2110834 (Migration)

[2021] AATA 3569

2110834 (Migration) [2021] AATA 3569 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110834

MEMBER:Paul Windsor

DATE:27 August 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 27 August 2021 at 4:51 pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General))  applicant has an ongoing application before the Tribunal – criminal conviction – she has worked illegally – wilfully acting in breach of the conditions of visa – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to her – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.223, Schedule 8

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 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). The applicant provided the Tribunal with a copy of the delegate’s decision record.

2. The applicant applied for the visa on 29 June 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 delegate found that the applicant satisfies the time of application criteria set out in cl 050.212 because she has applied for merits review of a decision to cancel a visa (cl 050.212(4)(b) and 4(c)).  The Tribunal agrees with this finding, noting that the applicant has an ongoing application before the Tribunal, made on 24 June 2021, for review of a decision made on 23 June 2021 to cancel a Bridging C (Class WC) visa. 

4. Relevantly to this case, the primary criteria include cl 050. 223, which requires that the delegate be satisfied that, if a bridging visa is granted, the applicant will abide by the conditions imposed on it.

5. The decision to refuse to grant the visa was made on 18 August 2021 on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa, specifically condition 8101 (must not engage in work in Australia) and condition 8564 (must not engage in criminal conduct).  The delegate considered that the imposition of a security, regardless of the amount, would not secure compliance with the conditions.

6. The applicant indicated she was taken into immigration detention on the same day, 18 August 2021.

7. The applicant appeared before the Tribunal by telephone on 26 August 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant would abide by conditions imposed on a bridging visa if granted to her.

    Whether the applicant will abide by conditions - cl 050.223

11. 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.

12. 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].

13. 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.

14. In this case, cl 050.614 applies because the applicant applied for a protection visa on 10 August 2017 (and that application is ongoing) and because she meets the requirements of cl 050.212(4).  This clause indicates that, in addition to any mandatory conditions, certain conditions may be imposed. In this case condition 8101 (no work) must be imposed because it applied to the relevant visa previously held by the applicant (her Bridging C visa which was cancelled on 23 June 2021).  In addition to this mandatory condition, this clause prescribes certain other conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101The holder must not engage in work in Australia. (Mandatory)

    8101The holder must not engage in any studies or training in Australia.

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

    8564   The holder must not engage in criminal conduct.

15. At the hearing the applicant indicated she came to Australia in March 2017.  She said she came alone on a tourist visa.  She indicated that her original plan was just to visit as a tourist for a month but she found she liked Australia and decided she would like to stay.  She added that she had suffered domestic violence from her ex-husband and was afraid he would beat her up again if she returned to Taiwan so she ‘authorised her agent’ to submit a protection visa application to get legal status to remain in Australia.

16. The applicant commented that the protection visa application was made within the three months stay period on her visitor visa.  The Tribunal observed, however, that the delegate had commented in her decision record that the applicant had had some short periods as an unlawful non-citizen, and the fact that she had been on a Bridging C visa indicated that she had not made a valid protection visa application while her visitor visa was still in effect.  The applicant commented that this was because she did not have sufficient legal knowledge or English language.

17. The applicant indicated that she has never had work rights since she arrived in Australia in March 2017.

18. The Tribunal asked the applicant how she has been supporting herself in Australia over the 4 years and 5 months since she arrived in March 2017.  She said she had $2,000-$3,000 when she came to Australia and lived off that.  She commented that she thought it was after about six months, when she had to go to the doctor and had no money, that she had to do some work to support herself.  She said she could not find any other job so had to do ‘this kind of work’ (referring to sex work).  She said she only did it ‘very occasionally’.  She indicated that she had never done sex work before she came to Australia, no-one else was involved in arranging such work for her in Australia, and she undertook the work in hotel rooms.

19. The applicant indicated she had always lived in Brisbane.  Noting that she had provided an address for an apartment/unit in [Suburb 1], Queensland (a suburb of Brisbane) in her application, the Tribunal asked her if she had always lived at this residence.  While initially appearing unfamiliar with [Suburb 1], the applicant indicated that was the case when the Tribunal stated that [Suburb 1] is a suburb of Brisbane. 

20. Noting she was detained in South Australia, the Tribunal asked the applicant when and why she went there.  She commented that after she was arrested by police she stopped working (the delegate’s decision record indicates she was charged by Queensland police on three occasions for prostitution related offences - in November 2018, September 2019 and most recently on 26 May 2021, and was convicted in [a] Court on [date] May 2021 [and] [fined).  She indicated someone she knew from her hometown (in China, where she was born and grew up) who suggested she go to Adelaide and stay with her there.  She said she planned to have a break and then return to Brisbane, but was unable to return due to the imposition of COVID-19 related travel restrictions.

21. The Tribunal asked the applicant how she was able to afford to travel to Adelaide.  She said she still had a few hundred dollars and her friend provided food and accommodation.

22. The Tribunal asked the applicant whether she lived by herself in Brisbane.  She said she used to.  When asked if she still has the place where she lived she indicated she did.  When queried further she said it belongs to ‘her boyfriend’.  She said her boyfriend told her he can provide food and accommodation and she will not have to go out to work.  The Tribunal queried how long she had been living there.  She replied that she only stays there occasionally and she also stayed with another friend.

23. Observing that a bank account statement she had provided to the Department indicated she had a $0.00 balance at the start of June 2021 and a $6,423 balance at 25 June 2021, the Tribunal asked the applicant where the bank deposits (which totalled $9,720 over this 25 day period) came from.  She replied that she had not been working but her friend sympathised with her and transferred money.  When asked who this friend is, the applicant said she did not know his ‘English’ name but said she has known him for 1-2 years and they communicate via [social media].  She added that he once transferred $3,500 to her.

24. The Tribunal asked the applicant if she was referring to [Mr A], who provided a letter to the Tribunal indicating that he lives in [a Brisbane suburb], the applicant is his ‘very good friend’, he understands that she is making arrangements to depart Australia for Taiwan and that, before she departs, he is prepared to provide food and accommodation for her at his home.  The applicant indicated she was not referring to Mr [A], but indicated that Mr [A] is her friend and they like each other.

25. The applicant said the other friend is someone she has known for the last two years and he always helps her out.  When asked what name she knew this friend by, the applicant said she only knows him as [Mr B].  The Tribunal asked the applicant if [Mr B] owned the place in [Suburb 1] where she had been living.  She indicated he did not, stating that she did not live with him and he is just her friend.  She reiterated that when she came to Australia she lived by herself.  The Tribunal asked her how she was able to pay the rent where she lived.  She replied that sometimes, when she had no money,  she lived with her friend, and sometimes she stayed at hotels.  She commented that Mr [A] wanted her to stay at his place but she only stayed there occasionally. 

26. The Tribunal asked the applicant how she could afford to stay in hotels.  She said sometimes her friend takes care of her and transfers money to her, plus she earnt money from the work she did at hotels.  The Tribunal queried the applicant that previously she said she only worked occasionally but from what she is now saying it seems like she was working much more than occasionally.  The applicant acknowledged this was how it seems but commented that she saved all the money she made and spent less that $100 a week on food and clothes.  The Tribunal asked her about accommodation costs.  She said when she was working she stayed at a hotel, otherwise she stayed with a friend so she did not pay rent.  The Tribunal asked if she was referring to [Mr B].  She indicated she was.  When asked why he would let her stay with him without paying rent she indicated it is because they are good friends, she has known him almost 2 years, and he pitied her.

27. The Tribunal asked the applicant where she was staying before she met [Mr B].  She said she had some money when she came to Australia and after that she saved money from working and sometimes stayed with a friend who did not charge her rent.

28. The applicant indicated she had no other assets besides the money in her bank account.  She indicated she had paid the various fines issued in relation to her offending and had no debts.

29. When asked how she would support herself without working if granted a Bridging E visa, noting that she would not have work rights, the applicant commented that she had learnt her lesson and would not make the same mistake as she had made in the past.  She said her boyfriend (Mr [A]) would provide her with food and shelter.  When queried that the letter from Mr [A] indicates that he believes she is making arrangements to depart for Taiwan and he will provide food and accommodation at his house before she departs, the applicant replied, ‘yes, he told me that’.  The Tribunal observed that she has made a protection visa application which is ongoing and did not seek the Bridging E visa on the grounds that she was preparing to depart to Taiwan.  The applicant replied that they like each other and she wants to give the relationship another chance, adding that they may marry.

30. The Tribunal commented that it does have concerns that the applicant would not abide by the conditions imposed on any a Bridging E visa if one was granted to her, including because she has worked illegally and engaged in criminal activity in the past, and because she has indicated she does not have enough money to support herself without working or relying on assistance from others.  The applicant commented that Mr [A] indicated he will provide her with food and accommodation and said he will marry her so she will no longer have to do ‘this work’ or work at all.  She added that she would like to give the relationship ‘time’.

31. The Tribunal indicated that it must also consider whether a security, if provided, would provide sufficient incentive for compliance with the visa conditions, noting that the Tribunal may not be satisfied, in light of the concerns it has raised, that she would comply with the visa conditions, regardless of any security that may be imposed.  The applicant indicated that she thought Mr [A] should be able to provide a security.  When asked why she thought that was the case, given he made no mention of it in his letter, the applicant commented that she had known him for about two years and he wants to marry her but they have some differences in lifestyle.

32. The Tribunal indicated that it would allow the applicant until close of business to provide any updated advice from Mr [A].  A further letter was received from Mr [A] indicating that he understands the Tribunal is considering a security bond before granting a new visa for the applicant and indicating that the Tribunal should not hesitate to let him know the sum of security and he will do his best to meet the requirement within his capacity.

    Findings and reasons

33. The Tribunal found the applicant’s evidence regarding her circumstances since she arrived in Australia in March 2017 to be vague, contradictory and improbable.  The Tribunal was not satisfied that she was honest with it in relation to the extent to which she was involved in sex work and in relation to her living arrangements.  While the Tribunal accepts that the applicant may have been able to live off the money she had with her when she came to Australia for a few months, the Tribunal finds there is a large gap (likely two years or more) between when this money would have run out and when the applicant claims to have met her friends [Mr B] and Mr [A], around two years ago.  The applicant also claimed initially that she lived by herself, but when pressed about how she could afford to pay rent while only undertaking sex work occasionally, she altered her account and claimed she either stayed in hotels while undertaking sex work, or stayed rent free with friends.  She also indicated initially that she did not stay with [Mr B], but later altered her account stating that she stayed with him rent free because they are good friends and he pitied her.

34. When the Tribunal first asked the applicant how she was able to afford to travel to Adelaide, she said she still had a few hundred dollars and an old friend who lives in Adelaide provided food and accommodation.  It was only when queried regarding her bank statement for June 2021 that the applicant said [Mr B] supported her financially.  The Tribunal considers the applicant did not provide a satisfactory explanation for why $9,720 was deposited into her bank account in five different transactions over a 21 day period in June 2021.  She indicated that [Mr B] once transferred $3,500 to her but did not indicate he gave her nearly $10,000 over this period.  The Tribunal notes that no supporting statements have been provided from [Mr B] regarding the support the applicant claims he has provided her in the past.

35. The Tribunal also found it concerning that the first letter from Mr [A] indicates that he understands she is making arrangements to return to Taiwan, when this clearly is not the case.  This was not corrected in the second letter from Mr [A].

36. The applicant was also vague about the nature of her relationship with Mr [A].  Initially she said he is her friend and they like each other.  She then indicated that he wanted her to stay at his place but she only stays there occasionally.  It was when she was asked how she would support herself without working if granted the visa that the applicant described Mr [A] as her boyfriend and commented that they may marry (which is not something raised in either of Mr [A]’s letters to the Tribunal).  She also commented that she and Mr [A] have some differences in lifestyle, raising concerns about her commitment to remaining with him.

37. The Tribunal finds that it is clear that the applicant worked in Australia in breach of the no work condition on her Bridging C visa.  She also engaged in criminal conduct, having been charged with prostitution-related offences on three occasions, in 2018, 2019 and 2021.  While convictions were not recorded in relation to the offending in 2018 and 2019, the applicant was fined.  She continued to offend, however, and on [date] May 2021 she was convicted and fined $1,000 in relation to further prostitution-related offences. 

38. While the applicant expressed remorse for her past breaches of immigration law and for her criminal offending and said she has learnt her lesson, she indicated that she had no option but to work and to do ‘that work’ because of her financial circumstances.  The Tribunal considers, however, that her circumstances have not altered significantly in that she has no family in Australia and the only person who has indicated support for her does not appear to appreciate her actual circumstances (believes she is making arrangements to depart Australia) and she appears to be ambiguous about the nature of their relationship, having commented that they may marry but have lifestyle differences and need to talk things over.  The Tribunal considers there is a real possibility that a relationship between Mr [A] and the applicant would not work out and the applicant would again be in a position where she felt she had no option but to work illegally and/or engage in criminal conduct.

1. On the evidence before it regarding the applicant’s past behaviour and her current circumstances, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa, particularly conditions 8101 and 8564, if granted a Bridging E visa.

2. Given the applicant’s circumstances and the Tribunal’s concerns set out above, the Tribunal does not consider that any amount of security will act as a meaningful incentive for the applicant to abide by visa conditions.

3. 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.

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

5. 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

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

   Paul Windsor
   Member