2312799 (Migration)

[2023] AATA 3255

2312799 (Migration) [2023] AATA 3255 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mukesh Chand (MARN: 0962241)

CASE NUMBER:  2312799

MEMBER:Lilly Mojsin

DATE:7 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2023 at 11:16am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – periods of unlawful residence – applicant convicted of several offences – intended partner visa application – abiding by visa conditions – No Work condition – failing to report twice – acceptable arrangements to depart Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 73, 74, 137, 140, 189, 194-196
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223; 051.211; 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
Liu v Minister for Immigration & Anor [2008] FMCA 725

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) [BVE] visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 August 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, 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 050.212(2).

3. On [date] November 2018, the applicant entered Australia on a Subclass 601 visa granted offshore on 20 October 2018, valid until 13 December 2019. The applicant entered and departed Australia a number of times on this visa. A second Subclass 601 visa was granted to the applicant offshore, on 23 September 2019, which was valid until 13 December 2019 and the applicant entered Australia on that visa [in] September 2019.

4. On 13 December 2019 and 15 May 2020, the applicant was granted onshore Subclass 600 visas, the last of which was valid until 24 September 2020.

5. On 1 April 2021, the applicant was granted a Bridging C visa which was valid until 11 April 2023. After the Bridging C visa ceased, the applicant remained in the community as an unlawful non-citizen until located by Australian Boarder Force (ABF) officers [in] June 2023 and detained pursuant to sec.189(1) of the Act.

6. [In] December 2022, the applicant was convicted of possession of Prohibited Drug (Methyamphetamine) and fined $200. The applicant was also convicted of possession of drug paraphernalia containing prohibited drug/plant and fined $100 and issued an order for destruction.

7. The applicant was charged with the following offences:

   ·    [In] June 2023,           Gains Benefit by Fraud

   ·    [In] March 2023,         Steal Motor Vehicle

8. The Department’s file contains details of the applicant’s charges, convictions, alerts and warnings including statements of material facts and other information (the offences’ summary). In relation to the charge made [in] March 2023, the applicant was released on bail on the condition that she report to [Police Station 1] every Wednesday between 8:00 am and 4:00 pm. On [a day in] May 2023, the applicant did not report, and when contacted, stated that she had been unable to report as she had COVID-19 and she was advised to provide a medical certificate. [Days later], the applicant was contacted as no medical certificate had been provided. A medical certificate from ‘Instant script’ was immediately emailed to the police station. After further investigation she was required to report to [Police Station 1] every Wednesday between 8:00 am and 4:00 pm. On [the day in] May 2023, the applicant did not report, and it was discovered that the script had been altered and cropped, and the actual date it was issued was [in] April 2023.

9. On [a day in] June 2023, the applicant was interviewed at [another] police station and her responses and other information was recorded in the Field Operation Locate Person Interview (location interview) Form, and were as follows:

   ·    The applicant had an expired passport in her possession.

   ·    Her last addresses were from December to March 2023 in a share house in [Town 1], Western Australia (WA) but she does not know the address. Then since March 2023 at [Address 1 in] WA with three other people.

   ·    The applicant was divorced in 2021. Her current partner is [Partner A] who provides her with support, but they are not living together.

   ·    When asked how much money she has in Australia, the applicant said she has $400 in her account. Her rent is $110 per week.

   ·    When asked if she intended to apply for an Australia visa, the applicant stated a partner visa maybe, and that she would leave if she had no other option. She would leave voluntarily, and her mother will purchase and airline ticket.

10. On 28 June 2023, the applicant was interviewed whilst in immigration detention (the detention interview). The applicant is recorded as having stated the following at her detention interview:

    ·    The applicant will gather up her documents and apply for a Partner visa as she has been in a relationship with [Partner A] for 4 years.

    ·    She has $470 in savings but when it was explained that this is not enough to apply for a partner visa, she stated that her partner will pay for a visa application. The applicant stated that her partner has around $10,000 and is a FIFO.

    ·    When asked why she had not already applied for a partner visa while in the community for 4 years, the applicant stated that they had been advised more time was needed to be eligible.

    ·    When asked about the contradiction between the applicant providing a valid passport to apply for a Bridging visa and her advising ABF officers when detained that her passport expired, the applicant stated that she had told the officers that she did not know the whereabouts of her valid passport, but her partner had now found the passport.

    ·    When asked about her convictions, the applicant claimed that they were spent convictions and she is not guilty of the charges she is facing. She clarified that it was her partner who stole the car, and she was not involved, and she did not know the car was stolen.

11. On 26 June 2023 the applicant applied for a BVE and on 29 June 2023 the applicant’s BVE application was refused. On 29 June 2023 the applicant lodged an application with the Tribunal[1] for a review of the decision to refuse her BVE and on [date] July 2023 the Tribunal affirmed the decision to refuse the applicant’s BVE.

    [1] AAT [case number]

12. On 14 July 2023 the applicant lodged a Protection (XA-866) visa application. On 3 August 2023 the applicant’s Protection (XA-866) application was refused.

13. On 9 August 2023 the applicant’s further BVE was determined to be invalid under s 74 Migration Act as it was made within 30 days of a determination of a review application.

14. On 17 August 2023 the applicant lodged an application for a BVE.

15. The decision to refuse to grant the visa was made on 22 August 2023 on the basis that the delegate was not satisfied that the applicant met 050.212 (3) as the timeframes to make any applications had passed and the applicant was not making acceptable arrangements to depart Australia.

16. The applicant was represented in relation to the review. The applicant’s representative attended the hearing. The applicant had not provided any submissions to the Tribunal or any documents in support of her claims.

17. The applicant appeared before the Tribunal on 29 August 2023 to give evidence and present arguments via video, from [a named] Detention Centre to give evidence and present arguments. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.

18. The Department decision lodged with the applicant’s review application indicated:

    §The applicant was applying for a bridging visa so that she can leave the detention centre and then lodge a de facto partner visa with her partner.

    §She had $930 in her partners account

    §She did not provide her valid passport or travel ticket to the Department

19. The applicant told the Tribunal that she has $9300 in her bank account. Her partner has her  passport and has not brought it to her as he lives some distance away. She has made no arrangements to depart Australia. She has made no application for any visas and she confirmed that she applied for a protection visa, it was refused and she did not appeal that refusal within the time permitted ie 7 days.

20. It was put to the applicant that s.195 provides that detainees may apply for a visa within 2 working days (following compliance with s 194) or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply. The applicant did not suggest that she had informed an officer in writing of her intention to apply for a spouse/partner visa or that she subsequently applied within the time required by s.195.

21. The applicant’s adviser submitted, at hearing, that the applicant intends to apply for a partner visa when released. It was put to the applicant’s adviser that no evidence has been provided to the Tribunal nor any submissions in support of her application prior to the Tribunal hearing and the Tribunal was of the view that the s.196 bar was effective in this instance.  The applicant’s advisor submitted to the Tribunal that this view was incorrect. The Tribunal gave the applicant additional time after the hearing to provide further submissions, on which the applicant relied.

22. Post hearing the applicant provided the following:

    §Copy of applicant’s passport

    §Bank statement of applicant and [Partner A] opened 16 July 2023 and showing a balance of $9035 on 13 August 2023

    §Loan letter, dated 4 August 2023, from [the father of Partner A] lending his son [Partner A] $9000

    §Submission from the applicant’s adviser reiterating the submission made at the Tribunal hearing that the applicant satisfies clause 050.21(3)(b) as she will be applying for partner visa when she gets released from the detention centre.  It was argued that cl. 050.212(3)(b) does not require that s195(1) is to be met as it is a stand-alone clause for any applicant who applies for a bridging visa, and that is without any reference to s195.  Furthermore, the “period allowed by the minister for the purpose” has not been defined and has not been referenced to s195. This period is a period that the minister will determine when granting the bridging visa so that the applicant can lodge a substantive visa during that time.

23. The Tribunal invited the applicant to a second hearing.

24. The Tribunal asked the applicant about her living circumstances prior to detention. She advised the Tribunal that her partner, due to his criminal conviction, was required to live with his father. She did not live with them because there were 6 people living in the house and there was an issue with the dogs. Since their arrest over a car theft she has been living at [Town 2]. Her partner has been supporting her. Living in the house in [Town 2] were 2 house mates. She was required to pay $120 per week rent to [Mr B’s] mother, her house mate, who owned the house. She had met [Mr B] when she moved into the house through a mutual friend.

25. Discussing with the applicant the issue of financial support, the applicant told the Tribunal that her partner was in receipt of Social Security of $750 per fortnight. The Tribunal put to the applicant that this meant he had $510 per fortnight or $255 for 2 people to live per week, after payment of her rent. She said that once she was released and applied for the partner visa, she would get a job. She also said that once her partner was able to return to work, he had a FIFO job. At his father’s house he has no expenses. When queried about payment of living expenses, she said that she paid for her own food and shared outgoings with her flatmates. The Tribunal expressed its concerns that they would not be able to support themselves and she said that she budgeted really hard.

26. When asked why she and her partner paid [Mr B] money from their bank account she said he is a really good friend and needed to borrow some money.

27. The applicant was advised that if she were to be released, the Tribunal considered it appropriate to impose the following conditions for the grant of a BVE:

    ·8101 (No work) – Mandatory

    ·8207 (No Study)

    ·8401 (Report as directed)

    ·8506 (Notify change of address)

    ·8564 (Not engage in criminal conduct).

28. Discussing her criminal convictions she said she made a mistake. Whilst she was in the stolen, with her partner, she was not aware it was stolen. The Tribunal asked how it could be satisfied she would not engage in criminal conduct given her convictions and in particular failing to report twice, as part of her bail conditions, because reporting conditions are an important consideration her application. She said that she had failed to report the first time because her brother was in an accident. She knew if she needed to fly home she could not and she fell into depression and she went to the doctor. The second time she was ill with COVID. She said that she got a medical report from the doctors. She agreed that she altered the first medical certificate.

29. The Tribunal asked why she and her partner borrowed $9 000 from her partner’s husband. She said it was to pay for a partner visa, the cost is $8 860.

30. The applicant intends, if released, to move back to the shared house and not live with her partner, unless required to do so. He plans to move into [Town 2] once his curfew is over. He has a court date [this month].

    CONSIDERATION OF CLAIMS, EVIDENCE AND FINDINGS

31. 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.

32. The applicant was detained [in] June 2023. As the applicant is in immigration detention s.195 of the Act is relevant and states:

    Detainee may apply for visa

    (1)  A detainee may apply for a visa

    (a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

    (b)  if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.

    (2)  A detainee who does not apply for a visa within the time allowed  by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

33. When put to the applicant that detainees may apply for ‘a visa’ within 2 working days (following compliance with s 194) or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply, she did not suggest that she had made an application for the view within the time allowed by s.195 of the Act.

34. Clause 050.212(3)(a), is concerned with a valid application for a substantive visa already made. Alternatively, cl 050.212(3)(b) requires the Minister to be satisfied that the applicant will apply in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

35. The applicant’s adviser contends that cl 050.212(3)(b) allows the applicant to apply for a partner visa once the bridging visa is granted and the applicant is out of detention and cl.050.212(3)(b) does not require that s195(1) is to be met as it is a stand-alone clause for any applicant who applies for a bridging visa, and is without any reference to s195.  He also contends that the “period allowed by the minister for the purpose” has not been defined and has not been referenced to s195. This period is a period that the minister will determine when granting the bridging visa so that the applicant can lodge a substantive visa during that time.

36. The interaction between cl 050.212(3)(b) and s.195 was considered in obiter comments in Liu v MIAC. The Court considered that for cl 050.212(3)(b) to be engaged the Minister must have allowed for an application for a substantive visa to be made, noting that the use of the past tense of the verb ‘allow’ means that an applicant must demonstrate they are within time to apply for a particular visa if released from detention, without any further time to be allowed for that purpose.

37. The Court also accepted the Minister’s submission that the expression ‘of a kind that can be granted if the applicant is in Australia’ in cl 050.212(3)(b) requires that a substantive visa could be granted to the applicant at the time of their bridging visa application. There must be evidence of an intention by the applicant to make a further visa application and to demonstrate that, if released from detention, they would be within time to apply for a visa without any further time being allowed.

38. The Tribunal accepts that the applicant notified her intention of applying for a partner visa when she made her BVE application. In this instance, she did not apply for a partner visa within 2 working days after the day on which section 194 was complied with in relation to her detention. As she informed an officer in writing within those 2 working days of her intention to so apply she was required within the next 5 working days after those 2 working days to apply for the partner visa. The applicant did not so apply.  She does not meet cl.050.212(3)(a).

39. Clause 050.212(3)(b) allows an applicant for a substantive visa, who is entitled to apply for such a visa, more time in which to do so by the grant of a bridging visa. However, in Liu v MIAC the Court was of the view that the grant of a bridging visa under s 195(2) should not be used to circumvent the plain legislative intent of s 195(1) so as to enable an applicant to be released from detention.

40. I concur with the obiter views in Liu v Minister for Immigration & Anor [2008] FMCA 725 (6 June 2008) at 54 and 55

    “Further, as the Minister submits, subclause 050.212(3)(b) seems to require, as a condition of its satisfaction, that a substantive visa could be granted to the applicant at the time of his application for a bridging visa. The use of the words “of a kind that can be granted” uses the present tense, namely at the time the application is made for a bridging visa. Because of s.195(1) of the Act, because the applicant is a detainee, he cannot apply for a substantive visa whilst he is in detention.

    What the subclause does is allow an applicant for a substantive visa, who is then entitled to apply for such a visa, more time in which to do so by the grant of a bridging visa. There may be a need to obtain documents, or some other evidence to satisfy the Minister of the entitlement to the substantive visa. The subclause should not, in my view, be used as a device to be released from detention, which is what the applicant seeks to do. I accept the Minister’s submission that the grant of a bridging visa under s.195(2) of the Act should not be used as a means of circumventing the plain legislative intent of s.195(1) of the Act.

41. The applicant has not provided any information to the Tribunal for it to be satisfied that within the time frame permitted she had taken some action that could indicate she had applied for the visa. The Tribunal find that the s 195 Bar took effect. Therefore the applicant cannot satisfy cl 050.212(3)(b) unless the substantive visa application is for a protection visa and in this instance, the applicant has applied for a protection visa, it has been refused by the Department and no application for review was made, within the required time limits.

1. The Tribunal has considered the applicant’s argument that the obiter views in Liu v MIAC should not be followed. The Tribunal does not concur.

2. As the applicant was detained [in] June 2023, the time frame to make a partner visa application has passed. The applicant is therefore unable to make an application, or will apply, within a period allowed by the Minister, for a substantive visa of a kind that can be granted if the applicant is in Australia.

3. The applicant does not meet cl. 050.212(3)(b).

4. The Tribunal has considered if the Tribunal is wrong and the alternative view, as submitted by the applicant’s advisor is correct.

5. 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.

6. 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].

7. 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.

8. In this review, cl 050.223 applies because the applicant meets the requirements of cl.050.212(4)(a) 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.

   8207          (NO STUDY)

   The holder must not engage in any studies or training 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.

9. In assessing whether the applicant will comply with visa conditions, the Tribunal considered her immigration history, current circumstances and any other relevant matters.

10. The applicant became an unlawful non-citizen on 11 April 2023. During the Tribunal hearing the applicant was asked how she would be able to support herself if she were unable to work. The applicant advised that if granted a BVE, she would abide by conditions and she would be supported by her partner.  

11. In considering whether the applicant would comply with mandatory condition 8101 (No work), the Tribunal has had regard to the applicant's financial circumstances. The applicant lives in a shared house with 2 other flat mates. She stated that she has no other source of income other than her partner’s income. Her partner lives with his father in a house that already has 6 persons living there and she is unable to live there. He intends to return to live with her in the shared house once his court imposed curfew ends.  She is required to pay $120 per week rent to her flat mate’s mother. Her partner is in receipt of Social Security of $750 per fortnight. When the Tribunal expressed its concerns about 2 people paying rent and living off $255 per week once the rent was paid, she said that she budgeted hard. The Tribunal does not accept, as plausible, that she would be able to do so nor does the Tribunal accept as plausible that her partner has no expenses, as claimed. The Tribunal is not satisfied that the applicant would breach condition 8101- No Work, until she obtains work rights and/or her partner is able to work and obtain an income.

12. The applicant failed to report twice to the Western Australian police. Whilst the Tribunal is mindful that her brother was in an accident and consequently she fell into depression and the 2^nd occasion she said she got COVID, she then altered a medical certificate in order to mislead the police. The Tribunal is not satisfied that the applicant would comply with condition 8401 (Report as directed).

13. The Tribunal considers that the applicant's previous non-compliance with police reporting obligations would appear to demonstrate that the applicant has an indifferent approach to her obligations and is prepared to ignore these requirements if she desires.

14. The Tribunal considers that no amount of security (should a security deposit be available) would secure the applicant’s compliance with visa conditions.

15. The Tribunal finds in light of the applicant’s present circumstances, on balance, the applicant will not comply with visa conditions.

16. There are no outstanding applications under s.137K of the Act; or an application for merits or judicial review of a specified decision, or an application for a specified court declaration or that the Minister is satisfied that (court applications excepted) such application will be made. The applicant does not meet cl.050.212(3A), (4), (4AA), (9).

17. The applicant has not held a visa that was cancelled under s.140 of the Act as the result of the cancellation of another person’s visa, and that other person has applied for revocation of the cancellation of their visa, or merits review in relation to the cancellation or decision not to revoke, or the Minister is satisfied they will do so. The applicant does not meet cl.050.212(5), (5A).

18. There is no information or evidence on the applicant’s files nor has the applicant made any claim that indicates that the applicant or her immediate family have made an application for a Court declaration or a review of a citizenship decision. The applicant does not meet cl 050.212(4AA) and (4AB).

19. There is no information or evidence to suggest that the applicant has any outstanding requests to the Minister as outlined in cl. 050.212(5B), (6), (6AA), (6B).

20. The applicant does not hold a Bridging Visa E in certain circumstances and the Minister is satisfied that the applicant has a compelling need to work; cl.050.212(6A), (8); nor is the applicant in criminal detention, and if sentenced to imprisonment or detention, has actually served a period of imprisonment and no criminal stay certificate or warrant is in issue: cl.050.212(7).

21. The Tribunal finds that the applicant does not meet cls. 050.212(3) to 050.212(9).

22. Therefore, in this review, the applicant is seeking to meet cl 050.212(2). The applicant does not meet any of the other alternative criteria in cl 050.212.

23. 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]).

24. The applicant has presented a passport. The applicant has not presented a departure ticket. She has not made any arrangements to depart despite stating in her BVE application she would leave if required. The Tribunal is not satisfied she will comply with condition 8511 (present a departure ticket) and consequently would not comply with condition 8512 (depart by specified date) if granted a BVE.

25. 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).

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

27. 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

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

    Lilly Mojsin
    Member