2313905 (Migration)

[2023] AATA 3583

2313905 (Migration) [2023] AATA 3583 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313905

MEMBER:Alan McMurran

DATE:20 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.223 of Schedule 2 to the Regulations; and

·cl 050.221 of Schedule 2 to the Regulations.

Statement made on 20 September 2023 at 4:13pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abidance by conditions – granted in conjunction with protection visa application – migration and criminal history – student visa cancelled and periods as unlawful non-citizen – multiple convictions, imprisonment and immigration detention – circumstances of offending – gambling addiction, homelessness and fraud offences – full admissions, guilty plea, remorse and rehabilitation course – genuine and credible evidence – financial support from mother and offers of accommodation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(3), 050.221, 050.223

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 September 2021. 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. The decision to refuse to grant the visa was made on 7 September 2023 on the basis that the delegate was not satisfied that the applicant would abide by conditions if the BVE visa were granted.

4. The applicant appeared before the Tribunal on 14 September 2023 to give evidence and present arguments. The applicant, who is a citizen of Nepal, did not require an interpreter and consented to the hearing proceeding in English. He was asked if he required an interpreter which he declined, and indicated he was ready and willing to proceed. Accordingly, the proceedings were conducted in English in accordance with the applicant’s preference and consent. The Tribunal did not discern any language difficulties and none were brought to its attention.

5. The applicant indicated he had sought some advice before the hearing from the Refugee  Advice and Casework Service (RACS), but otherwise was unassisted and was not represented for the hearing.

6. On conclusion of the hearing, the applicant sought and was granted a short period to provide further information. On 18 September 2023, the Tribunal contacted the applicant who asked for an additional short period, which request was granted.

7. On 19 September 2023, the applicant submitted 2 Statutory Declarations made 18 September 2023.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant will abide by conditions imposed on the visa pursuant to cl 050.223 of Schedule 2 to the Regulations.

   Background

10. The applicant is a [Age]-year-old citizen of the Federal Democratic Republic of Nepal. He confirmed his birthdate for the Tribunal. He has a current passport which he has lost since arrival in Australia and which has not yet expired. He said he can obtain a new one when required and that he has attended biometric testing with the Department to confirm his identity and which the Department has on his file records. The Tribunal found it was satisfied as to the applicant’s identity.

11. The applicant is a single man with no dependents and no relatives in Australia. He has family in Nepal including his mother and [brothers]. His father and sister are deceased.

12. The applicant arrived in Australia [in] February 2018 on a student TU Subclass 500 visa. This visa was cancelled on 29 January 2020 for breach of conditions. The applicant departed Australia for a short period [in] August 2018, then returned to Australia [in] September 2019 where he has since remained.

13. The Tribunal has received no information or submissions from the applicant before the hearing. The Tribunal has had regard to the information from the Department file and the delegate’s decision. The decision summarises in detail the applicant’s immigration history, which is not repeated here. The applicant has confirmed that he has read the decision and understands the reasons why the application was refused, because the delegate did not accept that he would abide by conditions imposed on a Bridging visa if granted.

14. He agreed that the decision accurately summarised his immigration history and as outlined by the delegate. This included a summary of the applicant’s criminal history in the period from November 2020 to May 2021 and then from August 2022 to 1 August 2023, when the applicant was detained under s 189 of the Act as an unlawful non-citizen and placed in an immigration detention facility.

15. The chronology of relevant events is summarised in the following table:

16.      Date	Event	Additional notes
07/02/2018	Lodged application for TU-500 Visa	Granted on 15/02/2018
[02]/2018	Arrived onshore on TU-500 visa
[08]/2018	Departed on TU-500 visa	Returned onshore on [09]/2018 on TU-500 visa
29/01/2020	TU-500 visa cancelled	Breach of conditions
29/01/2020 – 16/02/2021	REMAINED UNLAWFUL
16/02/2021	Located by NSW police and grated BVE on departure grounds	1st BVE
23/02/2021	BVE ceased
23/02/2021 – 23/04/2021	REMAINED UNLAWFUL
24/02/2021	Lodged for a further BVE
09/04/2021	Remanded into criminal custody and charged with criminal offences
23/04/2021	Granted second BVE on criminal detention grounds	2nd BVE
25/05/2021	Convicted of 28 offences Sentenced to 4 months imprisonment	11x use false documents to obtain property-T1 5x make false document to obtain property-T1 9x dishonestly obtain property by deception-T1 4x dispose property-theft = serious indictable offence <=$5000-T2 5x possess identity info to commit etc indictable offence-T1
25/05/2021	Issued with a s10A conviction	3x give a false name 5x furnish false information/statement to licensee 1x fail to appear in accordance with bail acknowledgement  1x receive/dispose of stolen property-min indictable offence <=$5000-T2
04/08/2021	Convicted again and sentenced to an Intensive correction order for 12 months	Dishonestly obtain property by deception
08/08/2021	Released from criminal custody Second BVE ceased	Became unlawful non-citizen
17/09/2021	Lodged application for XA-866 Protection visa	Corresponding BVE currently under review
01/10/2021	Lodged further application for a BVE	Deemed invalid on 4/09/2023 as applicant did not meet criteria – already had an undecided application for a BVE
24/09/2022	Remanded into criminal custody. Charged with multiple offences
10/11/2022	Convicted à Sentenced to 3 months imprisonment	Dishonestly obtained property by deception-T1 Use false document to obtain property-T1 Make false document to obtain property-T1 Dispose property-theft=serious indictable offence <=$5000-T2
16/03/2023	Convicted à Sentenced to 1 year and 4 months imprisonment Sentenced was subsequently reduced on 31/07/2023 to 1 year and 1 month.	4x deal with identity info to commit etc indictable offence-T1 2x dishonestly obtain financial advantage etc by deception-T1
01/08/2023	Released from criminal custody Located by ABF officers and detained pursuant to s189 of the Act.	Transferred to Villawood Immigration Detention Centre – currently accommodated

1. The applicant’s explanations, argument and submissions about his history in Australia are set out below in these reasons.

   Criteria to be satisfied - time of application and time of decision

2. 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.

3. In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

   Substantive visa application

4. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

5. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act.

6. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

7. The Tribunal accepts that the applicant lodged a protection visa application on 17 September 2021, which is an application for a substantive visa. That Protection visa application remains unresolved and remains subject to determination by the Department.

8. Accordingly, the applicant meets cl.050.212(3).

   Continues to satisfy at time of decision

9. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

10. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and cl 050.212, with his pending substantive Subclass 866 Protection visa application lodged 17 September 2021, and therefore meets cl.050.221.

    Whether the applicant will abide by conditions - cl 050.223

11. 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.

12. 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.

13. 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].

14. 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.

15. In this case, the conditions to be imposed under the relevant cl.050.6 as identified by the delegate are mandatory condition 8101 (no work), and the following discretionary conditions, which the Tribunal agrees should be imposed in the circumstances of this case:

    a.8401 (report at specified time and place),

    b.8506 (notify change of address)

    c.8564 (no criminal conduct) and

    d.8207 (not engage in any studies or training)

16. The Tribunal explained these conditions to the applicant at the hearing, which he indicated he understood would be imposed.

    The hearing

17. The applicant was asked to describe his family details. He said he came from a good family, who lived in Kathmandu. He said his father and brother were [Occupation]s and his mother did not work. He said his father and sister had died approximately two years ago and their deaths form part of the concerns he has raised in his substantive application. He said he had completed a Bachelor degree in [Subject] at university in Nepal in 2011, and started a Masters’ degree, which he did not complete before coming to Australia. He said he started [doing a job] in [a workplace] in Nepal after completing his degree, and was [an Occupation] for the period from 2012 to 2018 before he came to Australia.

18. The applicant explained that things were not good in Nepal where he had lived in fear, which was the reason he thought he would come to Australia for a little while before returning and things had settled down. In Australia, he said he had lived at several locations in Sydney’s Western suburbs, with Nepalese friends from college and other students. He said his parents were supporting him financially after his arrival.

19. He was asked to explain what he had been doing in Australia. He said he had done some casual work in the beginning, firstly at [Workplace 1] in a [premises], and then at [Workplace 2], helping [do a job task]. He said his problems with work and study began when he was introduced by one of his Nepalese friends to gambling. This was towards the end of 2018, when in a very short time he said he became ”addicted”.

20. He said at the time in 2018, he was enrolled at [Provider 1] in Sydney, and then transferred to [Provider 2], intending to complete [a Qualification]. His parents were paying his tuition fees and other living expenses. Once his gambling addiction took hold, he said he stopped going to college and then eventually stopped paying his fees. His student visa was cancelled on 29 January 2020 for non-attendance and breach of his student visa conditions. He said he did not tell his parents and continued gambling. He said he asked his father for money for a fictitious business venture which his father provided. He claimed he then lost the whole amount gambling, within a few days. He claims that in total over the period of gambling from around the end of 2018 until early 2020, he lost approximately $200,000.00 which was money given to him by his parents.

21. He was asked if he had told his parents what was happening and that he had lost his visa. He said he did not know at the time that his student visa had been cancelled. He said he was so ashamed he had lost the money, he could not tell his parents. He said he was forced out of his shared accommodation with other Nepalese students because he kept asking them for money. He became homeless and spent around 12-14 months living on the street, staying in trains, in the student library and at [Venue] when it was open in order to stay warm. He claimed that he resorted to criminal activity involving the 38 fraud matters for which he was convicted in May 2021 and again in August 2021, as he had no other means of support. He explained the fraud claims involved [products] and he was arrested when someone he was dealing with became suspicious. He conceded that the criminal convictions at the time in May 2021 were all ‘correct’.  He said that after he was released in 2021, he told his father that he wanted to return to Nepal, but his father warned him against it and told him he should try and remain in Australia. He said his father organised his Protection visa application which his father provided for him because his father did not want him to return, and in order to protect him. He said shortly after that his father and sister had died.

22. He was asked what he would do if he were released back into the community pending the Protection visa application outcome. He said he had spent some time in jail and had attended a course on gambling addiction. He maintained that he realises what he was doing was wrong, but at the time, he was unable to control it. He said his head “was not right” and that at one point he even felt suicidal. He said being jailed had taught him a lesson and he does not want to go there again. He expressed remorse and fear of further criminal convictions and maintained that having learned the hard way, he would not re-offend. He explained that but for the physical hardships caused by being homeless he would not have offended in the first place. He said he has no intention of continuing to gamble.

23. The applicant said he has not told his mother the full story, but he has told her he has lost his visa and has been placed in detention. He said he has told one of his [brothers] what happened to him as well. He said his mother has $60,000.00 in Nepal and his father’s pension, and has told him she will continue to send him money and support him if he is released. He said he has someone living in Sydney who has offered to provide him a room where he can live.  He claims that once he has accommodation and a place to stay where he will be looked after, and with some money from his mother, he will not be at risk of re-offending.

24. The Tribunal pointed out that after he was released on 8 August 2021, he offended again and was arrested in September 2022 for what appeared to be the same or similar offending. He was asked to explain. He said that he had proposed that he obtain in Sydney a ‘loan’ of $10-12,000.00 from other Nepalese. He said the plan was that he would receive the money in Sydney, and his mother in Nepal would then pay the money to a nominated bank account in Nepal. He said the scheme is commonly used by Nepalese people overseas, as it is prohibited to send money directly out of Nepal. He placed an advertisement on a Nepalese website in Sydney, and then was offered the amount which he accepted, providing his mother with the bank details where she should repay the funds in Nepal. He claims that his mother misdirected the money which went to the wrong account. He was reported to police in Sydney who arrested him and charged him with fraud. He claims when he went to the Local Court he was advised by a lawyer to plead guilty in order to get a light sentence. However, in March 2023, he was convicted and sentenced to imprisonment for 1 year and 4 months, which sentence was reduced subsequently in July 2023 to I year and 1 month, and after which period, accounting for time served, he was released in August 2023.

25. He explained that he had not understood Australian criminal law, that he had not realised that he would receive a prison sentence and that perhaps his lawyer was wrong to tell him to plead guilty when his mother had made a simple mistake by repaying money to a wrong account. He was sorry for what had happened but explained that it is usual for Nepalese to access money this way when overseas and outside Nepal.

26. The Tribunal invited the applicant to offer any further submissions or information as to why it should accept that he will abide by visa conditions in the future, given his agreed visa history where he has flagrantly disobeyed Australian laws and for a lengthy period until apprehended. He responded saying he has told his mother whom he speaks to daily, and who has told him she can support him financially for at least another year. He has accommodation to go to where he will be housed in Sydney and he will report as he has done in the past to keep the Department aware of his movements and circumstances. He said he will not need to work, and will not be pressured to resort to crime in order to survive. He asserts also that he no longer has a gambling habit and would not take his mother’s remaining money for that purpose.

1. The Tribunal put to him that it would not be persuaded he would abide by conditions without independent information as to his financial support and accommodation provision. He was asked whether he wanted to provide any further information in that regard. The applicant asked for time to do so. The Tribunal inquired how long he would need and he proposed by ‘next Monday’ meaning by 18 September 2023. The Tribunal directed the applicant to provide any further information by that date, or if necessary, to seek an extension if he could  not do so. He did seek an extension and on 19 September 2023, provided two Statutory Declarations to support this application.

2. The first statement was declared on 18 September 2023 by [Mr A], who gave a Perth address. The declarant states that he has known the applicant since his arrival from Nepal. He states they are friends and formerly classmates in Nepal. He states he is aware that the applicant is prohibited from working and so he “will provide financial assistance to [the applicant] if he returns back in the community”.

3. The second statement declared also on 18 September 2023, by [Mr B], provides a Sydney address and contact number for the declarant. He states that the applicant is a friend and that he is willing to “extend my full support in providing him with food and accommodation, in the event of his release from detention centre”.

   Findings

4. The only issue before this Tribunal is the requirement for the applicant to abide by the imposition of the visa conditions, referred to above (at par  31). If not satisfied the conditions will be complied with, the visa must be refused.

5. The Tribunal finds on the available information, that the visa history as set out in the table above is not contested and reflects the applicant’s time in Australia. It is not a good reflection of the applicant’s character and ability to control a gambling addiction. It also shows a willingness to disregard Australia’s laws for purely personal gain.

6. At first blush, with regard to that history, it would seem probable that the applicant would be likely not to abide by the visa conditions, particularly the condition not to engage in criminal conduct. In considering that history, the Tribunal has proceeded as follows, noting that there is no mandatory prohibition on the grant of a Bridging visa based solely on what has passed beforehand, but granting or approving such a visa must nonetheless be subject to the Tribunal being satisfied as required by the Regulations.

7. The considerations as to an applicant’s credibility and predictions as to his future behaviour are not conveniently listed or mandated.  They are largely discretionary. The application of such broad-based discretions is not an easy task, and minds will differ as to how the uncontested facts should be applied so as to reflect fair and reasonable considerations and likely outcomes (as opposed to possible outcomes). Some guidance is provided in Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

8. In that decision, the court [1]referred to the Tribunal’s approach which it found to be correct in considering “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 applicants had shown any contrition for their unlawful conduct.  These matters are clearly relevant to the question whether the applicants would abide by conditions.  They are relevant because they bear upon each applicant’s character, including his honesty and whether he can be relied upon.” 

   [1] Finklestein J at [15]

9. The Tribunal has firstly considered the oral evidence from the hearing. The applicant appeared genuinely remorseful, embarrassed by his behaviour and ashamed for his family. He expressed the view that he will not re-offend and has attended a gambling course, and will continue to seek help for his addiction. The Tribunal found the applicant presented transparently, was not argumentative or dissembling, freely admitted his conduct and was genuinely ashamed. There was no doubt his behaviour had been ‘wilful’, and that his breach of visa conditions when a student, and afterwards, when he breached criminal laws, was significant. It is equally true, that the applicant faced up to his conduct which was admitted at the first opportunity in court, and which bespeaks a level of contrition. He has completed the criminal penalties imposed considered appropriate in his circumstances, and where he was the principal victim of his criminal behaviour.

10. The Tribunal finds that as a consideration, the Tribunal is satisfied that the applicant’s expressed contrition and remorse explained to the Tribunal is genuine.

11. The Tribunal listened to the applicant’s explanation for his behaviour over a 2 to 3 year period (2018-2021), which included significant personal distress associated with protracted homelessness in that time. The applicant was introduced somewhat naively to gambling by a colleague and became addicted. His access to funds from his parents, and from friends, which fuelled the addiction, was significant and for a period, unlimited. He lost a significant sum and was unable to live. He lost the support of friends and family. He cheated his parents to obtain funds and resorted to crime to survive. When caught, he made no attempt to obfuscate or deny his behaviour and suffered the consequences. His explanation for the further offending after his initial conviction in 2022 has the ring of truth, although not relevant as far as any criminal process was concerned as he had plead guilty at the time.

12. The details of the conviction and any relevant evidence at the time is not available nor considered here, but this Tribunal finds that the extent of the explanation in mitigation in this instance is compelling. It is common in criminal matters of the kind here and as explained by the applicant to accept a quick and simple process and to plead guilty with an explanation when advised to do so. He readily adopted that approach and for which in mitigation, he should receive some acknowledgement and credit, particularly as the explanation he has given involved a mistake for which he was not entirely responsible. No doubt these were matters also considered by the court which on review, reduced the custodial sentence first imposed.

13. The Tribunal has considered the available community support for the applicant, as expressed in the declarations submitted on 19 September 2023. The Tribunal has attempted to weigh up that support against the incentive for the applicant to breach the proposed visa conditions, by, for example, trying to work, and also resorting again to crime to support a gambling habit. He has said candidly in his statement to the interviewing officer before this proceeding commenced that he would probably have to resort to crime again if he were released and had no support, no funds for food, and no accommodation.

14. The supporting declarations from the two members of the community express a willingness to provide the applicant with necessary financial support, food, and accommodation. The statements are shallow and not replete with supporting documents such as bank statements, right to accommodation through ownership or tenancy, or other background information which might demonstrate the declarants are persons of substance, reliable and able to provide what they say will be provided. It would be easy in such circumstance to place little weight on such evidence.

15. The Tribunal is mindful however that the applicant is unrepresented and has had very limited opportunity to make submissions and produce information and documents. Being in detention also makes it more difficult for him to seek migration assistance, as he has foreshadowed, from RACS whom he has already contacted.

16. The Tribunal also notes that the Department (and Border Force) will be able to impose such reporting conditions as may be required to keep a check on the applicant at relevant times, and pending the outcome of his substantive visa application. The Tribunal found that the applicant was credible arguing that the last thing he would do is to again resort to homelessness which left him after 14 months feeling suicidal. Any further breach of conditions by the applicant would be significant and prejudicial to any future considerations on his behalf.

17. He will not have a visa permitting him to work, and which ordinarily would deter any bona fide employer from engaging with him and therefore less likely to be a condition breached.

18. The Tribunal acknowledges that these considerations are primarily based on a finding that the applicant is genuine and credible, and can be accepted as a person of truth. This is an uncertain prediction, but based upon an acceptance of the facts and arguments as outlined in evidence by the applicant, and applying some guidance from the court as how appropriately to proceed in such circumstances. The Tribunal has found that the applicant in this instance is more likely than not to abide by the conditions to be imposed, and where the evidence itself may be less than perfect, the applicant who the Tribunal finds is credible, should nonetheless have the benefit of any doubt upon the exercise of discretion.

19. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.

20. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl 050.223 of Schedule 2 to the Regulations; and

    ·cl 050.221 of Schedule 2 to the Regulations.

    Alan McMurran
    Member