2209960 (Migration)

[2022] AATA 3188

2209960 (Migration) [2022] AATA 3188 (15 July 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  2209960

MEMBER:  Namoi Dougall

DATE:  15 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.212 of Schedule 2 to the Regulations;

·cl 050. 221 of Schedule 2 to the Regulations and

·cl 050. 223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be

imposed if the visa is granted; and

·to require a security of $8,000 for compliance with the conditions.

Statement made on 15 July 2022 at 11:02am

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – convictions – unlawful Non-Citizen – applicant was interviewed by an authorised officer – Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted with a security of $8,000 – decision under review remitted

LEGISLATION
Migration Act 1958, ss 73, 116, 189
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.212, 050.221, 050.223

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).

1. The applicant applied for the visa on 1 July 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).

1. The decision to refuse to grant the visa was made on 6 July 2022 on the basis that the delegate was not satisfied that the applicant would abide by conditions imposed on any bridging visa if granted, and therefore, would not met criteria cl.050.223. The applicant appeared before the Tribunal on 14 July 2022 to give evidence and present arguments.

1. The applicant was represented in relation to the review.

BACKGROUND

1. On [date] May 2019, the applicant arrived in Australia on a Subclass 600 visa.

1. On 9 August 2019 and on 25 October, 2021 the applicant was granted a Subclass 500 Student visa. The latter visa was valid until it was cancelled under s. 116(1)(g) of the Act on 30 June 2022.

1. On [date] March 2022 the [Court] convicted the applicant for the offences listed below and sentenced him to 12 months, 1 day imprisonment which the applicant only served in gaol 3 months. The applicant had been convicted previously of driving offences which are referred to below. The applicant was detained in prison and on 30 June 2022, as referred to above, the applicant’s Subclass 500 visa was cancelled, and he was detained under s.189(1) of the Act. He has been in immigration detention ever since.

1. The offences were:

·     Reckless driving to escape pursuit by police (6 months imprisonment)

·     No authority to drive (3 months imprisonment)

·     Failed to comply with a direction to stop (3 months imprisonment)

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issues the Tribunal have to decide are:

·Whether the applicant is eligible to be granted a Bridging E visa.

·If the applicant is eligible to be granted a Bridging E visa, what conditions should be attached to the visa.

Immigration status of the applicant - cl 050.211

1. 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).

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

1. On 30 June 2022, the applicant’s subclass 050 visa was cancelled and he became an unlawful non-citizen. Accordingly, the applicant meets cl 050.211(1). The applicant, therefore, was not an eligible non-citizen of the kind set out in in reg 2.20(7), (8), (9), (10), (11) or (17), and, accordingly the applicant meets cl 050.211(2).

1. Therefore, the applicant meets cl 050.211.

The grounds for seeking the visa - cl 050.212

1. 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.

1. In this case, the applicant is seeking to meet cl 050.212(4)(b). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.

Visa cancellation – merits review

1. Subclause 050.212(4)(b) is met if the applicant has applied for merits review of a decision to cancel a visa. On 8 July 2022, the applicant filed an application for review of the Department’s decision to cancel his Subclass 500 visa. Accordingly, the applicant meets cl 050.212(4)(b).

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

1. An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212. The Tribunal has already stated it is satisfied that the applicant meets the requirements of cl.050.212.

1. The Tribunal is also satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application, the applicant:

·Was an unlawful non-citizen as required by cl.050.211(1)(a); and

·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10, (11) or

(17) as required by cl.050.211(2).

1. Clause 050.221 requires that an applicant for a Bridging E visa must continue to satisfy the criteria set out in cl.050.211 and cl.050.212 at the time of the Tribunal’s decision.

1. The Tribunal is satisfied that the applicant continues to satisfy the requirements of both clauses at the time of this decision as the applicant remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense, he has made an application for a substantive visa able to be granted in Australia, in this case a Subclass 866 protection visa and that application is yet to be determined.

1. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and cl.50.212 and therefore meets cl.050.221.

The requirement to be interviewed by an authorised officer - cl 050.222

1. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet

   cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

1. The applicant was interviewed by the delegate on 5 July 2022. Accordingly, the applicant meets cl 050.222.

Whether the applicant will abide by conditions - cl 050.223

1. 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.

1. 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].

1. In this case, cl 050.223 applies. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

·8101 (No Work)

·8401 (Report as directed)

·8207 (No study)

·8506 (Notify change of address)

·8564 (Not engage in criminal conduct)

1. Prior to the applicant’s convictions made on [date] March 2022 the applicant had been conviction of the following offences:

·16/06/2021 – Failed to give Driver identity information – Fined $700

·09/12/2020 – No Authority to drive (disqualified license) – Fined $1,000

·04/11/2020 - No Authority to drive (suspended license) – Fined $400

·13/10/2020 – Exceed speed limit between 30 and 40 km/h – Fined $800

1. In relation to condition 8101 (No work), the Tribunal was provided with character references and statements from his parents, sister and brother-in-law and uncles as to the financial support they will provide together with copies of their latest bank statements. The Tribunal notes that the applicant’s mother had as at 30 June 2022 just over $3,000 in her account, his uncle just over Rupees 1,183,000 i(close to AUD60,000) n his account as at 27 June 2022 and his brother in law as at 30 June 2022 only had just over $60. The Tribunal is satisfied that the applicant will not work as his uncle has sufficient funds to provide support and his parents have enough of an income to provide for his basic needs. Further, he will return to live with is parents.

1. At the hearing the applicant stated that he would reside with his parents at [address]. His parents have [a] business which is run by his father as his mother is studying but she helps out in the business about 20 hours per week. The applicant stated that his sister works as [another occupation] but he is not aware of how many hours she works, but she did work full time as part of her workplace. The applicant stated that his brother has a [business]. Further, his uncle provides support and has over the last 6 months provided the applicant with $12,000.

1. In relation to condition 8564 (Not engage in criminal conduct) the interview held on 5 July 2022, the applicant stated that he was responsible for the offence committed on 13 October 2020 and 9 December 2020 but claimed in relation to the other offences that it was his friends who were driving his vehicle. In particular in relation to the suspension of his drivers;’ license the applicant stated that his friends were driving, and it was them who accumulated the fines and he believed what his friends told him about that he should pay the fines under his name and they would reimburse him. The delegate noted in the decision that the penalty for exceeding the speed limit between 30 to 40 km per hour was $800 and 6 demerits points. Similarly, in relation to failed to give driver identity the applicant stated at the interview that it was his friends who failed to give their identity.

1. Provided to the Tribunal was a statement of the applicant

1. At the hearing the Tribunal asked if he was responsible for the first conviction on 13 October 2020 driving 30 to 40 kms above the limit and the applicant stated that the was. At the time his licence had been suspended and he had 28 days before he had to stop driving but he miscalculated the number of days. days to stop driving. The 4

November 2020 offence of no authority to drive arose out of the October 2020 offence committed as the date his licence was suspended needed to be checked. As to the offence committed on 9 December 2020, he was responsible for this offence, as at the time his father was driving him to and from night shift and on that night his father was falling asleep, so he drove the last part of the journey home.

1. In relation to the offence on 16 June 2021, failing to give driver identity information, the applicant stated at the hearing that one of his friends was driving and there was a police chase. He could not work out who was driving even when he checked the photographs from the offence.

1. As to the offences that lead to his imprisonment, he stated he is responsible for these offences and he is remorsefully for his mistakes. On that day of the offences, his mother was driving but the car broke down, His mother returned home, and he went to the car as he had a friend who was a tow truck driver. Before he arranged for the car to be towed, first checked the engine and found that the battery cable was loose, he fixed the cable and started the car. He was so proud he could fix it he then drove the car a few hundred metres. Unfortunately, for the applicant there were police conducting random breath tests and when he saw them he panicked so after the breath test, when the police told him to pull over for a licence test and he drove off.

1. At the hearing the Tribunal referred to the applicant having 7 serious convictions and having spent time in prison and that his record shows a pattern of behaviour that may suggested that he will reoffend. The applicant stated that it is now different as he has had time in prison, and he is sorry for his mistakes. Later at the hearing the applicant, apologised to the Australian community and stated that he is aware that he has an issue, and he will take up counselling once he is released.

1. The Tribunal accepts that a period of time in gaol has changed the applicant’s attitude to his conduct, but the Tribunal would only be satisfied that the applicant will abide by condition 8564 if a substantial security was provided.

1. In relation to 8401 (Report as directed) and 8506 (Notify change of address), as he has reported to as part of his bail conditions and there is no information before the Tribunal that he has breached these conditions in the past. At the hearing the applicant stated that his bail conditions were that he reported twice a week to [a] Correction Centre, but he has not had a chance to report as he was detained by the Department as soon as he left prison. The applicant stated that he lived at the above address with his parents. The Tribunal accepts that the applicant would abide by these conditions including reporting twice a week.

1. At the interview the applicant stated that his parents are in Australia on [temporary] visas and his sister and her spouse are in Australia on Temporary [visa]. A younger brother visited Australia on a Visitor Visa while he was in gaol. The applicant also stated that, before he was imprisoned, he worked as [occupations] to support himself. He currently has $200 savings in his [Bank] account, after paying his migration agent’s fees. The applicant also stated that his maternal uncle in Mauritius has a business and provides financial support to him and his family. The Tribunal has been provided with additional evidence as to the financial circumstances of the applicant’s family which is referred to above.

1. At the hearing the Tribunal discuss the amount of security that would need to be lodged to enable the Tribunal to be satisfied that the applicant will abide by conditions. The Tribunal stated that $5,000 may not be enough in light of the applicant’s pattern of

behaviour that led to 7 convictions for driving offences. The applicant stated that his parents would be prepared to pay a further $3,000 making the total amount for the security $8,000 and the Tribunal accepted that that amount would be sufficient for the Tribunal to find that the applicant would abide by the conditions listed above if granted a Bridging visa. The Tribunal also requested that any security be lodged by Monday, 18 July 2022 and that the Tribunal be provided with evidence that this had occurred.

1. On the above the Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted with a security of $8,000. Therefore, the applicant meets cl 050.223.

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

1. The Tribunal observes that its decision in this matter does not preclude the possibility of a further decision by the Minister or his delegate under other powers of the Act in respect of the application.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

   ·cl 050.212 of Schedule 2 to the Regulations;

·cl 050. 221 of Schedule 2 to the Regulations and

·cl 050. 223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be imposed if the visa is granted; and

·to require a security of $8,000 for compliance with the conditions.

Namoi Dougall Member