2216032 (Migration)

[2022] AATA 4283

2216032 (Migration) [2022] AATA 4283 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr STANLEY CHAN (MARN: 0430097)

CASE NUMBER:  2216032

MEMBER:Wendy Banfield

DATE:9 November 2022

PLACE OF DECISION:  Canberra

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

Statement made on 09 November 2022 at 3:21pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – application for substantive visa made and not finally determined – compliance with conditions – very long period as unlawful non-citizen – work without rights – multiple visa applications refused, with unsuccessful reviews and request for ministerial intervention – criminal convictions, imprisonment and immigration detention – denial of responsibility for offending – non-compliance with conditions of most recent bridging visa – previous security still held by department – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3), 050.221, 050.223

CASE
Applicant VAAN of 2001 v MIMA (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 applied for the visa on 26 October 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 31 October 2022 on the basis that the delegate was not satisfied that the applicant would comply with the conditions imposed on the visa.

   Background

4. The applicant provided a copy of the delegate’s decision record which sets out his immigration history as follows:

   ·     You first arrived in Australia [Day 1] February 1987, as the holder of [a Subclass 1] Visa and departed Australia holding the same visa [Day 2] February 1987.

   ·     [In] April 1987, you last arrived in Australia as the holder of [the Subclass 1] visa, this visa permitted you to remain in Australia until 17 October 1987.

   ·     On 17 October 1987, your [visa] ceased naturally, as a result you became an Unlawful Non-Citizen (UNC). It is noted that there is no evidence that you made any attempt to contact the Department to regularise your immigration status and remained in the Australian community unlawfully for almost 25 years.

   ·     On 11 February 2012, you were located by NSW Police and identified as an UNC. You were subsequently detained by Australian Border Force (ABF) officers pursuant to section 189 of the Act and transferred to the Villawood Immigration Detention Centre (VIDC).

   ·     On 14 February 2012, you lodged an application for a Bridging E (class WE) (subclass 050) visa (BVE). Your BVE application was refused on 16 February 2012. On 19 February 2012, you sought merits review of the BVE refusal decision at the then Migration Review Tribunal (MRT) and the MRT affirmed the BVE refusal decision on 28 February 2012.

   · On 06 March 2012, you lodged a request for Ministerial Intervention (MI) under section 351 of the Migration Act.

   ·     On 19 March 2012, you further lodged an application for a BVE and the BVE application was determined to be invalid on 20 March 2012.

   ·     On 30 March 2012, you again lodged an application for a BVE and your BVE application was refused on 03 April 2012. You sought review of the BVE refusal decision at then the MRT on 05 April 2012. The MRT affirmed the department’s decision to refuse your BVE application on 18 April 2012.

   ·     On 27 July 2012, you lodged another application for a BV E. Your application for the BVE was refused on 31 July 2012. You sought merits review of the BVE refusal decision at the MRT on 31 July 2012.

   ·     On 07 August 2012, the MRT set aside the BVE refusal decision and remitted the application to the department with direction. On 08 August 2012, you were granted the BVE on ‘Ministerial Intervention’ grounds with a security bond of $25,000 imposed on the visa and you were released from immigration detention. This BVE allowed you to remain in Australia until 04 September 2012.

   · On 03 September 2012, your section 351 MI request was finalised and the Minister decided to grant you a Tourist (class TR) (subclass 676) visa, allowing you to remain in Australia until 03 March 2013.

   ·     On 04 September 2012, you lodged an application for a BVE and on the same day you were granted a BVE allowing you to remain in Australia until 25 September 2012.

   ·     On 02 November 2012, you lodged an application for [Subclass 2] visa. On 07 November 2012 you were granted an associated Bridging A (class WA) (subclass 010) (BVA) in relation to this application. I note that your application for the [Subclass 2] visa still remains, pending a decision.

   ·     [In] April 2014, you were remanded into criminal custody and were charged with the following criminal offences:

   ·    Supply Prohibited Drug – Commercial Quantity - SI

   ·    3 counts of Supply Prohibited Drug – Large Commercial Quantity – SI

   ·    Supply Prohibited Drug – Indict. Quantity (Not Cannabis) – SI

   ·    Supply Prohibited Drug

   ·    Knowingly Participate In Criminal Group Assist

   ·    Knowingly Deal With Proceeds Of Crime – SI

   ·     [In] October 2017, you were convicted of ‘Supply Prohibited Drug >= Large Commercial Quantity-Si’ and sentenced to imprisonment for 13 years with a non-parole period of 7 years and 10 months, and the earliest possible release date being [February] 2022.

   ·     On 23 November 2017, while you were in criminal custody, you were issued with a Notice of Intention to Consider Cancellation (NOICC) of your BVA under section 116 of the Act. As it was brought to the attention of the delegate of the Minister that you had been charged with a number of criminal offences whilst in Australia, which indicated that your presence in Australia may present a risk to the health of the Australian community.

   ·     On 15 December 2017, your BVA was cancelled under section 116(1)(e)(i), as you were found to be a risk to the health, safety or good order of the community or a segment of the community. As a result, once again you became an UNC.

   ·     [In] February 2022, upon your release from criminal custody, you were located by Australian Border Force (ABF) officers as you were known to be an UNC. You were subsequently detained pursuant to section 189 of the Act and transferred to the Villawood Immigration Detention Centre (VIDC), where you currently remain.

   ·     On 22 April 2022, you lodged an application for Protection (class XA) (subclass 866) visa (PV), which was also an application for BVE. Your associated BVE application was refused on 29 April 2022. You sought review of the associated BVE refusal decision at the Administrative Appeals Tribunal (AAT) on the same day. The AAT affirmed the associated BVE refusal decision on 11 May 2022.

   ·     On 11 May 2022, your application for PV was refused. On the same day you sought review of the PV refusal decision at the AAT. The AAT affirmed the PV refusal decision on 26 July 2022.

   ·     On 04 July 2022, you lodged an online application for a BVE. The BVE application was refused on 07 July 2022. You sought merits review of the BVE refusal at the AAT on the same day. On 18 July 2022 the AAT affirmed the BVE refusal decision.

   · On 26 October 2022, you lodged an application for a Bridging Visa E (BVE) online. The Detention Review Officer was notified about the lodgement of this application on 27 October 2022, as required under Item 1305(3)(c) of the Migration Regulations. It is this BVE application that is currently under assessment.

5. The applicant provided the following documents prior to the hearing:

   ·     Notification and decision of the Department dated 31 October 2022.

   ·     [Bank] statement in the name of [Ms A] dated 4 November 2022.

   ·     Passport and driver’s licence in the name of [Ms A].

   ·     ATO 2022 notice of assessment in the name of [Ms A].

   ·     Short statement of [Ms A] dated 4 November 2022.

6. The Tribunal also considered the information submitted to the Department at the time of application and had regard to the decision record of the Tribunal (differently constituted) relating to the applicant’s 22 April 2022 BVE application.

7. The applicant appeared before the Tribunal by video link on 8 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   Evidence at the hearing

9. The Tribunal referred the applicant to his immigration history as set out in the delegate’s reasons for decision. He said he was aware of it but did not fully understand what was included in the decision as his English skills are not adequate. The applicant was asked to explain why he had remained in Australia unlawfully for such a long period, from 1987 until the present. The applicant said he had been working in a [business] in Hong Kong and had been advised by his father to send his two sons away to study. He advised he came to Australia after his sons to see the country and then returned to buy his sons houses and cars. According to the applicant, his two oldest sons are no longer in Australia and have retuned to Hong Kong. He was asked again why he had remained in Australia without a valid visa. It was claimed the applicant’s youngest son was not a good student and was instead spending money. The applicant said his wife told him he was a bad father leading them to quarrel. He said she insisted they stay in Australia to look after their younger son and therefore, the applicant passed his business over to colleagues. The Tribunal put to the applicant that he must have been aware he could not remain in Australia without a valid visa. He agreed he did know that but claimed he and his wife were afraid, so they stayed but “did not do anything else”.

10. The applicant was asked how he had supported himself financially while in Australia. He gave an account of events that appeared to relate to his onshore business activities. He advised that when he was in Sydney, he met a “representative” and was living in staff housing. The applicant said he informed the representative he had been in Australia for a long time and was told about a business line coming to Australia from Beijing. The applicant claimed that while in Australia he opened three factories. The applicant reiterated he had decided to stay in Australia for the sake of his two sons and said he had been very careful and “not done anything wrong”.

11. The Tribunal put to the applicant that later he had done something wrong as he had been charged and convicted of criminal offences. The applicant explained that he had been driving and was stopped for a breath test which led to the discovery that he was not in Australia legally. He then claimed his criminal convictions only came about because he had been asked to care for the son of a friend, and that person had been involved in drug trafficking. He said the friend’s son had been to his home, and the authorities had believed the applicant was a drug trafficker. He said he did not even smoke.

12. The Tribunal asked the applicant to explain how he would support himself without working if he were granted a Bridging visa. He said he brought a lot of money from Hong Kong. Regarding accommodation, the applicant explained he has two daughters and a son in Australia, and they own houses. He said he would reside with his children if released from immigration detention. The applicant said his eldest daughter was married to [an Occupation 1] who has since passed away and his younger daughter is [an Occupation 2]. The applicant advised he is too old to work now and will live with his daughter because he has nowhere else to go. The applicant the submitted that according to his parole arrangements, he already has approval to live with his daughter.

13. The Tribunal put to the applicant that when he had been released from detention previously, he did not remain living at the address of his daughter as arranged. The applicant claimed that in 2012 he still had factories in [Suburb 1], and he sometimes stayed there. He claimed he did not spend the night there and only travelled with his son-in-law from his authorised address when the latter was working there. 

14. The applicant was asked about his application for a Protection visa. He said his solicitor advised him he could apply for it. The applicant said he was told during the assessment process that he would not die if he returned to Hong Kong which he said was offensive to him as an older person. The Tribunal asked the applicant why he still did not want to return to Hong Kong. The applicant replied it was because his older son is not in contact with him, he is divorced, and he has been away from Hong Kong for decades. He said he would not know what to do there. The Tribunal asked if the applicant’s younger son could assist but he said he could not because he lives with his mother, who the applicant is divorced from.

15. The Tribunal asked the applicant how it could be satisfied he would not conceal himself in the community again if he were released from detention. The applicant replied that he would not because now his case is known about. When asked how the Tribunal could be satisfied the applicant would not engage in further criminal conduct, the applicant insisted he had not committed any crimes before. The Tribunal put to him that there must have been evidence against him since he was convicted of drug offences and jailed. The applicant claimed it was the jury that had convicted him while the judge had been nice to him. He said if he is not believed, he does not know how to defend himself.

16. The applicant concluded by repeating he had only stayed in Australia to help his sons while they were onshore studying. He was asked why he did not return to Hong Kong after that, and he said it was because he had spent so many years in Australia by that time. The applicant advised he wants to be released to be able to see his family. He confirmed he is still waiting for his application for a [Subclass 2] visa to be determined and said he had been asked to obtain a medical assessment but was unable to do so as he could not leave detention. The Tribunal asked the applicant what he will do if his [Subclass 2] visa is refused. He said in that case, he will have no choice but to go back.

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

    CONSIDERATION OF Claims and evidence

18. The issue in this case whether the applicant will abide by the conditions imposed on the visa.

19. 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.

20. In this case, the applicant is seeking to meet cl 050.212(3). 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.

    Substantive visa application

21. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

22. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.

23. The Tribunal is satisfied that the applicant presently has a substantive visa application pending before the Department, that being a [Subclass 2] visa application. Department records confirm as at the date of the Tribunal’s decision, the application has not been finally determined.

24. Accordingly, the applicant meets cl 050.212(3) at time of application and continues to meet this criterion at time of decision: cl.050.221.

    Whether the applicant will abide by conditions - cl 050.223

25. 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.

26. 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].

27. 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.

28. In this case, cl 050.223 applies because the applicant meets the requirements of cl.050.212(3) 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.

    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.

29. In considering whether the applicant will abide by the above conditions, the Tribunal considered all the information before it, including information provided to the Department, information referred to in the delegate’s decision record, and the applicant’s oral and written evidence to the Tribunal as set out above.

30. The Tribunal notes the applicant lived in Australia unlawfully from October 1987 until February 2012. From his evidence at the hearing, it is clear the applicant remained in Australia because his sons were studying onshore, his wife at the time insisted they do so, and because business opportunities were available to him. The applicant admitted he chose to conceal himself amongst the Australian public and keep a low profile so as not to come to the attention of authorities. His only stated reason for not returning to Hong Kong at any time, even after his older sons departed was because he had lived in Australia for a long time. For 25 years the applicant lived in Australia without a valid visa or permission to work. The evidence indicates he never approached or engaged with the Department to regularise his immigration status until he was located by NSW Police and came into immigration detention in 2012. He told the Tribunal he commenced and operated businesses during this period, indicating that he was working despite having no lawful permission to do so.

1. When the applicant was released from detention in August 2012 following a favourable decision from the then Migration Review Tribunal, he was subject to a no work condition; and conditions specifying where he was to reside, and to report and notify the Department of any change of address. On the evidence before it, the Tribunal is not satisfied he complied with those conditions. The applicant had told the Tribunal in his evidence at a hearing for a BVE on 6 May 2022 that he resided at an address in [Suburb 1] upon release from detention in 2012 until he was arrested on criminal charges in 2014 and he did not notify the Department of this address. This information was contrary to Department records that stated his contact address as that of his daughter, in [Suburb 2] address since 2012.

2. On 8 May 2022 the applicant had responded to an invitation to comment that included information about his residential address between 2012 and 2014. He stated at the time that he did reside in [Suburb 2] but used a property in [Suburb 1] rented by his brother-in-law to store stock from a business. At the Tribunal hearing on 8 November 2022 the applicant repeated his claim that he did not stay the night at the [Suburb 1] property. This is despite the applicant’s daughter previously stating the applicant went between the two addresses. The Tribunal is not satisfied the applicant solely resided at the address in [Suburb 2] from 2012 to 2014 as he was required to under the conditions of his previous BVE. The Tribunal finds that he resided at the address in [Suburb 1], and he did not notify this address to the Department and therefore did not abide by his visa conditions. This leads the Tribunal to have concerns that he may not comply with a reporting condition or a condition specifying a place of residence. 

3. The evidence before the Tribunal relating to the applicant’s criminal charges indicates that he was arrested and held in custody on remand from April 2014. He pleaded not guilty to the charges but was convicted in relation to serious charges involving commercial quantities of drugs in October 2017 and was sentenced to 13 years imprisonment. The Tribunal observes he was released [in] February 2022 after serving the minimum non parole period of 7 years and 10 months and came directly into immigration detention on that date. Despite his conviction and the substantial sentence imposed by the court, the applicant insisted before the Tribunal that he has never been involved in criminal activity and maintained his innocence. He told the Tribunal he was found guilty by the jury after his trial.

4. The Tribunal relies on the conviction and sentence imposed by a criminal court following a contested trial, to find that the applicant has engaged in serious criminal conduct in respect of which he was sentenced to, and served, a substantial custodial sentence. It finds concerning that the applicant, despite his conviction and sentence, does not acknowledge any wrongdoing in relation to the criminal matters and that he continues to deny any responsibility. He has not demonstrated any contrition or regret about the significant offences he has been found guilty of. This causes the Tribunal to have serious concerns about whether it can be satisfied he will not further engage in criminal conduct in future.

5. The Tribunal has taken into consideration the submissions of the applicant that because he is old, he would not work or engage in criminal behaviour, and he wishes only to reside with his children and be supported by them. However, the Tribunal notes the applicant was granted a BVE in 2012 based on undertakings that he would reside with his daughter and she and her husband would provide him full board and accommodation. Despite this, as the Tribunal found above, he lived at a different address and after this period he was arrested and convicted of serious criminal offences. The Tribunal notes the applicant was given a significant opportunity to resolve his immigration status and circumstances in 2012 when he was last released from detention, but since then he became involved in criminal activities.

6. Having regard to the applicant’s history of unlawful visa status and working without permission from 1987 to 2012, his noncompliance with visa conditions on his last BVE, and the serious criminal offending since his release from immigration detention, the Tribunal cannot be satisfied that the applicant will abide by visa conditions that would apply if he were granted a BVE on this occasion. Specifically, it cannot be satisfied that he would not engage in work (defined as any activity that normally attract remuneration); or that he would report as directed; or notify a change of address; or not engage in criminal conduct.

7. The Tribunal has considered whether the applicant would be likely to abide by conditions if a security for him were provided. The Tribunal notes that at the Tribunal hearing on 6 May 2022, when asked about this the Tribunal observed the applicant’s daughter [Ms B] said she could not recall when asked what happened to the previous security. Information before the Tribunal from Departmental records indicates that a security of $25,000 was put forward by the applicant’s son in law for the grant of a BVE in 2012 and was not returned upon request for refund. In the 8 May 2022 decision regarding a previous BVD application, the Tribunal acknowledged the applicant’s response when this matter was put to him in a s359A invitation that no decision has yet been made to forfeit it. However, the Tribunal notes that having previously provided a substantial security, which continues to be held by the Department, and given the Tribunal’s findings above regarding the applicant’s noncompliance with conditions, it is not satisfied that the applicant will comply with conditions on this occasion regardless of any security that is imposed.

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

9. 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

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

    Wendy Banfield
    Member