2013516 (Migration)

[2020] AATA 4082

2013516 (Migration) [2020] AATA 4082 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013516

MEMBER:Antonio Dronjic

DATE:10 September 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 10 September 2020 at 3:25pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – unlawful status – no attempt to contact immigration – working without work rights – protection application – criminal charge – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189(1)
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613A, 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 applied for the visa on 26 August 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.050.212 and cl.050.223.

3. The decision to refuse to grant the visa was made on 1 September 2020 as the delegate was not satisfied the applicant will comply with conditions to which the visa would be subject.

4. The applicant appeared before the Tribunal on 9 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. At the commencement of the hearing, the Tribunal explained to the applicant that the first issue before it is to consider whether the ground for the Bridging visa E (BVE) was made out. If the Tribunal is satisfied that the applicant meets one of the alternative grounds set out in cl.050.212, it will then consider what conditions should be imposed if the bridging visa is to be granted and whether the applicant will abide by the conditions.

6. The applicant is [age] years of age and a citizen of Cambodia. She was married to an Australian citizen and is now separated. She has no children. Her parents and [one sibling] live in [Country 1] and [the other sibling] lives in Cambodia. She has no relatives in Australia. Last time she communicated with her parents was two–three days ago. On that occasion, she informed her parents that she is currently in immigration detention.

7. She gave evidence that she holds a Cambodian passport that was valid until [2019]. She previously extended the validity of her passport at the Cambodian Embassy in Canberra (in [2016]) and on that occasion was advised that she will have to apply for a new passport as it is only possible to extend the validity of her passport on one occasion. [The applicant] gave evidence that she did not apply for a new passport as she does not know how to do that.

8. In Cambodia, the applicant completed the equivalent of Year [number] and worked at a family business operated from their home. She stated in her evidence that she does not have any property either in Australia or Cambodia.

9. The applicant’s immigration history in Australia is summarised in the primary decision record as follows:

   ·[In] March 2012, the applicant arrived in Australia as a holder of a visitor visa and remained in Australia until [April] 2012. On 20 April 2012, the applicant’s visitor visa ceased, and she became an unlawful non-citizen. On 27 April 2014, she was granted a bridging visa on departure grounds, and [in] July 2014, she departed Australia.

   ·[In] May 2015, the applicant arrived in Australia on a Combined Partner UF 309 visa. [In] December 2015, she departed Australia. [In] May 2017, the applicant arrived in Australia as a holder of a Subclass 309 visa.

   ·On 31 May 2018, her Partner Subclass BC100 visa was refused and on 6 July 2018, her bridging visa ceased. On 7 July 2018, the applicant became an unlawful non‑citizen and remained in the community without a valid visa.

   ·On 11 July 2019, the applicant was located by [State 1] Police and detained under s.189(1). On 18 May 2019, she was granted a Bridging Subclass WE 050 E visa (BVE) on departure grounds with a security bond of $10,000.00 and was released from detention. On 2 June 2019, her BVE ceased and on 3 June 2019, she again became an unlawful non-citizen. The security bond was forfeited, and the applicant remained in the community without a valid visa.

   ·On 29 June 2020, the applicant was located by [State 1] Police and detained under s.189(1) of the Act. On 22 July 2020, [the applicant] applied for a protection visa.

10. The applicant confirmed in her evidence that the primary decision record contains an accurate summary of her immigration history in Australia.

11. The Tribunal noted that from July 2018, the applicant was an unlawful non‑citizen and enquired as to how she supported herself for the past two years. In her evidence, she stated that she did not work and was financially supported by her parents and Australian friends who provided her with free accommodation. She stated that her parents would send her between $500 and $1,000 every month either by transferring money through [a service] or by sending money through her friends. [The applicant] gave evidence that she does not operate a bank account in Australia.

12. The Tribunal noted that during the interview with the Australian Border Control officer, she stated that in January 2019, she worked at a [business] located in [Suburb 1]. The applicant disputed that she made such a statement and gave evidence that she worked at a café in [Suburb 1] between 2015 and 2017.

13. The applicant gave evidence that in 2019, she sold her car to her friend and that she has no other property in Australia. The Tribunal noted that during the interview with the Australian Border Control officer, she stated that someone borrowed her car and never returned it. She explained that it was her friend who took her car and never returned it. She conceded that she did not sell her car.

14. When questioned by the Tribunal, the applicant stated that after her BVE ceased on 7 July 2018, she did not contact the Department and attempt to legalise her status in Australia because she was under ‘lots of mental stress’.

15. The applicant stated that from July 2018, she resided at two or three different addresses in [the city]. When questioned by the Tribunal, the applicant stated that she did not inform the Department of changes of her residential address because she did not have a valid visa.

16. The Tribunal noted that during the interview, the applicant stated that if she is released from detention, she would reside at the property located at [Address 1]. The Tribunal enquired as to who is living at that property and whether she previously resided there. The applicant stated that her friend[whom] she knows for over 2 years, lives at that address with his aunty. She further stated that she lived at that address for a few months prior to being detained.

17. The Tribunal noted that prior to being detained, she was located at a different property located at [Address 2], [State 1]. [The applicant] stated that she only stayed at the [Address 2] address overnight.

18. The Tribunal further noted that she claimed that she lived at a property located at at [another suburb] and enquired when she resided at this address. She gave evidence that she lived there from July to December 2019.

19. When questioned by the Tribunal, the applicant stated that she did not inform the Department of any changes of her residential address.

20. The Tribunal informed the applicant that it will consider the following conditions to be imposed in the circumstances of this case if the bridging visa is to be granted and whether the applicant will abide by those conditions:

    ·8101 – The holder must not engage in work in Australia;

    ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose;

    ·8506 – Notify the Department at least 2 working days in advance of any change in address; and

    ·8564 – The holder must not engage in criminal conduct.

21. The applicant confirmed in her evidence that on 8 September 2020, she provided a written statement addressing the compliance with the above stated conditions. [The applicant] added that her statement was prepared by her lawyer according to her instructions and that she read and understood everything stated in this document.

22. The applicant stated that she will not work if granted a BVE as her parents and her friends will financially support her. She will reside with her friend[at] the property located at [Address 1] and will not have to pay any rent.

23. The Tribunal observed that the applicant did not provide documentary evidence in support of her claims and that it finds it difficult to accept that the applicant did not work in Australia from July 2018 to the present time.

24. The Tribunal acknowledged that in her written statement, the applicant indicated that if granted a BE, she will comply with both 8401 and 8506 conditions.

25. In her written statement, the applicant wrote that she failed to attend criminal court on two occasions. The first occasion was for [one offence] and the second time was for [another  offence]. She stated that she feared she would be deported back to Cambodia as soon as she turned up to the court.

26. The Tribunal noted that according to the primary decision record, [in] April 2019 the applicant was fined [amount] by the court. [The applicant] stated that she was previously charged by [State 1] Police for [the first offence] and fined [amount]. She did not pay this fine. Her appearance [in]September 2020 before the [Magistrates’] Court is in relation to provision of a false name and address.

27. The applicant stated that she intends to comply with all the above stated conditions if granted a BVE. The Tribunal indicated that in making its decision, it will consider the applicant’s immigration history, her evidence and other material held on the Tribunal and Departmental files.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The grounds for seeking the visa – cl.050.212

29. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

30. 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.

31. Based on the evidence before it, including the Department’s records and applicant’s oral evidence, the Tribunal is satisfied that the applicant has made a valid application for a protection visa in Australia. This application was refused by the Department on 1 September 2020 and the applicant sought review of that decision with this Tribunal on 7 September 2020. As the protection visa application has not been finally determined, the applicant meets the requirements of cl.050.212(3).

    Whether the applicant will abide by conditions – cl.050.223

32. 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.

33. 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].

34. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is imposed, 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.

35. In this case, cl.050.613A applies as the applicant has applied for a protection visa on or after 1 July 1997. This clause prescribes that in addition to mandatory condition 8101, certain other conditions may be imposed. The Tribunal considered the following conditions should be imposed on her visa in the circumstances of this case:

    ·8101 – The holder must not engage in work in Australia;

    ·8401 – The holder must report at a time or times; and at a place; specified by the Minister for the purpose;

    ·8506 – Notify the Department at least 2 working days in advance of any change in address; and

    ·8564 – The holder must not engage in criminal conduct.

    Condition 8101

36. The applicant stated in her evidence and written submissions that if she was granted a BVE with mandatory 8101 condition imposed on it, she will not work as she will be financially supported by her parents and friends. She will be residing with her friend at the property located at [Address 1] and will not have to pay any rent. She further stated that from July 2018 to the present time, she did not work in Australia. The applicant’s immigration history speaks against her current claim that she will comply with this condition.

37. The applicant stated that she has no savings, no property or bank account in Australia and that for the past two years she is and has been financially supported by her parents who live in [Country 1]. She has provided no documentary evidence in support of this claim, nor has she provided any supporting evidence from her friend that she will be allowed to live rent‑free at his home without paying any rent.

38. Given the lack of evidence supporting the applicant’s claims, the Tribunal finds it difficult to accept that she did not work in Australia from July 2018 to the present time. The Tribunal is not satisfied that the applicant would have the financial support that would enable her to live without breaching this visa condition.

39. Given the applicant’s immigration history, previous breaches of immigration laws, the significance of the migration laws that were breached and the wilfulness with which those laws had been breached, the Tribunal has formed the view that the applicant will not abide by condition 8101.

    Condition 8401

40. According to the primary decision record, when the applicant’s visitor visa ceased on 20 April 2012, she remained unlawfully in the community until [April] 2014.

41. She was again an unlawful non-citizen from 6 July 2018 until  [April] 2019 when she was located by [State 1] Police and detained. On 18 April 2019, she was granted a BVE on departure grounds with a security bond of $10,000. Despite her BVE ceasing on 2 June 2019, the applicant remained in Australia as an unlawful non-citizen until [June] 2020, when she was again located by [State 1] Police and detained.

42. The Tribunal finds that the applicant was living in Australia as an unlawful non‑citizen on three occasions. She was twice located by [State 1] Police and detained. Despite knowing that her visa ceased, she remained living in Australia and made no attempts to contact the Department and try to legalise her visa status.

43. Based on the evidence before it, the Tribunal finds that on multiple occasions the applicant has failed to present herself to the Department. She made no efforts to rectify her unlawful status. Given the applicant’s immigration history and her previous actions, the Tribunal has formed the view that she will not abide by condition 8401.

    Condition 8506 – Notify the Department at least 2 working days in advance of any change in address

44. The applicant gave evidence that she moved her residential address on several occasions since July 2018 but never informed the Department of her movements in Australia. The Tribunal finds that there is an unacceptable risk that the applicant, if granted a bridging visa, will disappear into the community and will not notify the Department of any changes in her address as required by the relevant condition.

45. Having regard to her circumstances, immigration history and her previous actions, the Tribunal considers that the applicant would fail to comply with condition 8506.

    Condition 8564

46. On 29 June 2020, the applicant was located at a residential property and arrested on an outstanding warrant for failing to appear before the courts for provision of a false name and address. She was bailed to appear before the [Magistrates’] Court on 30 September 2020.

47. She was previously charged for [the first offence] and [in] April 2019 was fined [amount]. She has failed to attend criminal court on two occasions.

48. Based on the evidence before it and having regard to the totality of the applicant’s past conduct and behaviour, past convictions and pending charges, and having assessed her likely future conduct, the Tribunal is not satisfied that the applicant will not engage in criminal conduct and abide by condition 8564.

49. 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.

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

51. 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

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

    Antonio Dronjic
    Member