2212148 (Migration)

[2022] AATA 5269

2212148 (Migration) [2022] AATA 5269 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2212148

MEMBER:Lilly Mojsin

DATE:31 August 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 31 August 2022 at 2:00 pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – third adjournment request declined – abide by conditions imposed – no work requirement – financial circumstances – previous non-compliances – no criminal conduct requirement – criminal history – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 050.211, 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).

2. The applicant is a [age]-year-old Tongan national. He arrived in Australia [in] December 2016 on a Visitor (Class FA, Subclass 600) visa which was valid until 10 March 2017. On 9 March 2017 the applicant lodged an application onshore for a further Visitor (Subclass 600) visa, which was granted on 10 March 2017 and was valid until 15 September 2017.

3. On 15 September 2017 the applicant lodged a further application for a Visitor (Subclass 600) visa. This was granted on 19 September 2017 and ceased on 15 December 2017.

4. On 16 September 2017 the applicant became an unlawful non-citizen for the first time. He became unlawful for a 2^nd time on 16 December 2017. [In] March 2022 he was arrested and charged on criminal offences and on 17 March 2022 he lodged a Bridging E (BVE1) (Subclass 050) visa application which was refused on 28 March 2022.

5. The applicant sought Merits Review of that decision on 25 April 2022. On 2 May 2022 this Tribunal[1], differently constituted, found that it had no jurisdiction over the matter as the application for review was lodged out of time.

   [1] AAT 2206079

6. On 29 April 2022 the applicant lodged a Bridging E (BVE2) (Subclass 050) visa application. The application was refused on 3 May 2022 as the delegate of the Department was not satisfied that the applicant would abide by conditions imposed on the visa. The applicant applied for review to this Tribunal and the Tribunal[2], differently constituted on 16 May 2022 affirmed the Department decision. 

   [2] AAT 2206585

7. On 20 May 2022 the applicant lodged a further Bridging E (WE 050) visa application which was deemed invalid.

8. On 30 May 2022, the applicant lodged a further Bridging E (WE 050) visa application which was again deemed invalid.

9. On 20 June 2022 the applicant lodged a further Bridging E (WE 050) visa application. On 23 June 2022 this application was refused.

10. On 15 August 2022 the applicant lodged the Bridging E (class WE) (Subclass 050) visa application, the subject of this review.

11. At the time of lodgement, Class WE contained two subclasses: Subclasses 050 and 051. In the present review, 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 of Schedule 2 to the Regulations.

12. The decision by the Department to refuse to grant the visa was made on 3 May 2022 as the delegate was not satisfied that the applicant would abide by conditions imposed on the visa.

13. The Tribunal has before it the relevant Department files relating to the applicant’s migration and criminal history.

14. The applicant was invited to attend a Tribunal hearing on 25 August 2022. The applicant sought an adjournment on the basis that there was an application before the court on 26 August 2022 that was relevant to the review in question i.e. removal of the AVO. The Tribunal adjourned the hearing to 29 August 2022.

15. On 29 August 2022 the applicant sought a second adjournment on the basis that he was awaiting a court outcome. The Tribunal agreed to adjourn to 31 August 2022.

16. The applicant appeared before the Tribunal on 31 August 2022 from the Broadmeadow Detention Centre to give evidence and present arguments.  

17. On 31 August 2022 the applicant sought a third adjournment, until the last week of September for an AVO variation to be heard, on the basis that his de facto wife was to have an operation and she had a 30% to 35% chance of dying and he had to be with her. The Tribunal discussed with the applicant the medical certificate received and advised him that it does not suggest that his de facto wife has any chance of dying. It says that she is to have a [procedure] and that operation involves a 1- or 2-night stay in hospital. If she is to have an open cut, rather than a more simplified operation, she will stay in hospital a bit longer.

18. Section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) directs that in carrying out its functions;

    the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

19. The Tribunal advised the applicant that it would proceed with the hearing and he was asked if he wished to make any comments. The applicant did not make any comment. 

20. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages. The Tribunal was able to see and hear the applicant and is satisfied there was a real opportunity for the applicant to be heard.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant's application for a Bridging E (class WE) visa was refused by the Department because he did not satisfy 050.211(2) of the Migration Regulations 1994 (Cth).

22. Prior to the hearing the applicant submitted to the Tribunal:

    §Medical report regarding [Ms A], his de facto wife that stated that she requires a [procedure]. However, there is a risk that she will need an open operation which will require a longer recovery.

    §Statutory declaration by [Ms A], dated 24 August 2022, explaining her relationship with the applicant and their agreement regarding dealing with the applicant’s excessive drinking

    §Statutory declaration by [Ms B], dated 24 August 2022, the aunt of [Ms A]. She attests to the genuineness of the relationship between the couple, and that she will provide free accommodation, food and other necessities free of charge to the applicant whilst in Australia. She has offered a $5000 surety.

    §Application to vary Final AVO by [Ms A], issued on 18 March 2022 who stated that she and the applicant did not intend to end their relationship and she needs him to come home and look after her in light of her medical condition.

    §Letter from applicant seeking adjournment as AVO application was adjourned to last week of September 2022.

23. [In] July 2022 the applicant was convicted of the Common Law Assault charge and fined $500 at [the] Magistrates Court. He was scheduled to appear again on 26 August 2022.

24. On 15 August 2022 the applicant was included as a dependent for a Permanent Protection (XA 866) visa commenced by [Ms A] on 23 June 2022.

25. At the Tribunal hearing the applicant stated that he became an unlawful non-citizen on 16 September 2017. His explanation was that he paid a lawyer to look into an extension for his visa application, but the lawyer did not do anything about it until he was admitted to the detention centre.

26. Since his arrival in Australia he was a casual worker, [working] in the [specified] industry. He and his de facto wife commenced a relationship about 2015/2016.

27. Asked about his family, he said that he has his aunt and his uncle with his children are in Australia.

28. According to police records on the Department file, the applicant was arrested by Victoria Police [in] March 2022 and served with a Family Violence Safety Notice. He said he had bad influence of alcohol and there was an argument with his partner. He was convicted of a criminal offence and fined $500.

29. Asked when the application to vary the AVO was to come before the court, he said it will be in October 18. He also does not know when his de facto wife is expected to go to hospital.

30. Asked how he will financially support himself and his de facto wife if released, he said that there is a 35% chance his de facto wife will die. Asked again, about how he intended financially to support himself and his de facto wife he said at the moment he may not be able to help financially. Asked how he intends to obtain money to pay for food and accommodation, He said at the moment he is not allowed to work and he is still in prison.

31. Asked where he intends to live if released, he said that he is going to live with his aunt. His aunt lives with her daughter, who may be more than 20 years of age. She works in the hospital. She owns her home and he does not know about her finances. The Tribunal explained that it would need more information about her financial situation if considering release.

32. He proposes that his de facto wife will live in their own home. It is rented. Asked how she supports herself he said that she receives Centrelink help.

33. The Tribunal asked how the Tribunal would be satisfied he would not engage in criminal conduct given his conviction and drinking problems. He said that he is a bit lonely while his partner and relatives are outside. He states that he has changed. “I have learnt a lot whilst I am here. So that I might support my wife and my family better”.

34. The Tribunal put to him that his de facto is seeking to vary the AVO so it is presumed that he intends to live with his de facto and not his aunt, in those circumstances. He said that he will be happy to live with aunt as she may be able to support him and if AVO released he may be able to do something to help his partner. Asked what ‘something’ was and he said that he is willing to obey whatever they ask.

35. The Tribunal noted that the delegate considered it appropriate to impose the following discretionary conditions for the grant of a Bridging E visa and the Tribunal agreed with those conditions. These are:

    Mandatory conditions:

    ·8101 (No work)

    Discretionary conditions:

    ·8207 (No Study)

    ·8401 (Report as directed)

    ·8506 (Notify change of address)

    ·8564 (Not engage in criminal conduct).

36. He said that he has learned a lot and decided to change the way he has behaved. He has to eliminate the alcohol in order to be with his wife and family.

37. Asked what he will do if his applications are unsuccessful, he said that he is happy whatever the decision. “I will have to live a better life if I am to live with my partner again. I will have to be a better person if I am to ever come out of here”.

    REASONS AND FINDINGS

38. The issue in this review is whether the applicant will comply with visa conditions if a visa were granted.

39. The applicant meets the requirements of cl.050.212(3) in Schedule 2 of the Regulations because the applicant has been included as a dependent for a Permanent Protection (XA 866) visa commenced by [Ms A] on 23 June 2022 and the matter is ongoing.

40. 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.

41. 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].

42. 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.

43. In this review, cl 050.223 applies because the applicant meets the requirements of cl.050.212(4)(a) in Schedule 2 of the Regulations. 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)

    The holder must not engage in work in Australia.

    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 time or times; and at a place or in a manner specified by the Minister from time to time.

    8506          (NOTIFY CHANGE OF ADDRESS)

    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564          (NO CRIMINAL CONDUCT)

    The holder must not engage in criminal conduct.

44. In assessing whether the applicant will comply with visa conditions, the Tribunal considered his immigration history, current circumstances and any other relevant matters.

45. The applicant became an unlawful non-citizen on 16 September 2017. His explanation was that he had instructed a migration agent but nothing was done.

46. During the Tribunal hearing the applicant was asked how he would be able to support himself if he were unable to work. The applicant advised that if granted a Bridging visa, he would abide by conditions and he would be supported by his aunt who provided a statutory declaration in support.

47. In considering whether the applicant would comply with mandatory condition 8101 (No work), the Tribunal has had regard to the applicant's financial circumstances. The applicant claimed that he would be supported by his de facto wife’s aunt. The Tribunal had regard to the pre-hearing declaration submitted by [Ms B]. No detailed information was provided regarding her financial resources and ability to support the applicant. The applicant knew very little about her financial situation other than she worked at a hospital, had one daughter who was about 20 years of age and was not renting. The Tribunal places little weight on this declaration due to the lack of detailed financial information. Further, the applicant’s de facto wife is an applicant for a Protection Visa and relies on Centrelink for financial support. Considering the applicant has worked previously when he was an unlawful non-citizen, the Tribunal is concerned the applicant would not comply with a no work condition if he were granted a Bridging visa. The Tribunal is not satisfied that he will comply with condition 8101.

48. The Tribunal on balance considers that the applicant's previous non-compliance with migration obligations by significantly overstaying the period he was authorised to remain in Australia would appear to demonstrate that the applicant has an indifferent approach to his obligations and is prepared to ignore the requirements if he desires.

49. Regarding compliance with condition 8564, (no criminal conduct), the Tribunal has also considered the applicant’s criminal history. According to police records on the Department file the applicant was arrested by Victoria Police [in] March 2022 and served with a Family Violence Safety Notice (interim) and charged with Intentionally Cause Injury, Recklessly Cause Injury and Common Assault and remanded. The applicant has been convicted of a criminal offence and fined $500. At the hearing the applicant was not aware of the offence that he was convicted of but he has demonstrated some contrition or acknowledgement of the potential harm associated with the offence and stated he will have to eliminate alcohol from his life. As he does not have any other criminal offences and has displayed some contrition and a desire to eliminate alcohol, the Tribunal is satisfied that he will comply with condition 8564.

50. The application for a Protection Visa, made by his de facto wife, has not as yet been favourably processed. The applicant was asked in the Tribunal hearing what he will do if his applications are unsuccessful. The applicant said, “if I have to continue living like this, I have no other option”, but did not indicate any preparedness to depart from Australia if required to do so. Given the applicant’s disregard for Australian law in the past, the Tribunal is not satisfied the applicant will comply with visa conditions 8401 (report at a specified time and place) and 8506 (notify change of address).

51. The Tribunal considers that no amount of security (should a security deposit be available) would secure the applicant’s compliance with visa conditions.

52. 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.

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

54. 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

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

    Lilly Mojsin
    Member