2203688 (Migration)

[2022] AATA 1961

2203688 (Migration) [2022] AATA 1961 (25 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203688

MEMBER:Peter Vlahos

DATE:25 March 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 25^th March 2022 at 1.04PM.

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –criminal conviction – applicant was an unlawful non-citizen within the Australian community for a considerable period of time –no valid substantive visa application pending with the Department – 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 5, 73, 116
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

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 14 March 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). Relevantly to this matter, the primary criteria include cl 050.212(3).

3. The decision to refuse to grant the visa was made on 15 March 2022. The applicant appeared before the Tribunal on 23 March 2022 to give evidence and present arguments. The proceedings were conducted via the telephone and teleconference which was agreed to by the applicant. The Tribunal also received oral evidence from [Ms A], the applicant’s partner and [Mr B], the applicant’s friend.

4. The Tribunal hearing was with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The applicant’s migration history

7. The applicant arrived in Australia on [date] August 2013 as the holder of a Student (Class TU) (Subclass 573) visa which permitted the applicant to remain in Australia until 3 August 2017. On 2 June 2014 a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s student visa was issued pursuant to s. 116 of the Act. On 26 June 2014 the applicant’s student visa was cancelled under s. 116 (1)(fa)(i) of the Act, as the applicant was considered not to be genuine student. As a result of this action on the part of the Minister, the applicant became an unlawful non-citizen (UNC).[1]

   [1] [Information deleted]

8. On [date] September 2018, it was noted that the applicant was remanded into criminal custody and charged with cannabis cultivation.

9. On 27 September 2018 the applicant lodged an application for Protection (class- XA-PV) (Subclass 866) and was granted an associated Bridging Visa C (Class WC-030) (BVC). On 24 April 2019, the applicant requested to withdraw his XA-PV application.

10. On 9 February 2021, the applicant’s BVC was cancelled under s.116(1)(aa) of the Act due to the BVC being granted in error, in contravention of the Act as the applicant was in prison at the time and was not deemed eligible for the grant of the BVC. As a result of this decision by the Department, the applicant became UNC.

11. On 18 September 2019 the applicant lodged an application for a Partner (class UK/BS) (Subclass 820/801) and your associated BVE was determined to be invalid because the applicant did not meet item 1301(3)(e) of the Act.

12. On [date] October 2019 the applicant was convicted of “knowingly take part cultivate large commercial quantity cannabis si” and was sentenced to 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months.[2]

    [2] [File number deleted]

13. On 6 October 2020 the applicant withdrew his Partner visa application.[3]

    [3] [File number deleted].

14. On 7 March 2022 while the applicant was in criminal remand the applicant was granted a BVE on criminal detention grounds to maintain a lawful status while in prison. 

15. On 11 March 2022 the applicant lodged an application for Bridging Visa E (class WE) (Subclass WE-050)(BVE) online and on the same day the applicant withdrew this application.

16. On 13 March 2022 the applicant’s BVE granted on criminal detention grounds ceased.

17. When the applicant was released from criminal custody on [date] March 2022, the applicant was located by the Australian Border Force (ABF) officers as a known UNC. The applicant was then detained.

18. On 14 March 2022, the applicant lodged an application for Bridging Visa E (class WE)(Subclass WE-050)(BVE) online. It is this BVE application and its refusal by the Department the subject of this review.

19. 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.

20. In this case, the applicant is seeking to meet cl 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant does not meet cl 050.212.

    Substantive visa application

21. 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.

22. ‘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.

23. The applicant in his evidence before the Tribunal did not in anyway seek to justify his criminal past. He acknowledged to the Tribunal that he had taken note of the ‘errors’ of the ‘past’ and was very remorseful for what he did. The applicant also told the Tribunal that his time in prison allowed him to reflect, in a serious and meaningful way his character and attitude to the world around him and determined that what he had done was wrong and he was rightfully placed in prison for what he did. However, the person he now is – if totally different from the one he was. The Tribunal was told that the applicant was going to submit, if released from detention (with his BVE) a Partner visa and finally settle down with his partner of a number of years, [Ms A]. Indeed, [Ms A] in her evidence to the Tribunal told of her continued visits to see the applicant while in prison and attested that his outlook on life and his attitudes had “really changed.”

24. The Tribunal noted from the delegate’s decision record which was provided to the Tribunal by the applicant that the applicant had been informed by the Department that he could submit a substantive visa no later than 23 March 2022. However, that was not done at the time of the hearing.

25. The Tribunal asked the applicant’s representative as to why a substantive visa had not been submitted to the Department. The applicant’s representative, [Mr C] submitted to the Tribunal the explanation that it was his advice to rely on subclause 050.212(3) (b) which states that

    An applicant meets the requirements of the subclause if:

    (b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

26. [Mr C] submitted to the Tribunal that he wished the Tribunal to determine the issue of the Bridging visa E in the applicant’s favour by allowing him to submit his substantive visa (Partner) after the Tribunal consented to the applicant being released from immigration detention. [Mr C] in his submission to the Department stated, “the test in subclause 050.213(3)(b) does not import any notion that the merits of the substantive visa are to be assessed for bridging visa purposes.” He goes on, to state, “I strongly submit that the test required by subclause 050.212(3)(b) requires only three elements: - an intention to claim a substantive visa, the visa needs to be a type that can be applied for and granted in Australia; and that the visa is applied for within a specific time.”

27. The Tribunal notes from the delegate’s decision record that the applicant was provided until the 23 March 2022 to apply for a substantive visa. He was provided by the delegate to apply for such a visa within a specific time, to borrow the words of [Mr C] and by the hearing of this matter by the Tribunal, nothing had been done.

28. [Mr C], in his discussion of subclause 050.212(3) with the Tribunal stressed the thought that it was open to the Tribunal to determine this issue by releasing the applicant on the assurance that the applicant will submit a substantive visa within a period allowed by the Tribunal which sits in the position of the Minister in this instance.

29. The Tribunal does not accept this interpretation of subclause 050.212(3) and in particular 050.212(3)(b). The applicant was provided with that opportunity by the delegate prior to his engaging with this Tribunal and he did nothing. He appealed to this Tribunal without having made a valid substantive visa.

30. Accordingly, the applicant does not meet cl 050.212(3).

    Whether the applicant will abide by conditions - cl 050.223

31. 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.

32. 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].

33. The applicant was asked by the Tribunal if he was granted the BVE would he adhere to any conditions imposed by the Tribunal. The discretionary conditions that the Tribunal would consider in this instance are as follows:

    -    8101 (No Work)

    -    8401 (Report as directed)

    -    8506 (Notify change of address)

    -    8508 (Will apply for a valid application)

    -    8564 (Not engage in criminal conduct)

34. In regard to condition 8101 (No work) the applicant and his partner, [Ms A] told the Tribunal that the applicant would be well taken care of by [Ms A], who would be responsible for the applicant’s daily needs and other necessities and therefore, the applicant had no need to work.

35. In relation to condition 8401 (Report as directed) the applicant told the Tribunal that his recent stay for his criminal activities in [Prison] had brought home to him the need to be both responsible and respectful of rules. Indeed, evidence was provided by the applicant that his stay in prison was productively utilised in undertaking tasks of responsibility and he had developed into as he was described by the witness [Mr B] - a model inmate. The Tribunal has no doubt that the applicant may have changed his attitudes towards authority while in prison, but the fact remains that he was an unlawful non-citizen within the Australian community for a considerable period of time since his student visa had ended and was only brought to account for his status, when he was apprehended by the authorities for his criminal activities and enterprises. His recent past causes concern and does not satisfy the Tribunal that he would abide by this condition.

36. In relation to conditions 8506 (notify change of address), 8508 (will apply for a valid visa) and 8564(not engage in criminal conduct) the Tribunal has had the opportunity to read the assessment of the applicant as provided by His Honour, Judge Bennett SC DCJ of the District Court (NSW) in [decision]. The comments of his Honour concerning his evaluation of the applicant’s character and level of involvement in the cultivation and distribution of illegal narcotics while being an UNC in the community provides the Tribunal with a great deal of concern in allowing the applicant back into the community on the promise that within a period allowed, he would submit a substantive visa to the Department.[4] The applicant is before the Tribunal because he was provided with that opportunity by the Department (until the 23 March 2022) to do so and he did not do anything concerning his status as UNC.

    [4] [Deleted].

37. 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.

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

39. 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

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

    Peter Vlahos
    Member