2015303 (Migration)

[2020] AATA 4937

2015303 (Migration) [2020] AATA 4937 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015303

MEMBER:Jennifer Cripps Watts

DATE:29 October 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 29 October 2020 at 3:50pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – comply with conditions of visa – visa history – significant non-compliance over many years – working without work rights and not studying while on study visa – period as unlawful non-resident – return under another name during exclusion period – validly married to permanent resident – partner visa application in progress – wife’s mental health – allegations of contrived marriage – previous Bridging E visa applications refused and refusals affirmed – relationship with previous girlfriend – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.617

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) 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 7 October 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.050.223, which requires the Minister to be satisfied that, if the bridging visa is granted, the applicant will abide by the conditions imposed on it.

3. The decision to refuse to grant the visa was made on 13 October 2020 on the basis that the delegate was not satisfied that the applicant would comply with certain of the conditions that would be imposed on the visa if it was granted.

4. The applicant is in Victoria.  He appeared before the Tribunal by video from a detention centre, on the morning of 22 October 2020.  He was represented by his solicitor and registered migration agent, [Mr A], who attended by phone from a different location.  A technical issue caused the connection with the detention centre to fail.  [Mr A] stayed on the line while attempts were made to reconnect.  A hearing officer then called the centre and was told that it was a major outage and that there was no indication as to the timeframe within which it would be resolved.  It was agreed between the Tribunal and [Mr A] that we would wait awhile to see if the connection could be fixed.  At 11:20am it was agreed that the hearing would be postponed the next mutually available time, which was Monday 26 October 2020 at 9:30am.  The hearing could not be moved to the afternoon of 22 October as the member had another matter listed, and Friday 23 October 2020 was a public holiday in Melbourne.  The hearing was adjourned and [Mr A] and the interpreter’s calls were disconnected.  However, before the audio recording was switched off, the video connection with the applicant was automatically re-established.  It was explained briefly to the applicant that the hearing had been adjourned to Monday morning, apologies were given and he was told that a new hearing invitation would be sent to [MrA].

5. The applicant attended the adjourned hearing at 9:30am on 26 October 2020 by video from the Melbourne Immigration Transit Accommodation (MITA), to give evidence and present arguments.  The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

6. It was confirmed at the resumed hearing that, due to the unavoidable delay experienced hearing the applicant’s matter, they agreed to an extended timeline within which the Tribunal would make its decision; Thursday 29 October 2020.

7. The applicant was represented in relation to the review by his solicitor and registered migration agent, [Mr A].

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the Tribunal is satisfied, if the applicant is granted the Bridging Visa E that is the subject of this review, that he will abide by the conditions imposed on it.  The Tribunal has considered relevant information, including from the Department and Tribunal file, and oral evidence provided at the scheduled hearing, material to the issue on the review, in making the decision in this matter.  The issue on the review is the same determinative issue on which the bridging visa, that is the subject of this review was, refused; the delegate was not satisfied that the applicant met cl.050.223.

   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, if a bridging visa is granted to the applicant, that 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. In this case, relating to conditions which must or may be imposed, cl.050.617 applies as the applicant has an unresolved partner visa application.

    Background

13. The applicant is a [Age] year old Malaysian national.  His primary place of residence has been Australia, for the last 13 years or so.  He has lived predominantly in the [City] region of Victoria.  His wife lives in [Suburb], in Melbourne, and the applicant now says he intends to reside there with his wife if the Bridging Visa E (BVE) is granted. 

14. The applicant gave oral evidence at his hearing of the following timeline, confirming the information that had previously been provided, about visas he has held and matters relating to those visas, time spent onshore unlawfully when he had no visa. In summary:

    a.November 2007, the applicant arrived onshore holding a Subclass 976 visitor visa with the identity [Alias]

    i.25 February 2008, the visitor visa ceased

    b.26 February 2008, the applicant remained onshore as an unlawful non-citizen for about three and a half years

    i.Throughout the whole of this period of nearly four years, from 2007 to 2011, the applicant was working, even though he did not have work rights attached to his visitor visa and had no right to work when he was unlawful, the applicant was detected at a traffic stop by Victoria Police

    c.19 August 2011, the applicant departed voluntarily with using a passport with the identity [Alias]

    d.26 December 2011, the applicant returned to Australia holding a UD 976 visitor visa in a different name, [Name], the name he currently uses

    i.He knew there was an exclusion period that applied but claims he changed his name legally and that it would be alright to return

    ii.26 March 2012, the visitor visa ceased

    e.3 April 2012, the applicant was granted a student visa, which was cancelled on 8 May 2014

    i.He did no study, but while non-compliant with the purpose for which the visa was granted, worked throughout the two or so years that he held the visa

    f.14 April 2014, about three and a half weeks before the applicant’s student visa was cancelled, the applicant lodged a protection visa application which was refused on 8 December 2014

    g.24 December 2014, the applicant lodged a review application with the (then) Refugee Review Tribunal relating to the refusal of his protection visa 

    h.21 June 2016, the RRT (differently constituted) affirmed the decision to refuse to grant the applicant a protection visa, no review application was made

    i.18 July 2016, the applicant lodged an onshore partner visa application, while he did not hold a substantive visa, on the basis of his claimed spouse relationship with [Ms B], who is an Australian Permanent Resident and sponsor

    j.9 December 2019, the applicant’s bridging visa relating to the partner visa application was cancelled because the Department believed the applicant had breached the ‘no work’ condition 8101, and the applicant applied for review of the decision

    k.19 December 2019, the applicant attended the Department’s offices in Melbourne and was placed in detention

    l.12 March 2020, the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s bridging visa related to the partner visa

    m.Since being detained in December 2019, the applicant has made four applications for a BVE

    i.14 April 2020, the Tribunal (differently constituted) affirmed the decision of a delegate of the Minister to refuse the applicant’s application for a BVE made on 26 March 2020

    ii.28 May 2020, the Tribunal (differently constituted) affirmed the decision of a delegate of the Minister to refuse the applicant’s application for a BVE made on 14 May 2020

    iii.8 July 2020, the Tribunal (differently constituted) affirmed the decision of a delegate of the Minister to refuse the applicant’s application for a BVE made on 2 July 2020

    iv.7 October 2020, the applicant lodged a fourth BVE application since his detention in December 2019, which was refused and is the matter currently before the Tribunal

15. The applicant has been significantly non-compliant with visa conditions over many years, including remaining onshore from 2008 to 2011 unlawfully and working while unlawful, and entering Australia after being deported, when excluded from doing so.

16. The Tribunal acknowledges, and appreciates, that when giving his oral evidence, the applicant did not seek to deny or excuse that he has entered Australia under two different names, worked when he had no work rights, did not study when he held a student visa for two years, and was onshore unlawfully for a significant amount of time between 2007 and 2016; this information was already before the Tribunal, in the delegate’s decision, which was provided.  At the scheduled hearing, the applicant expressed regret that he had spent time onshore unlawfully and that he had worked for a significant amount of time while holding visas that had a ‘no work’ condition imposed.  The applicant says that since his marriage in mid-2016, he has not worked, and will not work if the visa is granted with a ‘no work’ condition imposed.  Given the applicant’s visa history, the Tribunal considers this to be highly unlikely. 

17. The applicant, from 2014 to 2019, was a director of a company of his ex-girlfriend, [Ms A].  This is not in dispute.  The applicant gave evidence, which is supported by information on the file, that [Ms A] first registered [Company] in 2014 and that he was added as a director, but he says in name only.  He said he sometimes helped her by translating documents relating to the company.  While it is accepted by the Tribunal on the face of it that the applicant was effectively a non-working director of [Ms A]’s company, as he claims, from 2014 to 2019, certainly for the period 2007 to 2016, on his own evidence, he was working unlawfully, almost the whole of that time.  He gave oral evidence at the hearing that he worked during the nine year period.  It is inconsequential who he worked for. 

18. It is accepted that when the applicant held a student visa from 2012 to 2014, he would have had the usual 40 hours a fortnight work rights.  However, at the Tribunal hearing he said he did not study while he held the student visa.  So, while he held a student visa for two years, until it was cancelled under s.109 of the Act because he had not declared he had previously been known by another name, the applicant appears to have been non-compliant with the primary purpose for which the visa was granted, that is, to study.  This indicates strongly to the Tribunal that he applied for the visa for the primary purpose of working.  The applicant has resided in Australia holding various visas for around 13 years and, for at least nine of those years, up to the time of his 2016 marriage, has been non-compliant with his bridging visa conditions, on his own evidence. 

19. Even though, at the hearing, the applicant expressed remorse and said he was sorry for his past non-compliance with visa conditions, it is the Tribunal’s view that he has only done so to support his application for the grant of a BVE.  It is acknowledged that the applicant claims he has not worked since 2016 and, on that basis, his bridging visa relating to his partner visa application should not have been cancelled. 

20. While not dismissing the possibility that a person who expresses remorse and contrition for past non-compliance with their visa conditions, in this applicant’s circumstances, the Tribunal is not convinced that the applicant suddenly decided he would start complying with his visa conditions, when he got married in 2016.  He says the reasons why he has decided to now comply with conditions is because his (then) migration agent told him it was very important that he complied with his visa conditions, and that he should not work.  On this basis, the applicant claims he has decided not to work unlawfully anymore, that he genuinely intends not to work, and he has not worked at all since mid-2016 then up to December 2019, when he was detained.  

21. It is acknowledged that if the bridging visa is not granted, the applicant has submitted that his continued detention will be harmful to the relationship with his wife, which may negatively impact the assessment of his as yet unassessed partner visa application.  The applicant claims he needs to be granted the BVE so he can care for his wife, who suffers from mental health issues.

22. The partner visa application was made on 18 July 2016.  The matter was remitted from the Tribunal with a finding that Schedule 3 criteria should be waived, but no findings were made as to the genuineness of the claimed spouse relationship with the sponsor; the application has been with the Department since it was remitted on 12 March 2020 awaiting assessment of the relationship for the purpose of a Subclass 820 visa.   

23. The applicant said at the hearing that he and his wife have maintained as much contact as is possible since he was detained in December 2019, which has been restricted due to the COVID-19 lockdowns in Melbourne.  He said they communicate by tablet, but they do not speak on the phone because his wife does not like or want to speak on the phone.

24. The Tribunal accepts that the lockdowns would have meant there could be no in person contact.  However, it is of significant concern to the Tribunal that the applicant’s wife did not support her husband in any way at his Tribunal hearing on the review of his bridging visa refusal.  It is accepted that the applicant’s wife has a history of mental health issues; there is quite a lot of evidence about this.  However, the Tribunal is not satisfied that she could not at least have made herself available for a phone call.  The applicant said at his hearing that he had asked his wife to attend and it was submitted by the applicant’s migration agent that he had advised the applicant that his wife should attend the hearing and that it was ‘critical to have her evidence’. 

25. In the adjourned hearing invitation sent to the applicant by the Tribunal on 22 October 2020, the applicant was informed that the Tribunal may wish to take evidence from his wife and that he should ensure she will be available to take a call on Monday morning, 26 October 2020 (to give evidence at his hearing).  The applicant said his wife does not work and that he will not work, so as to be compliant with his visa conditions.  He claims that he intends to live with his wife in [Suburb], Melbourne, if he is granted the bridging visa and that they will continue to be supported financially by his family in Malaysia.  There has been evidence provided of money transfers that appear to indicate his family has sent some funds through.  The statutory declaration of the applicant’s sister has been considered and it is accepted that she intends to help the applicant financially.

26. The applicant was asked at the scheduled hearing why his wife did not attend the hearing and said, referring to her mental health condition, that his wife has difficulty hearing from him, which the Tribunal has taken to mean that she finds the topic of his detention difficult to deal with.  He also said because ‘she has a mental issue’ that ‘it is not very convenient’.  It is acknowledged that concerns have been raised by the applicant that the Department has put allegations to him that the marriage is contrived, which the applicant strongly denies.  He claims he needs to be granted the bridging visa so he can care for her.  The most recent medical evidence relating to the mental health of the applicant’s wife is now some months old.  The applicant said he had spoken to his wife the day before the hearing, which the Tribunal takes to mean 25 October 2020, and that they communicate mainly by tablet, not phone, because she won’t talk on the phone.  While it is accepted that the probability exists that his wife does still suffer from some mental health issues, on the basis of past medical letters and reports, the Tribunal does not accept that she could not have made herself available to take a phone call to support her husband at his hearing because it was ‘inconvenient’. 

27. It is now 10 months since the applicant has been detained and physically separated from his wife.  It is accepted that he and his wife are supported financially, by the arrangement with his family to remit money to them, and that they will continue to support them financially.  However, the applicant has not otherwise been caring for her because he is in detention and cannot be physically present to do so, from December 2019 to the time of this decision, which is not to say it is within his control.  While there is no evidence before the Tribunal that she does not require him, or anyone, to care for her, the Tribunal does not consider that there is any contemporaneous or reliable evidence before it to be satisfied that the applicant’s wife does require the applicant’s care. 

28. The applicant, on his visa history, appears highly motivated to continue to reside in Australia, which has been his primary place of residence for at least 13 years.  While making no findings as to whether the claimed spouse relationship between the applicant and his wife is genuine or not, the Tribunal is not satisfied that the applicant genuinely intends not to work if there arises necessity or opportunity.  It appears to the Tribunal, on the evidence, that the applicant’s primary, and probably sole, reason for residing in Australia between 2007 and 2016 was for the purpose of working.  At almost all, if not all, times during that period he had no work rights, other than when he held a student visa for two years and was not studying. 

1. It is the Tribunal’s view that the applicant has, for the majority of his time onshore, showed flagrant, wilful and repeated disregard for Australia’s migration laws and regulations for a nine year period, from 2007 to 2016.  It is only since he married his wife, in 2016, that he claims to have been compliant with his visa conditions and not engaged in any work, which the Tribunal considers to be very unlikely in his circumstances. 

2. It was submitted at the hearing that the matter of the applicant’s partner visa application should have been decided by now, on the basis that the application was made more than four years ago and that the continued separation, if the bridging visa is not granted, may be harmful to the relationship.  The Tribunal appreciates the applicant’s frustration and agrees that it is a very long time.  However, the Tribunal and Department are independent of each other, and it is not for the Tribunal to say what is a reasonable amount of time for the Department to finalise a visa application.

3. However, the Tribunal does not feel that what appears to be a lack of willingness on the part of the applicant’s wife to support him at the scheduled hearing can be overlooked.  It was put to the applicant that it is reasonable to think his wife would want to support him at his hearing, particularly if she needed him home to care for her.  It was plainly stated in the hearing invitation that the Tribunal wished to take evidence from his wife, by phone.  The applicant is ably represented by a registered migration agent, who is also a solicitor, and the Tribunal is satisfied that the applicant was given the opportunity to provide evidence from his wife if he intended or wished to, in any form if, as he claims, she cannot speak by phone.   

4. The subject of the applicant’s ex-girlfriend, [Ms C], and co-director of [Company], was discussed with him at the hearing.  This is because, at a site visit to [Ms A]’s house in 2016, the applicant was present, and they were interviewed by Australian Border Force officers who left with a view that they were in a relationship and running the business together.  Details of that interview, relating particularly to a company of which the applicant was a director, and the personal relationship the applicant had or has with [Ms C], were in issue.  The information is contained in documents provided by the applicant.  The applicant submits, essentially, that [Ms C] is one of his closest friends and that they remain in close contact, since their intimate relationship from 2012 to 2014.  He said that back when they first met, he had some modest gambling debts and [Ms C] paid them.  The applicant also said that if she needs help, he does not hesitate to help her. 

5. There is reference in the delegate’s decision to the applicant having mentioned at interview that he may have a child with [Ms C].  While married, and after his 2016 partner visa application was lodged, the applicant said that he had a brief fling with [Ms C] in early 2017 while he was drunk, while he and his wife were living at the same house.  [Ms C] had a child in December 2017, but the applicant says he does not believe he is the father of her son because he said [Ms C] was having intimate relationships with other men around the time when conception is likely to have occurred.  The Tribunal accepts that there is no corroborative evidence before the Tribunal that the applicant is the father of [Ms C]’s child.

6. It is accepted that the applicant resigned as a director of [Company] in September 2019.  However, while there is no information before the Tribunal regarding precisely what business activity [Ms C] is currently involved in, if any, she has previously asked him to help her with company business, and the applicant says he has helped her, albeit in a capacity he claims was not substantial.  The Tribunal considers it reasonable to think, on the basis that the applicant said she is one of his closest friends and he would not hesitate to help her if she asked for help, that if she asked him to work for or with her, he probably would.

7. Before adjourning the first hearing, a s.376 certificate that had been placed on the Department file was provided to [Mr A], but without any comment or substantial discussion.  The applicant was not at that time present as the detention centre recording was still not working. The Tribunal considered it appropriate to provide [Mr A] with the certificate so the applicant would be able to comment on the validity of the certificate at the resumed hearing.  [Mr A] was told that such information as the Tribunal considered appropriate to provide, in its discretion, would be provided at the resumed hearing and, if the Tribunal’s obligations under s.359AA of the Act were engaged, that any adverse matters would also be put to the applicant at the resumed hearing.

8. At the resumed hearing, on 26 October 2020, [Mr A] elected not to comment on the validity or otherwise of the s.375 certificate, on behalf of the applicant.

9. The Tribunal went through the documents that were specified in the certificate and gave the gist of each of them and, where appropriate, specific information contained in them.  They covered, variously, information about the applicant’s relationship with his ex-girlfriend, her son, the 2016 site visa by ABF including Departmental procedures and notes about the site visit, references to financial transactions, the applicant’s passports in different names that he has entered Australia on and documents or emails relating to booking interviews and interpreters which contained the names of Department officers and processes.

10. The Tribunal has no reliable evidence before it that the applicant has continued in an intimate relationship with his ex-girlfriend.  It was accepted that they ended their relationship in 2014, but remained close friends and, although the applicant gave oral evidence at the hearing that he had a sexual encounter with [Ms C] in early 2017, it was accepted that he or any number of other men could be the child’s father in the absence of any evidence to indicate otherwise.  It is accepted by the Tribunal that anything the applicant said relating to the child of [Ms C] and his relationship with [Ms C] at his interview may have been misunderstood.

11. Likewise, notwithstanding there are notes in the Department file relating to large sums of money being transacted by the applicant, there is no verifiable evidence before the Tribunal indicating that the applicant himself made the transactions as a director of [Company].  On the face of it, the Tribunal is willing to accept that the applicant has made only modest financial transactions in Australia.

12. The applicant was told at the Tribunal hearing that the information that was contained in the documents specified in the s.376 certificate, other than where Department officers’ names and Department procedures were mentioned which are not material to the issue on the review, was information that the applicant had already provided or was not considered to be adverse information.  The Tribunal elected not to use its discretion to provide the documents to the applicant, but is satisfied that relevant information was given to him.

    Conditions to be imposed

13. In this case, cl.050.617 applies because the applicant has an unresolved partner visa application with the Department. This clause prescribes that, in addition to any mandatory conditions, certain other conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101               No work

    8506               Must notify any change of address with 2 days’ notice

    8401               Must report at a time and place specified by the Minister

14. While it is accepted that the applicant claims he will live with his wife and abide by the conditions imposed on him if the visa is granted, he has in the past, and for the majority of the time Australia has been his primary place of residence, shown little if any regard for complying with his visa conditions.  In addition, the applicant claims to have never engaged in the types of large financial transactions that were mentioned in the delegate’s decision, and the Tribunal has accepted his evidence on the face of it, as there are no financial records before the Tribunal that can verify millions of dollars having been transacted by the applicant.  It is accepted that the applicant has been and will be provided with financial support of his family, on the evidence provided.  However, if the applicant needs to rely on his family indefinitely, the Tribunal would be very concerned that the arrangement may not be sustainable, or even if it is sustained, that the applicant not will again fall into his habit of being non-compliant with his visa conditions if it is convenient or necessary.

15. Notwithstanding the applicant’s expressions of remorse and contrition, his visa history and non-compliance, has been considered very carefully, together with the claim that he will now comply with the conditions of the bridging visa, if granted.  The applicant has previously worked, non-compliant with visa conditions, for many years and while holding many visas that had a no-work condition imposed them and, on the basis that he was unlawful until detected in the community back in 2012, has engaged in behaviour that indicates a willingness to live undetected in the community.  When the applicant was granted a student visa, he did not commence study and did not advise the Department of his changed circumstances, but instead continued to use the visa to work.  The applicant has, for many years, particularly from 2007 to 2016, put his own self-interest and needs relating to visa conditions, above Australia’s migration laws.  Even though he claims, that if he is granted the visa, he will now comply with the conditions imposed, the Tribunal considers it highly likely that he would again be non-compliant if he needed to be or it suited him.

16. The extent of the applicant’s non-compliance, in particular relating to his ability to obtain a new identity (albeit some years ago), working when he had no work rights, remaining onshore illegally and only voluntarily departing because he was caught, does not satisfy the Tribunal he will comply with visa conditions 8101, 8506 or 8401.

17. For the reasons given, 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.

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

    DECISION

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

    Jennifer Cripps Watts
    Member