2102301 (Migration)

[2021] AATA 940

2102301 (Migration) [2021] AATA 940 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102301

MEMBER:Brendan Darcy

DATE:5 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 05 March 2021 at 3:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging E) – abide by visa conditions – visa and work history – long period as unlawful non-citizen – claimed to be unaware of visa status – no notification of change of address or attempt to regularise status – lack of knowledge about proposed providers of accommodation and support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223, Schedule 8, conditions 8101, 8401, 8505, 8506

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 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 19 February 2021. 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.

3. The decision to refuse to grant the visa was made on 24 February 2021 on the basis that 050.223 was not met: abide by condition to be imposed on his visa if were to be granted.  

4. The applicant appeared before the Tribunal on 5 March 2021 at 12.00PM to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent; however, the agent was not present at the hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. As discussed during the hearing, the Tribunal accepts that the applicant satisfies cl. 050.211, 050.212 and 050.222. The critical matter in this case is whether the applicant will satisfy cl.050.223.

   Background

8. The applicant arrived in Australian [in] September 2013 while holding a Class UD Subclass 601 visitor visa which was set to expire on 3 December 2013.

9. The applicant lodged a Class XA Subclass 866 protection visa on 18 October 2013 and was granted an associated Class WA Subclass 010 bridging visa.

10. The protection visa was refused on 31 March 2014 by a delegate on behalf of the Minister.

11. As the applicant did not apply to have the visa reviewed by the Tribunal, differently constituted, his bridging visa expired on 7 May 2014 and became an unlawful non-citizen in Australia on 8 May 2014.

12. The applicant was identified by the authorities [in] December 2020 at random breath testing site auspiced by the Western Australian Police and then placed into immigration detention under s.195 of the Act.

13. The applicant lodged a review of his protection visa with the Tribunal on 18 February 2021. A determination about the validity of the application for review had not been made at the time of making this decision.

14. On 19 February 2021 the applicant lodged an application for this visa under review while detained on the basis that a substantive visa has not been fully determined. The applicant’s representative provided a number of documents about including a statement by the applicant about the level of material support he would receive from [Name A] residing at a residence in [Suburb] in the State of Western Australia and a statement from [Name A]. Also attached was a copy of the applicant’s Malaysian passport and the [Name A]’s Australian passport.

15. The applicant was interviewed by an official of the Department on 20 February 2021.

16. A delegate on behalf of the Minister refused the visa on 24 February 2021.

17. The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 25 February 2021.

    Immigration status of the applicant - cl.050.211

18. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

19. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

20. The Tribunal is satisfied that the applicant was an unlawful non-citizen in Australia at the time and had been for almost six years.

21. Accordingly, the applicant meets cl.050.211(1).

22. There is nothing to suggest that he is not an eligible non-citizen of the kind set out in in r.2.20(7), (8), (9), (10), (11) or (17). 

23. Accordingly, the applicant meets cl.050.211(2).

24. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa - cl.050.212

25. 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.

26. 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. For the reasons below, the applicant meets cl.050.212.

    Substantive visa application

27. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

28. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

29. The applicant lodged a review of his refused Class XA Subclass 866 protection visa on 18 February 2021. While that visa was refused by the Department in May 2014, the Tribunal’s records indicate this visa was lodged a day after the review application was lodged, indicating that the applicant did have a substantive visa that was not determined at the time of application.

30. Accordingly, the applicant meets cl.050.212(3).

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

31. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

32. The Tribunal’s records indicate the applicant was invited to comment on the validity of the review application on 19 February 2014 and to provide written comment by 5 February 2021. 5 February 2021 is the same day as the scheduled hearing for this review. The information before the Tribunal is that the validity of the application for review has not been fully determined at the time of making this decision.

33. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

    The requirement to be interviewed by an authorised officer - cl.050.222

34. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

35. The departmental records indicate the applicant was interview by an authorised official of the Department on 21 February 2021 in relation with this visa application under review

36. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

37. 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.

38. 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].

39. The delegate considered the following conditions to be imposed on the applicant:

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

    ·     8207 – The holder must not engage in any studies or training in Australia;

    ·     8505 - The holder must reside at a specified address;

    ·     8506 – The holder must notify the department at least 2 working days in advance of any change in the holder’s address; and

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

40. In this review, the Tribunal has considered the same visa condition for the applicant by which he will abide, if the visa were to be granted.

41. Before considering these conditions individually, the Tribunal has made an assessment that the applicant’s claims about his [deleted] lack overall credibility. It has reached this general assessment based on the applicant’s inability to inform the Tribunal as to the content of a signed statement he provided as part of this visa application. The applicant was unable to provide any detail about the statement, including the full name or names of his ‘guarantor’ (the person undertaking to provide accommodation and basic needs if the applicant was in the community). The applicant explained that his migration agent or lawyer instructed him to sign it. It was explained to the applicant that in signing documents which purport to be a statement about the applicant’s knowledge invites the Tribunal to consider that he will write, say or sign anything in order to have this visa granted, which undermined his general credibility. The applicant insisted it was his agent that was at fault.

42. The Tribunal was also invited to consider that the applicant’s general inability to provide the full names of people he claimed to know well enough as to provide accommodation and basic needs. This, in itself, indicated to the Tribunal that the applicant was not meaningfully acquainted with the persons or that they would provide such support over such a long period of time in relation to an assessment of his protection visa. 

43. The Tribunal also notes that the applicant claimed that he was not aware that he had to update the Department about changing his address and that he was informed by others that he did not have to at the time he moved address while holding a bridging visa in association with a protection visa application in 2014. The Tribunal does not accept this. The legal onus of bridging and temporary visa holders to update the Department about a change of address and other circumstances and not any third party. Such visa holders are informed about this by the Department when the visas are granted. If visa holders do not understand the information provided in English, the onus remains on them to have the document understood. The applicant’s claims to being ignorant were not plausible or credible. The Tribunal finds that he wilfully ignored the conditions on his visa because of his general disregard for the migration laws of Australia.

44. For these reasons, the Tribunal found the applicant’s oral and other evidence were lacking in general credibility and many of his explanations regarding non-compliance with Australian laws in the past lacked credibility. In fact, it reflects his general determination to flout the migration laws in order to remain in Australia as long as possible. In making these adverse credibility findings, the applicant has invited the Tribunal to make the following adverse findings about cl.050.223.

45. 8101 (No work condition): The Tribunal notes the applicant told the authorised officer that he was working in various employment [for] the past six years or more; that he had savings of about 6000 Australian dollars and that has a family in Australia to support him financially. The delegate was not satisfied was not satisfied the applicant would abide by this condition on the basis that he was unable to support himself without working and in the context of his working unlawfully for six years.

46. At the hearing, the applicant admitted to working since becoming an unlawful non-citizen in 2014. attempted to convince the Tribunal that he had unknowingly worked without lawful permission between becoming an unlawful non-citizen and 2017 when he became aware that he was unlawful and that he did not unlawfully work as much between 2017 and being detained because of his precarious migration status. Based on the overall adverse credibility finding above, the Tribunal finds that applicant knowingly and wilfully worked unlawfully as much as possible with no regard to the migration laws of Australia.

47. The applicant also attempted to convince the Tribunal that he would be provided with accommodation and food by ‘guarantors’ and had enough savings. As discussed above, the applicant was unable to recall the guarantors’ names in full. Furthermore, the level of claimed savings is not substantial for a sustained period, even in cases where the accommodation and other basic needs are sympathetically provided. Although it is accepted the applicant is friends with these nominated people, the Tribunal has formed a view that the applicant has little regard for Australia’s migration laws and that the applicant’s motivation to work is so considerable he will not abide by this condition.

48. In short, the Tribunal finds that the applicant will not abide by visa condition 8101, if this visa were to be granted.  

49. 8207(No study condition): The delegate did not make any specific finding regarding this condition. The Tribunal asked the applicant about whether he had studied while in Australia, to which he responded only in an online course in English. The applicant’s highest level of educational attainment is completing secondary school in Malaysia and he has not completed any trade or obtained any qualifications. The applicant demonstrated to the Tribunal that he little motivation to advance himself educationally. For this reason, the Tribunal finds the applicant will uphold condition 8207 if this visa were to be granted.

50. 8505 (Reside at nominated address) ad 8506 (Advice of change of address): These two conditions are related.

51. The delegate was not satisfied that applicant would abide by 8506, 8401 and 8505.The delegate cited the following as informing his or her adverse findings about the applicant upholding these conditions:

    ·Departmental records indicated that the applicant made no attempt to update his contact detail or regularise his migration status.

    ·The delegate said the applicant hang up on Departmental officials when they attempted to contact him.

    ·He did not respond to text messages sent to his phone number;

    ·The applicant said that he had moved houses on a regular basis but did not provide any of those details to the Department.

    ·Had the applicant not been located by the Western Australian Police, the applicant would not have voluntarily presented himself to the Department on an ongoing basis.

52. At the hearing, the applicant insisted that he would not change the nominated address being the [Suburb] residence of his guarantors, but should it be required, he would inform the Department about any changes of address. The applicant provided a number of explanations as to the reasons he did not contact the Department about his changes of address in the future and contacting the Department about his migration status in general. They included he feared being detained if he approached the Department as instructed by migration agents. However, he was unable to explain why he could not call or email the Department or answer the calls of the Department when there was no risk of being detained. He claimed he did not engage migration agents because he feared fraud and/or the unaffordability, yet he otherwise took no action to address his unlawful migration status.

53. The Tribunal does not accept these explanations to be credibly put based on the Tribunal’s finding that the applicant lacks overall credibility. The Tribunal finds that the applicant has such disregard for Australia’s migration laws and is so determined to remain in Australia that he will resume his evasive behaviour and not abide by these conditions.

54. In short, the Tribunal finds that the applicant will not abide by visa conditions 8505 and 8506. 

55. Condition 8401 (Reporting condition): The Tribunal notes the delegate’s reasons (outlined above) as to his or her findings that the applicant would not abide by this condition. The applicant provided similar reasons as to why he has not maintained contact with the Department in the past. The Tribunal does not accept these explanations based on the Tribunal’s finding that the applicant lacks overall credibility.

56. The Tribunal finds that the applicant has such disregard for Australia’s migration laws and is so determined to remain in Australia that he will resume his evasive behaviour and not abide by this condition requiring to report to the Department at a time or times and a place as directed.

57. In short, the Tribunal finds that the applicant will not abide by visa condition 8401, if this visa were to be granted. 

58. 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.

    Summary

59. The Tribunal has formed the view that the applicant has no demonstrative regard for Australia’s migration laws and is determined to remain in Australia for as long as possible, if released into the community, including becoming an unlawful non-citizen again. The applicant will say and do anything to augment this otherwise weak claims that he would abide by conditions 8101, 8505, 8506 and 8401 to be imposed on this bridging visa if it were to be granted.

60. In carefully considering the evidence in support of the applicant’s claims to compliance, the Tribunal is not satisfied that the applicant would not breach all but one of the relevant conditions that would be attached to the visa and that compliance will not be enhanced by attaching a security bond if the visa were to be granted.

1. For the stated reasons, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa is granted. Therefore, the applicant does not meet cl.050.223.

   Conclusion

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

3. 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

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

   Brendan Darcy
   Member