2117618 (Migration)

[2021] AATA 5016

2117618 (Migration) [2021] AATA 5016 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117618

MEMBER:Roslyn Smidt

DATE:6 December 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 6 December 2021 at 4:17 PM

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – source of financial support – reporting requirements – prior unlawful status in Australia on three occasions – no criminal conduct requirement – criminal history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 189, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.612A; Schedule 8, Condition 8101, 8401, 8506, 8564

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) 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 November 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.

3. The decision to refuse to grant the visa was made on 24 November 2021 on the basis that the delegate was not satisfied that the applicant would comply with conditions attached to a bridging visa granted to him. The applicant appeared before the Tribunal on [insert hearing date] to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant would comply with conditions on his visa.

   Immigration status of the applicant - cl 050.211

6. 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). 

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

8. At the time of his application for a bridging visa the applicant was an unlawful citizen. Accordingly, he meets cl 050.211(1).

9. Based on the evidence before me, I accept that the applicant was not an eligible non-citizen,  of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, he meets cl 050.211(2) and cl 050.211.

   The grounds for seeking the visa-cl 050.212

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

    Substantive visa application

11. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

12. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.

13. The applicant applied for a protection visa (sub-class 866) on 30 September 2021. It was deemed valid on 1 October 2021. It had not been finally determined. Accordingly, the applicant meets cl 050.212(3)].

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

14. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.: 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

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

16. Based on the evidence before the Tribunal, I accept that the applicant meets cl 050.222.

    Whether the applicant will abide by conditions - cl 050.223

17. 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.

18. 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].

19. The mandatory conditions that will be imposed on the BV, if granted:

    ·     8101 – No work

20. The discretionary conditions the Tribunal would impose on the BV, if granted: 

    ·     8401 – Must report as directed

    ·     8506 - Must notify Immigration at least 2 working days in advance of any change in the holder's address

    ·     8564 – Must not engage in criminal conduct

21. 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.

22. After having considered the accepted facts and evidence, the Tribunal is not satisfied the applicant meets cl.050.223 of Schedule 2 of the Regulations. I am not satisfied that if the BV is granted, the applicant would comply by the conditions imposed on the visa, for the reasons that follow.

    Migration history:

23. The applicant’s relevant migration history follows:

    ·     The applicant was granted a [Visitor visa] on 8 December 2017. He arrived in Australia [in] December 2017 and departed [in] February 2018. His visa remained valid at that time.  He was granted a multiple entry [Visitor visa] on 7 April 2018. He arrived in Australia [in] April 2018 and departed [in] July 2018.  He returned  to Australia [in] July 2018 and has

    ·     On 17 August 2018 the applicant applied for a [Student visa]. He was granted a Bridging visa A on the same day. On 23 October 2018 he  was granted a Student visa was granted. It was valid until 15 November 2019 

    ·     On 15 November 2019 applicant applied for a further [Student visa]. He was granted a Bridging visa A on the same day.

    ·     On 3 February 2020, this Student visa application was refused. On 9 March 2020, the associated Bridging visa A ceased.

    ·     On 10 March 2020 applicant first became an unlawful noncitizen in Australia.

    ·     On 29 June 2020 the applicant was stopped by Victorian police during which it was determined that he was an unlawful non-citizen. He was referred to the Department.

    ·     On 9 July 2020 the applicant was granted a Bridging visa E on departure grounds; valid until 27 August 2020. As noted by the delegate Conditions 8511 and 8512 were not imposed and departure was not enforced due to the COVID-19 travel restrictions. The following conditions were attached to that visa:

    o   8101 NO WORK

    o   8401 REPORT AS DIRECTED

    o   8506 NOTIFY NEW ADDRESS

    o   8510 SHOW VALID PASSPORT

    o   8207 NO STUDY

    ·      On 3 September 2020  the applicant was granted a Bridging visa E on departure grounds valid until 3 November 2020. Conditions 8511 and 8512 were not imposed on that BV and departure was again not enforced due to the COVID-19 travel restrictions. The following conditions were attached to that visa:

    o   8401 REPORT AS DIRECTED

    o   8506 NOTIFY NEW ADDRESS

    o   8510 SHOW VALID PASSPORT

    o   8207 NO STUDY

    ·     On 4 November 2020 the applicant became an unlawful noncitizen in Australia for the second time.

    ·     On 8 April 2021 the Department’s Status Resolution Service sent the applicant an email requiring him to rectify his immigration status

    ·     On 9 May 2021  the applicant was remanded into police custody.

    ·     On 9 June 2021 the applicant was released on bail from criminal detention. According to the record of his interview with the Department, he stated he wished to depart Australia as soon as possible in order to start a fresh life in India and that his brother would provide financial support while he remained in Australia. He was advised that if  he was unable to depart prior to the cessation of the Bridging visa E, he would be required to apply for a further visa or Bridging visa E in order to regularise his migration status.

    ·     A Bridging visa E on departure grounds was granted on 9 June 2021. It was valid until 30 June 2021. The following conditions were attached: 

    o   8101 NO WORK

    o   8506 NOTIFY NEW ADDRESS

    o   8564 MUST NOT ENGAGE IN CRIMINAL CONDUCT

    o   8207 NO STUDY

    ·     On 1 July 2021 the applicant became an unlawful noncitizen in Australia for the third time.

    ·     On 26 July 2021 the applicant was charged with criminal offences and remanded into police custody.

    ·     On 23 September 2021 the applicant was convicted of criminal offences and sentenced to time served. He was released from criminal detention and detained under section 189 of the Act. He was transferred to the Melbourne Immigration Transit Accommodation (MITA)

    ·     On 30 September 2021 the applicant lodged an application for a Protection visa (subclass 866) (PV) which was deemed valid on 1 October 2021. This gave rise to the application for a Bridging visa.

    ·     On 6 October 2021 the BVE application was refused by the delegate. On 18 October 2021 delegate’s decision was affirmed by a differently constituted Tribunal.

    ·     On 28 October 2021 the applicant’s PV application was refused by the delegate. On 30 October 2021 he applied for review of that decision. That application has yet to be determined.

    ·     On 20 November 2021 the applicant applied for a BVE to allow him to remain in the community while his PV application was considered. This application was refused by the delegate on 24 November 2021.  The applicant applied for review of that decision on 30 November 2021.

    Criminal history

24. According to information before the Department c the applicant was convicted of the following offences which were said to have occurred between March and May 2021:

    • Shop Steal
    • Possess methamphetamine
    • Possess Amphetamine
    • Receive Stolen Goods
    • Obtain Property by Deception
    • Burglary
    • Theft
    • Theft of Motor Vehicle
    • Commit Indictable Offence whilst on Bail
    • Fail to answer Bail
    • Deal Property Suspected Proceed of Crime
    • Dishonestly undertake in Retention of Stolen Goods

25. As noted above, the applicant was sentenced to 3 months imprisonment with 94 days presentence detention – and community corrections order.

    Compliance with conditions:

    Re: Condition 8101 – no work:

26. Clause 050.612A provides that if an applicant meets cl.050.212(3), condition 8101 must be imposed. There is no discretion available to consider claims of financial hardship.  

27. In submissions to the Department and the previous Tribunal the applicant claimed that he had complied with the work conditions on the visas he had held in Australia. As pointed out by the delegate and the Tribunal who considered his first BV application, this is at odds with other information held by the Department. According to the applicant’s PV application he worked from December 2018 until February 2021 and according to statements he made to Department officials he obtained a [specified] license after he obtained a student visa in 2018 after which he worked as a [Occupation 1] for 40 hours a week until November 2020. In January 2019 his employer appears to have advised Victoria Police that he had been working full time since November 2018.

28. According to Department records on 24 September 2 021 the applicant stated that he had been in a relationship with [Ms A] since April 2021 and intended to lodge a spouse application. On 30 September 2021 he had told his case office at the Detention Centre that he was single and intended to apply for protection. On 5 October 2021 he stated that his relationship with [Ms A] had ended in July 2021.

29. In his current BV application that applicant said that he would live with [Ms B] if he was released from detention and she would assist him with his financial needs. He described her as his wife and said that his step children missed him and wanted him back with them as soon as possible.  He provided a statutory declaration from [Ms B] who said that she had known him applicant since 2020 and would provide him with accommodation and financial support if he was released from detention. She said that he had helped her and her two children a lot during the past year and they had become close. She also states that they wish to spend upcoming religious celebrations together with the applicant’s family. The applicant also provided at statement from [Ms B]’s daughter [Ms C] which states she is a student, that she had known the applicant for about a year,  that she had met him several times, that he had helped her family a lot and that she would like him to come and stay with the family.

30. During his interview with the delegate on 23 November 2021, the applicant said that he had lived with [Ms B] prior to his detention and would live with her if he was released from detention. He said that he could not live with his mother  because of problems associated with a robbery and shooting at her address. He also said that his mother was suffering from depression and she not aware of his current circumstances. She believed he was living with his partner. He said that he had been supported by his family prior to his detention and the would support him if he was released from detention.  He said that he received an income of about $12,000 a year from rental property in India.  He also said that he had only worked when he had permission to do so while in Australia.

31. At the hearing on 3 December 2021, I noted that the applicant would not be permitted to work if he was released from detention and  asked where he would live and how he would support himself. He said that he would live with [Ms B] and she would provide for all of his financial needs. He said that he had met [Ms B] in 2020 when she was working in [Company 1]. I asked if they had lived together before he was detained. He said that he had begun to visit her at her home in December 2020 and sometimes stayed with her, but they never lived together and he always returned to the home he shared with his family. Later in the hearing he said that he had proposed to [Ms B] on 29 January 2021 and she had accepted his proposal.

32. I observed that the applicant had not mentioned [Ms B] prior to lodgement of his BV application on 20 November 2021 and that he had previously stated that he was in a relationship with [Ms A]. He said that he and [Ms A] had been friends but he had never been in a relationship with her. I noted that the statement he had provided from [Ms B] did not suggest that they were a couple. He maintained that he and [Ms B] were in a relationship and that she would support him if he was released from detention.

33. [Ms B] gave evidence by telephone. She said that she had she had met the applicant when they struck up a conversation near her workplace in about November 2020. They became friends and in February 2021 he suggested that they begin a relationship and she agreed. She said that they had never lived together, but he was getting to know her children and they planned to be together in future.  She said that she had met the applicant’s mother and brother twice last year. When I observed that this appeared to be before she had commenced a relationship with the applicant in February 2021, she said that she had met them after the applicant was detained [the applicant was in police custody for a month in May/June 2021 and has been in custody or migration detention since 26 July 2021]

34. [Ms B] said that the applicant would live with her if he was released from detention. She was aware that he would not be permitted to work and said that she would support him financially. She said she earned $890 a week paid $350 in rent, but she intended to start a second job shortly. She confirmed that she had two children aged 13 and 18. She said that her daughter also worked.

35. After speaking to [Ms B] I advised the applicant that I had concerns about his evidence regarding his relationship with [Ms B] and the support she would provide. He maintained that his claims were true and she would support him if he was released from detention.

36. I asked the applicant if he would receive any support from his mother and brother. He said that they would also support him. He said that he had last seen them in June 2021 and his mother remained unaware of his situation. I noted that no evidence had been provided regarding the assistance his family might provide. He spoke about his nephew’s birthday celebrations which he had been involved to attend later in the month. He maintained that they would help him and said that he could obtain evidence from them. I agreed to give him until 1 PM on Monday 6 December 2021 to forward additional information regarding this relationship and support. On 6 December 2021 the applicant provided a copy of an invitation to his nephew’s birthday celebrations [in] December 2021 and statement signed by his mother [Ms D]. However, it is not in English and no translation has been provided so I was unable to read it.

37. At the hearing I observed that the applicant appeared to have worked during periods in which he did not have permission to do so. He initially said that he had never worked in contravention of conditions on his visa, said then agreed that he had breached some unspecified visa conditions. He said that his occurred because of his drug addiction and mental health problems, but it would not happen in future as he was determined to make a fresh start.

38. I found much of the applicant’s evidence regarding his relationship with [Ms B] lacking in credibility.  It may be that they met over a year ago and became friends, but I do not accept that they commenced a relationship in late 2020 or early 2021 or that they are now in a committed relationship. There is no mention of [Ms B] in the applicant’s PV application or previous BV application. As recently as October this year the applicant spoke about being in a relationship with someone else. He told the delegate that he had lived with [Ms B] before he was arrested. At the hearing he said that they had never lived together. [Ms B] also said that they had never lived together. The applicant claims they became engaged in late January 2021. [Ms B] said that the nature of their relationship changed from a friendship to a relationship but did not suggest that they were engaged to be married. It the applicant had been engaged to [Ms B] since early 2021, I believe that he would have mentioned this prior to the lodgement of his current application.  In reaching this conclusion I have considered the evidence provided by [Ms B]. However, her written statement suggests nothing more than friendship and her oral evidence at the hearing was confused and unpersuasive and I have given it little weight.

1. I do not accept that the applicant is engaged to or in a committed relationship with [Ms B] and I am not satisfied that  she would provide him with accommodation and financial support if he was released from detention.

2. I have also considered the applicant’s claim that he would received support from his brother and mother if he was released from detention. However, if his family was willing and able to provide him with accommodation and significant financial support, I believe he would have stated this when he lodged his BV application. However, he did not and instead made what I believe to be false claims regarding his relationship with [Ms B]. I am not satisfied that the applicant’s family would provide him with accommodation or significant financial support if he was released from detention.

3. I have also noted the applicant’s claim that he receives an income from rental property in India. No evidence has been provided to corroborate his claim regarding his income from India. In these circumstances and in light of my findings on the applicant’s credibility, I am not satisfied that he derives a significant income from property in India.

4. Finally, while it is not entirely clear when and for how many hours the applicant has worked since arriving in Australia, according to his evidence at the hearing he breached conditions on his visa at some time. At the very least the evidence indicates that he worked  after he became unlawful in March 2020 and while he held BVs with no work rights after July 2020.

5. After considering all of the relevant evidence, I am not satisfied that the applicant would have access to accommodation and adequate financial support such that he would not need to work to support himself if he was released from detention. In these circumstances and in light of the fact that he has worked when unlawful or when holding a visa with limited or no work conditions attached in the past, I am not satisfied that he would comply with Condition 8101 – No Work.

   Re: Condition 8401 - Must report as directed:

6. As noted above, the applicant has been unlawful in Australia on three occasions. On all of these occasions he only re-engaged with the Department after encounters with the police. In September 2020 and in June 2021 he was granted BVs after stating that he wanted to return to India. It appears that no arrangements were made.  At the 5 October 2021 interview he said he had not made these arrangements because of his bail conditions, pending court matters and because he did not have a valid passport.

7. At the hearing I advised that applicant that if he was granted a visa it would have a condition requiring him to report as directed and observed that he did not appear to have a good record of remaining in contact with the Department or maintaining his status in Australia which suggested to me that he may not comply with this condition. He said that he had been experiencing problems because he was a drug user and had mental health problems, but he no longer took drugs and he was determined not to breach any conditions on his visa in future as he was anxious to spend time with his family and in particular his mother.  I also observed that he had previously applied for BVs in order to return to India, but he later applied for a protection visa which suggested that he had not intended to leave. He said that he had not been aware of the possibility of applying for protection when he applied for these BVs.

8. I acknowledge that the applicant has had issues with drug abuse and that the Covid19 pandemic may have made it difficult him leave Australia. However, this does not explain his failure to remain engaged with the Department and ensure that he did not become unlawful. After considering his lack of adherence to Australian migration laws and his conduct in engaging with the Department, I am not satisfied that he would comply with Condition 8401 – Must Report as Directed.

   Re: Condition 8506 – Must notify Immigration at least two working days in advance of any change in the holders address:

9. As discussed in relation to conditions 8101 and 8401 the applicant has a recent record of failing to engage with the Department and failing to comply with conditions on his visa. In these circumstances I am not satisfied that he would comply with Condition 8506. Must notify Immigration at least two working days in advance of any change in the holders address:

   Re: Condition 8564 – Must not engage in criminal conduct:

10. The applicant was convicted of a number of serious offences between March and May 2021. During previous interviews and at the hearing he said that these offences had occurred while he was taking drugs, but he was no longer taking drugs and he intended to new start and would not engage in criminal conduct in future.

11. I accept that the applicant wishes to make a fresh start and does not currently intend to engage criminal activities. However, given the serious and relatively recent nature of his offences and the fact that he would not be permitted to work and appears unlikely to have adequate financial or other support if he is released from detention, I believe that there is a reasonable risk that he  may revert to his former habits and as a consequence, I am not satisfied the applicant would comply with Condition 8564 – Must not engage in criminal conduct.

    Conclusion

12. 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.

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.

    Roslyn Smidt
    Member