2012014 (Migration)

[2020] AATA 4328

2012014 (Migration) [2020] AATA 4328 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012014

MEMBER:Nathan Goetz

DATE:30 July 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 30 July 2020 at 12:14pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal offences and imprisonment – release on parole and placement into immigration detention – student and criminal detention bridging visas ceased – no application made for new substantive visa – visa, study and work history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3)

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 was granted a student visa on 11 April 2014 and arrived in Australia [in] April 2014. He has remained in Australia since that time.

3. [In] July 2017 the applicant was charged with criminal offences and remanded into criminal custody.

4. On 30 August 2018 his student visa ceased, and he became an unlawful non-citizen.

5. [In] November 2018 he was sentenced by the District Court of New South Wales to a total effective sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years for driving in manner dangerous occasioning death contrary to s.52A(1)(c) of the Crimes Act 1900 (NSW) and causing bodily harm by misconduct while in charge of a motor vehicle contrary to s.53 of the Crimes Act 1900 (NSW).

6. His sentence was backdated from [July] 2017 as he had been in criminal custody since that time. The applicant pleaded guilty to the charges.

7. According to the agreed facts as detailed in the reasons for sentence, at approximately [Time] on [Date] July 2017 the applicant was driving a [motor vehicle] from [Suburb 1] to [Suburb 2]. His three work colleagues were in the car. [Mr A] was in the front passenger seat and was wearing a seatbelt. [Ms B] was seated in the near passenger side seat and was wearing a seatbelt. [Ms C] was in the rear driver’s side. The applicant did not have a NSW driver licence at the time. He had an [Country] driver licence. The weather was fine, and the road surface was dry.

8. The applicant was driving on [Road 1] in [Suburb 3] in an easterly direction at 114kmph in a 70kmph zone. The maximum speed for that area was clearly sign posted. That road travels in a generally east-west direction. Each direction has two lanes of traffic. The east and west bound lanes are separated by a grassed median strip.

9. [Mr D] was also driving on this road. His car was overtaken by the applicant’s car. [Mr D] observed the applicant’s manner of driving. [Mr D] pulled his own car over and called ‘000’ and described seeing the applicant driving erratically and swerving. [Mr D] noted that the vehicle was crossing lanes without blinkers, the driving was erratic and scary, and that he had never seen someone drive at such high speeds. He called ‘000’ because he knew something bad was going to happen with the amount of risk the driver was taking.

10. Inside the car, [Mr A] asked the applicant to slow down but he did not. The applicant responded, ‘I know how to drive, calm down’. As the applicant approached a sweeping right hand bend approximately 200 metres from [Road 2], he lost control of the vehicle. The vehicle began to rotate and as a result it mounted the grass median strip that separates the east and west bound lanes. The vehicle continued to rotate across the east bound lanes before entering the grass frontage of an address. The rear passenger side door was impacted heavily with a tree before the vehicle came to rest. The portion of the roadway where the collision occurred has a sweeping right hand bend with a slight downward grade. Emergency services arrived a short time later.

11. As a result of the collision, [Ms B] was declared deceased on the scene by ambulance officers. [Ms B] and [Mr A] were conveyed to hospital. [Mr A] suffered [injuries]. [Mr A] was treated and discharged from hospital after four days and at a follow up assessment two weeks later, his injuries had fully resolved.

12. [In] July 2017 the applicant met with police and voluntarily participated in a recorded. During the interview, the applicant denied he had been speeding and said the following:

    ·     He was travelling at 70 to 80kmph on [Road 1] when he felt his tires shudder, and he lost control of the vehicle.

    ·     It was not possible that he had been speeding

    ·     He had not smoked marijuana for three days

    ·     He had not seen any other cars on the road, and he had not overtaken any one or been swerving across the lanes

    ·     He had not had anything to drink at all on the night of the collision.

13. A clinical pharmacologist found that the applicant was subject to the combined effects of alcohol and cannabis at the time of driving. The applicant had a blood alcohol content of 0.053 and delta-9-tetrahydrocannabinol present at 0.005mg/L and delta-9-THC acid present at 0.025mg/L.

14. The sentencing remarks also detail what the applicant told the sentencing judge through oral evidence and the report of a forensic psychologist.

15. The applicant agreed with what was contained in the facts. He agreed with the proposition put by the prosecutor that when he was driving, he was ‘basically showing off’. The applicant agreed that [Mr A] told him to slow down and he did not. The applicant said that the group were in a very happy zone and excited at the time. The applicant said he did not realise how fast he was going, although he knew he was speeding.

16. The applicant told the forensic psychologist that approximately 24 hours before the collision he had been drinking and smoking cannabis with friends. He was unsure how much alcohol he had consumed but noted that he had been drinking whiskey for approximately five hours. Colleagues asked him to pick them up from work, and they went to the beach together where he had a sip or two of the wine they were sharing.

17. The sentencing remarks also detailed the applicant’s personal circumstances. He was born in [Country] in [Year] and was [Age] years of age at the time of the offending. He had no criminal history or driving record. He grew up in the [city of], [Country] and is the eldest of two sons. He had a good upbringing. His mother was a homemaker and his father worked in an administrative role in a hospital. He was well provided for; He had a good relationship with his parents. He denied any family history of law violations, substance abuse or mental health difficulties, adding that abstinence from drugs and alcohol was the only thing his parents were strict about. He did not identify being subjected to any specific cultural expectations or traditions but noted that his parents expected him to find a good job, buy a good house and provide for his future children in the way his parents had provided for him.

18. He attended school which he enjoyed and graduated at age 17 years, before going on to begin a degree in [Subject] at his local university. He did not complete that degree because his student visa for Australia was approved. He arrived in Australia and completed certificates and diplomas in business and was undertaking an advanced diploma in business, leadership and management at the time of his arrest.

19. The applicant was employed part-time. He worked as [an Occupation 1] for approximately one year before working his way up to managing a [Workplace 1], and he had been employed in that capacity for approximately 18 months at the time of his arrest. It had been his plan to obtain a master’s degree in business studies and to open his own business.

20. The applicant first consumed alcohol when he moved to Australia. He was introduced to it by his university friends. He estimated he would share half a bottle of spirits with a few friends about once per week, and this conduct continued for the three years until his arrest. He had a friend who was a regular cannabis user and he began using cannabis when he was in this friend’s company. He estimated using approximately two joints every week or two. He did not report any consequences associated with his substance abuse and denied any other drug use. The applicant has no intention of ever consuming alcohol or cannabis again. The applicant is on a student visa and recognises that he will be returning to [Country] at the completion of his sentence. He is engaged to his girlfriend in [Country], although he has not seen her for the past four years. He believes that she will remain committed to the relationship. During his time in criminal custody, he speaks to his family via phone once or twice a week for ten minutes at a time. Both his maternal and paternal grandfathers have died since his remand in criminal custody and he feels very bad about not attending their funerals. He is concerned about the safety of his family in [Country] because his brother told him that some men came to the family home, asked when the applicant would return to [Country], and beat up his brother. His mother was present at the time and it is said that this event is associated with the matters for which the applicant is to be sentenced.

21. The sentencing remarks detail that the applicant identified that the friends in the car were his work friends. He spoke very highly of the deceased and described her as his best friend. He would spend every day with her because they worked together, and he also picked her up and dropped her home every day. He also went out with her three times per week. The applicant recalled his vivid memories of the aftermath of the collision. He recalled trying to wake up his friends but only two of them responded to him and he continuously asked the paramedic and police if his friends were all right. He found it devastating when he later learned his closest friend had died at the scene. In his oral evidence to the District Court, the applicant said that he feels very sorry for [Ms B]’s family and said that he wished to say to them he is very sorry from the bottom of his heart. He is aware that [Ms B] was their only child and that what he did is never forgettable and never forgivable. He acknowledged that he cannot imagine what they are going through. He asked for their mercy and for them to forgive him. He described [Ms B] as the most genuine, straight forward, funny, sensitive and perfect girl he ever met and wanted her to rest in peace and to forgive him.

22. The applicant also said that he felt very sorry for [Mr A] and for [Ms C] because they were suffering because of him. He said he cannot imagine what they were going through. He said they know what it is like to have someone die in front of you and that he is very sorry from the bottom of his heart.

23. The sentencing remarks notes the forensic psychologist’s observation that it appears the applicant would meet the diagnostic criteria for post-traumatic stress disorder, and that the applicant would like to participate in psychological treatment to alleviate his nightmares and intrusive memories.

24. On 24 December 2019 the applicant was granted a criminal detention bridging visa which regularised his migration status. This visa ceased on 9 July 2020 and the applicant again became an unlawful non-citizen.

25. On 10 July 2020, the applicant was released on parole into the community to serve the balance of his sentence. The same day, he was detained under s.189 of the Act and placed into immigration detention as an unlawful non-citizen where he remains to date.

26. The applicant applied for the visa on 21 July 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).

27. His bridging visa application form also declared that he was waiting on a decision from the Department or the Tribunal on an application for a substantive visa, that he intended to apply for a substantive visa, that he held a visa that had been cancelled and had applied for, or was applying for a revocation or review of a decision in relation to cancellation of a visa. The application form also asked for additional information and the applicant provided the following:

28. ‘I came to Australia in 2014 – April on a student visa diploma leading to a bachelor’s degree. Until 2017 I studied as much as a I can. July 2017, I had a car accident and my friend died in that accident, so I got arrested and sentenced for three years. In this period of time I never received any notification of visa cancellation. 10 July 2020 I finished my sentence and interviewed by ABC (Australian Border Force). They told me my visa has expired and transferred me to Villawood Detention Centre. I was in the community before I got arrest and I am in this country for the last 6 years and have been studying and never had a problem with the law and trying to build my future. I have lost many things in my life and my circumstances has been changed. I cannot go back to my country (due to) my circumstance. So please kindly request to let me stay in community so that I can apply my bias and make my future better.’

29. The applicant lodged his bridging visa application on the basis that he made an application for a substantive visa: cl.050.212(3) and that he had applied for a review of the decision to cancel a visa: cl.050.212(4). The applicant did not claim to meet any of the other clauses of Schedule 2 as a ground for meeting the criteria for the bridging visa.

30. According to the delegate decision, when the applicant lodged his bridging visa application, he had not made an application for a substantive visa. During an interview with the delegate on 11 July 2020 the applicant said that it was his intention to lodge a student visa application and sought an extension of time to do so. Section 195 of the Act provides the ability to extend the time for lodgement of the substantive visa, and this was granted by the delegate until 21 July 2020. The decision notes that the applicant failed to lodge an application for a substantive visa before this deadline and therefore, the applicant did not meet cl.050.212(3). The delegate decision also notes that there was no evidence that the applicant had applied for review of a decision to cancel a visa, therefore the applicant did not meet cl.050.212(4). There was no evidence that any visa held by the applicant was cancelled. The delegate decision also went through all the other potential grounds for the grant of the bridging visa and determined they were not met. The applicant had not claimed to meet any of those other grounds.

31. On 23 July 2020 the delegate refused to grant the applicant the bridging visa on the basis that the applicant did not meet the requirements of cl.050.212 of Schedule 2 of the Regulations.

32. On 23 July 2020 the applicant applied to the Tribunal for a review of the refusal decision.

33. On 24 July 2020 the Tribunal registry contacted the applicant to enquire whether he would consent to holding the review hearing one working day after the hearing invitation was to be received, namely 28 July 2020. The applicant indicated his consent and was requested to provide this consent in writing. He did not do so. Therefore, on 27 July 2020 the Tribunal invited the applicant to attend a Tribunal hearing on 30 July 2020.

34. On 29 July 2020 the applicant wrote to the Tribunal and provided the following documents:

    ·     The visa grant notice dated 14 April 2014 for his student visa

    ·     His [Country] passport issued [in] 2013 with an expiration date of [2023]

    ·     Certificate of Qualification for his Secondary School Examination in [Country] dated March 2011

    ·     Senior Secondary Certificate Examination dated March 2013

    ·     International English Language Testing System – Test Report Form dated 16 November 2013

35. Included with that documentation was a statement from the applicant. He repeated the circumstances that led him to Australia and the fact that he had been imprisoned. He added that after he was placed into immigration detention he was interviewed over the telephone and was provided the form to apply for a bridging visa. He wrote that he worked hard from childhood, was raised in a decent family, and had no criminal record apart from his offending for which he was imprisoned. He said that he was well behaved during his time in prison. He was going to get married in 2017 but lost his marriage. He managed to open a small grocery store in [Country] with a lot of investment, but after the car accident and his imprisonment he lost this. He lost all happiness and did not know where his life was taking him. He found himself in the dark. He is apologetic to his family who support him and is sorry to the woman he was going to marry. Everything is gone and he does not know what to do. He wished the Tribunal would give him a chance to finish his studies.

36. Both the applicant and his brother studied in government schools in [Country] because the family could not afford the fees for private education. His father works in a [Workplace 2] as [an Occupation]. His whole family depends on his father’s salary. He was scared to find a job in multinational organisations because of language barriers. He speaks Hindi. He struggled to find employment. Every time he went for an interview, he lost out to candidates with better communication skills. He looked for an opportunity for higher education so it could improve his circumstances so he could support his family and provide private education for his brother. He had a friend in Australia who told him about studying in Australia and about student visas.

37. The applicant wrote that it was unimaginable for him with his circumstances to study in Australia. He discussed this matter with his father. His father had to sell his house and other property to send him to Australia for higher education. The applicant joined English language speaking classes to improve his skills and prepared for his exam. He used to travel 25km each way to attend the English course over a three-month period. After three months, he got a score that was not enough for him to get the visa to come to Australia. The applicant was told by an immigration agent to do an English improvement course before doing the main course. The applicant did so and was granted a student visa to come to Australia. He arrived in Australia and enrolled in his course at MEGA college in Sydney. After three months he found a job as [an Occupation 1] and worked in a [Workplace 1] for about 12 months. After that, one of his friends was working through job agencies told the applicant to join the agency. The applicant did so, and he worked in various [Workplaces 3] for about two years. He noted that he completed his Certificate III in Business in 2014-2015 and Certificate IV in business in 2015 to 2016.

38. At 10am on 30 July 2020 the applicant appeared at a Tribunal hearing by audio-visual link from Villawood Immigration Detention Centre to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. The Tribunal considered the evidence that the applicant provided in his bridging visa application form, the records of what he said to the Australian Border Force on 10 July 2020, and what he said to the delegate at interview on [In] July 2020.

40. At the Tribunal hearing on 30 July 2020 the applicant confirmed that he completed the bridging visa application form himself. He had answered ‘Yes’ to the question about whether he had a visa that had been cancelled and that he ‘had applied for, or was applying for, revocation or review’ of the cancellation decision because he thought that expiration of a visa and cancellation of a visa were the same thing.

1. The applicant confirmed that his student visa had not been cancelled and that it expired while he was in criminal custody. He told the Tribunal that when he selected that he was an ‘applicant for a substantive visa’ and was ‘waiting on a decision from the Department or the Tribunal on an application’ and that he ‘intended to apply for a substantive visa’ he made a mistake in the form. He was not sure what he was doing with those forms.

2. The applicant confirmed his migration history as detailed in this decision. He confirmed that he was a citizen of [Country].

3. Prior to his remand in criminal custody, the applicant lived at [Address] for about 12 months.

4. The applicant told the Tribunal that he applied for the bridging visa because he wanted to finish his studies but had not made an application for a student visa. The applicant told the Tribunal that when he entered immigration detention, he had a discussion with an officer over the telephone and it was his understanding that he needed to be granted a bridging visa to then lodged a student visa. He told the Tribunal that he was not applying for a bridging visa on the basis that he would depart Australia for [Country]. He wanted to complete his studies before returning to [Country].

5. He had not returned to [Country] since his arrival in Australia because he was able to continue to keep in contact with his family in [Country] by Skype and telephone, meaning that travel home would not be necessary. He was focused on his studies.

6. He told the Tribunal that apart from the risk of COVID-19, his family in [Country] were fine. His brother was now in a private school and his father continues to work as a receptionist in a hospital. While the applicant was in the Australian community, he was able to send money back home to his family because he was working. The family owned two houses in [Country] and sold one property to fund the applicant’s trip to, and studies in, Australia.

   FINDINGS AND REASONS

7. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). This issue in this case is whether the applicant met one of the alternatives set out in that clause at the time he applied for this visa.

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

   The grounds for seeking the visa - cl.050.212

9. 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.

10. For the reasons below, the applicant does not meet cl.050.212.

    Substantive visa application

11. Subclause 050.212(3) 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.

12. As noted in the regulations, all criteria under clause 050.21 are to be ‘satisfied at the time of application’.

13. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An 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: s.5(9) of the Act.

14. The applicant may well have a genuine intention to lodge a ‘substantive visa’, namely a student visa. However, as explained to the applicant at the Tribunal hearing, he had not yet made an application for such a visa. He did not do so at the time of his bridging visa application and did not do so during the period of extension provided by the delegate to lodge a substantive visa’ application. Therefore, he does not meet the ‘time of application criteria’ criteria.

15. Accordingly, the applicant does not meet cl.050.212(3).

16. There is no claim by the applicant to meet any other criteria as provided in cl.050.212. There is no evidence that he would meet any of the alterative criteria.

    CONCLUSION

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

18. 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

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

    Nathan Goetz
    Member