2109201 (Migration)

[2021] AATA 3418

2109201 (Migration) [2021] AATA 3418 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109201

MEMBER:De-Anne Kelly

DATE:29 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 29 July 2021 at 9:37am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – abide by conditions of visa – criminal convictions, imprisonment and immigration detention – visa, study, work and relationship history and circumstances of offending – application for protection visa in progress – stated intention to work – no guarantee permission to work will be granted and possibility of working unlawfully – cousin’s offer of support may be limited in practice – very real prospect of relapsing into drug use and reoffending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223

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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 July 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223, which requires the Minister to be satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by the conditions imposed on it.

3. The decision to refuse to grant the visa was made on 19 July 2021 on the basis of cl. 050.223 because the delegate was not satisfied that the applicant would abide by the conditions imposed on her visa being 8101 – No work, 8506 – Must notify change of address and 8564 – Must not engage in criminal conduct and did not satisfy 051.211 because the applicant was not an eligible non-citizen of the kind set out in the regulations.

4. The applicant appeared before the Tribunal by MS Teams on 26 July 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent although the agent did not attend the hearing.

5. Initially the Tribunal believed it required a second hearing however careful consideration of the information provided post hearing resolved these queries. The agent had responded asking for a second hearing on 30 July 2021 however the Tribunal advised her in writing that it was no longer necessary.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether, if granted a Bridging E (class WE) visa, the applicant would comply with conditions imposed on it.

   Certificate s376.

8. The Tribunal disclosed to the applicant a s376 Certificate which appeared to be valid to the Tribunal and related to documents provided by Australian Border Force. The Tribunal invited the applicant to comment on the validity of the certificate and that they could have an adjournment if they requested it to consider the information.

9. The Tribunal emailed the s376 Certificate to the applicant on 26 July 2021.

10. The Tribunal disclosed the gist of the documents covered by the Certificate to the applicant.

    1)A warrant to imprison.

    2)Detention Bridging Visa E interview conducted on 16 July 2021.

    The applicant was familiar with the information in these documents.

    Immigration History

    The applicant arrived in Australia [in] February 2015, as the holder of a Student (class TU) (subclass 573) visa, lawful to 15 March 2018. The applicant was granted a subsequent Student (class TU) (subclass 500) visa on 25 May 2018, lawful to 30 August 2020.

    On [Date 1] October 2020, the applicant was charged with the following offences:

    • 5 x Theft
    • 7 x Theft from shop (shop steal)
    • Commit indicatable offence whilst on bail
    • 2 x Make threat to kill
    • 5 x Contra personal safety intervention order
    • Deal property suspected proceed of crime
    • Drive whilst authorisation suspended
    • Lic holder fail notify of change address
    • Fail oral fluid test w/in 3hr of driving.

    The applicant was denied bail to appear in court on [Date 2] October 2020, at which time she was convicted and sentenced to:

    • 16 days imprisonment (reckoned as served),
    • Community Corrections Order for 12 months with Treatment & Rehabilitation for drugs,
    • To attend Road Trauma Awareness Court
    • Supervision by Office of Corrections.
    • Non-conviction fine of $1000 for summary offences, and
    • Driver’s licence cancellation and disqualified from driving for 6 months.

    On 22 October 2020, the applicant was interviewed by an officer of the Australian Border Force (ABF) who granted her a Bridging E visa (BVE) on the basis she would lodge a visa application. The BVE was valid to 30 October 2020. The applicant became an unlawful non-citizen on 31 October 2020.

    On [Date 1] April 2021, the applicant was bailed to attend the [Magistrates Court] [in] August 2021 for the following charges:

    • 2 x Handle/receive/retention of stolen goods
    • Possess controlled weapon without lawful excuse
    • Going equipped to steal/cheat.

    On [Date 2] April 2021, the applicant was charged with the following offences:

    • Theft of Motor Vehicle
    • Possess a drug of dependence namely, cannabis
    • Possess drug of dependence – hallucinogen.
    • Commit an indictable offence whilst on bail.

    The applicant advised that she was imprisoned on  [Date 2] April and stayed until [May] 2021.

    [In] May 2021, the applicant was located and detained under s.189(1) of the Migration Act 1958 and transferred to Melbourne Immigration Transit Accommodation (MITA).

    On 18 May 2021, under s.195 of the Migration Act 1958, the applicant was granted a five working day extension to lodge a visa.

    On 26 May 2021, the applicant lodged an application for a BVE, this application was refused on 31 May 2021. The applicant sought review of this decision on 2 June 2021. On 10 June 2021, the Administrative Appeals Tribunal (AAT) affirmed the Departments decision.

    On 13 July 2021, the applicant lodged an application for Permanent Protection (Class XA) (Subclass 866) visa. That application is also deemed to be an application for a BVE. This is the application before the Tribunal.

    On 14 July 2021, the applicant lodged a separate BVE application online, which is invalid as it does not meet schedule 1 item 1305(1).

11. The Tribunal took the applicant through the above migration history and she confirmed that it was correct. The applicant had submitted a statement advising that the theft of the motor vehicle charge was a mistake and a misunderstanding.

    The hearing.

12. The applicant was quite distressed during the hearing. She explained that she came to Australia in 2015 and her parents had paid for her to attend [the best university in Australia] where she was to study [Subject 1] which she found very hard and changed to [Subject 2] but again could not get good marks. Her parents have very high expectations of her as the eldest child of a well-educated family. She switched courses to commercial cookery and stated that she has a certificate III, IV and diploma of commercial cookery as well as completing half of an advanced diploma. She advised she has also completed the first semester of a Bachelor of [Subject 1].

13. She was permitted to work 20 hours a week and initially had a job as a kitchen hand in a restaurant, by a man called [Mr A] who was a head chef employed her at the [Workplace]. She states she has payslips and everything to verify her work there and these as well as references were provided following the hearing and attesting to her work experience. Her parents were not happy initially with this career in cooking with her mother saying everyone cooks at home.

14. She met a man called [Mr B] who was working as [an Occupation] and he told her he loved her, and they should have a relationship. He asked her to marry him and then put him as a secondary on her student visa. The applicant had virtually no experience of dating men because in India she would attend secondary school and then go home. She chose to marry [Mr B] as her own decision. She made him promise not to tell her parents until they both became successful because she had married out of her caste. She said she was so young, and he needed help to apply on her visa. She became very distressed when she relayed that his purpose was only to apply for a visa through her and when he didn’t get the visa, he decided to leave her. At the time her parents were visiting and were staying in a separate apartment and were unaware that she was married. His betrayal was a great hurt to her, and she remains married to him. She said she did not think of how she could divorce and was not aware that she could initiate this. He was not a drug user.

15. Her parents have not offered her any support and have told her she is dead to them and not their child. Her father works in the [Employer] in India and it is not like Australia, he will always know where she is if she returns to India and her parents have threatened her. If she had to return to India, she could not work as a chef although she is qualified because it is only men that work in the restaurants in India. She is also afraid of returning to India on her own as she does not want to be the victim of rapes and assault. The only women she sees working are schoolteachers. Her father has six brothers and her mother does some teaching. She did not see a lot of life in India as she would go to school and come back home. The first four years of her life in Australia passed very well before the drug addiction. Her parents have warned her sister who migrated to [Country 1] and is applying for permanent residency there that she will also be shunned by the parents if she has any communication with the applicant. It is likely that the applicant’s brother will also relocate to [Country 1].

16. The Tribunal asked the applicant why she wanted a bridging visa. She stated she wants the bridging visa while she waits for the protection Visa application to be decided; she wants to be outside and to live with her cousin brother. Her cousin brother is [Mr C] who is the son of one of her father’s brothers. He lives in an outer suburb of Melbourne with two housemates and is starting a [business]. She has visited the house and it has four bedrooms. In a statement the applicant had said that her uncle and aunt in India may harm her as she has brought shame on the family. The Tribunal asked if her family was so strongly against her and have warned family members not to communicate with her; why is it that they have not influenced their nephew [Mr C] to also not communicate with the applicant. She advised that her cousin brother has lived in Australia for quite some time and has a very different view to the traditional strict views in India. He has modern thinking.

17. The Tribunal asked why she did not go to live with [Mr C] after her first period in prison in October 2020. She advised that she had been reluctant to contact him and ask for help however she had rung her mother when she was imprisoned and she believes her mother contacted [Mr C] asking him to make contact with the applicant. When she left prison, all she saw were a lot of messages from her cousin brother on the phone and she contacted him and told him about the prison sentence. He genuinely wants to help her she stated. The fact her mother would contact [Mr C] in Australia to assist her daughter is inconsistent with the applicant’s assertion that her parents have rejected her and she is “dead’ to them.

18. The Tribunal asked if she owed drug dealers any money or if anyone owed her money for drugs. She stated that she does not owe anybody any money but there are people who owe her money, but she does not want to pursue that as she is finished with that life.

19. Tribunal was very concerned that despite her cousin brother’s willingness to assist her; he is attempting to start a small business, and this requires investment in the early days and quite often income is very limited. The Tribunal said that a protection Visa application may take up to 2 years to be decided and this could be a long period of time for her cousin brother to provide accommodation and financial support. The Tribunal put to the applicant that if her cousin brother and his housemates found they could not continue to support and accommodate her; she may become homeless and be forced back into the drug trade or to work illegally.

20. The applicant responded that she will not become homeless and she wants to succeed so she can ask her parents for forgiveness; she wants to do something. She also said that once she gets her bridging visa, she can apply for permission to work and to study which is what she intends to do. This will help her to supplement the financial support provided by her cousin brother.

21. The applicant said that her offences were the result of drug addiction but that she became “clean” when she was imprisoned. The Tribunal confirmed with her that this was related to the period of imprisonment [in] October 2020. She confirmed that she gave up drugs all by herself the first time and the Tribunal acknowledged that is a very difficult thing to do however being imprisoned without access to drugs meant she had no other choice so little weight can be given to this fact. The Tribunal put to the applicant that while she had given up drugs and become “clean” in October 2020 when she was arrested in April 2021 some 6 to 7 months later she was charged with possessing a drug of dependence namely cannabis and possessing a drug of dependence namely a hallucinogenic.

22. She responded by saying she was dating a boy and they had issues going on and he was a drug user and she did not realise there was no rent being paid and as a result of that she lost her house. She does not want to go back to that local area again because you lose everything when you’re on drugs.

23. The Tribunal asked about a man called [Mr D] and a [Country 2] friend who were referred to in the departmental interview as being respectively a drug user and a drug dealer. The Tribunal put to the applicant that these people may approach her again asking her to take drugs or to sell drugs for them. The Departmental officer had been concerned about the applicant going to collect her belongings from the [Country 2] friend and again being drawn into the drug trade.

24. The applicant replied that her cousin brother went to collect her belongings from the [Country 2] friend but there was an old lady at the residence who said they had all been arrested and that the applicant’s belongings were gone. She doesn’t care about the belongings she just wants to start a new life away from drugs.

25. The applicant stated that she really wants to rebuild her life and stay away from drugs. She appears to have good intentions to turn her life around and seek forgiveness from her parents.

26. During the hearing a brief adjournment was granted, and the applicant phoned and had a letter from her “cousin brother” emailed to the Tribunal. This is a handwritten note stating it is from [Mr C] and that he will support my “sister [the applicant]” by having her live with him and he will support her “financially, mentally, emotionally and physically”. He believes that with his support she can flourish and have a good life and sober lifestyle.

27. Following the hearing the applicant forwarded the qualifications she had mentioned in the hearing namely evidence of the certificate III, IV and diploma of commercial cookery as well as completing half of an advanced diploma. She advised she has also completed the first semester of a Bachelor of [Subject 1]. The following documents were submitted as well Confirmation of Enrolment for the Advanced Diploma of Hospitality dated 2018 and associated documents; a visitor visa grant for a relative or friend; the applicants passport; a lost property report regarding a passport for a third party; Confirmation of enrolment for the hospitality courses; provisional skills assessment as a Chef; a certificate for first aid and CPR and a reference and other documents from a Café attesting to the applicant working there from September 2018 as a casual chef.

    Whether the applicant will abide by conditions - cl 050.223

28. 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.

29. 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].

30. 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. There has been no security offered.

31. In this case, cl 050.223 applies because the applicant must abide by conditions imposed if the visa is granted. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:

32. In assessing the conditions of the BVE application it is mandatory to impose condition:

    8101 – No work.

33. As well discretionary conditions as follows would be applied.

    8207 – No study

    8506 – Must notify change of address.

    8564 – Must not engage in criminal behaviour

    8101 – No work.

34. The Tribunal has considered the applicants firm conviction that she can apply for and be granted permission to work on the bridging visa. She is very focused on being able to work if she is released from detention however the Tribunal is unable to speculate on whether the Department would grant this permission of not. In the event the permission to work is not granted, the applicant is entirely dependent on her cousin brother for financial support and accommodation.

35. The handwritten letter of support allegedly from the cousin brother could have been written by anyone and there is no evidence to support it having been written by the cousin brother however even if the Tribunal accepts that he wrote the letter and genuinely made the offer to financially support the applicant, there is scant evidence that he has the financial capacity, bearing in mind that he and his housemates are starting a business together, to be able to support the applicant for up to potentially two years before the Protection visa is decided.

1. If the cousin brother cannot support her or only partially support her, the Tribunal considers she may be forced to work illegally. The Tribunal considers this is likely because of her desperation to work and to prove herself and the fact that she has willingly flouted Australian migration laws in the past notably becoming unlawful. The Tribunal considers because the financial situation of the cousin brother is unknown and the permission to work grant for  the Department is speculative that it is not satisfied the applicant will abide by this condition.

   8207 – No study.

2. The applicant stated that she would comply with this condition and the Tribunal accepts this given that international students fees are much higher than domestic students fees and given she may not be granted permission to work; her cousin brother has not provided evidence that he could meet the costs of tuition. The Tribunal is satisfied the applicant will abide with this condition.

   8506 – Must notify change of address

3. The Tribunal questioned the applicant about her ability to comply with this condition given the statement in the Departmental officers decision/interview  where he stated that she  last advised the Department of an address change on 17 February 2020, to [Address 1]. However, upon being located by Victoria Police and subsequent interview with an ABF officer she had changed address to [Address 2]. There is no record that she notified the Department of the change of address. It appeared that the Department was only notified of the change of address as a result of her arrest by Victoria Police.

4. The applicant stated that she would notify them of any change of address. While the Tribunal notes that the applicant has good intentions to comply with this condition it is conditional on the applicant’s cousin brother being able to provide her with accommodation and it is unclear whether he can continue to support her and for how long. It is also conditional on her not becoming homeless and engaging with the drug trade again and as discussed below this is not certain. For these reasons the Tribunal is not satisfied the applicant will abide by this condition.

   8564 – Must not engage in criminal behaviour

5. The Tribunal considers the applicant had given up drugs and become “clean” in October 2020 albeit that this was not by choice but circumstance however when she was arrested in April 2021 some 6 to 7 months later she was charged with possessing a drug of dependence namely cannabis and possessing a drug of dependence namely a hallucinogenic. Her explanation of dating a boy; having issues; non-payment of rent and becoming homeless is noted but underscores how her good intentions are easily eroded by her poor choice of associates.

6. There is also the concern that if permission to work is not granted, the applicant will be at home alone while the other residents are at work. It is accepted that she is going to undertake household chores and cooking, but this leaves her vulnerable and alone when there is no certainty that her previous drug associates will not become aware of her address and seek her out. It is noted that the applicant; aware that the departmental officer refused her bridging visa based on his concern that she was collecting belongings from a [Country 2] drug dealer associate and could be vulnerable to being drawn into the drug trade again; advised that her cousin brother had gone to collect her belongings. He was told that everyone had been arrested and her belongings were gone. She is the sole source of information for all this and as a result the Tribunal can give limited weight to the possibility that all her drug associates are under arrest.

7. The applicant became upset and stated she had a humble request that she be given an opportunity and there were community drug and alcohol meetings she could attend. She stated that she cannot be sitting here and depressed. She has no hope at all and really needs the Bridging visa. She said she is not relying on the permission to work which is very much at odds with her previous statements. She said her cousin brother is paying and begged the Tribunal to consider her circumstances.

8. The Tribunal has carefully considered all the information the applicant has presented and notes she can attain good results from her studies in the field of hospitality where she has excelled and in which she could make a good career. Whether this satisfies her parents or not should not deter her from pursuing a calling for which she is talented. The Tribunal acknowledges that she has good intentions to leave the drug trade and associates behind and build a better life for herself and ask her parents’ forgiveness.

9. However, in the past her good intentions were quickly undermined by those who exploited her vulnerabilities. She led a chaotic life for the past few years which led to drug addiction and criminal charges.

10. The is also the question as to why the applicant needs the bridging visa so desperately because she acknowledges she cannot study and has now stated she is not relying on permission to work. She said she cannot be sitting here (in detention) and she is depressed. The Tribunal must weigh this present incarceration in immigration detention against the relative freedom of being released into the community. It is acknowledged that being released would be an attractive option however at present she is not at risk of being forced to break the law to survive or feed a drug habit; she is not at risk of working illegally since all her basic needs are met and she has a secure place to stay with good food and medical and counselling professionals to assist her.

11. Against this is the prospect of the applicant being released into the community with only the protection and support of her cousin brother and to a lesser extent his housemates. Even with the best of intentions and a frugal lifestyle her cousin brother is trying to start up a business; will be absent from the home while working and he may find that there are limits to his ability to financially support and accommodate the applicant into the future, bearing in mind there is scant evidence of his financial situation. As such the Tribunal considers there is a very real prospect of the applicant being enticed back into taking drugs by former associates and being forced to engage in criminal behaviour to pay for this drug habit.

12. The Tribunal for these reasons is not satisfied that the applicant will abide by this condition.

13. 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.

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

15. 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

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

    De-Anne Kelly
    Member