2109279 (Migration)

[2021] AATA 2864

2109279 (Migration) [2021] AATA 2864 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109279

MEMBER:Brendan Darcy

DATE:30 July 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 30 July 2021 at 10:14am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions of visa – previous overstay, immigration detention and removal – re-entry within three years under a different name, overstay and immigration detention – false information given to authorities – applications for bridging visas refused and decisions affirmed – application for judicial review of refusal of protection visa in progress – work while holding ‘no work’ visas and as unlawful non-citizen, and stated intention to return to Australia to work – unpaid debt in home country – application for protection visa made only after detained second time – offer of support from friends – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223, Schedule 8, condition 8101

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 15 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).

3. The decision to refuse to grant the visa was made on 20 July 2021 on the basis that the review applicant will not uphold one or more of the conditions to be imposed on this visa if it were to be granted.

4. Via an internet enabled audio-visual platform, the applicant from [an] Immigration Detention Centre appeared before the Tribunal on 28 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses claiming to be friends of the applicant, [Ms A] and [Mr B] from [Suburb] in the State of Victoria.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. He was not supported by a legal representative or a registered migration agent.

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 the applicant will uphold a number of visa conditions imposed on this visa, if granted, under review as required by cl 050.223.

   Background

8. The applicant was born in Malaysia on [Date 1].  He does not claim to have any family members in Australia.

9. During the hearing, the Tribunal discussed the following visa history of the applicant:

10. The applicant under the name of [Name 1] (DOB: [Date 1]) was granted a [Subclass 1 visitor] visa on 23 July 2012 and first arrived in Australia [in] August 2012. That visitor visa ceased on [Date 1] November 2012 and on [Date 2] November 2012 he became an unlawful non-citizen in the community.

11. [In] June 2015, the applicant was detained in immigration detention under s 189 of the Act and subsequently removed from Australia [in] July 2015.

12. Four to five months later, the applicant returned to Australia under the alias of [Name 2] (DOB: [Date 2]) [in] November 2015 while holding a [Subclass 2 visitor] visa. That visitor visa was granted on 17 November 2015.

13. The same visa ceased on [Date 1] February 2016 and on [Date 2] February 2016 he became an unlawful non-citizen in the community until he was discovered by Victoria Police [in] January 2021 and then detained under s 189 of the Act.

14. The applicant lodged a Class XA Subclass 866 protection visa on 27 January 2021.

15. On 2 February 2021, the applicant applied for a Class WE Subclass 050 (BVE) associated with the protection visa. This application was refused by the Department on the day. The applicant appealed the refusal decision to be reviewed by the Tribunal. The Tribunal affirmed the decision not to grant the visa on 15 February 2021.

16. On 17 February 2021, a delegate acting on behalf of the Minister refused to grant the applicant a protection visa. The applicant applied to have that refusal decision reviewed by the Tribunal on the same day.

17. On 17 March 2021, the applicant applied for another BVE visa. It was refused by a delegate acting on behalf of the Minister on 22 March 2021. The applicant appealed the refusal decision to be reviewed by the Tribunal. On 1 April 2021, the Tribunal affirmed the decision not to grant the applicant a bridging visa.

18. A further BVE application was lodged on 6 May 2021. It was subsequently refused on 10 May 2021. On the same day, the applicant lodged a review of the refusal decision with the Tribunal. The Tribunal affirmed the decision not to grant the applicant a bridging visa on 19 May 2021.

19. The Tribunal affirmed the decision not to grant the applicant a protection visa on 13 April 2021. On 1 June 2021, the applicant sought judicial review of the Tribunal’s decision to affirm the delegate’s refusal decision.  

20. The applicant lodged this Class WE Subclass 050 (BVE) bridging visa on 15 July 2021.    This visa application was refused on 20 July 2021.

21. On the departmental file is a signed statement by [Ms A] residing in [Suburb] in the State of Victoria. It is dated 14 July 2021. In the letter, [Ms A] claims to be a friend of the applicant and is willing to provide him accommodation and financial support as well as surety if it is requested. Accompanying the statement is a bank statement indicating [Ms A]’s savings of around 13,000 Australian dollars; an income tax assessment; and her Australian passport.

22. In a ‘Located Persons Interview’ with the Australian Border Force on 13 January 2021, the applicant explained that his actual name is [Name 1] ([Date 1]) and that this was the identity he used during his first visit to Australia. It was recorded that he used the alias [Name 2] (DOB: [Date 2]) which was his brother’s name and date of birth.

23. The same interview recorded that the applicant came to the attention of Victoria Police when his vehicle was intercepted [in] January 2021 and was found to be an unlawful non-citizen. On the applicant’s person was located a 1991 Victoria [Licence] in the name of [Name 1]. It is recorded the applicant told the authorities the card belonged to a third person. Later, the authorities determined that the applicant’s true identity was [Name 2] (DOB: [Date 1]) and that he travelled to Australia on his brother’s passport.

24. An exert from page 9 of the same interview states:

    (Applicant) Where do I apply for new passport?
    (Interviewer) I’m not entirely sure, but are you willing to apply for one?
    Yes. So is it true that I can no longer stay in Australia?
    That is what I need to decide at the end of this interview.
    I still need to stay and earn money to support the whole family, I still have a debt unpaid in Malaysia and my brother looks after my parents in Malaysia and I am the only income source so I have to send money to them. My brother doesn’t have a job due to COVID, I am the only one who can work. I’m happy to pay whatever is needed, as long as I can stay and continue working and continue sending money to my family. There is absolutely no way out, otherwise I will just come back with my brother’s identity without waiting another three years.
    Did you just say that you will just come back with your brother’s identity
    without waiting another three years?
    Yes, because I owe a debt in Malaysia and I can’t earn enough money to cover
    that debt and those people come to my house and harassing my family, so this is the only way, to work overseas and send the money back.

25. Also on file is a copy of the applicant’s expired Malaysian passport issued in the Malaysian state of Perak in [2012] and which expired [in 2017]. This passport had the name [Name 2] born on [Date 1].

    Immigration status of the applicant – cl 050.211

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

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

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

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

28. The last valid visa held by the applicant was a visitor visa which expired on 27 February 2016. Following this date, the applicant has not been granted a visa of any class. At the time of this application, the applicant was not holding any visa of any category. Therefore, the applicant was an unlawful non-citizen. 

29. Accordingly, the applicant meets subclause 050.211(1).

30. With regard to subclause 050.211(2), the Tribunal is satisfied that the applicant meets the requirements in subclause 050.211(2) because the applicant was not an eligible non-citizen of the kind set out in regs 2.20(7), (8), (9), (10), (11) or (17).

31. Accordingly, the applicant meets subclause 050.211(2).

32. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa − cl 050.212

33. At the time of the visa application, the applicant must meet one of the alternatives set out in subclauses 050.212(2)−(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

34. In this case, the applicant is seeking to meet cl 050.212(3A).

35. 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.

    Judicial review, merits review, s 137K revocation

36. The evidence before the Tribunal is that the applicant applied to have a refused Class XA Subclass 866 protection visa reviewed by the Tribunal. The Tribunal made a decision to affirm the delegate’s refusal decision not to grant the applicant a protection visa on 13 April 2021; and that the applicant validly applied to have the Tribunal’s decision reviewed by the Federal Circuit Court of Australia (FCCA). At the time of making this decision, there is no evidence that this judicial review has been fully determined.

37. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

38. Accordingly, the applicant meets cl 050.212(3A).

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

39. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. As mentioned above, there is no evidence that this refusal decision under judicial review has been fully determined.

40. 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

41. 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 visa E, 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); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

42. According to the decision record pertaining to this refused bridging visa submitted to the Tribunal by the applicant and with no evidence to the contrary, the applicant was interviewed by an authorised officer on 19 July 2021, the content of which was discussed at the scheduled hearing.

43. Accordingly, the applicant meets cl 050.222.

    Whether the applicant will abide by conditions − cl 050.223

44. 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.

45. 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].

46. 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.

47. In this matter, the Tribunal will consider the same mandatory and discretion conditions to be imposed on this visa, if it were to be granted, as the delegate:

    ·Condition 8101: The holder must not engage in work in Australia

    ·Condition 8207: The holder must not engage in any studies or training in Australia

    ·Condition 8505: The holder must continue to live at the address specified by the holder before the grant   

    ·Condition 8401: The holder must report: at a time or times; and at a place; specified by the Minister for the purpose.

48. The Tribunal notes that the delegate was not satisfied the visa conditions 8101, 8401 and 8505 would not be upheld by the applicant. The decision maker commented that he ‘can draw no confidence’ in the applicant’s claims to be able to meet these conditions in context of the applicant’s long history of non-compliance.

49. Condition 8101: The applicant was asked to explain how he would be financially supported if this visa were granted. He responded that he would have accommodation and material support from [Ms A] and her husband, [Mr B]. They submitted evidence of [Ms A]’s sizeable savings and oral evidence that they have come to know and trust the applicant since 2017, when he first became a tenant at [Ms A]’s mother’s residence in [Suburb]. The applicant and the witnesses described their relationship as one that grew from a tenant-landlord relationship to one where the applicant is considered part of the family. 

50. Separate from the applicant’s visa history, which is examined below, the Tribunal found these arguments well-argued and credibly documented.

51. The extensive amount of time the applicant has spent in the community as an unlawful non-citizen at large in the community during which the applicant was working on an unlawful basis is of serious concern to the Tribunal. Between November 2012 and July 2015 and between February 2016 and January 2021, the applicant has been in Australia cumulatively more than six and a half years. The applicant also claimed that he worked while holding substantive visitor visas which have ‘no work’ conditions attached. During these periods of unlawful work, he did not apply for another substantive visa of any subclass whatsoever. The applicant claimed he did not know how to go about applying for another visa, including a protection visa, even though he had risked being caught and had been removed from Australia in July 2015. The only time the applicant applied for a protection visa was on the second occasion he had been detained under s 189 in immigration detention in January 2021. The Tribunal found the applicant’s explanations for why he did not apply for other visas to address his precarious migration status in Australia were considerably weak and unconvincing in this regard. After all, had the applicant had a genuine, deep and urgent fear of being returned to his country of nationality, it would have been reasonable to expect that he would apply for a protection visa considerably earlier than January 2021 given the considerable amount of time he has spent in Australia.

52. Furthermore, the applicant had circumvented Australia’s laws in preventing former visa holders who were removed for a period of three years by applying for a Malaysian passport that did not reflect his genuine or true identity after he was removed from Australia in July 2015. During the hearing, the applicant explained how he was assisted by a friend and corrupt official in Malaysia to gain a genuine passport that was otherwise fraudulently obtained. This is a very serious matter and reflected the applicant’s determination to return to Australia and resume unlawful employment, namely as [an Occupation], and it strongly invited the Tribunal to consider that the applicant will breach condition 8101 should this visa be granted.

53. During the hearing, the recorded exchange in the ‘Located Persons Interview’ by Australian Border Force regarding the applicant’s statement that if he were removed from Australia he would return on his brother’s passport, was discussed. The applicant claimed that the exchange did not occur at all and that there was no interpreter and that he was very nervous. The Tribunal pointed out that an interpreter in the Mandarin and English languages was present. The applicant said he was talking about when he was intercepted by the police.  The Tribunal enquired into the reasons his response would be recorded in such an inaccurate manner, whereby the applicant appears to have emphatically stated that he would just come back to Australia with his brother’s identify without waiting another three years. The applicant said that he did not know. The Tribunal notes that the interviewer sought clarification of the applicant’s recorded response and that the applicant responded ‘yes, because I owe a debt in Malaysia and I can’t earn enough money cover that debt …’ The Tribunal does not accept the applicant did not state to the Australian Border Force, through an interpreter, that we was determined to circumvent Australia’s migration laws by using a false identify a second time, if he was removed from Australia to Malaysia. The Tribunal finds that the abovementioned extract is a faithful and accurate reflection of the applicant’s response and it does not find the applicant’s protestations regarding the accuracy of the recorded exchange to be credible, in the context of the Tribunal’s credibility concerns arising from his extensive non-compliance with migration laws in Australia, which includes, not least, his previous use of a travel document with a false identity. Having assessed that the applicant threatened to circumvent Australia’s migration laws if he was removed, it follows that such a response reflects the applicant’s determination to breach condition 8101 should this visa be granted.

1. The Tribunal has also found it troubling that the applicant continued to attempt to deceive Victoria Police when he was intercepted in January 2021. The applicant claimed that his identity cards found on his person belonged to his brother. As discussed in the hearing, the applicant said that it was not true that the cards and his more recent passport were his brother’s identity documents. In the context of the Tribunal’s abovementioned credibility concerns towards the applicant, the Tribunal finds that the applicant was willing to provide Australian authorities false information about his circumstances in order to remain in Australia or avoid punishment.

2. The Tribunal accepts members of the applicant’s family back in Malaysia are reliant on him remitting monies back to them to materially support them. During the hearing, the applicant said that he would try to apply for a skilled or work visa if he were permitted to remain in the community while holding a bridging visa. The applicant provided oral evidence that he has limited education, limited English language capacity and that he has no formal trades or qualifications. The applicant’s eligibility for such visas appears to be narrow and remote. The Tribunal suggested he seek out professional migration advice and assistance. However, given the very poor prospects of the applicant being granted a visa with work rights, and his determination to earn money for his family in Malaysia, the applicant’s stated determination to apply for a visa with work rights attached only further invited the Tribunal to consider that he will not uphold condition 8101.

3. Overall, the Tribunal found that the explanations of his extensive time in the community without a visa or even applying for a visa and the evidence of his willingness to use false identities on travel and other documents do strongly undermine any of the more favourable material about being supported by the witnesses and their family. It also undermined his general credibility as someone who would uphold condition 8101 or any other condition imposed on a bridging visa if it were granted to him. He has provided evidence to the Department and the Tribunal that he is determined to remain in Australia to gain employment and to remit some of it back to his family in Malaysia. Taken cumulatively, the Tribunal finds there is a strong probability that the applicant will breach condition 8101, if this visa was granted.

4. These findings about the applicant’s visa history, his travel to Australia on a false identity and other adverse findings relevant to condition 8101 are also relevant to considering other visa conditions to be imposed on the applicant.

5. Condition 8207: The delegate did not make a specific finding on this condition. The Tribunal notes that the applicant has not shown any past interest in advancing his studies or training, vocational or otherwise, while he has resided in Australia. For this reason, the Tribunal finds the applicant would not breach condition 8207 if this visa was granted and permitted the applicant to reside in the community.

6. Condition 8505: The applicant and the witnesses provided testimony that the applicant will reside in the witnesses’ residence in [Suburb] in suburban Melbourne. The Tribunal accepts the witnesses are generous people who have genuinely offered this opportunity to the applicant if this visa is granted.

7. However, In the context of the applicant’s long history of non-compliance with migration laws in Australia, the applicant has spent many years not only being unlawful in the community whereby he avoided the authorities while working unlawfully. Given the applicant’s determination to work in Australia as long as possible, it would reasonable for the Tribunal to assess that despite any undertakings made before it, the applicant is so determined to remain in Australia that he will not uphold condition 8505.

8. Condition 8401: The applicant claimed that he will report to the authorities at a specified place on a regular basis because he has learned from his mistakes and is determined now to comply with the migration laws of Australia. However, in the context of the applicant’s long history of non-compliance, the Tribunal has no confidence that he will reliably and credibly uphold condition 8401 as he is determined to remain in Australia as long as possible, regardless of the outcome of his judicial review or his poor prospects in being granted another substantive visa with work rights.

   Summary

9. The Tribunal acknowledges that the applicant is likely to have his judicial review of a refused protection visa processed while in immigration detention. It acknowledges that there is no evidence before it that the applicant’s non-compliance with Australia’s migration laws extends to any criminal or other laws of significance. Indeed, the applicant struck this Tribunal Member as generally being of good character and supported by worthy friends. This made the assessment of this review application a vexing matter.  

10. The Tribunal, nonetheless, has also formed the firm view the applicant has a strong desire to remain in Australia for the purposes of finding remunerative work on a long-term basis, regardless of conditions to be imposed on him. By his own admission, he has significant pressure from family members in Malaysia to find work and send remittances to them. The Tribunal is not satisfied that the applicant will not be easily attracted to work without lawful permission or that he will not seek to be undiscovered by the authorities by living clandestinely in Australia by moving from a specified address. The Tribunal is not satisfied the applicant will maintain contact with immigration authorities on a regular basis, or that he will report as required because of the applicant’s non-compliance over a substantial period of time.  Indeed the Tribunal is satisfied that the applicant will remain in Australia for as long as possible if he is released from immigration detention, if his judicial appeal is unsuccessful, including becoming an unlawful non-citizen in the community, given his disregard with Australia’s migration laws over a long period of time.  

11. 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 any of the conditions 8101, 8401 and 8505 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.

12. For the stated reasons, the Tribunal is not satisfied that the applicant will abide by three of the four conditions regardless of any security that may be imposed. Therefore, the Tribunal finds that the applicant does not meet cl 050.223.

    Conclusions

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

14. 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

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

    Brendan Darcy
    Member