2210176 (Migration)

[2022] AATA 3339

2210176 (Migration) [2022] AATA 3339 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2210176

MEMBER:Anne Grant

DATE:25 July 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 25 July 2022 at 3:43pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with the visa conditions – extended period of unlawful residence – multiple visa applications and reviews – offer of a security bond – unspecified protection claims – reporting as required – offer of accommodation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.21,3 050.612, 051.211

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Jayasinghe v MIEA (1997) 76 FCR 301
Liu v MIAC [2008] FMCA 725
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

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 7 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 050.223.

3. The decision to refuse to grant the visa was made on 12 July 2022 on the basis that the delegate was not satisfied that the applicant would comply with the conditions of the visa if granted, such as residing at a given address, reporting as necessary or notifying the department if he changed his details.

4. The applicant is in immigration detention at [a named] Detention Centre.  He appeared before the Tribunal on 20 July 2022 by video conference using the Microsoft Teams Application to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. During the hearing, the applicant said that he was now in a position to provide an ongoing, permanent address because his friend [Friend A] had offered him accommodation at his home in [Address 1].  At the time of the hearing, the applicant did not have any confirming information about the offer.  The applicant requested seven days to provide information about accommodation available to him if he is released from immigration detention.  The Tribunal agreed.   On 22 July 2022, the applicant provided a copy of a lease agreement for [Address 1], and a letter from [Friend A] and [Friend B].  This information is considered and discussed further below.

6. On the morning of the hearing date, the applicant provided a submission to the Tribunal as follows: 

   Thank you sir and madam to letting me appeal in aat.

   First I want to question that, why I was to refuse a bve straight away with just feeling by the judge alone. Of course everyone trying save them self when they are heading to dangers and troubles. Everyone will do that to save them self and you can tell this is the only way to save myself by putting myself in trouble if I was to send back to Malaysia. Of course I will see out and obey the court hearings when the date has come. Why do they judge just like this without asking and caring what should I do.

   About the address I can provide my friend and guarantor name if needed and I just being honest about I already in detention for so long of course I will update anything and everything about myself. But they just judge and assume I will runaway from being trace. How is that done?

   Putting myself in detention, make so stress and frustrated. I don’t know why I even been talking to myself recently. I hope sir and madam have some symphathy for me. As in my age, do you think I wanna benefits myself by working as long as possible like what the reports has done to me by the judge alone.

   Just like others I have do a lot of research. How do I come to save myself to know more about the laws in Australia

   Yes, I have told the office from the home of affairs from the interview, about the bond is to be set for me to leave from the detention, everyone has its own money or saving in my age, I came here to australia because I need to runaway from Malaysia which I am from belong, of course I do bring all the money with me. The question is, they can’t assume it my savings all is from working.

   Improper translations also a problem for me to describe myself 100%

   And the last reasons, why I am to be refused for a proper bve when I eligible to, when others can do what they can to get a bve.

   Please colour blind to judge my case and I will grateful if sir and madam will look into my case seriously.

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

   CONSIDERATION OF Claims and evidence

8. The issue in this case is whether the applicant satisfies the criteria in cl 050.223 of Schedule 8 to the Migration Regulations.

   Whether the applicant will abide by conditions - cl 050.223

9. 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.

10. 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].

11. The Tribunal confirmed the applicant’s migration history with him as follows: 

    ·[December 2015] – Applicant arrived in Australia on UD-601 (ELECTRONIC TRAVEL AUTHORITY)

    ·05/01/16 – The applicant lodged an application for a protection visa.  He was granted a bridging visa in association with the protection visa application.

    ·19/05/16 – The applicant was refused a protection visa.  He sought review of that decision at the Tribunal on 4 June 2016. 

    ·25/08/16 – The applicant’s review application was listed for hearing but he did not appear.  A decision was made by the Tribunal to dismiss his application and he was sent (to the email account he had provided in lodging his application) notice of the initial dismissal.   The applicant was advised of the right to seek reinstatement within 14 days.   

    ·[September 2017] – The applicant lodged an application for Judicial Review of the Tribunal’s decision to dismiss his application. 

    ·13/09/17 – The applicant had not applied for reinstatement and the Tribunal confirmed the dismissal of his application for review. 

    ·19/10/17 – The applicant’s bridging visa ceased.  

    ·[February 2018] – The Federal Circuit Court dismissed the applicant’s application for review.

    ·10/09/18 –an Invalid bridging visa application  was lodged and the applicant was notified that it was invalid. 

    ·03/02/22 – Australia Border Force located and detained the applicant under s189(1)

    ·26/02/22 – The applicant lodged an application for review of the decision refusing him a protection visa (made on 19 May 2016) with the AAT. 

    ·11/04/22 – The Tribunal decided that it did not have jurisdiction to review the application because the delegate’s decision had already been the subject of a determination in 2016.     

    ·[July 2022] – The applicant applied for Judicial Review of the Tribunal’s decision of 11 April 2022.  No hearing dates have been provided for this review

    ·07/07/22 – The applicant applied for a bridging visa (here under review). 

12. In relation to his migration history, the applicant gave evidence that he had an agent who completed the application for a protection visa on his behalf.  That person had control of the email account which was given to the Tribunal on his first application for review.  However, the agent disappeared without telling the applicant about his hearing or even that he had lodged an application on the applicant’s behalf in the Federal Circuit Court. The applicant said he paid this man around $7,000; but he failed to tell the applicant about his hearing at the Tribunal.  It was noted that no agent had been recorded in any contacts with the Tribunal and the applicant did not disagree when this was noted, but said that the agent scammed him. 

13. The applicant confirmed that he did, however, find out about the Federal Circuit Court Hearing and attended it.  He told the Judge that the reason he had appealed was because he wanted his visa to be ‘renewed’.  The Judge told him that it was not the role of the court but of the Department to grant or renew visas.  After that hearing, he didn’t ever receive any notification of the court’s decision.  He lived at the same address for three years but never received a letter about the court’s decision. He thinks that the same email address (the one created by his ‘scammer’ agent) was used by the Court to send him the decision even though he had told the court that it was not correct. 

14. In any event, the applicant confirmed that he was aware from 2018 that he had no visa.  He gave evidence that he approached many agents that he found through various places.  Some said they could help him get a visa but then scammed him.  Others, perhaps more reputable, told him that there was nothing they could do.  The applicant was asked what right he had to remain in Australia and work in the period from 2018 to 2022 when he knew that he did not have a visa.  He responded that he was ‘fighting for his visa.’  He contacted more than 10 agents to do ‘anything for him’ but none of them could or would help him.  He knew he didn’t have a visa, but he was looking for opportunities to apply for a visa. 

15. The applicant gave evidence that he could not give the delegate a permanent address when he discussed the bridging visa with him, but he is in a position to do so now because he has a friend who has offered him long term accommodation if he is released from Immigration Detention.  His name is [Friend A], who is in Australia on a sponsored visa.  His address is [Address 1].  He did not have a letter from [Friend A].  He rents the house with other friends and the applicant was not sure if he was listed as a tenant on the lease.  The Tribunal asked if the applicant would like to provide evidence of this offer of accommodation and he responded that he would and asked what it needed to say.  The Tribunal noted that it should at least be confirmation from someone who has the legal right to do so, that he had an offer of ongoing accommodation at that address.  The applicant requested seven days to provide the letter.

16. On 22 July 2022 the applicant provided a lease and a letter from a [Friend A] and [Friend B] confirming an offer of accommodation to the applicant at that address.

17. During the hearing, the Tribunal noted that the applicant had told the delegate that he had $20,000 in savings.  He confirmed that he still has those savings.  He said he would be prepared to provide all of those savings as a security bond if required. 

18. The applicant gave evidence that he would report as necessary, live at a given address and give notice of any changes as required to do so by any conditions attached to a bridging visa. 

19. The applicant was asked if, in the even his current court application fails, he would make arrangements to depart the country.  He said in that case, he would probably have to keep appealing.    

20. The Tribunal asked the applicant what were the claims on which his protection application was based.  He responded that he feared persecution in Malaysia.  When asked what sort of persecution he feared, he responded only ‘political’.  When asked to give more details, the applicant said that he did not wish to discuss those matters because they are dark stains on him in Malaysia and also because  he has ongoing protection claims before the court.  When it was noted that there had been big changes to the political landscape in Malaysia since 2017, the applicant said that despite the changes of government in Malaysia over recent years, he still claims to fear persecution there – that his issues are not issues which are resolved by a change of government.

    Consideration

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. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

23. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].]

24. In this case, cl 050.612A applies because the applicant has a current application for judicial review underway.   This clause prescribes that certain conditions may be imposed. The Tribunal considers that the following conditions, as identified by the delegate,  should be imposed in the circumstances of this case:

    8207(NO STUDY)

    The holder must not engage in any studies or training in Australia.

    8401(REPORT AT SPECIFIED TIME AND PLACE)

    The holder must report:

    (a)at the time or times; and

    (b)at a place or in a manner;

    specified by the Minister from time to time.

    8505(CONTINUE TO LIVE AT ADDRESS)

    The holder must continue to live at the address specified by the holder before the grant of the visa.

    Would the applicant comply with the conditions if a bridging visa was granted?

25. The information before the Tribunal does not suggest that the applicant would wish to or would study if prohibited from doing so by a condition of a visa if granted.  The Tribunal considers that the applicant would comply with condition 8207 if imposed. 

26. The Tribunal then turns to consider whether the applicant would comply with conditions 8401 and 8505. 

27. Tribunal found that the applicant’s evidence about his initial protection application and application for review was credible and accepts, for the purposes of considering this review, that the applicant was poorly served by a migration adviser who failed to advise him of critical hearing dates at the Tribunal prior to the disposition of his protection review.  Even so, it appears that the applicant was notified as required of the hearing of his application for review at the Tribunal and the subsequent dismissal of his review in accordance with the legislative requirements.  It is also noted that an appeal against that decision has already been unsuccessfully considered in the Federal Circuit Court and that by his own evidence, the applicant participated in that application by appearing before the Court.  

28. The Tribunal also notes that the applicant has recently applied to review (for a second time) the original decision to refuse him a protection visa at the Tribunal.  This application was determined by a (differently constituted) member of the Tribunal on the basis that, because a review of that same decision had been conducted and finalised by the Tribunal in 2017, the Tribunal had no jurisdiction to review the decision again.  The applicant currently has an application in the Federal Circuit and Family Court seeking judicial review of the decision made by the Tribunal that it had no jurisdiction to review the decision a second time.

29.   The Tribunal considers it to be established law that once the Tribunal has conducted and finalised the review of a decision, it has no power to review that same decision a second time:  SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.) On this basis, the Tribunal considers that the applicant’s current application for judicial review has some obvious impediments to success.

1. Nonetheless, the Tribunal accepts, for the purposes of this considering this bridging visa application, that the applicant has a current application before the Federal Circuit and Family Court of Australia which has not been determined.   On that basis, the application for a bridging visa is properly made and the Tribunal has found that the bridging visa would be subject to the imposition of the conditions named above.   

2. The Tribunal has carefully considered the evidence and submissions made by the applicant.  Having carefully considered his evidence overall, the Tribunal found that it did not accept his evidence that the applicant would comply with the conditions of a bridging visa requiring him to report as required and live at a particular address as reliable.  The overall manner in which the applicant discussed his migration history and his future intentions suggests that he remains unwilling to depart the country despite being advised by reputable migration agents that he has no viable legal pathway to a visa in Australia.

3. The Tribunal also took into consideration that the applicant’s responses to questions about his protection claims were vague and incomplete.  When it was explained that the Tribunal needed to consider what factors might operate to make him reluctant to return to Malaysia and instead motivate him not to comply with visa conditions when assessing his likely compliance with a bridging visa, (and particularly given his migration history) the applicant was still unwilling to explain the nature of his protection claims.  The Tribunal found this reluctance to be troubling because it impairs the Tribunal’s assessment of the likelihood that the applicant would comply with visa conditions and return to Malaysia voluntarily if his current legal proceedings prove unsuccessful. The Tribunal considers that the applicant does not consider that returning to Malaysia is possible, but the Tribunal is not aware why he has reached that conclusion because of his reluctance to discuss his protection claims, even generally.

4. The Tribunal has considered the letter submitted from [Friend A] and [Friend B] about prospective accommodation.  They state that “We are happy and agree that [the applicant] will be living with us as we have two extra rooms and taking care of him while awaiting his court case.”  It is accepted that the signatories to the letter are listed on the residential lease as tenants of [Address 1].  The Tribunal gives some limited weight to their willingness to write the letter and offer accommodation to the applicant.  However, it is not clear from the letter how they know the applicant, (he described them merely as friends) their own visa status in Australia, whether they are permanent residents or even whether they are aware that the applicant has in the past lived for more than four years in the community without a valid visa.

1. The applicant confirmed that he was aware that he did not have a right to remain and work in Australia from 2018 onwards but he chose to do so anyway and claimed that he still (at that time and now)  hoped to find a ‘legal’ way to remain in the country.  Whilst he claims he was ‘fighting’ for a visa between 2017 and 2022, no applications were made in that period apart from one invalid bridging visa application.

2. The Tribunal considers that the applicant’s evidence overall  suggests to the Tribunal that he will use whatever means he considers is available to him to remain in Australia, including living in the community at an address unknown to the Department and failing to report as required.  The Tribunal gives the applicant’s previous period of living in the community without a visa significant weight against him complying with the conditions of a visa, if granted.   

3. The Tribunal has carefully considered the applicant’s evidence and, as noted above, gives significant weight to his migration history and long period living and working in Australia without a valid visa, and also to his evidence that he would not consider departing the country voluntarily if his court proceedings fail and that in that event, he would have to ‘keep appealing’. The Tribunal also gives significant weight to his evidence that he has sought and rejected advice from migration agents over several years that he has no plausible visa pathways to remain in the country.

4. After weighing his evidence overall, the Tribunal is not satisfied that the applicant would abide by the conditions of a bridging visa requiring him to reside at a given address or to report as required.  The Tribunal considers there is a very real risk that, if released from detention, the applicant would choose to leave his registered address, fail to report his location and reside illegally in the country rather than depart Australia.    

5. The applicant gave evidence that he would be prepared to provide a security bond in an amount equal to his total savings of around $20,000.  The Tribunal notes that some at least of those savings were collected whilst he was living and working in Australia without a valid visa and this suggests that he does not see a lack of savings as an impediment to him remaining (and working) in the country, with or without a visa.  The Tribunal considers that, based on his evidence, migration history and circumstances overall, (and despite his evidence to the contrary) the applicant would be prepared to ‘forfeit’ the security because he has a network which would enable him to resume that or similar work in future if he chose instead to leave his given address, fail to report as required and hide within the community without a visa.  The Tribunal is not satisfied that the applicant would abide by the conditions imposed on a visa if granted, even if a security deposit is imposed.

6. 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 satisfy cl 050.223.

7. The applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

8. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant was not refused immigration clearance at any point. The Tribunal finds that 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

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

   Anne Grant
   Member