2104884 (Migration)

[2021] AATA 1516

2104884 (Migration) [2021] AATA 1516 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104884

MEMBER:Mary Sheargold

DATE:26 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 26 April 2021 at 3:14pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – wilfully acting in breach of the conditions of visa – criminal conviction –not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, r 2.20, Schedule 2, cls 050.211, 050.221, 050.222, 050.223

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).

2. The applicant applied for the visa on 13 April 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 includes cl.050.223.

3. The decision to refuse to grant the visa was made on 15 April 2021 on the basis that the applicant did not meet the requirements in cl.050.223 in Schedule 2 to the Regulations because the delegate was not satisfied that the applicant would comply with the conditions imposed on the visa if it were granted.

4. The applicant appeared before the Tribunal on 23 April 2021 by video link from the Villawood Immigration Detention Facility to give evidence and present arguments.

5. 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

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

7. At the time of application, Mr [A] 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).

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

9. 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.

10. 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

11. 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.

12. ‘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.

13. Mr [A] applied for a Subclass 866 protection visa on 10 December 2020.  That application was refused by a delegate of the Minister on 4 February 2021, and on 16 February 2021, Mr [A] applied to the Tribunal for review of that decision.  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, Mr [A] 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

14. 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 Mr [A] 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.

15. The Tribunal notes that Mr [A] lodged an application for review of the decision to refuse his Subclass 866 protection visa with the Tribunal on 16 February 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, Mr [A]’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 Mr [A] 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, Mr [A] confirmed that he had been interviewed by an authorised officer of the Department on 6 April 2021.  The Tribunal notes that the Departmental file indicates that Mr [A] was interviewed again by telephone on 13 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 who 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.  The Tribunal also notes that in accordance with cl.050.618, condition 8564 may be imposed on the applicant’s visa. 

23. In the primary decision, the delegate indicated that they would impose the conditions that the Tribunal now considers should potentially be imposed in the circumstances of the case, namely:

    ·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;

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

    ·8564: must not engage in criminal conduct.

24. The Tribunal has considered the evidence provided by Mr [A] at the hearing, as there is limited documentary evidence, other than notes contained in the Departmental file, available to assist in determining whether Mr [A] would comply with the conditions to be imposed on the visa if it were granted.

    Conditions relating to reporting: 8401 and 8506

25. While Mr [A]’s criminal history in Australia is discussed in detail below, the Tribunal notes Mr [A]’s continued assertion throughout the hearing that his previous breaches of both Australia’s migration laws and New South Wales’s criminal laws stem from the naïve and unsophisticated understanding of a man who had never travelled outside his home country of Kenya prior to his arrival in Australia.  During the hearing, Mr [A] repeatedly emphasised the benefits he gained from the high intensity education programs he was able to undertake while he was incarcerated at [Prison 1], and how he is a changed and rehabilitated man as a result of that experience.  Mr [A] gave evidence, that the Tribunal accepts, that he ceased using illicit drugs when he was first incarcerated and that he has demonstrated his capacity to change and to accept, and abide by, the laws of Australia. 

26. At the beginning of the hearing, the Tribunal enquired as to why Mr [A] first applied for a protection visa over 3.5 years after arriving in Australia.  Mr [A] explained that it was only in December 2020 that he realised it would be the government’s intent to deport him on his release from prison and that time he developed grave fears for his immediate safety if he returned to Kenya.  Despite Mr [A]’s somewhat conflicting evidence regarding his intent in relation to obtaining further visas in the future, the Tribunal accepts that, as at the time of its decision, Mr [A] does intend to comply with Australia’s migration laws and seeks a lawful means to return to the community to complete his studies.

27. The Tribunal notes that immediately prior to his detention, Mr [A] was released from prison on parole, and had made undertakings in relation to his parole, including undertakings to report to authorities as required.  The Tribunal also notes that Mr [A] has a demonstrated record of compliance with attendance at court as required in relation to a number of offences (for which he has been convicted), and compliance with his community corrections order in relation to sentencing for certain offences in 2019.  On balance, based on all the evidence before it, the Tribunal finds that Mr [A] would comply with conditions 8401 and 8506 if he was granted a Bridging E visa.

    Condition 8101: must not engage in work in Australia

28. The Tribunal notes that Mr [A] was granted a Subclass 500 (TU) student visa to study for a [degree] at the [University 1].  He first arrived in Australia [in] April 2017.  Mr [A] told the Tribunal that he was offered his place in the course in November 2016, but was unable to arrive in Australia until April 2017 due to issues obtaining funds to travel.  Mr [A] advised the Tribunal that his mother had paid his first semester of course fees, approximately AU$17,000, and that he left Kenya with approximately AU$100 but with no other assets.

29. Mr [A] explained that on arriving in Australia, he discovered that he had missed the final enrolment cut off to commence his [degree] in 2017, but the [University 1] offered to defer his place to commence study in early 2018.  Mr [A] told the Tribunal he was told that there was only one intake per year for this particular course.  Mr [A] told the Tribunal that on returning to enrol in 2018, he was advised that the university had made changes to the English language requirements and that he would need to undertake a new English proficiency test.  As will be discussed in more detail below, Mr [A] was unable to complete his IELTS test prior to the census date for the 2018 course intake and so deferred his offer again, intending to commence his studies in 2019.

30. Mr [A]’s Subclass 500 visa is the only substantive visa he has held since arriving in Australia, and it expired on 15 September 2018.  On questioning whether he made any attempt to obtain a new student visa when he realised his first visa was about to expire, Mr [A] explained that at the time he came to Australia, he believed that a visa was simply a travel permit, and that it did not continue to have an impact on him once he was onshore in Australia.  Mr [A] contended that he did not understand that there were conditions attached to his visa, despite later admitting to the Tribunal that on seeking work, when employers would enquire as to his immigration status and he advised them he was a student, they had explained that he could only work for a few days per fortnight and would not hire him.  Mr [A] told the Tribunal he believed that he was only able to work for 48 hours a fortnight while he held his student visa.

31. On a number of occasions throughout the hearing, Mr [A] emphasised his hope to complete his studies, which he has downgraded to a [lower level qualification] (due to ongoing financial constraints, which he contends were caused at least in part by his inability to work regular hours whilst holding a student visa) and obtain a graduate visa before working towards another substantive visa with greater working rights. 

32. The Tribunal notes that Mr [A] was incarcerated at [Prison 1] in New South Wales for almost 6 months from [October] 2020 to [April] 2021.  He was granted parole [in] April 2021, with his original sentence having been set at 12 months.  The reasons for Mr [A]’s incarceration are discussed in greater detail below.  Mr [A] told the Tribunal that on being granted parole, it was his intent to live with his friend [Mr B] and [Mr B]’s wife.  According to notes in the Departmental file, at interview with the Department, Mr [A] identified [Mr B] as Mr [Mr B] , and provided the delegate with Mr [B]’s residential address and telephone number.  Mr [A] told the Tribunal that he had arranged to stay with Mr [B] on his release from prison on parole.

33. Mr [A] explained that Mr [B] works as [an occupation], but also acts as a [another occupation].  Mr [A] told the Tribunal that while Mr [B] had not provided any documentary evidence to support his pledge to provide Mr [A] with food and shelter on his release from detention, Mr [B] had advised Mr [A] to tell the Tribunal that it could note his phone number and address and trust that Mr [A] would have his support if this visa was granted.

34. The Tribunal notes that Mr [A] owns a [vehicle] valued at approximately $5,000, and that he has funds of $16.00 available in cash.  Mr [A] told the Tribunal that he has an Australian citizen partner, Ms [C], who was born in [Country 1] but raised in Australia.  He told the Tribunal that Ms [C] has stood by him through his difficulties in 2020 and currently has possession of all of his belongings including his motor vehicle.  Mr [A] told the Tribunal that Ms [C] recently turned [age], that she resides with her [parents], and that she currently studying and working part [time].  He told the Tribunal that she has also pledged her support for him, that she visits regularly, and that she has done so since he was first incarcerated in [Prison 1].  However, the Tribunal notes there is no written statement from Ms [C] nor any evidence to demonstrate her financial capacity (if any) to support Mr [A] if this visa is granted. 

35. The Tribunal notes that on his evidence at hearing, Mr [A] has engaged in paid employment, often at a level that would be in breach of his student visa conditions, since he first arrived in Australia.  The Tribunal notes that Mr [A] shows little remorse or regret for those breaches, citing a need to support himself in the Australian community noting the limited means he had on his arrival in 2017.  Whilst the Tribunal sympathises with the difficult financial situation Mr [A] found himself in when he first arrived in Australia, it notes that this does not excuse a pattern of wilfully acting in breach of the conditions of his visa, or continuing to engage in employment after his student visa naturally ceased and he became an unlawful non-citizen.  The Tribunal notes that in his application for this visa, Mr [A] makes several references to a hope that if the visa is granted, he will be permitted to continue working. 

36. The Tribunal acknowledges Mr [A]’s seemingly genuine promise at the hearing that he would abide by condition 8101.  However, the weight of the evidence before the Tribunal, including Mr [A]’s previous breaches of work conditions on his student visa, coupled with a lack of clear evidence to demonstrate that he will have adequate financial support in the community without recourse to paid employment, the Tribunal is unable to find that Mr [A] would abide by condition 8101 if the visa was granted.

    Condition 8564: must not engage in criminal conduct

37. Mr [A] has an extensive criminal record in New South Wales with convictions for multiple driving offences, property offences, fraud, assault, and possession of a prohibited substance.  He has completed a community corrections order as well as 6 months in prison in relation to these offences.  The Tribunal accepts Mr [A]’s evidence that he does not have a criminal record in Kenya, and that he did not engage in criminal conduct in Kenya.

38. Mr [A] told the Tribunal that his history of criminality in Australia stems from a “toxic” relationship that he engaged in on his arrival in Sydney in 2017.  He entered into a relationship with another Kenyan migrant, Ms [D], whom he later discovered was already married and was in the process of obtaining a [permanent visa] to work in [Country 2].  Mr [A] told the Tribunal that it appeared Ms [D] had obtained a partner visa to live with her Australian husband who also had work rights in [Country 2], and that she indicated to Mr [A] that the relationship was not genuine but simply manufactured to assist her in obtaining a [permanent visa].  Mr [A] told the Tribunal that Ms [D] was very possessive of him and followed him around wherever he went.  Mr [A] told the Tribunal that he had not been involved in any intimate relationships in Kenya and that he was very naïve about Ms [D]’s behaviour.

39. Mr [A] explained to the Tribunal on a number of occasions that he had moved house more than once to avoid Ms [D], but that she would always find him.  Mr [A] told the Tribunal that she had stolen his passport and drivers licence and that he had had to have those documents reissued by Kenyan authorities.  Mr [A] explained that the reason he could not complete his IELTS test in 2018 was that Ms [D] had taken all of his photo identification and that he could not complete the test without it.  He told the Tribunal that by the time he had the documents reissued, it was too late for him to take the test and enrol in his degree program that year.

1. Mr [A] stated that Ms [D] would become very jealous and angry if she discovered Mr [A] spent time with anyone aside from her, and that they would often get into fights and arguments.  Mr [A] told the Tribunal that she had ultimately sought an apprehended violence order against him, but that in his view, she had manufactured the circumstances justifying the issuing of that order.  Mr [A] told the Tribunal that on more than one occasion, she had taken Mr [A]’s mobile phone, smashed it, and called the police to claim that he had damaged her property. 

2. Mr [A] has a number of convictions relating to offences for driving while unlicensed, driving with a low range prohibited blood alcohol concentration, and driving whilst disqualified.  Mr [A] noted that on the final occasion where he and Ms [D] had engaged in a serious disagreement, police were called to the scene, and Mr [A] had eventually moved his motor vehicle from where it was parked in the street to his driveway less than 100 metres away.  Mr [A] told the Tribunal that the charged of driving whilst disqualified was made in relation to this incident.  Mr [A]’s evidence is that it was Ms [D] who had driven the vehicle from its original location to the place it was parked when police were called to the scene.

3. Mr [A] told the Tribunal that on arriving in Australia, he held a Kenyan driving licence, and was not aware that this was not sufficient to drive in Australia.  He told the Tribunal that his very first conviction, for driving while unlicensed, was as a result of this, but that he had accepted the conviction without challenge because he was unable to afford a lawyer to help him defend the charge.  Mr [A] also admitted to having photocopied a Kenyan friend’s driving licence and using that licence himself, and told the Tribunal that he had been convicted of 2 offences relating to fraud in relation to that.

4. Mr [A] told the Tribunal that he had several convictions for driving with a low range PCA, and that these had come about as a result of his mistaken belief that he had been sober enough to drive home from several parties he attended.  He told the Tribunal that he had consumed a 6 pack of beer over the course of an evening prior to committing those offences.

5. On his final arrest in October 2020, Mr [A] was convicted of possession of a prohibited substance.  Mr [A] told the Tribunal that when he was arrested on that occasion, he was in possession of 16 grams of marijuana.  Mr [A] told the Tribunal that in the past, he had been given a formal warning for possession of a small amount of marijuana (approximately 3 grams) because the police had determined it was for personal use.  Mr [A] told the Tribunal that he had believed, therefore, he was able to possess and use marijuana in Australia.  Mr [A] told the Tribunal that he was not aware that marijuana was a prohibited substance in Australia until the time he was given the formal warning by police, because when he first arrived here, he saw prolific use of marijuana and assumed it was legal.  The Tribunal asked whether Mr [A] used marijuana in Kenya and whether it was legal to do so there.  Mr [A] told the Tribunal that he had done so on occasion, and that while it was not legal to use marijuana in Kenya, the law was not enforced, and it was at the discretion of the individual.

6. Mr [A] told the Tribunal that in the lead up to his arrest on [date] October 2020, he had been using marijuana daily.  He told the Tribunal that the only reason he had possession of more than 3 grams on the day he was arrested was that he had recently met his supplier, and purchased 3 grams for approximately $50.00, but that his supplier had noted Mr [A] seemed in an especially sombre mood that day.  Mr [A]’s evidence is that the supplier offered him the additional 13 grams, being his “bottom of the bag” that was not saleable otherwise, and that he accepted and took the total of 16 grams.  Mr [A] was open and honest with the Tribunal regarding his drug and alcohol use in Australia, and the Tribunal accepts his evidence in this regard.

7. On the day of his latest arrest, [date] October 2020, Mr [A] explained to the Tribunal that he had been subject to 2 home invasions in the days prior, that his car tyres had been slashed, and that a rope connecting his ladder to his car had been cut.  Mr [A] stated that he feared for his safety and decided to pack his possessions and move house.  Mr [A] stated that he had called a friend to come and drive for him, because he did not have a drivers licence, but that his friend took too long to arrive so he decided to drive himself.  Mr [A]’s evidence is that the police pulled him over that day for failing to indicate as he drove from his previous home towards his intended address.

8. The Tribunal notes that Mr [A] has a chequered history of criminality since he arrived in Australia in 2017.  While Mr [A] has expressed some remorse and regret in relation to some of the offences, he has stated he believes some of the convictions occurred due to his lack of understanding of the law and a lack of access to resources to defend charges, or were due to the actions of others (for example, charges relating to property destruction where he contends that Ms [D] blamed him for damage she inflicted on property) and he felt it was simpler to accept the charges and convictions than to contest them.

9. The Tribunal accepts Mr [A]’s prima facie evidence of his intent to demonstrate how well he has rehabilitated since being released from [Prison 1].  The Tribunal commends Mr [A]’s efforts in accessing programs and educational opportunities in prison to facilitate his rehabilitation.  However, based on all the evidence before it, including the total number of convictions recorded, the repetitive nature of the charges and convictions, and Mr [A]’s limited remorse shown for his past conduct, the Tribunal cannot be satisfied that Mr [A] would abide by condition 8564 if his Bridging E visa was granted.

10. 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.

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

12. 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

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

    Mary Sheargold
    Member