2111965 (Migration)

[2021] AATA 4087

2111965 (Migration) [2021] AATA 4087 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111965

MEMBER:Jane Marquard

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 6:49am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by visa conditions – applicant’s immigration history – periods of unlawful residence – three year exclusion period – return on false passport – employment with no work permit – unpaid business debts – offer of support – applicant seeking ongoing residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 73, 189, 198, 359AA
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8, Visa Conditions 8101, 8207, 8401, 8505

CASES

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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

BACKGROUND AND MIGRATION HISTORY

1. The applicant is [an age]-year old citizen of Malaysia.

2. He first arrived in Australia [in] August 2012 on an Electronic Travel Authority (Visitor) UD-976 visa, which ceased [in] November 2012. On [the following day] he became an unlawful non-citizen, and he remained in Australia without a visa for two and a half years until he was intercepted in June 2015.

3. He was detained under s.189 of the Act, which permits detention of unlawful non-citizens, [in] June 2015. [In] July 2015 he was removed from Australia to Malaysia pursuant to s.198 with a three-year exclusion period.

4. On 17 November 2015 the applicant was granted a UD-601 visa under a different name, [Alias A], and arrived in Australia [in] November 2015. This visa expired [in] February 2016 and from [the following day] until he was intercepted [in] January 2021, the applicant remained in Australia unlawfully.

5. He was again intercepted and detained [in] January 2021 under s.189 of the Act and taken into immigration detention.

6. On 27 January 2021 the applicant applied for a protection visa. On 2 February 2021 he was refused a WE-050 Bridging Visa. This was affirmed by this Tribunal differently constituted on 15 February 2021. He applied for judicial review to the Federal Circuit Court [in] June 2021. The matter is listed for hearing in the Federal Circuit Court of Australia [in] October 2021.

7. On 17 February 2021 his protection visa application was refused by the Department. His application was affirmed by this Tribunal differently constituted on 13 April 2021. The applicant appealed to the Federal Circuit Court of Australia [in] June 2021.

8. The applicant applied for a further WE-050 Bridging Visa on 17 March 2021 which was refused on 22 March 2021 and affirmed by this Tribunal differently constituted on 31 March 2021.

9. He was refused a further WE-050 Bridging Visa on 10 May 2021, which was affirmed by this Tribunal differently constituted on 19 May 2021.

10. He was refused a further WE-050 Bridging Visa on 20 July 2021, which was affirmed by this Tribunal on 30 July 2021.

    THIS REVIEW

11. The applicant applied for a Bridging E (Class WE) visa under s.73 of the Act on 3 September 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 decision-maker to be satisfied that if the bridging visa was granted, the applicant will abide by any conditions imposed on it.

12. On 7 September 2021 a delegate of the Department of Home Affairs (the Department) refused to grant the visa. The delegate was not satisfied that the applicant met the requirements in cl.050.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that if the bridging visa was granted to the applicant he would abide by conditions imposed on it.

13. This is an application for review of that decision, lodged on 8 September 2021.

14. The applicant provided the Tribunal with a copy of the decision record of the delegate dated 7 September 2021.

15. The Tribunal has also considered other documents including:

    ·The Australian Border Force Immigration Status Service Located Persons Interview dated [in] January 2021 (Immigration Status Service Located Person Interview).

    ·Applicant’s expired Malaysian passport issued in Perak in 2012 expiring in 2017 in the name of [applicant’s name] born [DOB 1].

    ·The application dated 3 September 2021.

    ·Letter of support from [Ms A] provided on 13 September 2021.

    ·Letter of support from [Mr B] provided on 13 September 2021.

16. The applicant appeared before the Tribunal on 15 September 2021 by video from [a named] Detention Centre to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent, [named] who was present at the hearing. The applicant gave evidence about his family and background in Malaysia, his experiences in Malaysia and Australia, his visa history, and current circumstances. The Tribunal also received oral evidence from [Ms A], a friend of the applicant. During the hearing the Tribunal put information to the applicant in accordance with the natural justice provisions in the legislation.[1] The information and the applicant’s response are discussed later in this decision.

    [1] S.359AA of the Act

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. There are a number of time of application, and time of decision, criteria for the Subclass 050 Bridging E (Class WE) visa (BE).

19. These include that at the time of application the applicant is an unlawful non-citizen (cl.050.211), that the applicant was interviewed by an authorised officer (cl.050.222) and that the applicant meets one of the subclauses in cl.050.212. Clause 050.221 requires that the applicant must continue to meet cl.050.211 and 050.212 at the time of decision. The Minister must also be satisfied that the applicant will abide by the conditions (if any) imposed on it (cl.050.223).

    Does the applicant meet Clause 050.211?

20. 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).

21. The last visa held by the applicant was a visitor visa which expired [in] 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 and his status and has not changed at the time of this decision.

22. Accordingly, the applicant meets subclause 050.211.

    Was the applicant interviewed by an authorised officer – cl. 050.222?

23. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

24. According to the decision record dated 7 September 2021 submitted to the Tribunal by the applicant and with no evidence to the contrary, the applicant was interviewed by an authorised officer on 6 September 2021.

25. Accordingly, the applicant meets cl 050.222.

    Does the applicant meet cl. 050.212?

26. An applicant for this visa must meet one of the criteria set out in cl.050.212 at the time of application. The applicant must continue to meet one of the subclauses in cl.050.212 at the time of decision. The applicant applied for the visa on the grounds that he has applied, or the Minister has applied for, judicial review of a decision relating to a substantive visa (050.212(3A), 4(a) and (aa) and (9).

27. Clause 050.212 (3A) is met if the applicant has made in Australia a valid application for a substantive visa, and the applicant has applied for judicial review of a decision to refuse the grant of the visa, and the judicial proceedings have not been completed.

28. On 27 January 2021 the applicant applied for a protection visa, which is a substantive visa. On 17 February 2021 his protection visa application was refused by the Department. His application was affirmed by this Tribunal differently constituted on 13 April 2021. The applicant appealed to the Federal Circuit Court of Australia [in] June 2021 and the judicial proceedings have not been completed.

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

    Does the applicant meet cl.050.221?

30. Clause 050.221 requires that the applicant continues to satisfy the criteria in clauses 050.211 and 050.212.

31. The applicant’s visa status remains as it was at the time of application, and his judicial review is still afoot.

32. Therefore, the applicant meets cl.050.221.

    Will the applicant abide by conditions imposed upon the visa – cl. 050.223?

33. 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 the conditions, if any, 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.

34. The delegate of the Department was not satisfied that the applicant would abide by the conditions imposed on the visa and therefore found that cl.050.223 was not met.

35. 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 this matter, the Tribunal will consider the same mandatory and discretionary conditions to be imposed on this visa, if it were to be granted, as the delegate did. These are:

    • 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.

36. 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].

37. After considering these and other relevant factors, the Tribunal is not satisfied that the applicant would abide by visa conditions. A summary of the evidence and findings are set out below.  

    Past immigration history, significance and wilfulness

38. The applicant has breached the migration laws on a number of occasions from 2012 until 2021. His migration history has been taken into consideration by the Department and this Tribunal differently constituted in refusing to grant the applicant bridging visas in the past. Although he has applied four times for bridging visas since he was detained [in] January 2021, the Department has refused these visas on each occasion. Furthermore, upon review of these decisions, the Tribunal differently constituted on each occasion affirmed the Department’s decision. At the Tribunal hearing in this matter the applicant confirmed that there were no changes in his circumstances since he had made the applications for the previous bridging visas. The Tribunal has considered his application afresh on the evidence before it, although reaching the same conclusion as previous decision-makers.

39. At the hearing, the Tribunal discussed with the applicant his adverse migration history, set out below.

40. The applicant was granted a Class UD Subclass 976 visitor visa on 23 July 2012 and first arrived in Australia [in] August 2012. That visitor visa ceased [in] November 2012 and [the next day] he became an unlawful non-citizen in the community, where he remained until intercepted in June 2015. [In] June 2015, the applicant was detained in immigration detention under s 189 of the Act and subsequently removed from Australia [in] July 2015. As put to him at the Tribunal hearing, after his initial UD-976 visa expired [in] November 2012 he remained in Australia unlawfully for a period of two and a half years until June 2015 when he was intercepted by authorities. During the time he remained in Australia unlawfully he worked in a [business] in NSW, as [an Occupation 1] in Victoria, and for a person called [name] in NSW (evidence provided to Department in interview dated 6 September 2021 and confirmed at the Tribunal hearing). Thus in 2012 he did not comply with the terms of his visa by departing Australia when his visa expired. He also continued to circumvent the laws by remaining and working unlawfully until he was intercepted in 2015.

41. Four to five months after being deported to Malaysia in 2015, the applicant returned to Australia under the alias of [Alias A] ([DOB 2]) [in] November 2015 while holding a Class UD Subclass 601 visitor visa. That visitor visa was granted on 17 November 2015. Later, the authorities determined that the applicant’s true identity was [applicant’s name] (DOB: [DOB 1]) and that he travelled to Australia on his brother’s passport. In an interview with the Department (LPI dated [in January 2021]) he told the Department he returned to Australia using his brother’s identity. He said that “[name]” (his actual name) and “[Alias A]” (the alias he returned on) was the same name, that is they are both comprised of the same Chinese characters, however when written using English alphabet were spelt differently due to translation into a different dialect. [The applicant] stated he applied for a new passport with the English spelling of his name using a different translation. He claimed his brother had a contact in the passport office who changed his date of birth for him slightly also. [The applicant] stated he knew this was illegal however did so to circumvent his three-year exclusion from applying to return to Australia.

42. As discussed with the applicant at the Tribunal hearing after being deported to Malaysia [in] July 2015 he deliberately sought out a new way of returning to Australia illegally only four months after being deported, thus again knowingly flouting the immigration laws.

43. Although he had a visa (albeit granted under an alias name), this visa ceased [in] February 2016 and on [the following day] the applicant 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. As put to him by the Tribunal at hearing, after his visa expired [in] February 2016 he did not depart but remained in Australia unlawfully for five years until [January] 2021 again indicating that he was happy to flout Australian immigration laws and work unlawfully, notwithstanding that he had been deported on a prior occasion. The Tribunal notes that after his return to Australia four months after his deportation he continued to work unlawfully as [an Occupation 1] until detained in January 2021. He told the Department at interview that he worked for [a named person] doing [Occupation 1 work]. There is no evidence to suggest that he had any intention of leaving voluntarily during this time.

44. The Tribunal put to the applicant at hearing that this series of incidents of wilful flouting of migration laws from 2012 until 2021 suggests that he has a disregard for migration laws which suggests that he would not abide by conditions of his visa. The applicant acknowledged that he made a ‘big mistake’ and that makes it hard for the Tribunal to believe in him. He said that he cannot change the mistakes of the past, but only his future. He submitted that the Tribunal should focus on his conduct in recent years, and he has not made mistakes. He said that he has not committed crimes such as theft and has obeyed the traffic laws. During his time in detention, he has abided by all the rules. He said when there are newcomers in detention, he tries to welcome them and get them to understand the rules. He is very polite in detention. He said that in April without notification he was sent from Melbourne to Perth. He said that he accepts punishment for mistakes in the past but does not want to be judged on past conduct and believes that he has changed.

45. The Tribunal has taken recent conduct into account in considering his likely conduct in the future, discussed further below, but has weighed this up against the very significant adverse migration history which continued until he was intercepted in January 2021.

    Mitigating circumstances justifying the breach

46. The applicant also provided information to the Tribunal about his background, which the Tribunal has considered as potential mitigating circumstances.

47. He told the Tribunal that he comes from a village in Malaysia. His parents are still living there. He has [specified siblings]. One lives in the city and the [others] are living and working in the village with their families. His father was a [specified] worker and his mother worked in a [business], but both are now retired. He also has extended family living nearby.

48. He said that he did not finish high school because friends of his left school, and he ‘followed them’. He wishes now that he had carried on studying.  He said that he was too young and did not understand the need for study. He worked [in specified work] for three or four years before travelling to Australia. He said that he had tried to set up a business for [products], but it failed so he borrowed money from a loan provider to pay back the money he lost in the failed business. He borrowed [amount] Malaysian Ringgit. He repaid [amount] Ringgit per month but he realised it was just interest not principal, so he came to Australia to avoid the debt and make some money. He said that he still owes the money.

49. He said that he was able to fund his trip to Australia, despite owing the money, because he went online to purchase an air ticket and he ‘just came over’. He said that his friends helped him. He just ‘followed them’. He did not use an agent to come to Australia.

50. He said that his purpose in travelling to Australia was to avoid the private loan provider. He said that he was just thinking about staying temporarily in Australia. The Tribunal asked him if he returned from Australia if he would still be in debt. He said that he still owes the money and wanted to earn money to pay them back. He said that he knew he had to pay back money, but it was ‘so much money’.

51. The Tribunal makes no findings of fact in regard to the circumstances of the loan, as it has not been provided with loan documents. However, even if the applicant does have a significant debt in Malaysia, or employment prospects are not as high in Malaysia, which are taken into regard as mitigating circumstances, this does not justify flouting the migration laws in Australia for a period of seven years. Further it does appear that the applicant has family support and had job opportunities in Malaysia.

    Whether the applicant has shown contrition

1. In submissions dated 14 September 2021 the applicant’s representative said that the applicant could not change his migration history but he has deeply regretted what he has done, his behaviour has improved and he has abided by rules of the detention centre. The applicant submitted to the Tribunal that he now understands the visa conditions and would not work until he was granted work rights. The applicant also expressed remorse at the Tribunal hearing, saying that he had made a mistake in 2015 and would not repeat it.

2. The Tribunal accepts that the applicant, after spending time with [Ms A] and her family (discussed further below), has grown to understand that he should comply with migration laws and he has regrets for what he has done. The Tribunal gives this some weight in consideration of whether he would abide by visa conditions. The Tribunal does not give his contrition significant weight however, as the applicant did not present himself to authorities which would have indicated not only remorse but willingness to take the consequences of his actions. He also did not tell [Ms A] about the extent of his actions although she had offered to help him, prior to being detained. He has only expressed remorse after being intercepted by authorities in January 2021.

   Indicators in support of the applicant abiding by conditions

3. The applicant has submitted that he would be financially supported by a friend called [Ms A], who is an Australian citizen (a copy of her passport was provided). [Ms A] provided a written statement to the Tribunal, and she and her fiancée [Mr A] appeared at the Tribunal to give evidence.

4. The delegate of the Department commented on the fact that it was surprising that the applicant did not know the names of [Ms A’s] children, given that he said he looked after them and was close to the family. The Tribunal asked him about this at the Tribunal hearing. The applicant said that his English is ‘not good’ and he just calls them ‘the elder one’ and the ‘second kid’, and sometimes he calls them their Chinese names. He said that he needs to study more English. Although somewhat surprising that he does not know their names, the Tribunal accepts that the applicant is close to [Ms A’s] family, given her persuasive evidence. She and [Mr A] presented as upstanding and credible citizens, who clearly are driven by compassion to help the applicant. 

5. [Ms A] is a consultant for [Employer 1], where she has worked for three and a half years. She provided copies of her payslips from July 2021 from [Employer 1] demonstrating she was earning roughly $1518 gross per week. She also provided a Proof of Balance Report from [her bank] showing she had about $14 000 in her account on 31 August 2021. She also provided an Income Statement from the Australian Taxation Office showing gross payments of $82 787 for year ending June 2021.

6. She said that she came to know the applicant, who she calls ‘[Name A]’, when he was boarding at her mother’s house in [Suburb 1] in 2017. She said that [Name A] was a tenant but became more like a family member. She said that he often helped her mother around the house doing chores, home repairs and maintenance work and her mother treats him like a son. She said that he volunteers at the temple. [Ms A] said that she was living nearby and often saw the applicant when she visited for dinner or yum cha, and he also joined in family gatherings for birthdays and on Mother’s Day. She said that over time, he became part of the family.

7. She said that she last saw him before Christmas in 2020. She has called him while he has been in the detention centre to check on his welfare.

8. She is prepared to provide him accommodation as she has a spare room in a big house. She would also provide him financial support, including food, medical expenses and cash. She told the Tribunal that they are not being paid to do this. They are doing it to help him as he is part of their family. She said that it is like having a child, ‘you do not ask anything in return’.

9. [Ms A] said that she has lived as a law-abiding citizen and knows right from wrong. She said that she was surprised to learn, when the applicant was detained, of the applicant’s actions. She said that she was still vouching for him nonetheless. She said that she does not feel she has been lied to, rather that it was a way of ‘protecting himself’.

10. She said that she believed she could be a positive influence on the applicant’s life if he could stay with her while his application was being processed. She said that he regrets what he has done, is trustworthy and works tirelessly at the temple.

11. She said she has ‘come to be aware’ that the applicant was unlawful from 2012 to 2015. She said that he told her after he was detained. She also became aware that he returned to Australia after he had been deported on false documents. She said that he had not told the family of these matters prior to being detained, he just ‘kept it to himself as he was a troubled kid’. She said she was not concerned that he had not told them about his illegality. She believes that as she has supported him, he will not let them down, and she would ensure that he complied with visa conditions. She was asked why, given his migration history, she trusted him. She said that they have spent time with him and ‘know him’. She said that she acknowledges that his record does not show that ‘he is a great person’, but she knows he made ‘one mistake’. She said that he has never let her mother down. She said that ‘[Name A]’ arrived in Australia in 2012 when he was quite young, without family members, and no support to ensure that he made good decisions. She said ‘I think he relied on acquaintances at the time who encouraged him to use the wrong documents to gain entry back to Australia after being deported the first time. With the maturity he now has and the better support around him, we think the mistake he made is a thing of the past’.

12. [Ms A] said that ‘we are good people’ and ‘my fiancée works [in a specified sector] so we are putting everything on the line to help him’. She said that she still supports [Name A] fully. She said that they want to give him a future.

13. Her evidence was supported by her fiancée [Mr A]. He told the Tribunal that he is from a Western culture and has seen how in Chinese culture, families support each other. He said that he feels that he knows the applicant well and has been fishing with him. The Tribunal asked [Mr A] if he feels concerned that the applicant lied to immigration authorities on a number of occasions. [Mr A] said that this is a difficult question, and obviously he is disappointed that he did, but the applicant is from a different background where he may have had hardships. He said that his family believes that with them around, the applicant would abide by conditions on this visa.

14. The evidence of [Ms A] and her fiancée has been considered positively in favour of finding that the applicant would abide by visa conditions. Their motivations are clearly generous and kind - to assist the applicant who has been part of their family, and who they regard as a ‘troubled’ individual.

15. The Tribunal has also taken into consideration the fact that the applicant has helped out at a temple. [Mr B], [an official] of [Community Organisation 1] provided a statement to the Tribunal dated 20 August 2021. He said that the purpose of his letter was to attest to the good character of the applicant in support of his application for a visa to stay in Australia. [Mr B] said that the applicant has worked as a volunteer for [Community Organisation 1] for several years, commencing around 2017. He said that he has been a regular and reliable participant in their activities which provide valuable support to the local [specified] community in [Suburb 1]. He said that their activities centre on the [named] Temple and include cultural and religious events. He said that the applicant gives valuable time to these programs, and is good natured, kind and trustworthy. This positive reference is taken into consideration positively in favour of finding that the applicant would abide by visa conditions.

16. The applicant emphasised to the Tribunal that he is a changed person. He acknowledged that his mistakes make it very difficult for the Tribunal to believe him, but said ‘I hope that you don’t judge me by the mistake I made in the past, because I am able to change.’ He told the Tribunal that he follows the rules of the detention centre and has never broken any other laws in Australia.

17. The Tribunal has taken into consideration favourably the fact that the applicant has not breached any other laws in Australia and has, according to the representative and without any evidence to the contrary, had a good record in immigration detention. The Tribunal has also taken into consideration positively, the character references from [Mr B], [Ms A] and [Mr A].

    Summary of Findings

18. If the bridging visa is not granted the applicant is likely to have his judicial review of a refused protection visa processed while in immigration detention. As set out above, in making its findings as to the applicant’s likely conduct, the Tribunal has taken into consideration positively the fact that [Ms A] and her family are prepared to support the applicant financially and emotionally. They are prepared to provide accommodation, food and other expenses and said that they would ensure he would comply with visa conditions. The applicant has expressed concern that if he did not comply with conditions this would impact on [Ms A], demonstrating that he has considered that his actions will have repercussions for this family. The Tribunal has also taken into consideration positively the applicant’s record in detention and his commitment to helping the temple, and the positive reference from [Mr B]. There is also no evidence before the Tribunal to suggest that the applicant’s non-compliance with Australia’s migration laws extends to any other laws. The Tribunal has also taken into account positively his expressions of remorse and that he understands the seriousness of the matter.

19. However, in considering his likely conduct, the Tribunal must weigh these factors against the applicant’s migration history, the significance of the migration law breaches and his wilfulness in those breaches.

20. The applicant has circumvented the migration laws over a long period – on a number of occasions from 2012 to 2021. There have been a number of breaches, as set out earlier, rather than just ‘one mistake’ as claimed.

21. He also circumvented the migration laws wilfully. The Tribunal notes that he initially entered Australia in 2012 on a valid visa such that he would have had knowledge of the visa process and requirements. He then stayed on working unlawfully after his visa period expired. After being deported in July 2015 he then applied for a Malaysian passport that did not reflect his true identity knowing that he was prohibited from returning for three years to Australia, indicating planning and deliberate disregard for Australia law. He then used a false passport to return to Australia only four months after being deported, despite being in a three-year exclusion period. As he would have been well aware of the illegality, due to his recent deportation, this indicates a significant, deliberate and pre-meditated plan to re-enter Australia illegally, which goes beyond a mere ‘mistake’ as described by him. The fact that he decided to contravene Australian law for a second time, even after suffering repercussions the first time, does suggest that he may do so again in the future, notwithstanding that he has said he has changed.

22. Furthermore, there is no evidence to suggest that at any time during the long period of time he was unlawful (cumulatively seven years), he made any efforts to regularise his visa status. Indeed, his unlawful status continued until he was intercepted in 2021. The Tribunal asked him at hearing if he ever asked the Department, friends or a representative for assistance. He responded that he was holding a fake identification and did not dare to apply for a job permit or ask for help. He said that he was ‘hiding away’. The Tribunal notes that he had connections with [Ms A] and her family, and was aware of the migration system, having used a fake passport to enter Australia. The Tribunal takes the view that if he had wished to regularise his status, he could have made some attempts to do so. The fact that he did not do so indicates that he did not wish to return to Malaysia and was satisfied to breach Australian laws in order to remain in Australia.

23. The Tribunal has taken into consideration the fact that although the applicant says he has changed, he did not take steps himself to regularise his status, and on two occasions he was intercepted by officers of the Department, rather than himself taking responsibility for his illegality. In fact, when intercepted in 2015 he said that he did not wish to voluntarily return. In an interview conducted with a Department officer [in] June 2015 he said that he had been working as [an Occupation 2], earning $200 a day. Asked if there were any reasons he could not return to Malaysia and if he would be prepared to depart Australia, he said he was not, because ‘Australia is too good and I don’t want to go back’. This information was put to the applicant under the natural justice provisions at the Tribunal hearing. He responded that he was told he must return and if he refused, they would send him back. He said that he knew that he was wrong at that time. The Tribunal has taken into consideration negatively the fact that he admitted wanting to remain in Australia as it was ‘too good’ as it correlates with his overall conduct, which was to remain in Australia and work, notwithstanding that it was unlawful to do so. The Tribunal also put to him that as set out in the Department decision dated 7 September 2021 there are no records of him attempting to contact the Department to regularise his status or update records. At the Tribunal hearing he was asked why he did not contact the Department. He said that he did not as he knew that he had a fake passport. He was too afraid to apply for a visa and was scared about returning. He was asked if he thought about returning home during the time that he was unlawful. He said that he did but is worried as he still owes money so should stay to work to pay this off. He said he now understands he cannot work without a work permit. He said he only knows it now that the visa had a work requirement. He said that he did not think of asking anyone for help with understanding his migration status or the conditions of his visa.

24. The Tribunal does not accept that the applicant would not have known that he was in Australia working illegally, as he would have known the date of cessation of his visa. The Tribunal accepts that he may have been scared, but the fact that he took no steps at any time to apply for a visa legally after the first occasion he entered Australia, nor try and rectify his situation at any time, does suggest that he is prepared to act unlawfully in order to remain in Australia. The Tribunal is of the view that he was indifferent as to his legal status as he wished to remain in Australia to work.

25. The Tribunal has also taken into account the fact that records of the interview with officers dated [in] January 2021 state that when the applicant came to the attention of Victoria Police when his vehicle was intercepted [in] January 2021, a [year] Victoria Fisheries Licence in the name of [Alias A] was located on his person. It is recorded the applicant told the authorities the card belonged to a third person, when it actually belonged to him. When this was put to the applicant, he said that he does not speak English so sometimes things are not recorded well by police officers. While this may be true at times, the Tribunal does not accept that this information would have been incorrectly recorded, and again demonstrates that he was not forthcoming with the truth when dealing with Australian immigration authorities.

26. Taking all these incidents into account, the Tribunal is satisfied that the applicant will continue to circumvent migration laws, including visa conditions, in order to earn money to repay his unpaid debt in Malaysia. As referred to in the delegate’s decision dated 7 September 2021, during the Departmental interview on 6 September 2021 he said that he owes more than [amount] Malaysian Ringgit (approximately AUD $[amount] at current exchange rate) in Malaysia to loan sharks, who have threatened and harassed him. Although he told the Tribunal that he would not work without work rights on his visa, the Tribunal is not satisfied that he would do so, given his determination to work to pay his debt, and his record which demonstrates that he flouted the migration laws for such a long period.

27. The Department in its decision referred to the ‘LPI interview dated [in January 2021]’ in which it is noted that the applicant said that should he be removed from Australia he would just use his brother’s passport to return once more. The notes recorded the question and answer as ‘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.’

28. The applicant stated emphatically to the Department and Tribunal that he did not say that if he was sent back he would just come back with his brother’s identity, and it may have been an ‘interpreting problem’. He said that the record could be checked. The Tribunal notes that the Department made notes of the interview, where this statement is recorded. However, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that the statement was subject to some interpreting error. The statement is not given any weight in making these findings. However, in the same interview, as set out in the Tribunal (differently constituted) decision on 30 July 2021, the applicant confirmed that he needed money to support his family in Malaysia and was the only income source. He said that his brother did not have a job due to the COVID-19 pandemic. He said that he still needed to repay his debt and needed money to do so. He confirmed at the Tribunal hearing in this matter that he still has to repay the debt. This does suggest that the applicant will be motivated to work to earn enough money to send back to Malaysia and pay his debt, notwithstanding some financial support in Australia from [Ms A].

29. In conclusion, although [Ms A] provided credible evidence that she would provide accommodation and financial support to the applicant if he were to be released and would ensure that the applicant abided by conditions, the Tribunal is not satisfied that he would do so, given his record indicating a general disrespect for migration laws. Although [Ms A] and her family appear to be very well-intentioned, they would be unable to control the applicant were he to breach his visa conditions by working illegally or not residing at the correct address or not reporting. The applicant has said that he was young when he made the decision to change his passport, and he has realised his mistake and should not have used a false passport and should have waited three years to return to Australia. He has insisted he would abide by the law in the future and said that he now understands the serious consequences of his actions. The Tribunal accepts that he may have matured somewhat, but notes that he did not present himself to the Department at any time, rather he waited until he was intercepted, indicating that even in 2020/2021 when he has been older, he has continued to evade the law and to work unlawfully in Australia.

30. Given his propensity for circumventing the migration laws, the Tribunal is not satisfied that he would comply with Conditions 8101, 8505, or 8401.

1. In particular, the Tribunal is not satisfied that the applicant would abide by Condition 8101 – the holder must not engage in work, given the migration history set out above. The applicant has admitted that he worked while holding substantive visitor visas which have ‘no work’ conditions attached, and he also worked unlawfully in Australia without a visa. The evidence establishes that during this time he did not contact the Department or an agent to regularise his status or apply for another substantive visa of any subclass (until after he was detained and has now applied for a protection visa). The Tribunal has also taken into consideration that the applicant continued to attempt to deceive Victoria Police when he was intercepted in January 2021. The applicant claimed that the cards found on his person belonged to someone else. The Tribunal does not accept the applicant’s submissions to the Tribunal that he was young when he breached the laws, and did not understand them as he was working on fruit farms, but now understands the law and that he must apply first for work permission. Given that the applicant applied for his initial visa, and later was deported, the Tribunal does not accept that he would not have understood that he was in Australia and working illegally. The Tribunal notes also that he has continued to breach the law until intercepted in early 2021.The applicant also submitted that he understands that [Ms A] would lose her bond and he does not want to disappoint her. While it may be true that he does not want to disappoint her, the Tribunal is not satisfied that he would not give in to the temptation to earn money in violation of his work condition at some point, given his migration history.

2. The Tribunal is not satisfied that the applicant will abide by Condition 8401 - the holder must report: at a time or times; and at a place; specified by the Minister for the purpose. When put to the applicant at the Tribunal hearing, he said that he would report every day to a government department if needed. 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 now understands the laws. However, as discussed earlier, the Tribunal is not satisfied that he would not have been aware of the laws earlier. Even given the input of [Ms A], in the context of the applicant’s long history of non-compliance and his desire to earn money, the Tribunal is not satisfied 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 any application for work rights.

3. Given the migration history set out above the Tribunal is not satisfied that the applicant will abide by Condition 8505 -the holder must continue to live at the address specified by the holder before the grant. The applicant and [Ms A] provided testimony that the applicant will reside with [Ms A], who has a spare room. The Tribunal is satisfied that initially the applicant would reside with [Ms A], who has generously offered accommodation and support. However the Tribunal is not satisfied that if the outcome of his judicial review or application for work rights was unsuccessful that he would continue to live with her if he wished to work, or remain in Australia unlawfully, given his determination to work in Australia and his migration history.

4. The Tribunal is satisfied that the applicant would abide by Condition 8207 - not engage in any studies or training - as he has not demonstrated interest in studying while 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.

5. [Ms A] has indicated a willingness to provide a security to ensure that the applicant complies with visa conditions and to demonstrate her good faith. She said that she was ‘not doing this lightly’ and it would affect her financially if [Name A] breached his visa conditions, but she was confident he would not. The applicant has said that he would abide by conditions, as he would not want her to lose her bond.

6. Although [Ms A’s] intentions are good, and the applicant may comply initially, the Tribunal is not satisfied that compliance in the long term will be enhanced by attaching a security bond if the visa were to be granted, given the level and time periods of previous non-compliance. The applicant told the Department in interview he wanted to stay in Australia as the COVID-19 situation in Malaysia was bad. He has also commented on a number of occasions to the Department and Tribunal that he still owes the debt in Malaysia and will need to pay it back. Given that in the past he has been determined to stay in Australia, the Tribunal is satisfied that he will want to stay and work, notwithstanding any visa conditions imposed on him.

7. For all the above reasons, the Tribunal is not satisfied that the applicant will abide by three of the four conditions to be imposed on his visa, regardless of any security that may be imposed. Therefore, the Tribunal finds that the applicant does not meet cl 050.223.

   Conclusions

8. As the applicant does not meet cl.050.223, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

9. 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

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

    Jane Marquard
    Member