2104732 (Migration)

[2021] AATA 1140

2104732 (Migration) [2021] AATA 1140 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104732

MEMBER:Mary Sheargold

DATE:22 April 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 22 April 2021 at 9:33am

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – abide by condition not to work – business loans in home country to be repaid – application for protection on ground of fear of harm from creditor – deliberate intent to breach immigration laws – general offer of support from unrelated individual – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.613A; Schedule 8, Conditions 8101, 8401, 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 25 March 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 13 April 2021 on the basis that the applicant could not satisfy cl.050.221 because at the time of the delegate’s decision, the applicant did not meet cl.050.212(3). The applicant appeared before the Tribunal on 20 April 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Time of application criteria

5. Applicants for a Bridging Visa E must, at the time of application, satisfy cl.050.211 and cl.050.212.

6. At the time of application, [the applicant] was an unlawful non-citizen as required by cl.050.211(1)(a) and was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).

7. Accordingly, the Tribunal is satisfied that [the applicant] satisfies the requirements of cl.050.211(1), and therefore cl.050.211 is met.

8. 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.

9. 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

10. 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.

11. ‘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.

12. [The applicant] applied for a Subclass 866 protection visa on 25 March 2021, the same day he applied for this Subclass 050 (Bridging E) visa.  The protection visa is a substantive visa, and it was not finally determined at the time he made this application.  Therefore, at the time of application, [the applicant] met the requirement in cl.050.212(3).

    Time of decision criteria

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

13. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.  The Tribunal notes that [the applicant] continues to be an unlawful non-citizen who is detained by the Department, and he is not an eligible non-citizen in the relevant sense.  Therefore, the applicant continues to meet the requirement in cl.050.211.

14. The delegate refused to approve the application on the basis that [the applicant]’s application for a Subclass 866 protection visa was refused by the Department on 12 April 2021.  The delegate made the decision on 13 April 2021. 

15. The Tribunal notes that [the applicant] lodged an application for review of the decision to refuse his Subclass 866 protection visa with the Tribunal on 13 April 2021.  The Tribunal notes that an application is not “finally determined” whilst it is subject to merits review.  The Tribunal notes that as at today’s date, [the applicant]’s application for review of the decision to refuse his Subclass 866 visa is still before the Tribunal and has not been finally determined.  Therefore, the Tribunal finds that [the applicant] continues to meet the requirement in cl.050.212(3) at the time of this decision.

16. 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

17. 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).

18. At the hearing, [the applicant] confirmed that he had been interviewed by an authorised officer of the Department on 6 April 2021.  Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

19. 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.

20. 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].

21. 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.  The Tribunal is satisfied that a security is not required to ensure that the applicant will abide by the conditions if the visa is granted.

22. Clause 050.6 prescribes that certain conditions may be imposed on a Subclass 050 Bridging (General) visa.  Relevantly, cl.050.613A provides the list of conditions that may be imposed in the case of the applicant, who is an applicant for a protection visa, and he is not in a class of persons specified by the Minister.  This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed.

23. In the primary decision, the delegated indicated that they would impose the mandatory condition, condition 8101 – that the applicant must not engage in work in Australia.  The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101: must not engage in work in Australia;

    ·8401: must report (a) at a time or times, and (b) at a place specified by the Minister for this purpose; and

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

24. In the primary decision record, the delegate did not make any findings with respect to whether or not the applicant would abide by condition 8101 if his Subclass 050 Bridging E visa was granted, instead noting that consideration of compliance with conditions was irrelevant because the applicant did not meet cl.050.212(3) at the time of the delegate’s decision.

25. At the hearing, the Tribunal told [the applicant] that in addition to the mandatory condition that he must not engage in work in Australia, the Tribunal thought it was appropriate to include conditions 8401 and 8506 and invited [the applicant] to comment on whether he thought such conditions were reasonable.  [The applicant]’s initial comment was to query whether he would be able to work if he was granted the visa, as he did not have the means to support himself.  The Tribunal confirmed that condition 8101 was a mandatory condition that would have to be complied with if the visa was granted.  [The applicant] indicated that he understood this.  He told the Tribunal that he would definitely comply with all conditions imposed if the visa was granted.

    Evidence provided by the applicant

26. The Tribunal notes that the only documentary evidence before the Tribunal supporting [the applicant]’s application is a brief written statement to the Department from [Mr A] dated 10 April 2021.  The statement reads:

    My name is [Mr A].

    Date of birth: [Date]

    My current address is [Address 1].

    I write this statement about the case of [the applicant].  I understand his situtaion [sic] fully and want to support him in Australian community.

    I am willing to provide him shelter, food, transportation and other basic needs.

    Kind regards,

27. The Tribunal notes that there is also a file note in the Departmental file noting a brief conversation between the delegate and [Ms B], the owner of the property where [Mr A] lives.  The delegate notes that [Ms B] stated that [Mr A] had asked her if his friend could move into the property, and that it was her understanding that [Mr A] would cover all the costs for [the applicant].  There is no further documentary evidence before the Tribunal.

28. [The applicant] held a Subclass 988 Maritime Crew (Temporary) (ZM) Visa immediately prior to his arrival in Australia.  He told the Tribunal that he was a trained [Occupation 1] able to [do a job task] on vessels.  The Tribunal notes that other than for brief periods where [the applicant] had disembarked the vessel on which he was working whilst it docked at 2 other ports in Western Australia, he not been to Australia prior to his arrival onshore [in] January 2021.  At the hearing, [the applicant] told the Tribunal that he had no family or close friends in Australia.

29. The Tribunal questioned [the applicant] regarding his family and circumstances in Vietnam and what led him to decide to jump from the vessel on which he had been working and swim to shore in [City 1].  [The applicant] told the Tribunal that he has a wife and 2 [children], aged [age] and [age], still living in Vietnam.  [The applicant] told the Tribunal that after his business went bankrupt in 2014, he liquidated all assets including the family home to repay loans to banks, that his family then moved in with his parents, and that his wife and sons remained there now.  [The applicant] told the Tribunal that in addition to the bank loans relating to his business, he had amassed considerable debts to a private organisation in Vietnam in efforts to save his business from bankruptcy, and that upon obtaining employment on another cargo liner from 2017 to 2019, his debtors had sought repayments from him. 

30. [The applicant] stated that when he advised them he did not have the means to make payments, they sent “gangsters” to beat him, that he suffered serious injuries including head injuries, and that it took 12 months for him to recover from the beating.  [The applicant] told the Tribunal he fears for his life if he cannot find the money to repay his debt, and that he is seeking an opportunity to earn money to enable him to pay those debts off.  [The applicant]’s evidence is that he borrowed approximately [amount] Vietnamese Dong from this particular organisation and has not repaid any of those monies.  The Tribunal notes this equates to roughly AU$67,000 as at the time of this decision.

31. [The applicant] told the Tribunal that after recovering from his injuries in 2020, his wife had urged him to leave Vietnam to save his life, but that she was not aware of his plan to jump from the ship he was working on and swim to the Australian shore.  The Tribunal asked if [the applicant] knew where the cargo liner would be travelling to prior to accepting the position working on the ship.  He stated that he only became aware of the ship’s destination after they had set sail, and that he was told they would go to Australia.  [The applicant] told the Tribunal that there was a map of Australia available on board the ship, and he spent time studying the map to familiarise himself with the geography. 

32. [The applicant] told the Tribunal that he had heard that Australia was a good country to live in because it had high wages, good employment opportunities, and a large Vietnamese community, but that he did not know anyone living here himself.  [The applicant]’s evidence is that he made his decision to attempt to arrive onshore in Australia during his time on the ship and not prior to leaving Vietnam, though he conceded that he did not intend to return to Vietnam when he boarded the ship in Vietnam in October 2020.  [The applicant] told the Tribunal that he hoped to commence working in Australia in order to save money to repay his debts in Vietnam, and that he and his wife had no immediate plans to attempt to migrate to Australia permanently.

33. At the hearing, [the applicant] initially told the Tribunal that his last conversation with his wife had been just before he decided to jump off the ship he was working on.  However, he later clarified to say that he had been able to take his mobile phone with him when he left the ship, that he had called his wife when he first reached the shore, and that he had been in contact with his family regularly since.  [The applicant] gave evidence that it was his wife who had found the connection to [Mr A], whom [the applicant] believed had agreed to “sponsor” him to stay in Australia.  [The applicant] told the Tribunal that [Mr A] came from the same town as his own family in Vietnam and that he believed he would have support from the Vietnamese community in Western Australia whilst he awaits the outcome of his protection visa application. 

34. The Tribunal notes that [the applicant]’s primary concern was for his personal safety as a result of the outstanding debts he owed in Vietnam.  The Tribunal queried whether [the applicant]’s wife and children were now at risk given he was no longer in Vietnam, but [the applicant] explained that he had given personal undertakings to the organisation from which he borrowed money, and as such, it would be considered dishonourable for the debt collectors to take any kind of action against his wife and children.  He also stated that as his wife and children had no assets, there was nothing the organisation could gain from them.

35. The Tribunal asked [the applicant] if he had a criminal record in Vietnam.  He told the Tribunal that he had been arrested once for participating in a protest against a ban on commercial fishing in a contaminated waterway where he had been working as a fisherman in the period between his business going bankrupt and his first employment on a cargo liner.  [The applicant] stated that while he was arrested at the protest, he was not charged.  The Tribunal notes that [the applicant] was forthright and forthcoming with his oral evidence, and notes he made genuine efforts to be honest in answering all questions put to him.

36. However, in spite of the Tribunal’s assessment of [the applicant] as a genuine and credible witness who cooperated with the Tribunal throughout the hearing, the Tribunal is unable to find that [the applicant] would comply with the conditions that would be imposed on his Subclass 050 (Bridging E) visa.  The Tribunal notes that [the applicant]’s evidence regarding his intent to flee Vietnam by abandoning his employment, and choosing to jump ship without possession of his passport, demonstrates a deliberate intent to breach Australia’s migration laws.  The Tribunal notes that while [the applicant]’s circumstances regarding debts owed to a private organisation in Vietnam were distressing, they neither mitigate nor justify his decision to jump from the ship to swim to the Australian shore with the intent of gaining employment to raise funds to allow him to repay those debts.

37. Based on [the applicant]’s oral evidence at the hearing, the Tribunal has serious concerns regarding [the applicant]’s capacity to comply with the conditions to be imposed if this visa was granted.  Specifically, the Tribunal notes that [the applicant]’s immediate query as to whether he could work if he was released from detention, and his overriding concern regarding the need to earn money to repay the debts he owes in Vietnam, lead to a conclusion that it is unlikely he would abide by condition 8101.  Further, the documentary evidence from [Mr A] does not provide sufficient comfort to the Tribunal that [the applicant] would be supported financially without recourse to paid employment.  Therefore, the Tribunal is unable to find that [the applicant] would comply with condition 8101.

38. Further, the Tribunal notes that [the applicant], whilst honest and genuine, did not appear to show any remorse or regret for his decision to jump from the ship and swim to the Australian shore without a valid visa.  The Tribunal notes that [the applicant] has not previously demonstrated an intent to comply with Australia’s migration laws; rather, his actions have demonstrated a wilful intent to not comply with those laws.  On the evidence before it, the Tribunal is unable to find that [the applicant] would comply with conditions 8401 and 8506.

39. 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.

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

41. 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.

   Mary Sheargold
   Member