2017262 (Migration)

[2020] AATA 5899

2017262 (Migration) [2020] AATA 5899 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2017262

MEMBER:Alan McMurran

DATE: 10 December 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 10 December 2020 at 11:30am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with conditions imposed on visa – applicant convicted of criminal offences – lengthy period of unlawful residence – meet security condition – failure to engage with the Department – risk that the applicant may remain in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.223, 050.614, 051.211

CASES

VAAN v Minister for immigration and Multicultural Affairs [2002] FCA 197

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 lodged 30 November 2020 for review of a decision made by a delegate of the Minister for Immigration on 26 November 2020, 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 November 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.

   Background

3. The applicant is [an age]-year-old Malaysian citizen. The applicant’s immigration history is set out in the Department decision made 26 November 2020, and may be summarised in the following table:

   Significant Events history:

RELEVANT DATE	EVENT	OUTCOME
[March] 2017	Arrival	Visitor visa grant: conditions 8115,8201,8527,8528
21 April 2017	PV Subclass XA 866	Application lodged – 13 July 2017 WA-010 was granted
10 August 2017	Personal details not provided	PV Application deemed invalid
14 September 2017	Department advises	BVA ceased
15 September 2017	No other applications	Became UNC
9 October 2017	Application	BVE
23 October 2017	Dept interview in Vic	BVE granted
[November] 2017	BVE ceases	Became UNC
[October] 2018	Alleged assault occurs	Reported to [Town 1] Police
[Later in] October 2018	Appointment to attend Police station with Tamil interpreter	Does not turn up for Police appointment
[October] 2018	Police inform DOHA of pending assault causing injury charge	Follow up required
[November] 2018	Police follow up with DOHA	Details of alleged assault provided to DOHA
[September] 2020	Arrest/randomly located – charged: recklessly cause injury (x2); unlawful assault;	To appear at [Town 2] Magistrates’ court
[September] 2020	In custody on remand to 14 Sep 2020 for hearing date	[Named] Correctional Centre
[November] 2020	Hearing date: Guilty pleas to Magistrate	Sentenced [number] days gaol (incl time served)
23 November 2020	PV Subclass XA 866 lodged, with WE-050	Now finalised
25 November 2020	Interview in detention re WE-050	With Tamil interpreter
26 November 2020	Dept decision	Refuse WE-050
4 December 2020	PV  Subclass XA-866	Application refused by Dept
8 December 2020	AAT – Hearing - WA-050 -refusal reviewed	With Tamil interpreter

Delegate’s BVE findings

1. The applicant was interviewed by the delegate while in detention on 25 November 2020. The delegate found in the decision refusing the visa that it was unlikely the applicant would comply with specified conditions to be attached to the grant of the visa.

2. The delegate concluded on each of the conditions to be imposed as follows[1]:

   [1] Extracted from delegate’s decision dated 26 November 2020;

   Assessment against 050.223 – Compliance with BVE conditions

   I consider it appropriate in your case to impose the following discretionary conditions on the Bridging E visa:

   8101 No work
   8506 Must notify address
   8207 No Study
   8401 Must report as directed

   8564 Must not engage in criminal conduct

   Condition 8401 – Must report as directed

   …………

   I am therefore not satisfied of your explanation that you were not aware that you were granted a Bridging E Visa on departure grounds and you were unaware of the process of rectifying your visa status and furthermore that you did not understand how to approach the department when there is clear evidence that you presented in person to the department on [a day in] April 2017. I place more weight on information and departmental records than your responses provided to me at interview. It is also my view that it was your intention to remain in the community unlawfully and that you would have continued to do so had you not come to the attention of Victoria Police on [a day in] September 2020.

   Condition 8101 – No Work

   …………

   I believe that you are strongly motivated by the desire to work given you stated you were sending money to your mother in Malaysia. I find the information provided does not outweigh your admissions of undertaking work when you did not hold a proper visa to do so and that it is highly likely you would engage in unlawful work in the future.

   I find that you intentionally withhold information in relation to your employment details and the persons providing you this employment not because you are unaware of those details, but because they provided you employment in the community when you were unlawful. I cannot dismiss that your actions demonstrate a clear disregard for breaching condition 8101 No Work and therefore, I am not satisfied that you would not comply with this condition

   Condition 8506 Must notify address

   …………

   I have considered that you remained unlawful in the community for almost three a half years without any engagement with the Department. Given your immigration history and the vague responses you provided during the interview about your residential addresses and work details, I am of the view that it is highly likely that you would not provide the Department with accurate or truthful information if you were released back into the community. I cannot ignore that had you not been apprehended by Victoria Police, that you would have remained living and working in the community unlawfully. Accordingly, I am not satisfied that you would comply with condition 8506 Must Notify Address.

   8564 Must not engage in criminal conduct

   …………

   I have considered the risks associated to you being released back into the Australian community, however, I am of the view that your credibility and criminal conduct clearly sets out that there is a significant risk to you abiding by condition 8564. Accordingly, I am not satisfied that you will abide by condition 8564 Must not engage in criminal conduct.

3. The issue of condition 8207 No Study was considered by the delegate and found would be complied with, as there was no prior history of any study by the applicant in Australia.

4. Overall, the delegate was not satisfied the applicant would comply with the conditions to be imposed and therefore clause 050.223 was not met.

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

   S.376 Certificate

6. Prior to the hearing, the Tribunal provided the applicant with a copy of a certificate issued under section 376 of the Act.

7. At the hearing, the Tribunal explained to the applicant that in the Tribunal’s view, it was a valid certificate, having been signed by its author and delegate and dated 2 December 2020.

8. The Tribunal explained that the contents which the Department sought not to be disclosed concerned the Department’s methods of investigation and the identity of certain persons involved in those investigations, some of the detail of which had been redacted from the electronic copies provided to the Tribunal. The Tribunal explained that the information concerned the current unlawful status of the applicant and his criminal history, which were matters already known to him. The Tribunal indicated its opinion that those matters need not be disclosed in the public interest, but that in any event they had little or no bearing on the Tribunal’s considerations over the conditions to be attached to the visa and in light of the matters already set out in the delegate’s decision, known to the applicant, and which were the subject of the review.

9. The applicant had a copy of the delegate’s decision referring to those conditions and the lengthy opinion concerning the criminal conduct issues raised by the delegate, and which were in part covered by the certificate

10. The applicant did not seek to challenge the Tribunal’s finding at the hearing, ask any questions nor seek any further information about the certificate or request an adjournment.

    The Tribunal – Hearing – Applicant’s evidence

11. The applicant appeared before the Tribunal on Tuesday 8 December 2020 by video link from [a detention centre][2] , to give evidence and present arguments. The applicant was not represented. An interpreter in the Tamil language was present by telephone. The Tribunal did not detect any issues arising concerning translation and none were raised either by the applicant or the interpreter. No adjournment was sought or considered necessary.

    [2] [Deleted.]

12. The Tribunal explained the process of review to the applicant, and that the primary concern was consideration of compliance with any conditions which might be attached to the visa.

13. The applicant confirmed his identity as a Malaysian citizen, his date of birth and his current place of detention at [a detention centre]. The Tribunal asked if the applicant had received a copy of the delegate’s decision. The applicant confirmed he had received it, and that another Malaysian in the detention facility had assisted him by translating the contents. The applicant said he understood the purpose of the review and the need to comply with conditions.

14. The Tribunal asked if the applicant understood why the visa had been refused. The applicant’s response was somewhat vague, however he said he understood that he had been living in the community without a visa, which was unlawful. He said he knew “it’s wrong that I lived in the community without a visa” but said that he thought his lawyer had “dealt with it”.

15. He was asked how long he had been living in the community unlawfully and he agreed it was almost 3 years, from [November] 2017 until [September] 2020. The Tribunal asked if he had contacted his lawyer about obtaining a visa. The applicant said he had tried “many times” but the lawyer never responded. He said the day before the hearing he had tried to contact the lawyer unsuccessfully. The applicant checked his mobile phone and said he thought the lawyer was [name] in [Town 1]. He said one of the other detainees had recently spoken with the same lawyer, and when the applicant tried to speak with him on the detainee’s phone, the lawyer hung up.

16. The Tribunal asked what the applicant had been doing since his arrival as a visitor in March 2017. He said he had gone with his “friend” to work fruit picking and farming. He said he had left his family in Malaysia, including his wife who he had divorced and [an age]-year-old daughter. He said he had not obtained any educational qualifications in Malaysia, was quite “uneducated” and had left school at age [age]. He said he had not travelled anywhere but to Australia, having come to Australia for his own personal safety. He said he did not come to Australia to work.

17. The Tribunal asked why he then needed to work, and the applicant responded he needed money for his expenses. He agreed that he needed to have a visa to allow him to work, but that it was “wrong” for him to have worked without the visa. But he said however he simply had no money and had to work to survive. He said he had no relatives in Australia and was supported by his sister in Malaysia and other Malaysian friends in [Town 2]. He said he had met Malaysian people here through his friend who travelled with him when he came on his visitor visa. He said the Malaysian friend’s name was [Mr A].

18. The applicant said he had been staying in [Town 3] where he was taken on his arrival. The Tribunal asked about the friend, [Mr A], and the applicant explained that he had met him in Malaysia, and he had offered to bring him to Australia and obtain a visa for him. He said this was the person who took him to [Town 3] where he was first living. He said he had provided his address to the Department, “when I came to detention”.

19. The applicant said he had paid [Mr A] approximately $[amount] in total, piecemeal, since arriving in March 2017. He said he would give him small amounts from time to time by way of payment for the visa. He said that he had no idea himself about how he should go about staying in Australia lawfully. He said he understood that a visa was necessary and came with conditions. But he had no idea about how to go about it as he was “uneducated”.

20. The Tribunal asked how much money he brought with him to Australia and he said approximately $1000. He said he thought that would support him for one or two months, but on arrival realised he would need money from his family, which they sent from Malaysia. He was asked about a bank account and the applicant said the money was paid to his friend who then gave it to him.

21. The Tribunal at this point summarised what had been said by the applicant, that he had come to Australia in fear for his personal safety, that a Malaysian friend had brought him here and offered to obtain him a visa in return, to this point, for a total of approximately $[amount] paid piecemeal, that the applicant himself did not understand the process for obtaining the visa, but believed he could live here “safely”, spend his time in Victoria and work in the farming community, which he had been told he was able to do.

22. The applicant agreed that he knew these things were “wrong” as he required a visa, but that he proceeded nonetheless, and for a period of approximately three years while unlawful. The Tribunal asked whether he had sought advice or had any further assistance, and he said he had attempted to contact [Mr A] who had left [Town 2], telling the applicant he was going “somewhere for work”, and that he had since heard that he had now returned to Malaysia.

23. The applicant said he had done some work fruit picking and working on various farms where he had also stayed from time to time. He said he had stayed at an address in [Town 1] and his most recent address was at [Town 3 address], and which information he had provided to the Department when taken into detention.

24. In light of this evidence, the Tribunal asked the applicant what assurance he could provide that he would not work if released back into the community, as he had little or no income and no regular address. He responded that he would not work and that his family would send him money. He said he had no one else here to support him. The Tribunal asked how he would survive, and he repeated that if he asked his sister for money she would send it to him, to his Malaysian friends who would then collect the money and pass it on to him as he did not have an operating bank account.

25. When the Tribunal put to him that it might be difficult to believe in the present circumstances that he would not work in order to survive, the applicant responded that he is “uneducated” and does not understand the visa process, but would continue to live in the community and be supported from family overseas while his protection visa was under consideration.

26. The Tribunal informed the applicant the likely conditions imposed on any visa would be those identified by the delegate, including not working, reporting as directed by the Department, providing his address, and not being involved in any criminal behaviour.

27. The Tribunal asked why the applicant had not been reporting to the Department and had not attempted contact for almost 3 years. The applicant responded that he had not had any assistance, and that the only help he had sought had been from [Mr A] and the lawyer who had taken his money, but who he asserted would now not speak with him. The Tribunal put to him that if he had not understood how Australian law operates and what compliance meant with conditions, why he had not done something about it and he simply repeated that he did not know what to do and was “uneducated.”

28. The Tribunal asked where he would live outside detention. He said he had left his things in a shed with his Malaysian friends in [Town 2]. He said that’s where he had been living when arrested. He said he was apprehended by police when driving to [a venue] with another person, and they were stopped and “checked”. He said he remained in custody, went to court and then to jail and on release was transferred to immigration detention in Melbourne. He gave the [Town 3] address to police and the Department, telling the Tribunal he had been living there up until his arrest [in] September 2020. Prior to that, he said he had been living in [Town 1] for about four or five months, and prior to that on various farms where he had been working. The applicant could not provide details of those addresses and they had not been given to the Department, other than the [Town 3] address where he was living when arrested.

29. The Tribunal put to the applicant that if he were to be granted the visa, he would not be able to be involved in any criminal conduct, which he accepted. He said he was sorry that he had “done things wrong” but would now comply with the conditions. The Tribunal asked what he thought he should have done in the circumstances, and he said, “I should have spoken to government, but bad things have happened to me”. The Tribunal asked what “bad things”, and the applicant referred to the money he had paid to his lawyer who now will not talk to him, and that he thought he “had the visa” and has found out that is not correct.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in this case is whether the applicant will abide by conditions attached to the grant of the visa.

    Whether the applicant will abide by conditions - cl.050.223

31. 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.

32. 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].

33. 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.

34. In this case, cl.050.614 applies, because the applicant has applied for a Subclass XA-866 visa and was granted a WA-050 visa on 13 July 2017. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101 – No work;

    8401-   Must report at a time or times and at a place specified by the Minister for the purpose;

    8506 – Must notify change of address;

    8207 – No study

    8564 – Must not engage in criminal conduct;

    Concerns raised by the evidence at hearing as to whether the conditions will be complied with

1. The Tribunal listened carefully to the applicant’s responses during the hearing, mindful of its obligation to act in a fashion which is fair, just, economical, informal and quick. The Tribunal found the applicant’s responses were frequently vague and lacking in detail and that not a great deal of reliability can be placed on the information provided by the applicant. The Tribunal finds however that in summary, the applicant’s responses are corroborated to a certain extent by the facts established concerning his immigration history[3], how he came to be in Australia, his intentions to obtain a substantive visa, his interactions with other members of the Malaysian community, his limited interaction with authorities including the Department, and his general lack of awareness and ignorance of Australian laws.

   [3] See paragraph 3 above

   Discretionary factors and findings

   Immigration History

2. The applicant’s history has been set out above in some detail.[4] The Tribunal is satisfied having regard to that history that the applicant has been living unlawfully in the community for a period of almost 3 years. But for his random arrest, the applicant would still be living unlawfully in or around [Town 2].

   [4] ibid

3. The Tribunal places some significant weight on the established migration history as an indicator of the likely future conduct of the applicant.

   Previous Breaches - Significance

4. The Tribunal finds that the applicant has failed on at least two occasions to meet with the Department for the purpose of initially completing his earlier bridging visa application and which required a fingerprint test. Since that time, the Tribunal finds the applicant has not engaged with the Department in order to regularise his visa status, notwithstanding he was aware that it was “wrong” not to have a visa.

5. The Tribunal does not accept the applicant’s evidence that he was ignorant and unaware of how to progress his visa application or that there was nothing he could do about it. The Tribunal finds that the applicant was working for virtually all of the time he remained unlawful, as he says, doing work on farms and fruit picking and as directed by other people he was living with, knowing it was “wrong”.

6. The Tribunal is satisfied these breaches were serious and attributes some significant weight to those breaches.

   Wilfulness

7. The Tribunal finds the applicant had little regard to the consequences of working unlawfully and remaining in the community without engaging with the Department. To continue to do so for a lengthy period of almost 3 years illustrates a significant determination by the applicant to continue to act unlawfully, for as long as he could continue to do so without being discovered.

8. In the interview with the Department, the applicant maintained that his purpose in coming to Australia was for his personal safety and “also assist my family financially”.[5] The applicant agreed he has been sending money home to Malaysia for his mother, while he was working.

   [5] detention interview 25 November 2020 at page 4

9. The Tribunal is satisfied the applicant was aware he was not lawfully entitled to work but continued to do so nonetheless for as long as he could while undiscovered.

10. The Tribunal places some significant weight on this finding.

    Mitigating Circumstances

11. The Tribunal finds on the available information that it is not satisfied that there are any significant mitigating circumstances.

12. Despite the applicant’s statements he is “uneducated” and thought “I had a visa”, and that he believes he needs protection in Australia, it is clear the applicant had enough knowledge of his circumstances to be aware he was doing the wrong thing, and which he continued to do regardless.

13. The Tribunal places some significant weight on this finding.

    Contrition

14. The Tribunal asked the applicant at hearing if he was sorry for what had occurred, and if he was mindful of Australian law. The applicant repeated that he was aware what he did was “wrong” and for which he was sorry, but that he “couldn’t do anything”.

15. The Tribunal does not place any significant weight on the applicant’s statement that he is “sorry” or that he has expressed any genuine remorse or contrition for the significant breaches of Australian migration law. The Tribunal is satisfied that the applicant’s asserted “ignorance” of Australian law is not a reasonable excuse or explanation.

16. The Tribunal places little weight on any contrition expressed by the applicant.

    Future Compliance and Security

17. The Tribunal finds it is satisfied that there is a significant risk if the applicant were returned to the community at large, that he would continue to find circumstances where he could work and obtain an income in order to support himself and send money to his mother.

18. The applicant has no independent means in Australia, no assets, no familial support and no evidence of any voluntary support from friends or those in the Malaysian community. The Tribunal is satisfied that the incentive for him to continue to work unlawfully is very high.

19. The Tribunal places significant weight on this finding.

    Summary

20. The applicant has said simply that in respect of each of the conditions to be imposed, he “accepts” and will comply.

21. The Tribunal finds however on the evidence that the applicant has shown by his past history a willingness to breach Australian laws, including criminal and migration laws. The Tribunal notes and has considered the applicant’s evidence in the detention interview that he denies committing any assault. Regardless, the applicant pleaded guilty and was convicted. Whether or not the applicant was properly advised at the time, it is reasonable to take account of the conviction, the circumstances of the crime which involved a serious assault and the likelihood that it arose as a result of the dispute over money.

22. The Tribunal finds on the evidence that there is a significant risk the applicant will not engage with the Department as to any regular contact or with an address, that he will continue to work, and that he will not comply with reporting directions from the Department.

23. The applicant has remained unlawfully in Australia for an extensive period and notwithstanding he has lodged a protection visa application, there is a significant risk he will seek to again hide himself in the community to avoid being returned to Malaysia, due to his stated fear for his personal safety. To be abundantly clear, the Tribunal has not given any consideration to the accuracy or otherwise of the applicant’s stated fears but finds nonetheless it is satisfied this would be a reason and incentive for the applicant to continue to avoid contact with authorities and again disappear into the community.

    Security

24. Given the above findings, the Tribunal is not satisfied that there is any reasonable likelihood the applicant would be able to meet any security condition which might be imposed, or that there is a likelihood of any person providing the applicant with such security. There is no evidence of the availability of any security.

25. In any event, given the Tribunal’s findings that the likelihood of the applicant breaching the visa conditions referred to above is significant, the question of the imposition of any security simply does not arise [6] as the Tribunal is not satisfied the conditions which would be imposed on the grant of the visa will be complied with.

    [6] VAAN v Minister for immigration and Multicultural Affairs [2002] FCA 197 at [21]

26. The Tribunal finds in totality this application is not without some difficulty given the asserted ignorance and impoverishment of the applicant occasioned by his living in Australia without resources or support, and for which the Tribunal has some empathy. The Tribunal is satisfied however on balance that the appropriate course on a reasonable interpretation of the facts and circumstances as presented is to refuse the application.

27. 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..

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

29. 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

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

    Alan McMurran
    Member