2201956 (Migration)

[2022] AATA 485

2201956 (Migration) [2022] AATA 485 (23 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2201956

MEMBER:Wan Shum

DATE:23 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2022 at 4:58pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – employment without permission – applicant’s immigration history – repeated Bridging Visa applications – awaiting the outcome of judicial review – applicant changed his identity to re-enter Australia – 3 year exclusion from Australia – immigration detention – wife’s illness – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 73, 116, 376
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, 050.612; Schedule 4, PIC 4014; Schedule 8, Condition 8101

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 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 February 2022. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The decision to refuse to grant the visa was made on 10 February 2022 on the basis that the delegate was not satisfied that he would comply with the conditions imposed.

4. The applicant sought review of that decision and was represented in relation to the review.

5. A non-disclosure certificate was issued pursuant to s 376 of the Act in respect of two pieces of internal correspondence sent between officers of the Department. The Tribunal provided a copy of the non-disclosure certificate to the applicant seeking his comments on the validity at or prior to the hearing. In response, it was submitted that the non-disclosure certificate was not valid as the reasons given were not “specific, detailed and correctly identify the reason for non-disclosure”; that in the alternative, the Tribunal can release the “immigration internal correspondence” with the necessary redactions to permit the applicant to meaningfully respond to them. Finally, it was submitted that it is in the public interest for the correspondence to be disclosed as it our submission that the Australian public would expect review applicants to have access to material documents and be afforded procedural fairness.

6. The applicant appeared before the Tribunal on 18 February 2022 by videoconference 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’s representative was present throughout the Tribunal hearing.

7. The Tribunal advised at the beginning of the hearing that it considered that the non-disclosure certificate was valid. The certificate is electronically dated and signed and the Tribunal considers that the reasons given for non-disclosure are specific, detailed and correctly identify the reason for non-disclosure, being the release of the documents being contrary to the public interest for two reasons because: (1) it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice to the effectiveness of those methods; and (2) it could disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. In terms of the submission that it is highly likely that the information covered by the certificate is material to the review, the relevant information contained in the correspondence in the Tribunal’s view is that he has had received payments and may have been working, which are referred to in the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant. It is likely that redacting the internal correspondence regarding the applicant’s activities will disclose lawful methods or enable a person to ascertain the existence or identity of a confidential source of information, which is why the Tribunal decided not to exercise its discretion to disclose the information. The information does not add to the material already known to the applicant and provided to the Tribunal and as such the Tribunal did not have to rely on the information for any adverse findings.

8. As to the submission that it is in the public interest for the correspondence to be disclosed as the public would expect review applicants to have access to material documents and be afforded procedural fairness, the Tribunal does not consider procedural fairness obligations are breached by not disclosing the material in circumstances where the information contained in the correspondences to the extent they are relevant to the review, have already been referred to in the delegate’s decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant’s immigration history is set out in detail in the delegate’s decision record, a copy of which was provided on review. The Tribunal asked the applicant whether he agreed with the history set out in the decision and he said he did.

11. In summary, the applicant first entered Australia on a different identity in November 2007 and was later arrested by Victoria Police and subsequently detained and placed in immigration detention.

12. [In] August 2011, he voluntarily departed Australia and was subject to Public Interest Criterion (PIC) 4014 which is a three year exclusion from Australia. [In] December 2011, he re-entered Australia under a new identity, [the applicant’s name] ([DOB 1]) holding a Visitor (Subclass UD-979) visa.

13. The applicant has been in detention since 19 December 2019, following the cancellation of  his Bridging Visa E on 9 December 2019 under Section 116(1)(b) of the Act due to non-compliance with visa conditions, namely condition 8101 – no work. The decision to cancel the Bridging Visa E was affirmed by the Tribunal differently constituted in March 2020 and he has subsequently applied for a number of Bridging Visa Es. The application the subject of this review is his sixth application.

14. The issue in this case is whether cl 050.223 is satisfied.

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

15. 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 information before the Tribunal is that the judicial review application filed [in] September 2021 is still ongoing. 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.

    Whether the applicant will abide by conditions - cl 050.223

16. 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.

17. 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].

18. 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.

19. In this case, cl.050.612A applies because the applicant meets cl.050.212(3A)(b)(i). This clause prescribes that, in addition to the mandatory condition of 8101 (No Work), certain conditions may be imposed. The Tribunal adopts the conditions that the delegate considered should be imposed in the circumstances of this case:

    8207 (No study)

    8401 (Report As Directed)

    8506 (Notify New Address)

20. It was claimed that the applicant would not breach condition 8101 not to work as he had paid off his debt in Malaysia which he said amounted to about $100K with his family’s assistance, had $85,000 in a joint bank account with his wife and that his sister from Malaysia was sending money regularly to him for their living expenses which he claims is around $300 per week. It was submitted that his circumstances had greatly changed, having been in detention for over 2 years and that he therefore would not breach condition 8401 and further it was the Immigration officer’s discretion to set reporting frequency, as well as the period of the visa grant, and that he would not breach conditions 8207 or 8506. It was further submitted that consideration could be given to imposing a security which he would pay.

21. It is part of the submissions that the applicant is remorseful for his mistakes. However, after careful consideration of the evidence presented, the Tribunal considers that he still denies any responsibility when he changed his identity in order to re-enter Australia despite knowing that a 3 year exclusion period applied. Instead, he has placed the blame on the agent that he used, with the submissions being that the only ‘unlawful’ conduct was the failure to disclose entry to Australia on his previous identity which was the fault of the agent he had relied upon to submit his visitor visa application in 2011.

22. While the Tribunal accepts that formally and legally changing a person’s identity does not involve illegal activity per se, when the person admits to having knowledge of a 3 year exclusion from Australia, the Tribunal considers that the change in identity was for the purpose of circumventing Australia’s border/immigration laws. The applicant has given various reasons for why he thought his actions should be excused; during the Department interview he is recorded as claiming that he thought the 3 year exclusion no longer applied as an official in Malaysia advised him that he could return to Australia under a new name. Before the Tribunal, he said that an agent told him he could go back to Australia using a different name so he changed his personal ID, bank accounts and other documents to a different name but continued to use the same date of birth. He said he thought it was okay because the agent told him lots of Malaysians do this. The Tribunal is of the view that he was aware that he was trying to circumvent Australian laws by entering Australia on another identity, knowing that he would likely have been refused a visitor visa or refused entry based on his immigration history in the first identity. The Tribunal’s view is that the applicant had an intention to circumvent the laws of Australia. In addition, it seems that rather than admit that he engaged an agent to assist him to return to Australia despite the 3 year exclusion, the submissions were that the only unlawful conduct was failing to provide details of a previous entry to Australia which was the fault of the agent who completed the visitor form. It seems unlikely to the Tribunal that a person who claims that he was appointed as a Director of a business due to his many years of experience as an Operations Manager and assisted with taxation obligations and other business documents would have had any doubt that he was using a second identity to circumvent Australia’s border controls. He has not admitted to any culpability himself, either by engaging the agent in a deliberate attempt to overcome the exclusion period or by not informing the agent that he had previously entered Australia on a different identity. In the Tribunal’s view, the applicant procured documents in a new identity with the primary purpose of returning to Australia and effectively consented to the method advised/used by the agent which was deliberately dishonest.

23. Part of the submissions is that the applicant engaged in this conduct many years ago, and that it should not be relied upon as evidence that he would not comply with the conditions of the Bridging Visa if granted. The Tribunal has considered the period of time that has passed since the applicant decided to re-enter Australia on a new identity and disagrees that this prior conduct is not relevant to his likely conduct now. His continued failure to admit any personal involvement gives rise to doubts about his claims that he will comply with any conditions that would be imposed on a Bridging Visa if granted.

24. The applicant claims that he wishes to be released to look after his mentally ill wife who is suffering from depression and that he would abide by any conditions imposed. The applicant’s wife was named as a witness at the hearing, however despite numerous attempts to phone the applicant’s wife on the number provided, the attempts to take evidence from the applicant’s wife were unsuccessful. The Tribunal allowed 2 business days to provide a statutory declaration from the wife and has taken that information, along with the other information presented, into account in its deliberations.

25. In terms of the incentives to comply, it was submitted that the applicant’s detention for over 2 years is a strong motivator and that he does not want to jeopardise an opportunity to care for his mentally-ill wife. It was further submitted that his debts have been paid and that he has no reason to work nor breach condition 8101 and that the upcoming hearing date and the pending application are additional significant incentives for the applicant to comply with all relevant reporting conditions, with his intention to focus on his wife and court proceedings if released into the community.

26. The applicant refers to the final Court hearing in around 6 weeks’ time and states that if they are not successful, if they cannot continue to stay here, it would be detrimental to his wife and they will go to Malaysia or Thailand, where his wife is originally from. He added that since he has been in detention, his wife’s condition has worsened and that she forgets her appointments or goes to the wrong place and sometimes forgets to take her medication. They claim that the wife lives in isolation and is unable to function, needing assistance for most daily things and it is the applicant who will help her with these matters. The evidence provided includes reports from psychologists and psychiatrists and her diagnosis of having extremely severe depression, anxiety, stress and suicidal ideation. The representative submitted that the wife holds a permanent visa to remain in Australia, which the Tribunal understands is likely from her previous spousal relationship. It was submitted that she is in the process of obtaining citizenship, although no such evidence was provided, and that she has a right to remain in Australia. It was further submitted that a positive decision on the Bridging Visa E application, would enable the applicant to remain in Australia until a decision is made on his application and, should that be negative, he intends to return to Malaysia.

27. In terms of the applicant’s wife’s reliance upon him and her isolation, the Tribunal asked about her children and their evidence is that she is living with her eldest son in a home that she owns in [Location 1], with her youngest son living with her ex-partner, and that she has been renting out a room to a friend for several years. It was claimed that during a heated argument recently, the eldest son had accused his mother of impacting his ability to work and earn an income due to the need to isolate because the housemate had COVID-19. Based on the recent isolation rules in Victoria, the Tribunal understands that this would likely have been for a period of about 7 to 14 days. The applicant gave evidence that the son said he wanted to kill his mother (the applicant’s wife), although his wife does not mention this in her statutory declaration. The Tribunal does not consider that the threat was a genuine threat to her life, as it seems unlikely to the Tribunal that the applicant’s wife would have allowed her son to remain in the home if she genuinely felt unsafe. In the Tribunal’s view, a parent and child having occasional fights and arguments does not lead to a conclusion that they do not care for each other. It appreciates however that the claims are that the son does not help and that she needs the applicant to be released to help her. The applicant also gave evidence that the son did not live there on a permanent basis and was recently in Queensland for work but had to return because of COVID-19, but no details were provided of dates the son lived away. The wife states that the housemate is unwilling or unable to help. The Tribunal appreciates that their claims are based on the care and support the applicant gives or would be able to give his wife if released from detention.

28. The Tribunal notes that an outcome from the Federal Circuit Court is unlikely to be known immediately after the final hearing date which is in approximately [number] weeks’ time, and the Tribunal has doubts that the applicant would depart if they were unsuccessful as claimed given the applicant’s numerous attempts over many years to remain in Australia.

29. In terms of whether the applicant would comply with the conditions, in respect of the condition not to work, the Tribunal has taken into account the applicant’s immigration history and his work in Australia in breach of the conditions and his claim that he gradually stopped working after getting married in 2016. However, he also gave evidence that he would help his wife with her job of [fruit] picking by doing the transport and logistic/packing part of the job which allowed her to pick more [fruit], which in the Tribunal’s view is working even if he was not paid directly as he assisted his wife to earn more. He further gave evidence that he assisted his ex-girlfriend, Ms [A], with paperwork for her company, of which he was a Director until 2019 which was involved in farm work. It is recorded in the delegate’s decision record that information available to the Australian Border Force confirms that he received large payment transactions from various farms from July 2015 to as recent as November 2019. So it appears to the Tribunal that the applicant was engaging in work, even if he was not paid directly for this and denies working after mid-2016. 

30. In considering the statements and statutory declarations provided regarding their finances, the Tribunal notes that in a joint statement provided prior to the hearing in this matter dated 9 March 2021, they refer to the wife owning a mortgage free property in [Location 1], but in the applicant’s statutory declaration of 11 January 2022 provided for the current Bridging Visa application, it refers to “currently having $100,000 on our current home loan” which appears to be referring to the [Location 1] property. In addition, the bank account statements provided for the period from 6 October 2021 to 6 January 2022 reflect that the total debits in this 3 month period amounted to over $30K. The declaration from the applicant’s sister states that she has been supporting him since July 2020 and will continue to do so if he is granted the Bridging Visa E. The Tribunal accepts that an amount of $1,045 is debited into one of their joint accounts every month but has doubts that this covers their living expenses given the statements appear to reflect that their actual expenses for 3 months is significantly higher. Given the differing information regarding the existence (or non-existence) of a mortgage on the [Location 1] home and his views as to the nature of the help or assistance he gave to his wife and Ms [A] with their work as not being in breach of the no-work conditions of the visas he held previously, the Tribunal has doubts that he is being truthful about their financial circumstances and is of the view that he would not comply with condition 8101, as he has done since his first arrival in Australia under the previous identity and in the recent past, regardless of any security imposed.

1. The Tribunal is therefore not satisfied that the applicant will abide by condition 8101 and finds that he will not comply with the conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

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

3. 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

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

   Wan Shum
   Member