2217771 (Migration)

[2022] AATA 5074

2217771 (Migration) [2022] AATA 5074 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2217771

MEMBER:Alan McMurran

DATE:16 December 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 16 December 2022 at 11:07am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – acceptable arrangements to depart Australia – prior application for a permanent visa – extended periods of unlawful residence – no work condition – applicant convicted of drug charges – no financial means – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.515; Schedule 8

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 lodged 4 December 2022 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, [named], a citizen of the Socialist Republic of Vietnam, applied for the visa on 29 November 2022. At that time Class WE contained two subclasses: Subclasses 050 and 051.

3. 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.

4. The decision to refuse to grant the visa  was made on 2 December 2022 on the basis that the delegate was not satisfied that the applicant will abide by conditions if granted a BVE.[1] The decision followed an interview with a departmental officer and the applicant on 30 November 2022.

   [1] clause 050.223 of Schedule 2 to the Regulations

5. The applicant appeared before the Tribunal on 15 December 2022 to give evidence and present arguments. An interpreter in the Vietnamese and English languages was arranged and available to assist the applicant and the Tribunal. The hearing was conducted by video and recorded. The applicant was not represented and had no assistance for the hearing.

6. The applicant consented to the hearing date and confirmed he was ready and willing to proceed as scheduled. The applicant was located in the [named detention centre] and the Member sitting in Sydney. The Tribunal did not detect any technical issues or difficulties occasioned by the hearing process or with interpretation, and none were raised by the applicant. The applicant confirmed that he had provided all information he sought to provide for consideration with the application. He confirmed he wanted the hearing to proceed as scheduled.

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 will abide by conditions imposed on the visa. An issue also arises concerning whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.[2]

   [2] clause 050.212 (2)

9. The Tribunal has available for consideration information from the Department provided electronically, together with the Tribunal’s own file and information provided with the Tribunal application. The Tribunal also has regard to Department policy, the statutory framework in the Act and the Regulations and the oral evidence from the hearing.

10. The applicant made no written submissions prior to the hearing and relied upon his oral evidence made to the Tribunal at the hearing.

    Background and history-the Tribunal hearing

11. The applicant gave evidence about his family background. He is [an age]-year-old Vietnamese citizen who arrived in Australia [in] April 2008, on a Subclass 679 sponsored family visitor visa. The applicant’s visa history is set out below. He has not returned to Vietnam since arriving in Australia.

12. The applicant was married in Vietnam in 1993 but is now separated and he thinks divorced. He had [number] children from the marriage, who are now aged [respective ages]. He said the children live with their mother. He was asked about contact with the family members. He said he has not spoken to his wife but has telephoned his children. He said he last spoke to them about a year ago by telephone and with all [his] children. He then recalled he had spoken to them approximately 2 weeks ago, when he contacted them by video telephone. He said he again spoke to all [his] children about how they were doing, whether they were healthy, and so on. He said they were aware he was in detention in Australia but did not understand anything about that. He said not much was discussed.

13. The applicant said his parents had both passed away, his mother in 2014 and his father in 2019. He said his children were also now independent and he was not called upon to support his Vietnamese family financially. He said he has [number] siblings still living in Vietnam and an uncle and cousin living in Melbourne. He said his uncle and cousin are Australian citizens. He said his parents had been fishermen and lived in a village in central Vietnam in Quang Binh province where he grew up.

14. The Tribunal explained that the review concerned the Department’s refusal of his bridging visa application and was not concerned with his prior protection visa application and outcome, or the criminal proceedings in which he had been involved, and which were concluded in October 2021. The Tribunal explained the Department’s reasons for refusing the visa and the Tribunal’s concern whether conditions which might be imposed on the grant of a bridging visa would be complied with and taking into account the applicant’s prior visa history. In particular, the Tribunal was concerned about a condition that the applicant could not work, and a further condition that he not become engaged in criminal activity.

15. The applicant said he had no choice but to remain in Australia and continue to work to support his family. He explained that he could not return to Vietnam. He said he was concerned he would be pursued by gangs and killed. He said he had made no arrangements to return and would not do so voluntarily. He said he did not understand why his visa had been “cancelled” when he was unable to return to Vietnam. The Tribunal explained that this was not a cancellation decision review, but rather a review of the decision by the Department that he would not comply with visa conditions. The applicant said he had not understood the Department decision. He said he would seek out his lawyer who had helped him in 2014 to make another application for a protection visa.

16. The Tribunal discussed the applicant’s visa history. His visa history is summarised as follows:

22 APR 2008	Granted UL-679 Visa	[April] 2008: First/Last arrived onshore on UL-679
26 JUL 2008	UL-679 Ceased	-
27 JUL 2008 – 09 FEB 2014	No active visa	Applicant was unlawfully onshore for approximately 5 years and 7 months
10 FEB 2014	XA-PV	Commenced Protection visa application
19 FEB 2014	Granted BVC	+8101 – No Work
19 JUN 2014	Granted BVC	+Nil Conditions
25 MAR 2015	XA-PV Refused	-
27 APR 2015	XA-PV Review Commenced	-
09 SEP 2016	XA-PV Review Affirmed	-
18 OCT 2016	BVC Ceased	-
19 Oct 2016 – 07 nov 2021	No active visa	Applicant was unlawfully onshore during this period and working in regional Victoria
–[AUG - ] oct 2021	Applicant charged and remanded in custody over drug offences	Charge 1: “……at [Town 1] in the State of Queensland…unlawfully produced a dangerous drug namely cannabis” Charge 2: “…at [Town 1] in the State of Queensland……in his possession chemicals and irrigation piping and light bulbs and growing medium and fans that he had used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 namely producing dangerous drugs”
08 nov 2021	Applicant granted BVE in Criminal Detention	-
18 Nov 2022	BVE ceased	By operation of law on release from criminal detention as per Reg 050.515(1)
[nov] 2022	Applicant detained under s189	Upon release from criminal custody taken into immigration [detention]
29 nov 2022	Applicant applied for BVE from detention	Validated by Detention Review Officer on 30/11/2022
30 nov 2022	Phone interview conducted	Applicant unrepresented
02 dec 2022	BVE Refused	-
04 dec 2022	BVE Review Commenced	-

1. The applicant confirmed his visa history as summarised above. He was asked why he had remained in the community on 2 occasions without a valid visa, and for a period approaching 10 years. He said he knew it was illegal to do so, but that “I had no choice”. He said he had to support his family financially, so he had to work, even though he was not authorised to do so and further, that he could not return to Vietnam.

2. He was asked what he now intended. He said he would stay with his uncle in Melbourne. He was asked about his uncle’s family circumstances, and he requested the Tribunal to contact his uncle as a witness. He provided a mobile telephone number and the Tribunal spoke with his uncle during the hearing.

3. He talked about his uncle’s family, and the fact there were [number] children involved who were all his cousins. They are all adult and living independently except for one child who still lives with his uncle and who is disabled. He was asked about his uncle’s financial circumstances. He said his uncle owns a house in Melbourne and would have room for him to stay and that his uncle has said he will support him and accommodate him. He explained he had not seen his uncle very often in the time he has been in Australia and not stayed with him before.

4. The Tribunal asked what the applicant would say if the Tribunal was concerned he may not remain with his uncle and would lose contact with the Department, and which might be a reason why the Tribunal might affirm the Department’s decision. The applicant said he would approach his solicitor to make another visa application and with no conditions “so I could work”. The Tribunal stated that it did not appear the applicant would be eligible for another visa, as his protection application had failed and he had made no other applications since arriving as a visitor in 2008 for a three-month stay. The applicant said he would seek advice about obtaining another visa.

5. The Tribunal asked what the applicant would do if he could not work. He said his uncle would support him and he would help him to look after his disabled cousin. He said he would seek to apply for a visa which allowed him to work for up to 20 hours per week. He said he had been told if his Bridging visa was successful he will be granted some work rights. He said he did not know that he would not be able to work, that it would be a condition, and if that were the case, he would comply with a condition, stay with his uncle and assist him.

6. He said if he were granted work rights, he would return to work on a farm in Victoria where he had spent most of his time working unlawfully. He repeated that although he had remained working unlawfully for a lengthy period, which he knew at the time was “wrong”, he did so because he had no choice as he could not return to Vietnam. He said he was afraid to do so and wanted to send money to his family. He said now he is not required to support his family financially.

7. He was asked if he would make arrangements to leave Australia while on his bridging visa. He repeated that he cannot return to Vietnam because of “the gangs”. He said however that if directed to leave Australia he would do so as “I don’t have a choice” and “I will obey the direction”.

8. The Tribunal spoke with the applicant’s uncle, [named], by telephone from Melbourne. The witness spoke using the interpreter in the Vietnamese and English languages. The witness said he had been in Australia for 33 years. He identified the applicant as the son of his [sister]. He said he is now living on an aged pension and owns a house in a Melbourne suburb. He said he is an Australian citizen. He said he lives in the house with his wife and his [child] and that his nephew (the applicant) can live with him in Melbourne. He said he will give him permission to do so and will provide him food and accommodation and “look after him”. He said that he had not seen the applicant very often and had limited knowledge of the applicant’s background in Australia. He knew the applicant had gone to Sydney “or Queensland”. He did not know much if anything about the applicant’s detention and present circumstances. He said he was not aware the applicant had lived and worked for 2 periods of 5 years or more without a visa. He said, “I don’t know about that”. He said he knew that the applicant originally came in 2008 for only 3 months, but did not know what he did after that, although he knew he had not left Australia.

9. The purpose of the telephone discussion from the applicant’s viewpoint, was to satisfy the Tribunal that if granted the visa, the applicant would have a place to live with his uncle in Melbourne, that the proposal was genuine, and that his uncle could look after him.

10. The Tribunal asked the applicant if he had any further submissions. He said if it is a condition for him not to work, which he now understands, he would not do so and would only stay with his uncle and help look after his disabled cousin. He said if allowed to work he would return to a farm in Victoria. He was asked why he had remained unlawful for 2 extended periods totalling approximately 10 years. He said he knew it was wrong but he did not have any choice because he cannot return to Vietnam and needed an income to support his family.

11. The Tribunal put to him that his choices had not changed as he was still concerned about returning to Vietnam and had an incentive to remain in Australia. He said he preferred to remain in Australia where he can work and support himself. He again said if he was directed to leave Australia he would “not have a choice” and “if that’s the order, I will have to leave”. He submitted however that the Tribunal and the government should “consider my situation”. The Tribunal informed him that his “situation” had already been considered in the protection application and already dealt with when the application was refused. He repeated however that if he were free in the community, he would seek advice about applying for another visa. He submitted that although he had broken the law and was fully aware he was not allowed to work, his circumstances have changed, he is now aware of the requirement and will follow the conditions imposed and live with his uncle to survive.

12. He was asked about his criminal behaviour in the past, and he confirmed he had pleaded guilty to the 2 drug charges. He said he had not been aware what was happening, and when he found out, it was “ too late” for him to avoid prosecution for the criminal behaviour. He said he knew it was wrong and illegal and promised that he would not engage in criminal conduct in the future. He concluded by seeking to assure the Tribunal he would comply with conditions and live with his uncle.

    FINDINGS

    The grounds for seeking the visa - cl 050.212

13. 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.

14. In this case, the applicant is seeking to meet cl 050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant does not meet cl 050.212.

    Acceptable arrangements to depart Australia

15. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

16. The Tribunal finds it is clear from the applicant’s evidence at hearing that he does not intend voluntarily to return to Vietnam. He confirmed he has made no arrangements to do so, but if directed to leave, will comply with that direction. The Tribunal has considered whether the applicant’s intentions to make arrangements to depart, if directed to do so, are genuine.

17. On the available information and the applicant’s evidence, he has no financial independence and is unable to pay for his own departure arrangements. He is unable to work and has no income to support himself. There is no indication that his uncle, who lives on a pension with a disabled son, is in a position to either support the applicant or pay for his departure arrangements.

18. The Tribunal finds that despite his statement to the contrary, the applicant’s intentions to make arrangements to depart, if directed to do so, could not be carried out and would not be completed by him voluntarily. The Tribunal therefore places very little weight on the applicant’s stated intention that he would comply with such a direction.

19. At the time of application, the evidence is that the applicant was placed in immigration detention following his release from criminal detention and when his BVE ceased by operation of the law. There is no evidence before the Tribunal that at that time, the applicant had any intention of making arrangements to depart Australia.

20. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant does not meet cl 050.212(2).

    Whether the applicant will abide by conditions - cl 050.223

21. 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.

22. 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.

23. 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].

24. The Tribunal spent some considerable time at the hearing discussing possible conditions to be attached to any visa that might be granted. The Tribunal explained those conditions as set out below.

25. 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.

1. In this case, the conditions to be imposed under the relevant cl 050.6, as identified by the delegate, include the following conditions which the Tribunal finds should be imposed in the circumstances of this case:

   ·     8101-no work

   ·     8207-not study

   ·     8401- must report

   ·     8506-notify any address change

   ·     8512-must leave/depart Australian by a date specified

   ·     8564-not engage in criminal conduct

2. The Tribunal has considered the applicant’s immigration history as disclosed in the documents in the Department file and confirmed by the applicant at the hearing. The Tribunal finds the applicant arrived in Australia [in] April 2008. The Tribunal finds the applicant knew that he must depart Australia 3 months after his arrival, without another visa having been granted, but that he elected not to do so. He did not apply for another visa and nor did he seek advice about his legal status in order to lawfully remain.

3. The Tribunal finds that the applicant was an unlawful non-citizen from 27 July 2008 until 9 February 2014.

4. The Tribunal further finds that following the failure of the applicant’s protection visa application and failed review in the Tribunal, the applicant was again unlawful from 19 October 2016 until his arrest in October 2021 and criminal conviction [in] November 2021 in the [named] Court. This was a total period in excess of 10 years.

5. The Tribunal further finds throughout this period the applicant was aware his status was unlawful, that he made no attempt to contact the Department to rectify his status or seek advice how to do so but chose instead to hide in the community working on farms in Victoria and then in Queensland at the time of his arrest.

6. The Tribunal finds that in the discussion with the applicant at hearing, the applicant expressed no remorse or contrition for the criminal conduct. He relied instead on what he says was his ignorance about the ‘farm’ operations, and by the time he did appreciate what was going on, it was “too late for me”. This demonstrates to the Tribunal the applicant’s lack of understanding or appreciation as to the importance of Australian laws and compliance.

7. The Tribunal has listened carefully to the applicant’s evidence and upon which he relies. He has made no written submissions or statements. The Tribunal has weighed up the applicant’s current circumstances and stated intentions against his visa history and recent criminal convictions.

8. In considering whether the applicant would comply with conditions, the Tribunal places some significant weight on the applicant’s statements that he cannot return to Vietnam, that it is dangerous for him to do so in his mind, and that he will not do so voluntarily. Furthermore, the fact the applicant has no financial means and would be entirely dependent upon the goodwill and generosity of his uncle who lives in Melbourne on an age pension with limited means, and with a disabled son, provides the applicant with a significant incentive to find work and an income for himself. He has no support from any family in Vietnam and from his wife from whom he has now divorced. He gave no indication or evidence that his children might assist him and on the contrary, indicated he has worked in the past to help support them. He has also confirmed his own knowledge as to his unlawful status but that he “had no choice” but to continue to work and remain in the country unlawfully. The Tribunal finds that his “choices” have not significantly changed as he remains adamant that he cannot return to his home country, despite the finding in the protection visa outcome finalised in Australia in 2016.

9. The Tribunal finds the applicant has done nothing to improve his visa status, has ignored any contact with the Department, not sought advice and instead, found work in an unlawful and illegal environment for an extended period. The applicant refers to no community support or assistance other than from his relative in Melbourne. The Tribunal finds that the applicant’s incentives to continue this behaviour loom large in his own mind so as to avoid returning to his home country, and because he believes he has ‘no choice’.

10. The Tribunal finds these factors weigh heavily in its consideration whether the applicant would comply with any visa conditions which might be attached to the grant of the visa. The Tribunal finds these factors weigh against the probability that the applicant would not resort to finding work and perhaps other places to live and reside in Australia, unlawfully, and to avoid detection by remaining in the community, most probably in a regional location.

11. The Tribunal also takes into account the lack of interaction with the Department and the fact the applicant made no attempt to contact the Department when changing his address. For present purposes, the Tribunal finds on the evidence before it that the applicant has a declared reluctance to return to his home country at all, and this fact contributes to concerns the Tribunal has about whether the applicant will comply with conditions.

    Conclusion

12. Taking all these factors cumulatively into account, and 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.

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

    decision

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

    Alan McMurran
    Member