-citizen, was detained in immigration detention.
On 16 July 2020 the applicant applied for a Protection visa and a Bridging E visa. The applicant’s Protection visa application has not been finally determined.
The primary decision
The applicant did not provide the Tribunal with a copy of the primary decision.
At that time of the applicant’s application for the Bridging E 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 which requires the Minister, or the Tribunal on review, to be satisfied that the applicant would abide by any conditions attached to a Bridging E visa granted to him.
The decision to refuse to grant the visa was made on 22 July 2020. The delegate was not satisfied that the applicant would abide by three of the conditions which the delegate decided were appropriate to attach to any Bridging E visa granted to the applicant. This meant the delegate found the applicant did not meet the requirements of cl.050.223 and for this reason the delegate refused to grant the Bridging E visa.
The Tribunal hearing
The applicant appeared before the Tribunal on 31 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.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, 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 video link.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant 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 primary decision. The Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal. The applicant responded he did not.
The Tribunal also informed the applicant that it would allow the applicant an opportunity to address the Tribunal toward the end of the hearing on any matter he felt was relevant to his review.
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.
Application for a substantive visa
In this case, the applicant is seeking to meet cl.050.212(3)(a).The applicant does not claim to meet any of the other alternative criteria in cl.050.212.
Subclause 050.212(3)(a) 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.
Subclause 050.212(3)(a) is met if 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 the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
Section 5(1) of the Act defines ‘substantive visa’ as a visa other than a bridging visa, a criminal justice visa or an enforcement visa.
Section 5(9) of the Act provides a visa application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made. There are additional instances where a visa application is ‘finally determined’ as set out in s.5(9A) of the Act, but they are not relevant for present purposes.
At the time of the applicant’s application for this Bridging E visa, the applicant had lodged a valid visa application for a Class XA (Subclass 866) Protection visa while being held in immigration detention. That application has not been finally determined.
For these reasons, the Tribunal finds that the applicant meets cl.050.212.
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 21 July 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 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.
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]. 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 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(1) 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.
Clause 050.613A(1)(b) provides that the decision maker must impose condition 8101 not engage in work in Australia on a Bridging E visa granted to a non-citizen under clause 050 of the Regulations, unless condition 8116 is imposed. Condition 8116 was not imposed by the delegate.
Clause 050.613A(2) 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;
·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 a valid passport or obtain a valid 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 in addition to condition 8101 the following conditions should be imposed on any Bridging E visa granted to the applicant:
·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; and
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 no.
As the applicant did not provide the Tribunal with a copy of the primary decision, the Tribunal relied upon a copy of the decision contained in the Department’s file provided to the Tribunal. During the Tribunal hearing the Tribunal shared with the applicant information in the primary decision 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. This information was shared with the applicant in accordance with the procedure set out in s.359AA of the Act.
The Tribunal read the following to the applicant during the Tribunal hearing:
The delegate’s decision contains information that is adverse to you. That information would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that it is under review.
I am going to explain what that information is to you, how it is relevant to your review today and the consequences for your review if the Tribunal relies on that information.
I want to stress at the outset that the Tribunal has not formed any view about the information in the delegate’s decision and will not do so until you have had an opportunity to respond to or comment upon the information.
The delegate made the following adverse findings against you:
·You were working in the community up until two months ago even though you have been an unlawful non-citizen without work rights between 20 November 2017 when your Student visa was cancelled and 16 July 2020 when you lodged a valid Protection visa application;
·You have no financial savings;
·You will be supported by friends at [Address], if granted a Bridging E visa, but the delegate was not convinced of the support they would provide;
·You did not provide any supporting evidence of how you would live in the community without working;
·You have demonstrated an ability and willingness to work when you did not have work rights;
·Your immigration history is that you were an unlawful non-citizen for over 2 ½ years and during that time you did not engage with the Department;
·The delegate found there was no evidence of your friends providing a firm commitment for you to live long term at [Address].
This information is relevant to your review because it could cause the Tribunal to doubt that you have the support or means to live in the community without working and having remained in Australia for over 2 ½ years as an unlawful non-citizen shows a disregard for Australia’s immigration laws.
Do you understand the relevance of the information the Tribunal has shared with you to your review?
The consequences for your review of the Tribunal relying on the information it has shared with you is that the Tribunal could find there is insufficient evidence before it for the Tribunal to accept that if granted a Bridging E visa you have sufficient support to live in the community without working, such that the Tribunal could find you would not abide by condition 8101 not work.
In addition, the Tribunal could also find that your long period as a non-citizen in Australia without meaningfully engaging with the Department indicates that you will not report to the Department as directed or notify the Department of any change in your address, particularly if you do not receive the outcome you seek on your Protection visa application.
If the Tribunal finds that you will not abide by any one or more of the three conditions the Tribunal has deemed reasonable to impose on any Bridging E visa that might be granted to you, then the Tribunal would find you do not meet the requirements of cl.050.223 to Schedule 2 of the Migration Regulations and would refuse your application for a Bridging E visa.
Do you understand the consequences for your review of the Tribunal relying on the information it has shared with you?
Shortly I am going to invite you to comment on or respond to the information the Tribunal has shared with you. You do not have to do so straight away. If you would like additional time to consider the information before commenting upon or responding to it, the Tribunal will consider any request for additional time you choose to make.
Would you like additional time to consider the information or would you prefer to comment on or respond to the information straight away?
The applicant did not request additional time to consider the information before responding and told the Tribunal he would like to respond straight away.
The applicant told the Tribunal that he has AUD20,000 in Malaysia that is under the control of one of his two sisters and he can use this money to live in the community in Australia if he is granted a Bridging E visa. The applicant said he spends approximately AUD6,000 to AUD7,000 per annum to live and stay in Australia and only wants to stay in Australia for one more year and therefore will not need to work. The Tribunal was not convinced by this evidence in the context of the balance of the applicant’s evidence.
The applicant said he did not return to Malaysia when his Student visa was cancelled in November 2017 because he owed debts of initially AUD150,000 and now AUD100,000 to money lenders in Malaysia that arose from a business failure caused by the applicant’s business partner allegedly stealing the business’ money for his own personal use.
The applicant told the Tribunal his mother came to Australia to visit him in 2017 but the money lenders realised the applicant’s mother found him. After her return to Malaysia the applicant told the Tribunal the money lenders asked his mother to tell them the applicant’s address in Australia. When the applicant’s mother refused they broke both of her knees. The applicant said his family called the police but there were no arrests or result. This occurred, according to the applicant, in 2018.
The applicant said 12 months ago his mother could not stand due to her injuries but now can stand. The applicant said in another 12 months he expects his mother will have substantially recovered from her injuries. At other times during the hearing the applicant described the injuries to his mother as being to her feet. The applicant’s evidence is if he returns to Malaysia now he or his family may be hurt but in 12 months when his mother’s health has improved the family can return to the countryside where they originally came from but they cannot do that while the applicant’s mother still requires treatment because it is a two to three hour trip to the hospital and that would not be practical for his mother.

The Tribunal discussed with the applicant how he will repay the money lenders, particularly if he stays in Australia for another 12 months using up some of the savings he has that could be used to reduce the debt he owes. The applicant told the Tribunal he does not intend to use any of his AUD20,000 in savings to repay his debts as he will use this money for his daily life. The applicant said he will get a job and then negotiate with the money lenders to repay them over time from his salary. The applicant told the Tribunal the money lenders will accept this because they will have no other choice and when his parents move back to the countryside they will sell property that will also help to reduce the debt.
The Tribunal asked the applicant why he didn’t apply for a Protection visa when his Student visa was cancelled. The applicant told the Tribunal at that time he did not think about these things that much and was thinking his mother would get better quickly and he would be able to return to Malaysia relatively soon. The applicant told the Tribunal that his Student visa was cancelled in November 2017 because he could not afford to pay his tuition fees.
The Tribunal asked the applicant why he couldn’t return to Malaysia now, support his mother in her recuperation and then negotiate with the money lenders as he intends to do in one year’s time. The applicant told the Tribunal it would not be worthwhile to return now because he doesn’t have money to pay the money lenders immediately and he is concerned they would hurt his mother again if he returns before she has fully recovered. The Tribunal found this evidence unconvincing. The applicant told the Tribunal he has no money to pay the money lenders but also told the Tribunal he has AUD20,000 in savings and modest living expenses.
As is discussed further below, the applicant also gave evidence of working in Australia when he was an unlawful non-citizen and earning tens of thousands of dollars, not paying any tax on those earnings and his income being well in excess of his claimed expenses. The Tribunal understands the applicant believes when his mother has recovered his family will be able to move to the countryside and be less exposed to the money lenders, but the applicant also gave evidence if he returns to Malaysia the money lenders will find him.
It also appears to the Tribunal that if the applicant remains in Australia for another year when he cannot lawfully work, he will be in a considerably worse financial position – even allowing for his claimed very modest living expenses – than he is now, making it even harder for him to satisfy the money lenders.
The Tribunal asked the applicant where he lived during the over two and a half years in Australia that the applicant was an unlawful non-citizen. The applicant explained he rented rooms in three different properties during that period and had lived at the property he intends to return to if granted a Bridging E visa for several months prior to being detained.
The applicant explained the property he intends to return to is a three bedroom house and each room is separately rented for cash from the landlord and the people living there do not talk or interact much but just stay in their rooms when at home. The applicant told the Tribunal his friend from Malaysia, [Mr A], rents one room for AUD150 per week and is happy to share that room with the applicant if he is granted a Bridging E visa. The applicant told the Tribunal the rent of each room is negotiated with the property owner and there are no leases.
The applicant told the Tribunal that [Mr A] is in Australia as the holder of a [Bridging] visa but the applicant did not know what substantive visa [Mr A] had held or applied for. The applicant said he will not have to contribute to [Mr A]’s rent and can use his savings to live off so will not need to work if he is granted a Bridging E visa. The applicant’s evidence is he only wants to live in Australia for another year until his mother is better and it is not his intention and he will not need to work during that time. The applicant said he had worked casually during his period as an unlawful non-citizen in Australia, mainly in the construction industry as a joiner or plasterer, earning on average around AUD700 to AUD800 per week, which was sometimes paid in cash and sometimes paid into his bank account.
The applicant told the Tribunal he did not declare or pay income tax on that income.
The Tribunal asked the applicant whether he kept the Department informed of his changes in address. The applicant told the Tribunal no because he did not have “resident status” so why would he tell the Department specifically where he was living.
The Tribunal was not convinced by the applicant’s evidence that his circumstances and support in the community meant he would not have to work to remain in Australia. The applicant told the Tribunal he could not afford to pay his course fees in 2017 but after that time was earning, on average, between AUD35,000 and AUD40,000 per annum working in [Industry 1] and only spending AUD6,000 to AUD7,000 on living expenses. This evidence caused the Tribunal considerable concern that the applicant has significant both opportunity and incentive to work if he is granted a Bridging E visa.
The Tribunal was not convinced by the applicant’s evidence of his claimed support arrangements for him to live in the community. Based on the applicant’s evidence, the Tribunal formed the view that the applicant’s source of free accommodation is in a form of a rooming house where there is no security of tenure and the applicant is relying on a friend who holds only a Bridging visa.
The Tribunal was concerned about the applicant’s evidence of only needing a Protection visa for one year before he returns to Malaysia. This evidence caused the Tribunal concern the applicant is not a bona fide applicant for protection but is using the immigration system and specifically his Protection visa application to prolong his stay in Australia until he chooses to return to Malaysia.
Of greatest concern to the Tribunal was the applicant’s evidence that he deliberately did not engage with the Department during his prolonged period as an unlawful non-citizen living in the community because he knew he did not have “resident status”. This revealed to the Tribunal that the applicant made a deliberate choice not to seek to regularise his immigration status in Australia and was aware he was not lawfully entitled to either work or stay in Australia. The Tribunal finds that the applicant is prepared to pick and choose what laws he will comply with in Australia as it suits his circumstances and plans and does not respect Australian law. The applicant’s lack of respect for Australian laws was reinforced by his failure to declare or pay income tax on his income in Australia.
The Tribunal finds in the applicant’s circumstances, which include being significantly in debt, a history of staying and working in Australia for over two and a half years when he knew he was not entitled do so and of earning an income that considerably exceeded his expenses without paying tax on that income, demonstrated the applicant has such a disregard for Australia’s laws and such a strong incentive to work that the applicant will not abide by condition 8101 not work in Australia if the applicant was granted a Bridging E visa.
The Tribunal also finds that the applicant will not abide by condition 8401 report at a time and place specified by the Minister or condition 8506 notify Immigration at least 2 working days in advance of any change to the holder’s address. The applicant’s evidence revealed the applicant had knowingly and deliberately chosen not to engage with the Department when it did not suit him to do so. The extent of, and manner in which, the applicant breached Australia’s migration laws, again noting those breaches continued for over two and a half years, gave the Tribunal no confidence the applicant has any insight into, or remorse for, that behaviour.
The Tribunal formed the strong view that the applicant would again in future choose not to engage with the Department or return to Malaysia as he claims to intend, particularly if the applicant does not achieve the outcome he seeks in relation to his Protection visa application. If that application and any further review is refused before the applicant is ready to return to Malaysia, assuming he does genuinely intend to return, then the Tribunal expects based on the applicant’s history and oral evidence, the applicant would not report to the Department and would not inform the Department of his address if he was living in the community at that time.
The Tribunal was also not convinced by the applicant’s evidence that he has genuine and reliable support in the community that will provide him with stable living arrangements that may support the applicant abiding by conditions 8401 and 8506.
Conclusion
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by the conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2020] AATA 3363

31 July 2020

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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