2206008 (Migration) - [2022] AATA 1964

2206008 (Migration) [2022] AATA 1964 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206008
MEMBER:Nicole Burns
DATE:2 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 02 May 2022 at 12:28pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of criminal offences – lengthy period of unlawful residence – no work condition – immigration history – danger of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189, 269, 376
Migration Regulations 1994, Schedule 2, cls 050.223, 051.211; Schedule 8 Conditions 8101, 8564
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Tennakoon v MIMIA [2001] FCA 615
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

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).
The applicant is a national of Vietnam, born in [year]. He applied for the visa on 13 April 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 050.223.
The decision to refuse to grant the visa was made on 20 April 2022 on the basis that the delegate was not satisfied the applicant would abide by relevant visa conditions if the visa was granted: cl 050.223.
The applicant appeared before the Tribunal on 2 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Non-disclosure certificate
The Tribunal notes there is a certificate dated 26 April 2022 issued under s 376 of the Act on the Department’s file in this case. This section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. Having regard to the reasons given as to why the information should not be disclosed, the Tribunal is satisfied the certificate is valid, as discussed with the applicant at hearing.
The information covered by the certificate relates, broadly, to information pertaining to the applicant’s immigration and criminal history in Australia (for example his Victorian police charge sheet), much of which has already been disclosed to the applicant by the Department, and/or is included in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review). The relevant aspects of the information are set out in detail below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will abide by relevant visa conditions if the bridging visa is granted.
Immigration and criminal history
At the Tribunal hearing the applicant confirmed his immigration and criminal history in Australia as set out in the delegate’s decision record (a copy of which was provided to the Tribunal on review) and reflected in the Department’s records as follows:
·The applicant came to Australia [in] February 2015 holding a Tourist visa (Subclass FA 600), valid until [May] 2015.
·[In] June 2015 he was placed on remand in police custody, and [in] October 2015 convicted of ‘Cultivate Narcotic Plant-Cannabis’ and sentenced to [period] days (time served).
·He was released from remand [in] October 2015, detained under s189 of the Migration Act, and transferred to [a named detention centre].
·On 3 February 2016 the applicant was granted a Bridging E visa on departure grounds, valid until 10 February 2016 and released from [a named detention centre].
·[In] August 2021 the applicant was convicted of ‘Cultivate Cannabis, Possess Drugs, Theft, Deal Proceeds of Crime’ and sentenced to [a period] in prison. [In] August 2021 he was placed in criminal custody.
·Following his release from criminal custody [in] March 2022 the applicant was detained under s189 and transferred to [a named detention centre].
·On 13 April 2022 the applicant lodged a Protection visa (Subclass XA866) application which is also an application for a Bridging visa: the subject of this review.
Whether the applicant will abide by conditions - 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.
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].
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.
In this case, the ‘no work’ condition (8101) is mandatory. The Tribunal considers that the following conditions should be imposed in the circumstances of this case (as did the delegate):
·8506 – the holder must notify Immigration at least 2 working days in advance of any change in the holder’s address
·8401 – the holder must report as directed
·8564 – the holder must not engage in criminal conduct
At hearing the applicant said he would abide by the relevant visa conditions if the bridging visa is granted. He acknowledged that he had breached visa conditions before and had worked whilst unlawful. However, these were during periods when he was homeless and/or moving from place to place with sporadic work (such as farm work) and limited security. During these periods he met some people who then suggested he engage in criminal conduct. He apologised and said the situation would be different now if he was granted the bridging visa because he has the support of a friend called [Friend A] who he met at the end of 2020, when he was homeless. [Friend A] helped the applicant apply for his protection visa (and bridging visa) and said the applicant can live with him (and his wife and [family]) in their residence in [locality]. [Friend A] also indicated he is willing to financially support the applicant if released from detention. The applicant said [Friend A] works for a company (he did not elaborate) and also helps support members of the Vietnamese community in Melbourne.
The Tribunal holds concerns about the applicant’s claims that he will be abide by the ‘no work’ condition if the bridging visa is granted given his history of non-compliance in this respect in the past. The applicant acknowledged as such at hearing but said this time it would be different because he has [Friend A’s] support. It notes [Friend A] has not provided evidence to the Department or Tribunal indicating his support to the applicant. Nonetheless, the Tribunal is willing to accept [Friend A] is prepared to help financially support the applicant and they will live together. This will ease the applicant’s need to work. However, the Tribunal remains concerned the applicant will work nonetheless, given his evidence that he worked during the period he was unlawful. At hearing he said he had no choice: he had to work to support himself. Whilst that may have been the case, given his work whilst unlawful in the past in Australia, taking into account his overall poor immigration history, and the possibility that a determination on his protection visa application could be lengthy, the Tribunal is not satisfied the applicant would abide by visa condition 8101 that would be imposed.
The Tribunal discussed with the applicant the condition requiring him to notify the Department of any change of address (condition 8506) and reporting to the Department as directed (condition 8401). The Tribunal noted it’s concerns that he may not abide by these conditions given he failed to contact the Department at all in the period when he was unlawful: over five years. The applicant acknowledged he did not contact the Department during this period to try and regularise his immigration status, claiming this was due to his living conditions (homeless, at no fixed address) and he was unaware of what type of visa he could apply for. He added that he was fearful to return to Vietnam but did not know he could apply for protection, until he met with [Friend A].
The Tribunal accepts the applicant may not have wanted to return to Vietnam, and that he had some challenges including lack of stable accommodation and employment, but his failure to contact the Department for over five years and only when brought to the police’s attention with respect to criminal matters casts significant doubt on whether he would abide by relevant future visa conditions imposed on his bridging visa. Given the applicant’s poor history of past compliance with Australia’s immigration laws and his failure to contact the Department to regularise his immigration status for over five years (and only when arrested), the Tribunal is not satisfied the applicant would abide by the condition that he must notify the Department of any change of address and the condition requiring him to report as directed if his bridging visa was granted.
The Tribunal is also concerned the applicant may reoffend in breach of condition 8564 (the holder must not engage in criminal conduct) given his criminal history includes being convicted for similar offences on two occasions. As such the Tribunal is not satisfied the applicant would abide by condition 8564.
For these reasons the Tribunal is not satisfied the applicant would comply with the above bridging visa conditions.
Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted without the added incentive of a security. In accordance with the approach set down in in Tennakoon v MIMIA [2001] FCA 615 (Gray J) and Applicant VAAN of 2001 v MIMA [2002] FCA 197 (Finkelstein J), the Tribunal has therefore proceeded to consider whether the conditions would be complied with if a security is taken.
In the present case there is not a decision made under s.269 of the Act before the Tribunal to review and therefore the Tribunal does not have the power to require a security pursuant to s.269 of the Act. However, having regard to its concerns as set out above, particularly in relation to the applicant’s poor immigration history and poor engagement with the Department in the past, and criminal history which includes repeat offences, the Tribunal considers that no amount of security would ensure his compliance with the conditions which would be imposed on his visa.
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.
CONCLUSION
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Nicole Burns
Member