2100084 (Migration)

[2021] AATA 304

2100084 (Migration) [2021] AATA 304 (11 January 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2100084

MEMBER:  Denise Connolly

DATE:  11 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2021 at 1:45pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – worked unlawfully in Australia in the past – ability to obtain financial support from wife or friends – reporting requirements – subject of a Family Violence Order – living arrangements – remained in Australia unlawfully for a period of eight months – no criminal conduct requirement – lack of insight into the seriousness of family violence – security bond – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 73

Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, 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).

1. The applicant, a citizen of Malaysia, applied for the visa on 29 December 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 the applicant will abide by conditions imposed on a bridging visa if granted.

1. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The decision to refuse to grant the visa was made on 4 January 2021 on the basis that the delegate was not satisfied the applicant would comply with visa conditions 8101 “No work”, 8401 “Report as required” and 8564 “Must not engage in criminal conduct”.

1. The applicant appeared before the Tribunal on 11 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

1. The delegate’s decision record sets out the applicant’s migration history and the events leading to his detention in Melbourne Immigration Transit Accommodation.

1. The applicant first arrived in Australia [in] April 2017 as the holder of a Subclass 601 Electronic Travel Authority. That visa ceased on 5 July 2017 and the applicant remained in Australia unlawfully until 11 March 2018 when he lodged a protection visa application. He told the delegate that he came to Australia as it was hard to make a living in Malaysia. He claimed that he did not know it was against the law for him to remain in Australia after his visa ceased. The delegate recorded that the applicant was granted a Bridging visa C on 11 March 2018 with condition 8101 – No work, however on his own admission he had been working on farms between 2018 and 2020, in breach of that condition. When this was raised with the applicant, he indicated he had just been assisting his wife by carrying boxes at the farm where she worked. He also claimed to have been financially supported by friends and that he still owed them money but was not sure exactly how much he owed.

1. The applicant has been the subject of several criminal charges, relating to family violence incidents, which resulted in four months’ imprisonment. The delegate recorded that the applicant was violent towards his wife and child, born in [month, year]. The delegate recorded that, when asked about the circumstances of the violent incidents, the applicant merely stated “I argued with my wife”. Ultimately, when the particulars of the violence were put to the applicant, he indicated that he was wrong to do it and he really wanted to say sorry

to his wife and child. When asked what had happened since the last incident in September 2020 that had resulted in a change of behaviour, the applicant indicated he felt shame and the time spent in prison had reformed him. He described the family violence prior to the incident in September 2020 as “small incidents”. He indicated he was not aware of those incidents until he was formally charged by Victorian Police in September 2020.

1. The delegate recorded that there was an incident in October 2019 when the applicant threw a milk bottle at his wife which caused her injury. The applicant claimed it was purely accidental; he had thrown the bottle backwards during an argument and it just happened to land on her.

1. The delegate also raised with the applicant an incident in July 2020, which the applicant also described as a “small incident” and indicated it was caused by his “big temper”.

1. The delegate recorded the description provided about the incident on 11 September 2020, that the applicant was arguing with his wife in a room and did not want his child to enter the room. He slapped his wife twice claiming he only wanted to get his things and leave the house without confronting her. The child was crying so he slapped him. After the applicant calmed down, he realised he had done the wrong thing.

1. When concerns were raised with the applicant about the family violence perpetrated by him, and whether the delegate could be satisfied that he would not engage in criminal conduct, the applicant indicated he wanted to reform and that his relationship with his wife is now okay. The delegate was not satisfied the applicant would comply with condition 8564 - Must not engage in criminal conduct.

1. The delegate also noted that the applicant has stated he came to Australia as it was hard to make a living in Malaysia. It was noted that he spent eight months in Australia as an unlawful noncitizen and continued to breach a visa condition by working without authority to do so. The delegate formed the view the applicant had demonstrated his disregard for Australia’s immigration laws and had serious concerns that if he was granted a bridging visa he would disengage and remain in the community, regardless of the outcome of his protection visa application, which is currently under review by the Tribunal, but not yet constituted and finally determined. The delegate was not satisfied the applicant would comply with condition 8401 - Report as directed.

1. The Tribunal also has before it the Department’s file. It has on it a s.376 Certificate giving the Tribunal discretion to disclose certain information which was provided in confidence to the Department. That information is the Fact Sheet and the Prisoner Holding Intent sheet provided to the Department by Victorian authorities. The information contained in those documents has been discussed with the applicant by the delegate in an interview held on 31 December 2020. The Tribunal also discussed with the applicant aspects of the information included in those documents.

Hearing on 11 January 2021

1. At the hearing the Tribunal explained to the applicant the requirements of the law and that it was considering whether it is satisfied he will comply with conditions 8101, 8401, 8506 (advice of change of address) and 8564. It also explained that, if it is not satisfied he will comply with those conditions, it must consider whether the payment of a security bond will provide him with sufficient incentive to do so. It explained it may be the case that no amount of security bond will satisfy the Tribunal that the applicant will comply with conditions.

1. The applicant told the Tribunal that he has no outstanding criminal matters to be dealt with and he is not the subject of a good behaviour bond or any other conditions or reporting requirements, having been released from prison.

1. The applicant told the Tribunal that he arrived in Australia in April 2017 as the holder of a tourist visa. He acknowledged that he stayed in Australia unlawfully but could not remember the duration of his unlawfulness. He indicated that in 2018 his wife helped him apply for a protection visa. The Tribunal asked the applicant why he remained in Australia unlawfully. He claimed he forgot.

1. The Tribunal asked the applicant if he came to Australia to undertake work already arranged before his departure from Malaysia. He indicated the work was not arranged. He secured work after arriving in Australia from online sites and through friends. He claimed he started working in Australia after his tourist visa expired.

1. The Tribunal asked the applicant why he applied for protection. He indicated his wife said in order to stay here he would need to apply for protection. She was pregnant. They met here.

1. The Tribunal noted the delegate had recorded that the applicant indicated he came to Australia to work as he stated it was hard to make a living in Malaysia. It explained that, while it was not reviewing his protection visa application, it may be concerned the applicant apply for protection merely as a means of remaining in Australia to work. It also explained that it may be concerned that he will work unlawfully in Australia as he has in the past. The applicant indicated he did not work unlawfully for very long. He indicated that he will not work if he is released from detention; his wife will work and he will look after “the kid”.

1. The Tribunal noted that when the delegate raised with the applicant that he had worked unlawfully in Australia in the past, he indicated that he had merely been carrying boxes for his wife while she worked on the farm. It explained that it may form the view that this was in fact work. The applicant indicated that when he was carrying boxes he was not aware he could not work. However a friend then told him he was not allowed to work on that visa and so he stopped. The Tribunal asked how he survive financially if he was not working. He indicated that his wife was financially supporting him. The Tribunal asked how she was able to do this during the late stage of her pregnancy and childbirth. He indicated his friends then supported him. The Tribunal asked why his friends supported him financially. He indicated that one of the friends came from his wife’s village.

1. The Tribunal explained that it may be concerned the applicant will work as he does not have any financial resources and appears to be dependent on his wife. It explained that it may be concerned that she will not be able to support him financially given that she has a child and is only undertaking farm work. It also explained it may be concerned that if the relationship breaks down again he will have no income and be forced to work. It also noted the applicant had debts and no current capacity to repay them. The applicant indicated that if the relationship breaks down his friends would help him. The Tribunal asked about his friends’ financial circumstances and whether they are wealthy, given their willingness to support him financially. He indicated his friend, who holds a Bridging A visa, is wealthy. However he does not know about the source of his wealth.

1. The Tribunal explained it may be concerned that he has not been honest about his previous work history in Australia, by suggesting that he only worked unlawfully for a short period and generally relied on his wife and friends for financial support. It explained that if it found that he was not being honest about his work history this may cast doubt on his assertions that he will comply with condition 8101 if he is released from detention. The applicant nodded, acknowledging he understood the Tribunal’s concerns. He indicated that when he is released from detention he will live at home with his wife and look after the child.

1. The Tribunal asked the applicant about the family violence incidents leading to his conviction. He indicated that it was mostly just one incident in September 2020. The rest of the incidents were “minor”. He indicated that his wife had embellished the facts about the other incidents. The Tribunal asked the applicant to explain what he meant by “minor” family violence. He indicated that he and his wife had quarrelled and in September 2020 he hit her. However before that he was only pushing her. He did not consider pushing to be assault. However he acknowledged that he hit her and assaulted her in September 2020. He also assaulted his child, who was then [an infant], by slapping him on the face. He acknowledged that he left marks on his child’s face.

1. The Tribunal asked the applicant if he was the subject of any family violence orders. He told the Tribunal he is the subject of a Family Violence Order which prevents him having contact with his wife and child. (A copy of that order is included on the Department’s file. It is dated [September] 2020 and protects the applicant’s wife and child and, among other things, orders that the applicant must not contact, approach or communicate with his wife and child). The Tribunal asked the applicant how he is going to comply with the Family Violence Order if he intends to live with his wife and care for his child on release from detention. The applicant indicated that when he is released from detention he will go to court and get the order removed.

1. The Tribunal raised its concern with the applicant that he may not have a practical living arrangement in place given there is a Family Violence Order which, on his own evidence, prevents him having contact with his wife and child, yet he has indicated he intends to live with them if he is released from detention. The applicant indicated he had no comment.

1. The Tribunal raised its concern that the applicant appears to be attempting to diminish the seriousness of the family violence he had perpetrated, for example, by describing it as “small” and “minor” incidents. It explained that it may be concerned that he has not adequately dealt with his “big temper” and the reasons why he has resorted to violence to resolve family conflict. It indicated this may cast doubt on his assertion that he will comply with condition 8564. It indicated that it remains concerned that he may perpetrate family violence in the future given his apparent lack of appreciation of the nuances of family violence. The applicant indicated it was only when he went to prison that he realised family violence is wrong. The Tribunal reminded him that he indicated pushing is “minor” and explained it may form the view he still does not understand the dynamics of family violence. He indicated that while he was in prison a friend explained family violence to him.

1. The Tribunal noted the delegate had recorded that the applicant remained in Australia unlawfully for a period of eight months and claimed he did not know he could not stay after his visa had expired. It explained that it may not accept that he was not aware of this. It asked if he had any comment. He had no comment on this concern.

1. The Tribunal raised its concern that the applicant may not notify the Department of a change of address, in compliance with condition 8506, in the event his relationship with his wife breaks down. He indicated he will comply. The Tribunal asked the applicant what he and his wife intend to do if his protection visa application is unsuccessful. He indicated he would need to talk to his wife. She also has a protection visa application on foot but he is not sure of its status. When asked why he made his protection visa application, he indicated that it was hard to make a living in Malaysia. He had nothing further to add.

1. The Tribunal explained to the applicant that if it remained concerned that he will not comply with visa conditions it had to consider whether a security bond would provide him with the incentive. It asked if he had any evidence to give regarding a security bond. He had no evidence to give on this issue.

1. The applicant was given an opportunity to provide any further evidence. He had nothing further to add.

Whether the applicant will abide by conditions - cl.050.223

1. As the applicant has a valid application for a substantive visa of the kind that can be granted if the applicant is in Australia and that application has not been finally determined, he satisfies cl.050.212(3) and continues to do so as at the date of this decision. Accordingly, he satisfies cl.050.221. The Tribunal must therefore consider whether it is satisfied the applicant will abide by conditions.

1. 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.

1. 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].

1. 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.

1. Certain conditions may be imposed on a Bridging E visa. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

a.8101 - no work

b.8401 - the holder must report at a time or times, at a place specified by the Minister.

c.8506 – the holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

d.8564 - holder must not engage in criminal conduct.

1. In this case the delegate was not satisfied the applicant would comply with conditions 8101, 8401, and 8564.

1. The applicant has acknowledged that he remained in Australia unlawfully although he could not specify the period. On the basis of information set out in the delegate’s decision record, provided to the Tribunal by the applicant, the Tribunal finds the applicant remained in Australia unlawfully for a period of eight months. It does not accept his evidence that he did not know he could not remain in Australia after his tourist visa expired. It is of the view it is significant that he remained here unlawfully for eight months and only applied for protection

because his wife told him he needed to do this to stay here. It formed the view the applicant was not honest with the Tribunal in relation to his migration status. It also has serious concerns that he has not been honest with the delegate or the Tribunal in relation to his work history in Australia. It considers his description that he was merely helping his wife carry boxes on the farm to be an attempt to conceal his employment while unlawfully in Australia. Nor does it accept that his wife, as a farmworker, would have been able to support him financially since his tourist visa expired, particularly given her pregnancy and the birth of their child during that period. It is not persuaded by his vague reference to a wealthy friend, or friends, willing to lend him money and support him so that he has not needed to work in Australia. It notes his evidence that he came to Australia because it was hard to make a living in Malaysia. It is of the view that this undermines his claim that he has not been working in Australia. The Tribunal is not satisfied the applicant is witness of truth and is concerned that this casts doubt on his assertions that he will comply with visa conditions.

1. With respect to condition 8101, the Tribunal is concerned the applicant has sought to minimise the amount of work he has done in Australia in breach of a visa condition prohibiting his employment while the holder of a Bridging C visa. It notes that he seeks to rely on financial support from his wife however it also notes his own evidence that he is the subject of a Family Violence Order which prevents him having contact with his wife. He has not provided any evidence about his wife’s financial situation. Nor has he provided any documentary evidence to support his assertions that he has a friend, or friends, who will support him financially if he is granted a Bridging E visa. It is not satisfied in these circumstances that the applicant will not work if he is released from detention and granted the visa. It is not satisfied the applicant will comply with condition 8101.

1. The Tribunal is not satisfied that the applicant has practical living arrangements in place, if he is released from detention. It notes his evidence that he will live with his wife and look after his child. However it also notes his evidence that he is the subject of Family Violence Order which currently prevents him having contact with his wife and child. It has taken into account his claim that he will go to the court to have the order removed but it is of the view the outcome of that application is purely speculative. On the evidence before it, the Tribunal is not satisfied that the applicant’s relationship with his wife is ongoing and stable, given its history. Accordingly it has concerns that the applicant will be able to lawfully stay with his wife. Even in the event that he is able to have the Family Violence Order removed, it has concerns that the relationship may again break down and the applicant will need to move. While it is not undertaking a review of the applicant’s protection visa application, his reasons for applying for the visa, that it is hard to make a living in Malaysia, suggest his review application may be unsuccessful. Given its concerns about the reliability of the applicant’s assertions, the Tribunal is not satisfied the applicant will report as required or notify the Department of the change of address in the event that he does not achieve his desired outcome from the review of his protection visa application refusal. Accordingly the Tribunal is not satisfied the applicant will comply with conditions 8506 and 8401.

1. In particular, the Tribunal remains concerned that the applicant does not appreciate the seriousness of family violence. It is of the view he has sought to diminish violence he has perpetrated in the past by suggesting it is “minor” and “small”. He does not consider pushing his wife to have been violence or an assault. It is particularly concerned that he has assaulted [an infant] child by slapping him in the face. It is not satisfied that the applicant has demonstrated that he understands the nuances of family violence. It is concerned that if he is released from detention as the holder of a Bridging E visa, and he has contact with his wife and child, that there may be further incidents of family violence. Accordingly it is not satisfied that the applicant will abide by condition 8564.

1. The Tribunal has taken into account the applicant’s assertions that he now understands that he has done the wrong thing in the past and that he seeks to apologise to his wife and child.

However this does not overcome the concerns raised by his lack of appreciation of the dynamics of family violence. Nor do his assertions overcome the concerns raised by his unreliable evidence regarding his employment in Australia and financial support that he has received.

1. Having found that it is not satisfied the applicant will comply with conditions which would be imposed on a Bridging E visa, the Tribunal has considered whether the payment of a security bond would assist it to be satisfied that the applicant would abide by the conditions on the visa. The Tribunal explained to the applicant that it may not be satisfied that any amount of security would be sufficient to provide the incentive to abide by conditions imposed on a Bridging E visa.  The applicant did not have any evidence to give regarding the payment of a security bond. He has not provided any financial documents about his own, his wife’s or his friends’ financial circumstances. Accordingly the Tribunal has concluded that there are no funds available for a security bond. In any case it has concerns as to whether the provision of a security bond would provide sufficient incentive for the applicant to abide by conditions 8101, 8401, 8506 and 8564, given the concerns raised about the reliability of his evidence. The Tribunal is not satisfied the payment of a security bond will provide the applicant with sufficient incentive to abide by the visa condition.

1. On the evidence before it, considered overall, the Tribunal is not satisfied that the applicant will abide by visa conditions 8101, 8401, 8506 and 8564, imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

1. 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

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

Denise Connolly Member