2303194 (Migration)

[2023] AATA 716

2303194 (Migration) [2023] AATA 716 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Cong Jennifer Trang Nguyen (MARN: 2117717)

CASE NUMBER:  2303194

MEMBER:Scott Clarey

DATE:16 March 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 16 March 2023 at 11:29am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – abidance by conditions placed on visa – must not engage in work – worked during extended periods as unlawful non-citizen – application for protection visa refused and no application for review made – no notification of change of address given and claim to have been unaware of refusal – location by police and border force, and immigration detention – acceptable arrangements to depart – finalisation of personal matters – debt in home country – vague and contradictory evidence – offer of bond by relative – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223, 050.613A; Schedule 8, Conditions 8101, 8506

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 28 February 2023. 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. On 3 March 2023 a delegate of the Minister made the decision to refuse to grant the visa because they were not satisfied that the applicant would abide by the conditions that would be placed on the visa if it was granted.

4. The applicant appeared before the Tribunal on 10 March 2023 to give evidence and present arguments. The applicant did not present any witnesses at the hearing in support of his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. [The applicant] is a [age]-year-old Vietnamese national. According to information provided in the delegate’s decision record (a copy of which was provided by the applicant to the Tribunal) the applicant last arrived in Australia [in] September 2016 as the holder of a Subclass 600 visitor visa, that ceased on 2 October 2016. After an extended subsequent period of unlawfulness, the applicant applied for a Subclass 866 protection visa in November 2017. The Department subsequently refused this application in March 2018 and the applicant did not apply for a review of that decision. Information relating to the applicant’s immigration history is discussed in further detail below (and was discussed with the applicant at the hearing).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. I note it is not in dispute that, at the time of application, the applicant met the requirements of cl 050.211 as an unlawful non-citizen and a person who was not an eligible non-citizen of the kind referred to in cl 050.211(2). Neither is it in dispute that the applicant met the requirements of cl 050.212(2) because the applicant is making, or is the subject of, ‘acceptable arrangements’ to depart Australia.

8. In view of the information and evidence before me, I am satisfied that the applicant meets the criteria in cl 050.211 and cl 050.212 and that, at the time of this decision, he continues to meet those criteria and thus he meets cl 050.221. The Tribunal is also satisfied that cl 050.222 is met.

9. As was explained to the applicant at the hearing, the issue in this case is whether, if the visa is granted, the Tribunal is satisfied that the applicant will abide by the conditions that will be placed on the visa. That is, the issue is whether, at the time of decision, the applicant meets cl 050.223. I note that matters relevant to this issue were discussed at length with the applicant at the hearing, and he was given multiple opportunities to provide oral evidence that he considered relevant to the review.

   Certificate issued under s 376 of the Act

10. I informed the applicant at the hearing that the Department had issued a certificate under s 376 of the Act over information on the Department’s file and gave the applicant’s representative a copy of the certificate. I told the applicant that I considered the certificate to be valid. I gave the applicant and his representative an overview of the information covered by the certificate, various key elements of which were disclosed in the delegate’s decision record. The applicant’s representative indicated to the Tribunal that she accepted this and did not make any submissions related to the certificate. The Tribunal considers that it has complied with its obligations in respect of the s 376 certificate.

    Applicant’s immigration history

11. The primary decision outlines the applicant’s immigration history in some detail. I discussed with the applicant at the hearing key events from his immigration history as outlined in that decision and asked him to confirm whether those details were accurate. When asked, the applicant agreed with and/or confirmed key details of his immigration history as outlined in the following excerpt from the decision record below:

    [In] September 2016, you arrived in Australia holding a Visitor (FA-600) visa with a cease date of 02 October 2016. I note condition 8101 No work was imposed on this visa.

    On 03 October 2016, you became an unlawful non-citizen and remained in the community unlawfully until 3 December 2018.

    On 13 November 2017, you lodged a valid Permanent Protection (XA-866) application and granted an associated Bridging Visa C (WC-030) visa on 04 December 2017. The condition 8101 No work was imposed on this visa.

    On 20 March 2018, your Permanent Protection (XA-866) application was refused as you did not meet visa criteria. At interview on 2 March 2023 you stated you did not receive notification of this decision because you had lost your phone and failed to inform the Department of your updated contact details.

    On 25 April 2018, you became an unlawful non-citizen and remained in the community unlawfully, without holding a valid visa until the present day.

    On 30 May 2020, you were renotified of your Permanent Protection (Subclass XA-866) refusal decision. I note you did not seek review of this decision and remained unlawfully in the community. On 27 February 2023 you were located by Victoria Police (VICPOL) in relation to a theft investigation. I note you were not charged with any offences, however at interview on 2 March 2023 you informed me that you were involved in an incident where you forgot to pay for petrol on one occasion and left the bowser without paying.

    On 27 February 2023 you were referred to the Australian Border Force (ABF) and identified to be an unlawful non-citizen. You were subsequently detained under section 189(1) of the Migration Act and transferred to immigration detention at Melbourne Immigration Transit Accommodation (MITA).

    On 28 February 2023, you lodged a valid Bridging E (Subclass WE-050) application. This is the application before me.

12. At the hearing, I asked the applicant about his multiple and extended periods of unlawfulness in Australia and how this situation had arisen. He gave vague and at times evasive answers to this question, stating words to the effect that he had lost his phone and had somehow lost access to his email account, and had not received information about the protection visa refusal. I asked the applicant why he had not kept in touch with the Department and informed them that he had lost access to his phone and email as he had claimed. The applicant gave a confused response stating words to the effect that he had asked a friend to apply for the visa for him, and had asked this friend to update his information, but his friend had told him to just keep waiting. He said that he believes now it is possible that his friend was seeking to defraud him. The applicant stated that he realised it was his ‘shortcoming’ that he had not updated the Department about his contact details at the time, which had led to him being uncontactable.

13. I discussed with the applicant issues surrounding when he was notified of the protection visa decision, and when he had realised he was living in Australia unlawfully, without a valid visa. He gave a series of apparently contradictory answers, first stating that he was aware that he did not have a valid visa to stay in Australia at this time. The applicant then appeared to change his response, stating words to the effect that he thought he was waiting for the outcome of his protection visa application and did not know it had already been refused. He then said he did not find out about his unlawful visa status until he was picked up by Victoria police in February 2023. Although there is a question mark around when this second period of unlawfulness began, and his answers did not shed much light on the issue, I note that that the applicant did spend a significant (second) period of time as an unlawful non-citizen, in the time leading up to him being located by Victoria police in February 2023. I note that this is in addition to the first extended period of unlawfulness approximately between October 2016 when his original Subclass 600 visitor visa expired and the lodgement of his Subclass 866 protection visa application in November 2017 and the grant of the associated bridging visa in December 2017.

14. I asked the applicant how he had supported himself financially while remaining in Australia for several years as an unlawful non-citizen. Again the applicant gave a series of vague and at times confusing answers to the question. He said words to the effect that at the beginning his parents had sent him money before he found various jobs in restaurants that paid cash which was enough for him to live on at the time. He said that he also was engaged in an ‘online advertising’ business that he said he used to supplement his restaurant income. When I clarified this with the applicant he said that he had not worked at the restaurant while doing his ‘online advertising’ business, but that he only commenced the latter after he had quit the former, sometime in 2019. He said that from 2019 onwards all of the income he lived on in Australia had been derived from his ‘online advertising’ business.

15. I asked the applicant why he had applied for the bridging visa under review, and why he could not depart Australia directly from detention if his intention was to do that shortly after release anyway. In response the applicant stated words to the effect that he wanted the bridging visa to be granted so he could have some time outside of detention in the community to finalise various personal matters, including financial, before he departed Australia. He said that he had a car that he wanted to sell before he left the country. The applicant then stated that he owed ‘friends’ in Vietnam a significant amount of money, approximately 20,000 AUD, that he had borrowed a few months ago to settle matters related to a restaurant business in Vietnam. He stated that he was worried that his parents may be harassed in Vietnam because of this debt. I note that the applicant’s oral evidence relating to this claimed debt was at times vague and confusing.

    Whether the applicant will abide by conditions – cl 050.223

16. Clause 050.223 requires the Tribunal to be 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.

17. 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 migration 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 (2002) 70 ALD 289 at [15]–[16].

18. 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.

19. In this case, cl 050.613A applies and condition 8101[1] is mandatory. In addition to the mandatory condition (condition 8101), I consider that the following condition should be imposed in the circumstances of this case:

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

    [1] The holder must not engage in work in Australia

20. I have considered the likelihood that the applicant would abide by the abovementioned conditions if the Bridging E visa were granted. In doing so, I have had regard to the applicant’s past conduct and the oral and documentary evidence before me.

    Condition 8101: The holder must not engage in work in Australia

21. When I discussed this condition with the applicant at the hearing, he stated that he would comply and not work if the visa were granted. I asked the applicant why the Tribunal should be satisfied that he would comply with condition 8101 given his demonstrated history of having worked for extended periods when he was an unlawful non-citizen, since arriving in Australia in 2016. The applicant responded with words to the effect that he acknowledged his mistakes of the past, and that he accepted he was at fault for engaging in work in Australia when he did not have a legal right to do so. He said that in relation to the present, he ‘swear[s] on [his] family’ that he would strictly adhere to all conditions that were placed on him if the visa were granted. The applicant noted that he had not committed any criminal offences and that he regarded himself as a good ‘citizen’. He said that he needed this time to organise his affairs before he departed Australia and that he would live in [Suburb 1] with his aunty, who would support him.

22. Having considered all the evidence before me, including the applicant’s extended history of having worked when he was an unlawful non-citizen in breach of migration law, I have significant concerns that he may breach condition 8101 if the Bridging E visa was to be granted. Further, taking the applicant’s story at face value (as outlined above in relation to claimed debts owed in Vietnam), I am concerned that he may feel compelled to work in order to pay down the debt he says he owes in Vietnam. In these circumstances, I am not satisfied that the applicant will comply with condition 8101.

    Condition 8506: The holder must notify the Department of any change in their address

23. I discussed this condition with the applicant at the hearing. The applicant assured me that he would comply and notify the Department of any changes to his address. I asked the applicant why I should be satisfied of his assurance, given that, by his own admission, he had repeatedly failed to notify the Department in the past about changes to his circumstances and contact details, and the fact that he had been, by his own admission, uncontactable for various reasons (discussed above) for several years since arriving in Australia in 2016. The applicant stated that he understood that compliance with this condition would be a very important matter for him, and that he had learnt from his time in detention. He said that he did not want any further problems with the Department, and he did not want anything else to delay his departure for Vietnam.

24. I am mindful that the applicant has been an unlawful non-citizen for multiple extended periods since arriving in Australia in 2016. As outlined above, when I asked the applicant how he had come to remain in Australia without a valid visa, he gave vague and at times evasive answers to this question, stating words to the effect that he had lost his phone and had somehow lost access to his email account, and had not received information about his protection visa refusal. I asked the applicant why he had not kept in touch with the Department and informed it that he had lost access to his phone and email, as he had claimed. The applicant gave a confused response stating words to the effect that he had asked a friend to apply for the visa for him, and had asked this friend to update his information, but his friend had told him to just keep waiting. He said he now suspected his friend of fraud.

25. I do not accept the reasons the applicant has provided for why he did not update the Department of his contact details and/or the reasons he has provided for why he was uncontactable for several extended periods since arriving in Australia in 2016. Given the applicant’s repeated history of not informing the Department about changes in his address and/or contact details, I have significant concerns that he may breach condition 8506 if the Bridging E visa was to be granted.  

    CONCLUSION

26. The applicant’s evidence at the hearing indicated that he understands the seriousness of his current situation. He indicated multiple times a keen willingness to comply with any conditions attached to the visa if it were granted so that he could leave detention and return to the community.

27. Given the applicant’s immigration history as discussed above, I am not satisfied that he will abide by the above discussed visa conditions if he were granted a Bridging E visa. I have reached this conclusion because the applicant has wilfully breached significant migration laws in the past. Firstly, he did not comply with conditions associated with his original Subclass 600 visa, and chose to remain in Australia unlawfully. Secondly, he remained in Australia without a valid visa for multiple extended periods and knowingly worked without a legal right to do so throughout this period. Finally, by his own admission the applicant repeatedly failed to notify the Department of his circumstances and update his contact details (including his address) for several years, including during extended periods when he was unlawful.

28. I note that at the conclusion of the hearing the applicant’s representative said that the applicant’s aunty would be willing to offer a $10,000 security bond in order to ensure her nephew’s compliance with the visa conditions. While I am prepared to accept that a $10,000 security bond could and would be provided by the applicant’s aunty if it were required, I am not satisfied, for reasons the reasons detailed, that the applicant will abide by the visa conditions discussed above if he were granted a Bridging E visa, regardless of any security that may be imposed.

1. I consider that the applicant’s multiple and extended periods of unlawfulness – particularly given his evidence that he was aware (for at least some of this time) that he did not hold a valid visa and therefore had no lawful right to remain and/or work in Australia – is a serious matter and weighs heavily against a finding that he would comply with condition 8101. Given the applicant’s demonstrated (and repeated) history of failing to remain in contact with the Department and/or updating it with regard to his address and contact details, I am not satisfied that the applicant will comply with condition 8506 if the visa were granted.

2. On the evidence before me, I am not satisfied that the applicant will abide by the conditions imposed on the visa if granted. Therefore, I find that the applicant does not meet cl 050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

3. 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

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

   Scott Clarey
   Member