2215745 (Migration)

[2022] AATA 5121

2215745 (Migration) [2022] AATA 5121 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2215745

MEMBER:Mireya Hyland

DATE:18 November 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:

·cls.050.211, 050.212(5B), and 050.221 of Schedule 2 to the Regulations;

·cl.050.222 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, 8401, 8505, 8506, and 8564 will be imposed if the visa is granted; and

Statement made on 18 November 2022 at 7:53pm

CATCHWORDS  
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – determination under s.48B sought – abiding by visa conditions – no work requirement – unlawful non-citizen – criminal conviction – parole requirements – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 48A, 48B, 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211. 050.212, 050.221, 050.222, 050.223; Schedule 8, Conditions 8101, 8401, 8505, 8506, and 8564

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 (the Act).

2. [The applicant] applied for the visa on 22 October 2022. At that time Class WE contained two subclasses: Subclass 050 Bridging (General) and Subclass 051 Bridging (Protection Visa Applicant). 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 (the Regulations). Relevant to this matter, the primary criteria include cl.050.223, that the Tribunal be satisfied that, if granted, the applicant will abide by the conditions imposed on the bridging visa.

3. The decision to refuse to grant the visa was made on 26 October 2022 on the basis that the delegate was not satisfied that [the applicant] would abide by conditions 8101, 8401, 8506 or 8564 and, therefore, did not meet cl.050.223. [The applicant] appeared before the Tribunal on 2 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted in English, although [the applicant] had the assistance of an interpreter in the Punjabi and English languages that he chose not to utilise. The Tribunal also received oral evidence from [the applicant]’s childhood friend, [Mr A], on 7 November 2022 in English.

4. The issue in this case is whether [the applicant] will abide by the conditions imposed on any visa granted. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. [The applicant] first arrived in Australia [in] May 2009 as the holder of a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa. On 27 November 2009, he lodged an application for a Graduate (Class VC) Subclass 485 visa which was refused on 28 March 2012. On 25 April 2012, he became an unlawful non-citizen. [The applicant] lodged an application for a Protection (Class XA) Subclass 866 Protection visa (Protection visa) on 11 January 2013 and was granted a Bridging C (Class WC) Subclass 030 visa (BVC) with a ‘no work’ condition. On 25 February 2013, he was granted a further BVC with work rights. [The applicant]’s Protection visa was refused on 2 August 2013 and on 22 August 2013 he sought review of that decision at the Tribunal (differently constituted). On 28 April 2014, the differently constituted Tribunal affirmed the decision to refuse to grant [the applicant] a Protection visa and his BVC ceased on 4 June 2014 at which time he became an unlawful non-citizen. On 17 July 2019, [the applicant] was granted a Bridging E (Class WE) Subclass 050 visa (BVE) on the grounds that he was making departure arrangements. His BVE ceased on 24 July 2019 and on 25 July 2019 he became an unlawful non-citizen. 

6. On 25 July 2019, [the applicant] was remanded into criminal custody for money laundering and participate in a criminal group. On 10 June 2022, he was convicted of two counts of Deal With Property Proceeds of Crime and sentenced to four years in prison with a non-parole period of two years and 11 months which expired on 24 June 2022. [The applicant] was granted a BVE on ‘Criminal Detention’ grounds on 24 June 2022 which ceased on 5 August 2022 by operation of law upon his release from prison on parole. At the time of his discharge from [the] Correctional Centre, [the applicant] was released into immigration detention pending removal from Australia as an unlawful non-citizen. Should [the applicant] be granted a BVE he will remain supervised and monitored by New South Wales Community Corrections until 24 July 2023, including in relation to his activities and living arrangements.

7. On 30 August 2022, [the applicant] lodged an application for a BVE to be released from detention which was refused on 5 September 2022. He sought review of that decision at the Tribunal (differently constituted) and the Tribunal affirmed the decision on 15 September 2022 because there was no basis on which to grant [the applicant] a BVE since he did not meet any of the circumstances set out in cl.050.212 of the Regulations.

8. On 10 October 2022, presumably in an attempt to meet the circumstance in cl.050.212(3) that the applicant has made a valid application for a substantive visa, [the applicant] lodged a second Protection visa application. However, that application was determined to be invalid on 13 October 2022 because s.48A of the Act states that a non-citizen who, while in the migration zone, has made a Protection visa application that has been refused may not make a further application while still in the migration zone.

9. Section 48A of the Act can be waived if the Minister thinks that it is in the public interest to do so: s.48B of the Act. That discretion can only be exercised by the Minister personally. Therefore, on 19 October 2022, [the applicant] lodged a request for ministerial intervention to lodge a second Protection visa application.

   Whether [the applicant] Meets the Time of Application Criteria

10. The Tribunal finds that at the time of application [the applicant] was an unlawful non-citizen and not an eligible non-citizen of the kind set out in r. 2.20(7), (8), (9), (10), (11) or (17), therefore, cl.050.211 is met.

11. The Tribunal finds that [the applicant] meets cl.050.212(5B) because he is an applicant who is a person to whom s.48A of the Act applies and he has made a request to the Minister to determine under s.48B of the Act that s.48A does not apply to prevent an application for a Protection visa. Nor has he previously been the subject of a request for a determination under s.48B of the Act or ss.345, 351 or 417 of the Act.

12. The Tribunal finds that at the time of this decision [the applicant] continues to satisfy the criteria set out in cl.050.211 and cl.050.212 and, therefore, cl.050.221 is met.

13. The Tribunal finds that [the applicant] was interviewed by an officer who is authorised by the Secretary for the purposes of cl.050.222 on 25 October 2022 and so that clause is met.

    Whether [the applicant] Will Abide By Conditions - cl.050.223

14. Clause 050.223 requires that the Tribunal is satisfied that at the time of the decision, if a bridging visa is granted, the applicant will abide by any conditions imposed on that visa. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 of Part 050 of Schedule 2 and set out in Schedule 8 to the Regulations.

15. 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 his or her unlawful conduct.[1]

    What Conditions Apply to a Visa Granted to an Applicant Who Meets cl.050.212(5B)

    [1] Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289 at [15]-[16].

16. As noted above, the conditions that must or may be imposed on a BVE are set out in cl.050.611 to cl.050.620 of the Regulations. In determining which conditions might be imposed on an applicant in [the applicant]’s circumstances it is necessary to identify the clauses that apply to an applicant who is seeking ministerial intervention under s.48B of the Act.

17. Clause 050.615A states that in the case of a visa granted to an applicant who meets the requirements of cl.050.212(5B) and who was an unlawful non-citizen for all or part of the period after the application for a substantive visa was finally determined until the time of the request for the Minister to make a determination under s.48B of the Act, Condition 8101 must be imposed. Also, relevantly any one or more of Conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.

18. Condition 8101 states that the holder must not engage in work in Australia. The definition of work in the Regulations is ‘an activity that, in Australia, normally attracts remuneration’. But for the activity to be work for the purposes of the Regulations the applicant does not actually need to be remunerated. So, for instance, [the applicant], who claims he will live and be supported by his friend [Mr A], cannot work for [Mr A] on a voluntary basis as part of that arrangement or at all.

19. Conditions 8201, 8207 and 8548 relate to the holder’s ability to engage in studies or training in Australia. For the reasons set out below relating to [the applicant]’s parole the Tribunal does not believe these conditions should be imposed on [the applicant]’s visa.

20. Condition 8401 states that the holder must report to the Department of Home Affairs (Immigration) at the time or times, and at a place or in a manner, specified by the Minister from time to time. The Tribunal finds this condition should be imposed on the visa if granted. It recommends that Immigration require [the applicant] to report on a weekly basis to one of its offices at a time that is consistent with his parole obligations to be determined by his Community Corrections Officer at the [named] Community Corrections Office.

21. Condition 8505 states that the holder must continue to live at the address specified by the holder before grant of the visa. [The applicant] claims he will live with [Mr A] and his wife at their [Suburb 1] home. This is also where he told the New South Wales Parole Authority he would reside during his parole period. Condition 8506 states that the holder must notify Immigration at least two working days in advance of any change in the holder's address. [Mr A] informed the Tribunal that he and his wife, who are expecting a child, are looking to move to a bigger home. Condition 8506 would address this and other similar events. The Tribunal finds that these conditions should be imposed on the visa if granted.

22. Condition 8507 relates to a requirement that the holder pay or make arrangements to pay the costs of the holder’s immigration detention. This condition should not be imposed on any visa that may be granted as it would be unnecessarily onerous on [the applicant] given he does not have permission to work and would be setting him up to fail. However, should [the applicant] ever apply for and be granted a future BVE without Condition 8101, a decision-maker may wish to consider imposing this condition on any future BVE.

23. Condition 8508 states that the holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified by the Minister for the purpose. [the applicant] is currently unable to make a valid application for a visa in Australia because of the s.48A bar. Therefore, unless, and until, the Minister exercises the power under s.48B of the Act to waive s.48A, Condition 8508 is not relevant to [the applicant].

24. Conditions 8510, 8511, and 8512 relate to a passport, ticket and departure from Australia that are not relevant to [the applicant], who has told the Tribunal that he wishes to make a further Protection visa application and remain in Australia.

25. Clause 050.618 also states that in addition to any other condition imposed by another provision of Division 050.6, Condition 8564 may be imposed: The holder must not engage in criminal conduct.

    Will [the applicant] Comply with Condition 8101 – No Work

26. If [the applicant] is granted a BVE he must not work, must report to Immigration as required, must remain at [Mr A]’s [Suburb 1] address or inform Immigration at least two working days before moving from that [Suburb 1] address, and he must not engage in any criminal conduct. While the delegate was particularly concerned about whether [the applicant] will work in breach of Condition 8101, the Tribunal’s primary concern is that he may hide in the community to remain unlawfully in Australia if he does not receive a successful outcome from the Minister and s.48A is not waived. It is the Tribunal’s position after weighing all of the evidence before it that [the applicant] will not work unlawfully if he is living with [Mr A].

27. [The applicant] provided the Tribunal with a statement from [Mr A] and his wife, [Ms B], stating that he will live with them and they will support him, both financially and otherwise. [The applicant] and [Mr A] know each other from India, where they were school children together. [Mr A] and [Ms B] claim to have the financial capacity because [Ms B] is a [Occupation 1] and [Mr A] owns a [specified] company, [Company 1], where [the applicant] worked for much of his time in Australia. [Mr A] assured the Tribunal that he did not employ [the applicant] when he was prohibited from working and would not have knowingly assisted [the applicant] in breaching a ‘no work’ condition. The Tribunal accepts this since [the applicant] was entitled to work for most of the time he was lawfully in Australia. [The applicant] became unlawful in June 2014 when his BVC with work rights expired. [the applicant] claims he did not know that his visa had ceased and he was in the community unlawfully and, as such, neither did [Mr A]. In any event, since [the applicant] was not on a visa, technically he was not subject to a ‘no work’ condition. It was during this period that [the applicant] stopped working for [Mr A] and took up a security job, which is ultimately what landed him in criminal trouble.

28. The Tribunal interviewed [Mr A] under oath about his commitment to house and support [the applicant]. He said that [the applicant] would live with him and his wife at their home in [Suburb 1] and they will support him until the Minister makes a decision on his matter. The Tribunal explained the conditions that will be imposed on [the applicant] including that he will not be able to live anywhere else and he will not be permitted to work. It explained that work means any activity that would normally be paid even if the person is not paid. In answer to the Tribunal’s concerns that [the applicant] might work, [Mr A] undertook not to provide [the applicant] with work at his company in exchange for the room and financial support. The Tribunal told [Mr A] that both a Community Correctional Officer and Immigration will be monitoring [the applicant] and could check without notice at any time that his parole and visa conditions are being complied with by visiting his home. After some thought [Mr A] indicated that he understood and that this was acceptable. The Tribunal not only explained what was required of [Mr A] and his wife, as well as the consequences for [the applicant] should any of the conditions be breached, but it also explained in no uncertain terms that providing false evidence under oath to the Tribunal would be a very serious matter.

29. [Mr A] then said that he needed to call his wife before he could take on the responsibility of housing and supporting [the applicant] as they are expecting a child. After speaking with [Ms B], [Mr A] told the Tribunal that he had to speak to [the applicant]. He said that [the applicant] had told him that he had found himself in ‘bad company’ which is how he ended up being convicted of financial crimes. He assured the Tribunal that this was not his experience of [the applicant], and he gave some indication that he may have been concerned about [the applicant]’s mental health in detention after having spent three years in prison. The Tribunal also had the impression that [the applicant] is not an overly resilient person and may be struggling. From the context of [Mr A]’s request to speak to [the applicant] it appeared he felt the need to ensure that he was satisfied that [the applicant] would not work anywhere else or breach the conditions on his parole or his visa. After speaking to [the applicant], [Mr A] confirmed to the Tribunal that he and his wife were happy for [the applicant] to come and live with them and they would financially support him. [Mr A] volunteered to the Tribunal that should he or his wife become aware that [the applicant] was breaching his parole or visa conditions they would inform the appropriate authorities. The Tribunal understands that, in part, this may be why [Mr A] wanted to speak with [the applicant] before firmly committing to him living with them.

30. After speaking with [Mr A] for a substantial period of time and exploring with him in considerable detail the arrangements for [the applicant], the Tribunal is satisfied that [the applicant] can be released from detention and live in the community without having to work. It found [Mr A] to be a credible witness and accepts that his undertaking is sincere. [Mr A] was engaged in the conversation, asking questions, clarifying his responsibilities and making sure he clearly understood [the applicant]’s obligations. He then consulted with [Ms B] and [the applicant] about their capacity and his expectations of [the applicant] before agreeing to the undertakes. The Tribunal notes that [the applicant] has AUD4,000 in cash in Australia to manage unexpected emergencies that might be beyond [Mr A] and [Ms B] financially. It is satisfied that he will comply with Condition 8101 as long as he is living with [Mr A] and [Ms B] at their [Suburb 1] home.

    Will [the applicant] Comply with the Other Conditions

31. [The applicant] spent time in the community as an unlawful non-citizen and this has led the Tribunal to have real concerns that he will do so again. He claims that this was not his intention. He told the Tribunal that his previous migration agent, who managed his Graduate and Protection visa applications, told him that he had a work visa and, then, would not return his calls. However, [the applicant] also told the Tribunal that it was his unlawful immigration status that led him into trouble with a criminal gang indicating that once he knew he was unlawful he did nothing to remedy that problem. He claims he became aware that he was unlawful when he got a security job and they ran his immigration status as part of a security check. They then asked him to engage in certain criminal activity involving the depositing of money from their criminal enterprise. [The applicant] says he did not realise this was illegal. In support of this contention he points to the fact that he did not try to hide his identity when he engaged with the bank in this activity. This was also pointed to by [Mr A] who told the Tribunal that [the applicant] was naive, but not a criminal, and he had learned his lesson. Nonetheless, the Tribunal feels it is necessary to guard again any inclination [the applicant] may have to abscond into the community should the Minister determine that it is not in the public interest for [the applicant] to be allowed to make a further Protection visa application and Immigration decide to remove him from Australia.

1. In this regard, the Tribunal does note that [the applicant] is out on parole. His parole conditions closely reflect the conditions on any BVE that might be granted and so [the applicant]’s release from immigration detention will have an added level of supervision for compliance with the conditions. Should he not comply with his parole requirements he will be returned to prison for the remainder of his sentence, at which time any BVE would easily be cancelled, and [the applicant] returned to immigration detention at the end of his sentence. According to the parole order provided to the Tribunal if [the applicant] is released from immigration detention, he must report to the closest community corrections office within 48 hours. Since [the applicant] will be living at [Mr A]’s residence in [Suburb 1] the Tribunal has confirmed that the office is the [named] Community Corrections Office ([Office 1]). [Office 1] wrote to the Tribunal on 18 November 2022 in response to its enquiries and stated that [the applicant] will be required to report to [a] Community Corrections Officer ([Officer B]) weekly for the first six weeks of his release. He will then be evaluated, and his ongoing reporting requirements will be determined based on his assessed risk level. It is for this reason that the Tribunal has determined that [the applicant] should also be required to report to Immigration.

2. According to information from [Office 1] [the applicant] will be required to reside [Mr A]’s address and he will need permission from his [Officer B] to reside elsewhere. Although [Office 1] informed the Tribunal that work conditions imposed by Immigration are outside his [Officer B]’s scope of supervision, [the applicant]’s parole conditions include that he must not engage in certain types of work, be of good behaviour, not commit any offences, and live a ‘normal lawful community life’. He must also ‘comply with all reasonable directions from’ his [Officer B] including about ‘not undertaking specified employment’. According to the Corrective Services website [the applicant]’s [Officer B] is responsible for a monitoring and intervention regime designed to facilitate reintegration into society and reduce the likelihood of further offending. This will presumably include assisting him with compliance with the conditions of his visa. According to the information from [Office 1] [the applicant] will be required to participate in programs, treatment or interventions that would contribute to addressing his criminogenic factors in order to reduce his risk of reoffending. It is to allow [the applicant]’s [Officer B] the widest latitude in this regard to assist [the applicant] to be successful that Conditions 8201, 8207 and 8548 should not be imposed on any future visa.

3. The Tribunal has put weight on the fact that [the applicant] has spent time in Australia as an unlawful non-citizen, although it has also accepted that he was initially unaware of that fact. It has taken into consideration that on the first occasion in 2012 he eventually worked to rectify the situation by make a substantive visa application and he engaged with Immigration to gain work rights in 2013 instead of just working illegally. But it is also aware that when he found out he again did not have a visa he remained in Australia and made no attempt to rectify the situation until he was arrested. The Tribunal has also put weight on the fact that [the applicant] has been convicted of a serious offence. However, it does believe him when he said he did not know he was committing a crime. It also notes that, in the end, he was not convicted of money laundering, and the Dealing with Proceeds of a Crime offence was for the lesser amount, being under AUD100,000. The Tribunal also believes that [the applicant] is genuine in his remorse for having gotten himself into this situation.

4. The fact that [the applicant] has been found to be an appropriate person for parole has been an important factor in the Tribunal’s decision. According to New South Wales’ Parole Authority, supervising parolees and ensuring they follow all the conditions of parole reduces the likelihood of reoffending. It is far safer for the community then suddenly releasing inmates when their sentences expire, returning them to society without supervision, monitoring or assistance. Parole is not a reward or early release of an inmate but serves as a bridge between custody and liberty in the community. The Tribunal notes that [Office 1] assured it that were his [Officer B] to become aware of any breach in [the applicant]’s visa conditions he/she would inform Immigration. The level of monitoring and supervision indicated by [Office 1] and the Parole Authority generally adds a measure of confidence to the Tribunal’s finding that [the applicant] will comply with all the conditions on any BVE that may be granted to him.

5. On the evidence before it, the Tribunal is satisfied that [the applicant] will abide by the conditions imposed on the visa if granted. Therefore, he meets cl.050.223 of the Regulations.

6. The Tribunal notes that [the applicant] has a substantial criminal record as defined by s.501(7) of the Act and, therefore, does not pass the character test in s.501(6) of the Act. Although the question of refusing [the applicant]’s visa on character grounds is outside the Tribunal’s purview,  it draws to delegate’s attention that there is a discretion not to refuse the visa even if the applicant does not pass the character test. [The applicant]’s crime, while serious, was one for which he was easily apprehended since he provided the bank with his contact details and he is not going to engage in again. The Tribunal believes him when he said that he did not realise the gravity of what he was doing. He has convinced not only [Mr A], but the Parole Authority that his release under supervision is safe and beneficial. Also, the Tribunal must express some concern for [the applicant]’s mental health in detention after three years imprisonment. He was singularly impassive and lacking in emotion during some of the hearing randomly followed by highly emotional responses. He spoke convincingly of depression and feelings of hopelessness. Since there is no way to gage how long it might take until [the applicant] receives an answer from the Minister, the Tribunal not only finds that he will not squander an opportunity to live with [Mr A] and [Ms B] in the community by breaching his conditions, it asks that the delegate strongly consider not refusing the visa on character grounds.

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

   DECISION

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

   ·cls.050.211, 050.212(5B), and 050.221 of Schedule 2 to the Regulations;

   ·cl.050.222 of Schedule 2 to the Regulations; and

   ·cl.050.223 of Schedule 2 to the Regulations.

9. The Tribunal also directs the primary decision maker:

   ·to indicate to the applicant that conditions 8101, 8401, 8505, 8506, and 8564 will be imposed if the visa is granted.

   Mireya Hyland
   Member