2114983 (Migration)

[2021] AATA 4946

2114983 (Migration) [2021] AATA 4946 (29 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114983

MEMBER:Kira Raif

DATE:29 October 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 29 October 2021 at 5:01pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantial outstanding debt – strong incentive and a desire to engage in employment in Australia – applicant has no intention to ever depart Australia voluntarily – 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 him – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.223, Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Liu v MIAC [2008] FMCA 725

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)and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 20 October 2021. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 25 October 2021 on the basis that the delegate was not satisfied the applicant would abide by visa conditions, as required by cl. 050.223. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 October 2021 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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. 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.

5. 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].

6. 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.

7. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

8. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].]

   Whether the applicant will abide by conditions 

9. The Tribunal has determined that that the conditions which would be imposed on the visa are the following:

   8101    no work

   8401    report is directed

   8505    continue to live at the specified address

   8506    notify change of address

10. The Tribunal has considered whether the applicant would abide by the conditions of the visa, if one was granted to him. In determining whether the applicant will abide by visa conditions, the Tribunal has considered the applicant’s immigration history, which is set out in the primary decision record, a copy of which the applicant provided to the Tribunal. It indicates that the applicant first travelled to Australia holding an Electronic Travel Authority in August 2012. That visa ceased in November 2012 and the applicant became an unlawful non-citizen for a period of over two and a half years. The applicant was located and detained in June 2015 and removed from Australia in July 2015. The applicant was subject to a three-year exclusion period. In November 2015 the applicant was granted a Visitor visa under a false name, using a false passport. He entered Australia in November 2015 as a holder of that visa which ceased on 27 February 2016. The applicant again became an unlawful non-citizen for a further period of nearly five years. He was located and detained in January 2021 and since that time the applicant made an application for a substantive visa. That application was refused by the delegate and the decision affirmed by the Tribunal and the matter is presently before the court.

11. In his written submission to the Tribunal of 28 October 2021 the applicant concedes that he had breached immigration laws in the past and acknowledges that he had made a ‘big mistake’, which he cannot change. The applicant states that the decision-maker should instead focus on his more recent conduct when he has not made any mistakes. The applicant states that during his time in detention, he abided by the rules, he is polite and tries to help others. The applicant states that he has changed and should not be judged on his past conduct.

12. The Tribunal has formed the view that the applicant has a complete disregard for the Australian immigration laws. Following his first entry to Australia, the applicant remained in Australia as an unlawful non-citizen for over two and a half years and made no effort to regularise his status. He had not approached the Department and seemed to be entirely unconcerned by the fact that he was in breach of the immigration laws. The applicant then obtained a passport in a false name in order to avoid the exclusion period. The applicant would have been aware that he would have difficulty obtaining another visa in Australia if he had disclosed his true identity and if his immigration history was known, so he had taken active steps to circumvent these laws and to obtain a false passport to be able to re-enter Australia.

13. The applicant again remained in Australia unlawfully for close to five years between February 2016 and January 2021. Again, the applicant took no steps to regularise his status in that period and appears to have been unconcerned about the fact he had been breaching the immigration laws. The applicant only made the application for the substantive visa after his detention and there is nothing to suggest that the applicant would have contacted Immigration or done anything about his status if he was not detained. (He explained to the Tribunal that he was afraid of being deported due to using a false passport, so he had not approached the Department.)

14. The applicant told the Tribunal that he has been in detention for a long time and has had time to reflect and understands that what he did in the past was wrong. The Tribunal finds that evidence unpersuasive. The Tribunal is of the view that the applicant was well aware that overstay as an unlawful non-citizen for several years, obtaining a false passport and travelling on false passport, was ‘wrong’. The Tribunal is of the view that the applicant was well aware in the past that his actions were wrong yet he chose to do these anyway. The applicant’s awareness that he was breaching the law did not prevent him from engaging in that conduct.

15. The applicant told the Tribunal that he tried to escape from a loan and that is the reason he stayed in Australia illegally, however that loan remains. The applicant told the Tribunal that he had been working and repaying the loan but he still has a loan of approximately AUD80,000. The applicant claims that he made arrangements to repay the loan slowly and his family would help and if he is released, he will try to apply for a work visa and find a job. The Tribunal finds that evidence problematic. If the applicant’s evidence was true (and he presented no documentary evidence to support any of these claims), there is no need for the applicant to remain in Australia as he claims to have made satisfactory arrangements for the loan repayments, which caused him to overstay in the past. When this was put to the applicant, he said that he thinks the loan shark would apply more pressure on him if he is in Malaysia (which appears to contradict his evidence that he has reached an agreement for the repayment) and because he is worried about Covid. The applicant states that in 2015 when he returned to Malaysia, they threatened him and beat him and he was scared, so he would rather deal with them from a distance. The applicant’s evidence to the Tribunal confirms that the applicant has no intention of returning to Malaysia and that supports the Tribunal’s view that he would do everything possible to remain in Australia and would do so whether or not he holds a visa permitting his stay in Australia.

16. The Tribunal finds that the applicant has a complete disregard for the Australian immigration laws and that he is willing to breach the law to suit his circumstances. The Tribunal acknowledges, and accepts the applicant’s evidence that he has not breached any rules while in detention and that he has been helpful to others. However, the Tribunal does not accept the applicant’s evidence that he has changed, nor that his recent conduct is evidence of such change. Notably, there is very little opportunity for the applicant to breach immigration rules while he is in detention. The applicant’s general conduct and compliance with the Australian laws are not at issue here and the Tribunal accepts that the applicant is unlikely to engage in criminal conduct in the future and to breach the laws more broadly. The Tribunal’s concern is specifically with immigration laws and, in particular, with the visa conditions that would be imposed on the applicant’s visa, if granted. The applicant would not have had any opportunity to breach visa conditions while in detention (as he does not hold a visa), so his general compliance and claimed good character do not, in the Tribunal’s view, evidence the applicant’s intention to comply with visa conditions.

17. The applicant told the Tribunal that he would abide by the rules in the future and will not breach the immigration laws again and that he understands that what he has done is wrong. The applicant has not satisfied the Tribunal that he has changed and that his future conduct would be different from his past actions. The applicant also told the Tribunal that he was young before and did not appreciate the consequences of his conduct or that what he did was wrong. As noted elsewhere, the Tribunal does not accept that the applicant failed to appreciate – whatever his age – that  living in Australia without a visa for a number of years, and obtaining and travelling on a false passport was ‘wrong’. The Tribunal does not accept that the applicant was not aware of his conduct but is of the view that he chose to engage in such conduct, in full awareness that he was breaching the laws, because it better suited his needs.

18. The Tribunal is also mindful that the most recent time when the applicant lived in Australia unlawfully was in January 2021 before his most recent detention. The Tribunal does not accept that the applicant was immature in January 2021 when he lived in Australia unlawfully but is more mature now, some ten months later. In the Tribunal’s view, insufficient time has passed since the most recent breaches of the immigration laws (by virtue of the applicant’s stay as an unlawful non-citizen) to satisfy the Tribunal that the applicant has changed and that his future actions would be different. This is particularly so as the applicant has not lived in the community, where he would have an opportunity to show compliance with visa conditions and immigration laws, but he has been in detention where there would be very little opportunity for breaching immigration laws and visa conditions. In these circumstances, the Tribunal does not consider the applicant’s recent conduct to evidence his future intention to comply with visa conditions.

19. The Tribunal acknowledges the character references provided to the Tribunal with the written evidence on 28 October 2021. The Tribunal accepts that those who provided the references believe the applicant to be a good person, although it is not apparent from these references that the writers have great familiarity with the applicant’s immigration history and past non-compliances with Immigration laws, as set out above. The writers do not address the issue of the applicant’s likely compliance with visa conditions and the Tribunal considers these references to be of limited value. As noted above, the Tribunal accepts that the writers genuinely hold the beliefs set out in these references.

20. The Tribunal has formed the view that the applicant would do anything to be able to remain in Australia. He has done so as an unlawful non-citizen on two occasions and he had obtained a false travel document in order to hide his previous removal and the exclusion period. In these circumstances, the Tribunal is not satisfied that the applicant would report as required by condition 8401. The applicant told the Tribunal that if released from detention he would report daily but the Tribunal is of the view that if the applicant decides that evading Immigration would prolong his stay in Australia, he would evade Immigration, and fail to report without any hesitation. The Tribunal is also not satisfied the applicant would remain at the specified address and inform Immigration of any change of address, as required by conditions 8505 and 8506. That is, if the applicant is granted the Bridging visa and if his application for judicial review is not favourable to him, the Tribunal is of the view that the applicant will again become an unlawful non-citizen and will disappear in the community.

21. Further, the primary decision record indicates that the applicant has indicated his intention to work in Australia. The applicant told the Tribunal in oral evidence that he wants to apply for a work visa and work here to repay the loan. In his written submission to the Tribunal the applicant claims that he would rely on a friend, which appears to contradict his evidence that  he wants to work in Australia. The applicant presented to the Tribunal evidence of the friend’s willingness and financial capacity to look after the applicant. However, the applicant concedes that he did not ask his friend for financial help prior to detention (claiming he did not want to disclose his visa status). That is, in the past when the applicant remained in Australia as an unlawful non-citizen and had no permission to work (of which he would have been aware), the applicant chose to engage in employment rather than rely on a friend. The applicant’s evidence is that he had worked in Australia on a casual basis and did not ask his friends for financial help. The applicant’s preference was to breach the immigration laws rather than ask his friends for help. 

22. The applicant also told the Tribunal that he has a substantial debt outstanding, for which he was previously threatened and harmed. While the applicant states that he has made arrangements for repayments, he also states that he wants to work in Australia to earn money to repay the debt and that he remains fearful of returning to Malaysia because of the debt. The applicant’s evidence indicates that he has a strong incentive and a desire to engage in employment in Australia. Having regard to his past employment, the Tribunal is of the view that the applicant also has a strong desire to engage in employment in Australia in order to earn money. Thus, while the Tribunal accepts the evidence that a friend is available to provide support to the applicant and that the friend is capable of providing the financial support, the Tribunal is not satisfied that the applicant will rely on the ‘sponsor’ rather than his own employment because the Tribunal is of the view that het applicant’s primary motivation in remaining in Australia is to earn money (which he would be unable to do if relying on the friend). The Tribunal is not satisfied the applicant will comply with condition 8101.

23. The applicant told the Tribunal that he appreciates that he has made mistakes but he should be forgiven. However, the issue here is not forgiveness but an assessment whether the applicant would abide by visa conditions. As noted above, the Tribunal is of the view that the applicant was well aware that he was making ‘mistakes’ at the time he was making such mistakes, which did not affect his conduct. The Tribunal does not consider such awareness would alter the applicant’s conduct in the future. The applicant claims that he should be given another chance to prove that he has changed and he has been given no chances in the past. However the Tribunal is of the view that the applicant had ample chances in the past, when he remained in Australia as an unlawful non-citizen for close to 7 years in total, to prove his willingness to abide by the Australian laws. The applicant also claims that he would not disregard the expectations of his friend, who would act as a guarantor. Given the applicant’s strong desire to remain in Australia and to earn money in Australia, the Tribunal does not consider that the applicant’s concern for his friend would be sufficient to ensure his compliance with visa conditions. The Tribunal is not satisfied the applicant would abide by visa conditions without a security.  

24. The Tribunal has considered whether a security would act as a meaningful incentive for the applicant to abide by visa conditions. Following the hearing, the applicant provided to the Tribunal evidence indicating that his friend is willing to provide security of $20,000 (and could borrow more from relatives). The Tribunal accepts that such security is available. However, in light of the Tribunal’s concerns set out above, the Tribunal does not consider this amount (or indeed, any amount) will act as an incentive for the applicant to abide by visa conditions.

1. The Tribunal is not satisfied the applicant will comply with conditions 8101,  8401, 8505 and 8506. The Tribunal is not satisfied the applicant meets cl. 050.223.

2. 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.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member