2103639 (Migration)

[2021] AATA 1059

2103639 (Migration) [2021] AATA 1059 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103639

MEMBER:Lilly Mojsin

DATE:31 March 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 31 March 2021 at 8.15 am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions – first visa expired, period as unlawful non-citizen, detention and voluntary removal – applied for second visa under different identity during exclusion period – visa expired, period as unlawful non-citizen, detention and application for protection visa – previous bridging visa application refused and refusal affirmed – long periods as unlawful non-citizen – some part-time casual work despite no work rights – no notification to department of change of address – security bond – proposed sponsor’s financial circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 73, 189, 376

Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.223, Schedule 8, Conditions 8101, 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 22 March 2021. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present application, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations).

3. The decision to refuse to grant the visa was made on 22 March 2021 on the basis that the delegate was not satisfied that the applicant will abide by conditions if granted a Bridging Visa E and therefore did not meet cl.050.223.

4. The applicant appeared before the Tribunal on 30 March 2021 by video conference from Melbourne Immigration Transit Accommodation (MITA) to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant provided a copy of the delegate's decision to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant first arrived in Australia [in] August 2012 as the holder of a [Tourist] visa. This visa was valid until 3 November 2012. After the expiration of his visa he remained in the community as an unlawful non citizen until 24 June 2015 when he was detained under s189 of the Migration Act. He was voluntarily removed from Australia [in] July 2015.

8. On 4 November 2015 a [Visitor] Visa was granted to the applicant as [Alias], an identity purportedly belonging to the applicant's brother. This visa included the conditions 8115, 8201, 8527, 8528. The applicant entered Australia [in] November 2015 using the identity of [Alias] with a visa that was valid to 27 February 2016. The applicant remained in the community until 13 January 2021 when he was located by Victoria Police and detained under s189 of the Migration Act.

9. On 27 January 2021 the applicant applied for a Protection visa and an associated Bridging visa.

10. The Tribunal, differently constituted, affirmed the decision of the Department refusing the applicant a Bridging visa.  The applicant again applied for a Class WE visa on 22 March 2021.

11. At the Tribunal hearing held on 30 March 2021, the applicant said that he was single and had no children. The applicant confirmed that the information provided by the delegate in the Department decision that he arrived in Australia [in] August 2012 on a [Tourist] visa that expired on 3 November 2012 and remained after that without a valid visa until he was detained in June 2015 and voluntarily removed from Australia in July 2015. He most recently arrived [in] November 2015 using a passport in another name. He has remained in Australia since that time. He was located by Victorian police on 13 January 2021 and as his visa had expired, he was taken into immigration detention.

12. The applicant confirmed that his protection visa application had not been finalised. 

13. Asked why he returned to Australia [in] November 2015 using another person’s passport, he said that a friend was able to apply for another passport for him from the government authorities. He came to Australia because he has a personal loan in Malaysia and he needs to get away from the loan sharks.

14. Put that he was aware that he was breaching Australian migration laws and was not able to return to Australia for 3 years when he re-entered.  He said that he knows but he has no other way to escape from people who are chasing him for money.

15. Asked if he worked in Australia since 2015, he said that he has tried to look for jobs but as he does not have a valid visa he could not work. But when they are short of people on construction sites, he would work, it was from 1 to 3 days per week. He worked in order to support himself and pay back money he owes in Malaysia. During other times he does housework and chores and they provide him with boarding in exchange.

16. In regard to where he lived prior to being detained, he said that he lived in [Suburb 1], but he cannot remember the address. Also living there was his friend [Mr A] who is Malaysian. The applicant does the housework and cooks. Asked if he has any money of his own, he said that he only had casual or part-time work and he transfers that money to Malaysia to pay back his loan. Asked how much money he has in the bank, he said he thinks he has $30 to $40.  In regard to his intentions if released from detention, he said that he would live with the sponsor person who pays his bail. That person lives in a suburb close to [Suburb 1]. Asked why he was not returning to his previous address he said that he will go to his sponsor. He and his sponsor were introduced at a party in 2018. He will live at her place. [Ms B] is married with 3 children. Her husband works in [Suburb 2], he is not his sponsor but his wife is his sponsor. They decided it would be like that. Asked how many times he has visited this couple  in their home he said he has visited them many times. They have gatherings when they share food.  [Ms B] works part time selling things like [specified products].

17. The Tribunal discussed with the applicant the documents provided by [Ms B]. The Tribunal put that a bank account shows that [Ms B] earned $50 000 for the previous tax year and she had $17000 in [a] Bank account. There was also a Council rate notice provided.

18. The applicant said that she cannot attend as she has school meeting. The time is not convenient today. It was explained that his sponsor has not provided any written documents to show that she and her husband can afford to support the applicant and their 3 children.

19. Asked who is to provide him with financial support he said that it would be looking for a working visa to work and if not possible, he will do housework and cleaning in exchange for food and a place to live. In terms of sponsorship he has discussed the issue and it is agreed the wife will be his sponsor as the husband has permanent work, a stable job. Sponsor has a property she owns. Asked why he had not informed the Department of his change of address he said that he knows that if he is released, he will inform the Department of his change of address.

20. The applicant confirmed that he had no intention to study and promised he would abide by conditions.

21. In light of his migration and visa history and non compliance in the past with visa conditions and returning to Australia on a false passport he was asked why the Tribunal should be satisfied he will comply with conditions now. He said that he would like the Tribunal to trust him as he is too scared to be deported to Malaysia now. He will follow all the regulations if released into the community. He can report to the relevant Department or the police. He is scared and horrified about returning to Malaysia.

22. Put that his sponsors have provided no evidence to show that they can afford to support him. The Tribunal discussed the documents provided to the Department. These included a bank statement with over $17 600 in it, Council rate notice, income tax assessment for [Ms B] for an income of $50 951 and statement by [Ms B].

23. Advised applicant there was as.376 certificate on the Department file and explained that it purported to cover the relevant documents due to public interest. It was explained that the Tribunal believed that it is valid. The applicant said that he was aware that it was not legal to use another person’s passport and he did not do it with a bad intention. The only reason he used it was to escape from Malaysia and since in Australia he has never done anything illegal. That is why he would like another opportunity to stay here. COVID is severe in Malaysia and if he is returned and if caught again he will be in trouble. His protection visa application is to be heard but he does not know when. 

    REASONS AND FINDINGS

24. A Bridging Visa E is granted to non‑citizens who:

    §are making arrangements to depart Australia;

    §are awaiting the final determination of a visa application;

    §have had their visa cancelled where the non‑citizen wishes to pursue merits review of   the cancellation decision;

    §are seeking judicial review of their visa decision;

    §are seeking Ministerial Intervention; or

    §are in criminal detention.

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.

26. In this review, 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. 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. '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.

27. As the applicant lodged a protection visa application on 27 January 2021, which is an application for a substantive visa, the applicant meets cl.050.212(3).

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

29. The applicant lodged a protection visa application for review after being detained. The applicant told the Tribunal at the hearing that his protection visa application[1] has not, as yet, been finalised.  The Tribunal is satisfied the applicant continues to meet  cl.050.211 and cl.050.212(3) at time of this decision. The applicant therefore meets cl.050.211.

    [1] AAT 2101813

30. Clause 050.223 requires that the Tribunal be satisfied that at the time of decision, if a bridging visa is granted to the applicant, he 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.

31. 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 willfulness 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].

32. 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.

33. In this review, the conditions to be imposed under the relevant cl.050.6 clause as identified by the delegate are mandatory condition 8101 (no work), and the following discretionary conditions: 8207 (no study) , 8401 (report at specified time and place), 8506 (notify change of address) and 8564 (Must not engage in criminal conduct).

34. The Tribunal agrees that these are the conditions which must and should be imposed in the circumstances of this application.

35. The Department file contained a s376 Certificate stating that it applied to immigration internal correspondence (TRIM DOCUMENTS – [Numbers], of TRIM file [Number]), and certify that disclosure of this material would be contrary to the public interest because:

    ·It would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice to the effectiveness of those methods.

    ·It could disclose, or enable a person to ascertain the existence or identity of, a confidential source of information

36. The Tribunal told the applicant that it considered that the certificate contained a valid ground not to disclose the folios covered by the certificate. It was explained to the applicant that the Tribunal had taken the view that the certificate was valid because of public interest reasons. The Tribunal outlined that the certificate stated that the material contains information that discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. 

37. Whilst the s.376 is a valid lawful method for preventing, detecting and investigating breaches or evasions of the law, these issues are not relevant to the issues before the Tribunal  ie.  whether or not the applicant will abide by conditions if released from detention, that is the issue to be decided by the Tribunal. Therefore, the Tribunal places no weight on those documents in making its decision about whether the applicant will abide by conditions if released.

38. The Tribunal has considered the applicant's immigration history. The applicant confirmed at hearing that he arrived in Australia [in] August 2012 on a [Tourist] visa that expired on 3 November 2012 and remained after that without a valid visa until he was detained in June 2015 and voluntarily removed from Australia in July 2015. The applicant arrived in Australia most recently [in] November 2015 using a passport in another name. He has remained in Australia since that time. He was located by Victorian police on 13 January 2021 and as his visa had expired, he was taken into immigration detention.

39. In assessing whether the applicant will abide by conditions imposed on the Bridging Visa the Tribunal has considered the following:

40. The applicant has been in Australia for over 8 years. From August 2012 to June 2015 he remained in Australia in the community without any valid visa for about 32 months.  The applicant returned to Australia with a passport in another name and remained in Australia in the community from November 2015 to January 2021 for 49 months, only 3 of those months was with a valid visa that had been issued to another named person. The applicant has advised the Tribunal that he worked in Australia without a valid visa, but he only worked part-time on construction sites, usually for 2 -3 days.

41. The applicant returned to Australia, being aware that he was excluded from returning for a defined period of time ie 3 years. Whilst he claims that he was in fear of his life so that he returned to Australia with a passport issued in another person’s name, the Tribunal finds that he ignored the conditions on his visa, for nearly 7 years overall, because of his general disregard for the migration laws of Australia.

42. The Tribunal finds that applicant knowingly and willfully worked unlawfully in Australia with no regard to the migration laws of Australia. The Tribunal accepts that he may not have worked on a full-time basis but nevertheless he worked whenever he could find work. The Tribunal does not accept that the applicant will abide by mandatory condition 8101 ( no work) as the information before the Tribunal indicates that he has worked previously whenever he could, and he claims that he owes debts in Malaysia, so that he sent back to Malaysia all the money that he earned in Australia.

43. In regard to Condition 8207(No study) the Tribunal is satisfied that the applicant, because he has never studied in Australia, will not study in Australia. The Tribunal places some weight on this factor.

44. In regard to Condition 8564 (Must not engage in criminal conduct) the applicant has not been charged with any offence since being in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with Condition 8564. The Tribunal places weight on this factor.

45. The applicant told the Tribunal that he will update his contact details if released from detention and regularise his migration status as required by Condition 8506 (Advice of change of address) and promised that he would report to whoever and whenever, as required by Condition 8401 (Reporting condition).  Had the applicant not been located by the police, the applicant would not have voluntarily presented himself to the Department on an ongoing basis. The Tribunal finds that the applicant has had such disregard for Australia's migration laws and is so determined to remain in Australia that he will resume his behaviour and not abide by these conditions requiring to report to the Department at a time or times directed and at a place as directed or to notify his change of address. The Tribunal places great weight on this factor.

46. The Tribunal is satisfied that the applicant will not comply with mandatory condition 8101 (No Work) and places great weight on this factor. The Tribunal finds that, on balance, the applicant will not comply with conditions imposed on his visa.

47. If the Tribunal is satisfied that the applicant will abide by 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.

48. The Tribunal has considered the written evidence of [Ms B], who was unable to personally attend the scheduled Tribunal hearing, due to her commitments. The Tribunal accepts that she is an Australian citizen and has a stable income of $50 000 per annum. Whilst she stated that she will support the applicant with payment for “expenses of food, medical, travel and other aspects” and she is also willing to pay the security bond if it is requested, the Tribunal put to the applicant that there is no evidence before it to demonstrate the source of her funds. Further, there is no evidence of her husband’s income.  The applicant stated that he wanted to obtain a working visa to remain in Australia or otherwise he would cook and clean in order to pay for his living expense.

1. Independent evidence[2] indicates that the cost of living for a family of four, ie. 2 adults and 2 children in Australia is $4 000 per month whilst other evidence[3] indicates it can be as high as $5 220. In this instance [Ms B] would, on the evidence before the Tribunal, be unable to support an additional adult, the applicant, and a child as she has 3 children.  

   [2]

   [3]

2. 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 two 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.

3. 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.  The Tribunal has formed the view that the applicant is determined to remain in Australia for as long as possible, if released into the community, including becoming an unlawful non-citizen again. The Tribunal is not satisfied that the applicant will abide by conditions even were a security to be imposed.

4. The Tribunal finds that cl 050.223 is not satisfied.

   DECISION

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

   Lilly Mojsin
   Member