2300049 (Migration)

[2023] AATA 294

2300049 (Migration) [2023] AATA 294 (17 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2300049

MEMBER:Nathan Goetz

DATE:17 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 17 January 2023 at 4:56pm

CATCHWORDS  
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant has engaged in repeated criminal behaviour – not satisfied that applicant will not engage in criminal conduct on the bridging visa –criminal conviction – applicant has no intention to ever depart Australia voluntarily – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 375
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.223

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 under s 73 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the applicant a Bridging E (Class WE) visa.

   BACKGROUND

2. The applicant applied for the visa on 28 December 2022. At that time, Class WE contained two subclasses: Subclasses 050 and 051. These criteria for each subclass are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. On 30 December 2022 the delegate refused to grant the applicant the visa on the basis that she did not satisfy either cl 050.223 or cl 051.211 of Schedule 2 to the Regulations.

4. On 3 January 2023 the applicant applied to the Tribunal to review the decision.

5. On 4 January 2023 the Tribunal wrote to the applicant and invited her to appear at a Tribunal hearing scheduled for 6 January 2023 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do so because the Tribunal decided that it should not make a decision favourable to the applicant based on the material it had.

6. On 6 January 2023 the applicant appeared at the Tribunal hearing. She provided written consent to the holding of the Tribunal hearing on that day.

7. At the conclusion of the Tribunal hearing, the applicant asked for additional time to provide evidence to address the concerns raised by the Tribunal at the Tribunal hearing which will become apparent for the reasons discussed below. The Tribunal granted the applicant until 4pm Monday 9 January 2022 to provide any material she believed would address the concerns raised by the Tribunal.

8. Upon receipt of the material, the applicant was invited to appear at another Tribunal hearing scheduled for 12 January 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review.

9. Both Tribunal hearings were conducted via MS Teams because the applicant was in an immigration detention centre.

   CRITERIA FOR THE VISA

10. The delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl 050.223 or cl 051.211 of Schedule 2 to the Regulations.

11. While the Tribunal would ordinarily restrict itself to considering the same criteria as the delegate, the Tribunal is not required to do so. Clause 050.223 relates to whether the applicant would comply with any conditions that would be imposed on a bridging visa if granted. The ability to consider the compliance conditions is contingent on their being grounds for the grant of the visa in the first place: cl 050.212.

12. Having considered the material initially contained in the visa application, the Tribunal was not satisfied (unlike the delegate) that there were grounds for the applicant to seek the 050 Subclass visa. The Tribunal advised the applicant that this new issue was the matter being considered by the Tribunal and that, in the event that the Tribunal was satisfied that she met cl 050.212, she would be invited again to appear at a Tribunal hearing to discuss whether she met cl 050.223.

    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 is required to meet this criterion at the time of visa application and at the time of decision.

14. The delegate decision record noted that the applicant indicated that the reason she was applying for the bridging visa was because she was making arrangements to depart Australia. The delegate decision record did not detail any other evidentiary basis for being satisfied that the applicant was genuine in this intention. It was the absence of any other evidence about these arrangements to depart Australia that caused the Tribunal to question, in light of the circumstances as a whole, whether the applicant was genuine in her claimed intention about leaving Australia.

15. The applicant did not claim to meet any other grounds for the grant of the visa as provided in cl 050.212(2). The Tribunal is not satisfied that any other grounds arise on the evidence.

    Acceptable arrangements to depart Australia

16. 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]).

17. At the Tribunal hearing, the applicant told the Tribunal that she had an Indian passport that was valid for a further three years, but that she had lost it. She told the Tribunal that she had not applied for a replacement passport because she could not physically attend on the Indian Embassy. She said that she had spoken to the Department who had obtained her consent to obtain ‘travel documents’ to return to India in lieu of a passport.

18. After the Tribunal hearing on 6 January 2023, the applicant provided the Tribunal with a copy of her Indian passport that she had lost (she told the Tribunal that the copy was something that she had previously submitted to the Department) and also provided the Tribunal with a receipt for a flight booking from Sydney on 15 February 2023 to Singapore, and a flight booking from Singapore on 16 February 2023 to Amritsar (India).

19. As the applicant has made a request for travel documents (in lieu of her passport which is still lost), and has a flight booking to leave Australia, the Tribunal was satisfied that the applicant is not the subject of acceptable arrangements to depart Australia for the purpose of cl 050.212(2). Given that satisfaction, the Tribunal then turned its mind to the issue about whether the applicant satisfied cl 050.223

    Whether the applicant will abide by conditions – cl 050.223

20. 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].

21. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

22. The applicable conditions which would attach to the bridging visa if granted are:

    ·8101    The holder must not engage in work in Australia

    ·8207    The holder must not engage in any studies or training in Australia.

    ·8506    The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

    ·8512    The holder must leave Australia by the date specified by the Minister for the purpose

    ·8564    The holder must not engage in criminal conduct.

23. Those were the same conditions considered by the delegate. At the Tribunal hearing the applicant said she would abide by those conditions if granted the bridging visa.

    Eligible non-citizen – cl 051.211 

24. This requires that the applicant be an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

25. The applicant is required to meet this criterion at the time of visa application and at the time of decision.

    CERTIFICATE AND NOTIFICATION REGARDING DISCLOSURE OF CERTAIN INFORMATION under s375A of the act

26. On the Department file the delegate purported to put a non-disclosure certificate on the applicant’s Victoria Police Criminal History document on the basis that the information was provided to the department ‘in confidence’ and that the provider of this information had not consented to its disclosure to the review applicant.

27. The Tribunal is not satisfied that the certificate is valid for the following reasons.

28. First, the information contained in the document, namely the applicant’s criminal record, was contained in the delegate decision record, meaning that the content of the document had already been disclosed.

29. Second, there is no evidence that the Victoria Police Criminal History report was provided ‘in confidence’ other than the assertion in the certificate.

30. The material is disclosable to the applicant and was discussed in the course of the review.

    CONSIDERATION AND FINDINGS

31. The Tribunal considered all the evidence presented in the review application and visa application.

32. The applicant identifies as a [age]-year-old female citizen of India presently located in Australia.

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

    Whether the applicant will abide by conditions – cl 050.223

34. Despite what the applicant told the Tribunal, the Tribunal is not satisfied that the applicant would abide by all conditions that would attach to the bridging visa for the following reasons.

    Condition 8564

35. The applicant has a significant criminal history in Australia. The applicant’s criminal history is detailed in the delegate decision record. It appears that it was incorrectly recorded by the delegate because that history is not consistent with the Victoria Police Criminal History Report contained in the Department file, nor in the Notices of Order Made that the Tribunal obtained from the Victorian Magistrates’ Court.

36. The Tribunal also notes that at the Tribunal hearing on 6 January 2022, the applicant specifically denied that she had appeared at a court and been sentenced for matters which the delegate recorded as forming part of her criminal history. It is regrettable that the delegate did not record the applicant’s criminal history accurately, as this could have led the Tribunal to make findings on an incorrect factual basis.

37. The Tribunal disregard’s the delegate’s recording of the applicant’s criminal history as contained in the decision record. The Tribunal is satisfied that the applicant’s criminal history is as follows (and has disregarded matters that were the subject of a diversion).

    [Date] October 2020:  [First] Magistrates’ Court

    1 x possession of cannabis

    1 x deal in property suspected as proceeds of crime

    5 x contravention of personal safety intervention order

    2 x make threat to kill

    1 x commit indictable offence while on bail

    7 x shoptheft

    5 x theft

    Sentenced to a total effective sentence of 16 days imprisonment, a 12-month community corrections order and a fine of $1000.

    [Date] May 2021:       [Second] Magistrates’ Court

    1 x theft of a motor vehicle

    1 x commit indictable offence while on bail

    1 x possession of cannabis

    1 x possession of a drug of dependence (not named)

    1 x possession of methylamphetamine

    Sentenced to a total effective sentence of 34 days imprisonment.

    [Date] June 2022:                  [Third] Magistrates’ Court

    1 x retention of stolen property

    1 x deal in property suspected as being proceeds of crime

    1 x drive while disqualified

    1 x contravention of community corrections order

    Sentenced to a total effective sentence of 30 days imprisonment and a fine of $1000

38. Although the Tribunal accepts the applicant’s submission that she had not engaged in criminal offending since August 2020 (being the last date recorded for some of the dates of offending) the Tribunal cannot overlook the fact that the applicant has engaged in repeated criminal behaviour and that attempts to assist her appear to have been unsuccessful, noting the imposition of a community corrections order that was breached by not engaging with that order on her own admission to the Tribunal.

39. The applicant submitted that things were now different. She was off drugs and her time in criminal custody and immigration detention have served a valuable lesson. She claimed that she wanted to get her life back on track and that she has no associations with people who were associated with drugs. She cited the support that she now has from friends which was absent prior. The Tribunal notes the letters of support provided to the Tribunal to confirm that this was the case.

40. When weighing up the applicant’s past criminal offending against the offers of support now provided for the applicant, the Tribunal is still not satisfied that the applicant would not engage in criminal conduct if granted the bridging visa. In the Tribunal’s judgment, the incentives for her to abstain from criminal offending do not go far enough to satisfy the Tribunal that the applicant will not engage in criminal conduct on the bridging visa.

41. Therefore, the Tribunal is not satisfied that the applicant will comply with condition 8564.

    Conditions 8506 and 8512

42. The Tribunal concedes that there is no evidence of the applicant being requested in the past to report a change of address to Immigration but did not do so and accepts that the applicant had never been directed to depart Australia by a certain date.

43. The Tribunal has had regard to the applicant’s migration history as follows:

44. On [date] February 2015 the applicant arrived in Australia holding a student visa. She has not departed Australia since her first arrival in Australia. That visa was valid until 15 March 2018.

45. On 25 May 2018 the applicant was granted another student visa. That visa was valid until 30 August 2020.

46. On 13 July 2021 the applicant applied for a protection visa. On 23 August 2021 a delegate refused to grant the protection visa. On 30 August 2021 the applicant applied to the Tribunal for review of this decision. On 14 December 2021 the Tribunal affirmed the decision in AAT case 2111464. On [date] January 2022 the applicant applied to the Federal Circuit and Family Court for judicial review of the Tribunal decision. On [date] September 2022 the Federal Circuit Court dismissed the judicial review.

47. The applicant’s migration records demonstrate that the applicant had been an unlawful non-citizen for the following periods:

48. 30 August 2020 until 22 October 2020 (when she was granted a bridging visa on the basis that she would lodge a substantive visa application which she did not do within the provided timeframes, causing the bridging visa to cease).

49. 30 October 2020 until 24 August 2022 (when she was granted a bridging visa on the basis that the applicant had ongoing judicial review proceedings and would comply with bridging visa conditions. The bridging visa ceased on 25 October 2020 after the judicial review was dismissed).

50. The applicant told the Tribunal that she was not aware that her judicial review had been dismissed because she failed to appear. She told the Tribunal that she was in hospital at that time. It was during that time that she apparently completed a Victims of Crime Assistance Tribunal application which she provided to the Tribunal. When the Tribunal pointed out that she was obliged to leave Australia when she no longer held a visa to remain in Australia (following the dismissal of her judicial review application), she said that she did not know that her judicial review had been dismissed and that her life was not stable.

51. The Tribunal accepts that any time the applicant was in criminal custody as an unlawful non-citizen she could not be responsible for her unlawful status at that time, nor was she in a position to leave Australia. The Tribunal also accepts that the applicant lodged various bridging visa applications in an attempt to regularise her migration status, but those applications were refused.

52. However, the fact remains that it was incumbent on the applicant to be aware at all times of her visa status and for her to be diligent in the approach to her migration matters. The Tribunal does not accept that the applicant has been diligent in the past. This has meant that she has found herself at time to be without visas in Australia because she did not pay attention to her migration status. Likewise, the fact that she had no idea that her judicial review application had been dismissed demonstrated that the applicant had little interest in knowing about her migration status.

53. The Tribunal is satisfied that the applicant’s past conduct is indicative of her likely future conduct, despite the current support she has from friends, and despite her claim that she would comply with bridging visa conditions because she desired to offload property in Australia and needed to be in the community to do so, needed to organise to be reimbursed monies, and wanted to remain in the community for a period of time to obtain originals of her education qualifications and organise to settle her debts to the Commonwealth and State authorities (the latter of which appeared to be related to driving infringement notices according to her oral evidence).

54. The Tribunal also notes that the applicant has previously applied for a protection visa indicating that she fears returning to India. The applicant initially suggested in her oral evidence to the Tribunal that she would return to India but reside in Delhi away from her family and planned to depart India on a visa for another country. Later in her oral evidence at the subsequent Tribunal hearing she suggested that she would marry the person arranged by her parents and that she would try to build her life in India. She said that she wanted to avoid a ‘deportation sticker’ being on her passport because she believed this would affect her ability to either return to Australia or successfully apply for a visa to another country.

55. The Tribunal does not accept that the applicant would now leave Australia and return voluntarily to India because she is now supported by her sister. The Tribunal’s assessment is that the applicant’s protection visa application is demonstrative of her unwillingness to depart Australia, and that if she is released from immigration detention on a bridging visa to depart Australia by a particular date, or depart Australia in accordance with her ticket booking, she will not do so. She has never left Australia since her initial arrival and the Tribunal is not satisfied that she will now do so. The Tribunal is satisfied this means that the applicant will not report any change of address to Immigration (because she will not want to be found), and that she will not depart Australia by a certain date if requested to do so by Immigration.

56. For those reasons, the Tribunal is not satisfied the applicant will abide by Conditions 8506 or 8512.

1. When the Tribunal considers the above matters, it comes to the conclusion that:

2. The Tribunal cannot be satisfied that the applicant would not engage in criminal conduct if released on the bridging visa.

3. The Tribunal cannot be satisfied that the applicant would notify Immigration of any change of address as she would seek to avoid the Department knowing where she was for the purpose of removal from Australia.

4. The Tribunal cannot be satisfied that the applicant would leave Australia by a date specified by the Minister as she has no intention of leaving Australia to return to India.

   Conditions 8101 and 8207

5. The Tribunal accepts that the applicant has not worked in Australia for a significant period of time and that she has not studied in Australia for a significant period of time. She told the Tribunal that she completed the studies for which she was granted the most recent student visa and had no further intentions to study in Australia. She also said that she had not worked due to her drug addiction and provided letters of support which indicated that her living expenses and accommodation would be provided by friends in Australia, which meant that the applicant would not need to work.

6. However, the fact that the Tribunal is satisfied that the applicant would abide by conditions 8101 and 8207 does not alter the fact that the Tribunal is not satisfied that she would comply with the other conditions which would be imposed on the bridging visa.

   Eligible non-citizen – cl 051.211 

7. 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

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

   Nathan Goetz
   Member