2310754 (Migration)

[2023] AATA 3495

2310754 (Migration) [2023] AATA 3495 (28 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2310754

MEMBER:Wendy Banfield

DATE:28 July 2023

PLACE OF DECISION:  Canberra

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

Statement made on 28 July 2023 at 4:23pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions – migration history – student visa cancelled, periods as unlawful non-citizen and application for protection visa refused – Federal Court appeal in progress – criminal convictions, intensive correction order revoked, imprisonment and immigration detention – vague and evasive account of migration history and offences – AVO in place – offer of accommodation, support and security deposit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 75, 189(1)
Migration Regulations 1994 (Cth), item 1305(3)(c), Schedule 2, cls 050.212(3), 050.223, Schedule 8, cls 8101, 8401, 8506, 8564

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 17 July 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).

3. The decision to refuse to grant the visa was made on 20 July 2023 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:

   ·     On 20 December 2007 you were granted a Student (Class TU) (Subclass 571) visa and travelled to Australia on this visa on [in] January 2008. You have not departed Australia since this arrival. On 05 February 2008 you were granted permission to work on your visa. On the 16 December 2008 your Student (Class TU) (Subclass 571) visa was cancelled under section 116 of the Act because you breached conditions of your visa. Following the cancellation of your visa, you became an Unlawful Non-Citizen (UNC) and concealed yourself in the community.

   ·     On the 03 September 2012, you lodged an application for a Permanent Protection (Class XA) (Subclass 866) visa as a dependant applicant. You were subsequently granted a Bridging C (Class WC) (Subclass 030) visa in association with this application on the same day. This application was refused on the 16 July 2013. You lodged an application for a review of this refusal at the Refugee Review Tribunal (RRT) on the 07 August 2013 and were subsequently granted a further Bridging C (Class WC) (Subclass 030) visa on the 03 September 2013 in association with this review. On the 14 October 2014, the RRT made a decision to affirm the refusal of your Permanent Protection (Class XA) (Subclass 866) visa.

   ·     You then lodged a Judicial Review of this refusal on the 06 November 2014 at the Federal Circuit Court (FCC). You were granted a Bridging C (Class WC) (Subclass 030) visa on the 07 November 2014 in association with this review. On the 10 August 2016, your Judicial Review was finalised in the Ministers favour. On the 09 September 2016, you lodged a further Judicial Review at the Full Federal Court (FFC) of this decision. On the 02 April 2019, the Minister withdrew from the review and the decision was remitted back to the Administrative Appeals Tribunal (AAT). On the 25 February 2020, the Tribunal made a decision to once again affirm the decision to refuse your Permanent Protection (Class XA) (Subclass 866) visa. On the 23 March 2020, you lodged a further Judicial Review at the FCC in relation to this decision. You were granted two Bridging C (Class WC) (Subclass 030) visas in relation to your Judicial Review on the 11 June 2020 and 15 July 2020 respectively. On the 06 August 2020, the Minister withdrew from the Judicial Review and the decision was remitted back to the AAT.

   ·     On the 07 December 2020, you were convicted with contravene prohibition/restriction in AVO (domestic) and you were sentenced to a 12-month Conditional Release Order without conviction.

   ·     On the 12 March 2021, you were convicted of resists officer in execution of duty –T2 and two (2) counts of assault occasioning actual bodily harm (DV) – T2. You were sentenced to a two (2) year Intensive Correction Order (ICO) as a result of these offences.

   · On the 08 September 2021, your Bridging C (Class WC) (Subclass 030) visa was cancelled under s116(1)(g) reg 2.41(1)(ao) of the Migration Act due to your criminal convictions. Following this visa cancellation, you once again became an UNC. On the 15 September 2021, you lodged a review of your visa cancellation with the AAT. This resulted in a decision to affirm the visa cancellation on the 15 March 2022.

   ·     On the 22 September 2021, you lodged an application for a Bridging E (Class WE) (Subclass 050) visa. This application was refused on 31 March 2022 as you did not meet the interview criteria for this visa.

   ·     On the 04 July 2022, a decision to affirm your Permanent Protection (Class XA) (Subclass 866) visa was handed down by the AAT.

   ·     Your ICO was revoked and on 01 March 20203 you were arrested and taken to prison to serve out the 8 months of your sentence from your 2021 DV convictions. On the 04 May 2023, you were released from criminal custody and then detained by the Australian Border Forcer (ABF) under s189(1) of the Act and transferred to Villawood Immigration Detention Centre where you currently reside.

   ·     On the 31 May 2023, you lodged a further Judicial Review at the Federal Court of your Permanent Protection (Class XA) (Subclass 866) visa. At the time of this assessment, this review remains ongoing.

   ·     Whilst in immigration detention, you have made four applications for a Bridging E (Class WE) (Subclass 050) visa. Of these applications, two applications were refused and two were found to be invalid. On 23 June 2023 you lodged a review with the AAT in relation to one of the Bridging E (Class WE) (Subclass 050) visa refusals. On 23 June 2023 the AAT finalised the review as No Jurisdiction due to Timeframes not being met.

   · On the 17 July 2023, you lodged a further application for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. The Detention Review Officer was informed of the application on the 18 July 2023 as required under item 1305(3)(c) of the Migration Regulations. It is this BVE application that is currently under assessment.

5. The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, [Mr A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. Prior to the hearing, the applicant submitted the following evidence:

   ·     Department of Home Affairs (the Department) notification and decision record dated 20 July 2023.

   ·     Written statement of [Mr A] dated 10 July 2023.

   ·     Representative’s submission dated 21 July 2023.

8. The Tribunal also considered the information provided to the Department at the time of application.

   Evidence at the hearing

9. The applicant confirmed he had been in criminal custody before he was taken into immigration detention. When asked why he wanted to be granted a Bridging Visa, the applicant said he is hoping he will be granted protection in Australia and wants to wait for the outcome of his matter that is before the courts. The applicant advised he is married and said he had been living with his wife. He said after an AVO was taken out, he was living outside [Suburb], in New South Wales. Regarding his employment, the applicant advised he had been [an Occupation] when visa conditions had allowed him to work. It was submitted that if he was granted a Bridging visa, he has a friend who can support him, and he may apply to be able to work in future. The applicant indicated the witness, who was appearing at the hearing is the friend who can provide support and accommodation. When asked how he knows the witness [Mr A], the applicant said he met him while he was working at the [workplace].

10. The Tribunal asked the applicant about the period between 2008 and 2012 when his Student Visa had been cancelled and he remained in Australia unlawfully. He said he had not known that his visa was cancelled because he was [very young at the time]. He stated he had only studied in Australia for two months. The Tribunal put to him that the purpose of the Student Visa was to undertake a course of study and return to his home country. The applicant said he had not known what to do and had just stayed in his room.

11. When asked why he waited four years to apply for a Protection Visa, the applicant said he had not known about it until he met his wife. He said if she had not told him he would still be hiding in his room. The Tribunal put to the applicant that it did not appear very likely he would remain at the same address and report to the Department if he were granted a Bridging visa. The applicant disagreed and said now he has his agent as well as his friend when he had previously been alone. The applicant was asked what he plans to do if his application for a Protection Visa is refused, and he said he will follow the courts order and get ready to depart. The Tribunal asked how it could be satisfied he would not hide himself in the community again. The applicant repeated that he now has an agent to advise him and his friend who will help. The applicant then stated he had been afraid of telling friends about his status in Australia in case they reported him to the Department.

12. The Tribunal advised the applicant a condition attached to any Bridging Visa would be that he must not engage in criminal conduct. He was asked about the circumstances in which he was previously charged and convicted of assault. The applicant stated the AVO against him was wrong and it was the police who pursued the matter against him. He said it resulted from a verbal argument between him and his wife. The applicant said he was taken to the police station where he had thought he would be in custody for a few hours but was there for four days. He then gave an account of an episode after his release that required him to report to police. He said he had passed his house on the way and stopped to pick up his car. This led to a further prosecution even though the applicant claimed he had been told he was allowed to make a stop at his residence. The Tribunal asked again what had happened that led to him being charged with assault occasioning actually bodily harm and noting it must have been more than a verbal argument. The applicant denied he had engaged in anything physical against his wife and claimed it was just a disagreement. He said he had wanted to engage a lawyer, but his wife was concerned about the cost, so he just plead guilty.

13. The applicant was asked how the Tribunal could be satisfied he would comply with visa conditions if he were granted a Bridging Visa. The applicant stated he is having a difficult time in immigration detention, and he will respect the Tribunal’s decision. The applicant stated he wanted to get out of detention as soon as possible as he is fearful and wants to go and take care of his children.

    Evidence of the witness

14. The witness [Mr A] gave evidence in support of the applicant. [Mr A] said they know each other because the applicant’s wife is friends with his girlfriend. He said he became aware of what had been happening between them and wanted to help the couple get back together. [Mr A] said he was concerned the applicant was not with his children. The witness said he is aware of the applicant’s background and is prepared to help him because he has children and a family himself. The Tribunal pointed out to the witness there is an AVO in place because of domestic violence perpetrated by the applicant. [Mr A] stated everybody makes mistakes and he wants to put the applicant on the right path.

15. [Mr A] advised he can provide the applicant with accommodation and said he would not have to pay any rent. When asked about his own circumstances including employment, the witness said he works at [Workplace] [doing a job task]. He outlined his living arrangements and other property holdings and stated he had enough resources to provide for the applicant. [Mr A] indicated he could provide a security deposit if required. The Tribunal asked about his savings and the amount he would be prepared to deposit. He suggested $5,000 or $10,000.

16. The applicant’s representative stated [Mr A] could pay a $10,000 deposit and that the amount could be increased if necessary.

17. For the following reasons, the Tribunal has concluded the matter before the Tribunal 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.

    Preliminary issue – s.75 of the Migration Act

19. The applicant’s representative made a submission to the Tribunal dated 21 July 2023 in which it was claimed the Department had violated s 75 of the Act because it did not make a decision within the prescribed period, that being two days after the application was made. According to the Department’s decision record, the application for a Bridging Visa was made on 17 July 2023 and a decision was made on 20 July 2023. According to the representative’s submission, the decision maker failed to adhere to the legislative timeframe and for this reason, the applicant should be deemed to have been granted a Bridging Visa pursuant to s 75 of the Act.

20. The Tribunal advised the applicant and his representative during the hearing that it had considered the submission but finds the role of the Tribunal is to review a decision to refuse to grant a visa, and there is a purported decision before it. It is the Tribunal’s view that the validity of actions by the Minister is a matter for the courts and not the Tribunal. The hearing proceeded on that basis with the agreement of the parties.

    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. 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].

23. 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.

24. 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.

25. 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, the applicant’s oral and written evidence and the evidence of the witness as set out above.

26. The Tribunal notes the applicant remained in Australia unlawfully from 16 December 2008 after his Student Visa was cancelled until 3 September 2012 when he lodged an application for a Protection Visa as a dependent applicant. During the Tribunal hearing the applicant referred to his youth and lack of knowledge as a reason and claimed he stayed in his room. The Tribunal is not persuaded the applicant has been truthful about his reasons for being unlawful or what he did during that period and found him to be evasive about his activities. The Tribunal finds it unlikely the applicant stayed in his room and rarely went out for nearly four years. In addition, the applicant stated during the hearing that he had been afraid of telling friends about his status in Australia in case they reported him to the Department. This indicates he was well aware of his unlawful status and what the consequences may be. It also demonstrates he actively avoided rectifying his situation. The applicant was asked what he plans to do if his Protection Visa application is not successful, and he claimed he would arrange to depart from Australia. The Tribunal is not satisfied the applicant would depart and based on is immigration history in Australia, considers he would once again conceal himself in the community. The Tribunal is not satisfied the applicant would notify the Department of a change of address or that he would continue to report at a specific time and place as would be required if he were granted a Bridging visa.

27. In a written statement and in oral evidence to the Tribunal the witness [Mr A] declared he would provide the applicant with accommodation and support and that the applicant would not be required to pay rent. [Mr A] stated he has the financial means and suitable properties for the purpose of supporting the applicant. The applicant stated he knows [Mr A] from work, and the witness said his source of income is from his work at [Workplace] [doing a job task]. If the applicant were to be granted a Bridging visa and resided with [Mr A], the Tribunal does not accept the applicant would comply with the no work condition. This is because the applicant said he met [Mr A] “from working at the [workplace]” and although [Mr A] claimed the applicant would not have to pay rent, the Tribunal is concerned the applicant may nevertheless engage in tasks or activities for him that would be considered work. This assessment is based on the applicant’s history of disregard for Australia’s migration laws.

1. During the Tribunal hearing the applicant was asked about the circumstances that led to him being convicted of criminal offences. The applicant was vague and evasive about the events and did not provide details of what had occurred. He denied that anything physical took place and claimed the matter was wrongly pursued against him by the police. It was claimed the applicant wanted to seek the advice of a lawyer, but his wife had been concerned about the cost and it was for this reason he was forced to plead guilty. The applicant did not take any responsibility for his offending or appear to have any insight into the matter. He advised he wanted to be granted a Bridging visa to allow him to take care of his children, however, there is currently an AVO in place that that protects his wife and [children]. Based on the applicant’s apparent lack of understanding or acknowledgement of the seriousness of his criminal convictions, the Tribunal is not satisfied he would comply with the condition that he must not engage in criminal conduct.

2. The Tribunal has considered whether the applicant would be likely to abide by visa conditions if a security deposit were provided. Based on the applicant’s immigration history in Australia and his past failures to abide by the law, the Tribunal is not satisfied the applicant will comply with conditions regardless of any security deposit.

3. 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.

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

5. 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

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

   Wendy Banfield
   Member