2314552 (Migration)

[2023] AATA 3624

2314552 (Migration) [2023] AATA 3624 (26 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Unrepresented

CASE NUMBER:  2314552

MEMBER:Kate Chapple

DATE:26 September 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 26 September 2023 at 7:19am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – immigration history – periods of unlawful residence – domestic violence order – no work condition – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 5, 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221-224, 050.617-618; 051.211; Schedule 8

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [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) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 13 September 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 those set out in cl 050.211 of Schedule 2.

3. The delegate’s decision to refuse to grant the visa and the decision relating to requiring a security was made on 15 September 2023 on the basis that: a) the delegate was not satisfied that if the visa was granted the applicant would comply with the conditions imposed on the visa because of his previous behaviour and immigration history; and b) the delegate was not satisfied that any amount would secure the applicant’s compliance, and therefore did not request that a security be provided.

4. The applicant applied for review on 15 September 2023.

5. The applicant appeared before the Tribunal on 25 September 2023 to give evidence and present arguments with the assistance of an interpreter in the Bislama and English languages.

6. The applicant was unrepresented in relation to the review.

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

   CLAIMS AND EVIDENCE

8. The applicant gave evidence at hearing, summarised by the Tribunal as follows:

   The applicant was born in Vanuatu in [specified year] and is aged [age]. He completed to [grade] of schooling. His parents, [and specified family members] live in Vanuatu. His father is [an occupation 1], his mother a housemaid, and his wife a [an occupation 2]. The applicant was never employed in Vanuatu.

   The applicant came to Australia in February 2020, not ever having travelled outside Vanuatu. He came here because he wanted to help his family by purchasing land in Vanuatu and building a house. His family need him to be employed in Australia. He has never had plans to do any study or training in Australia.

   The applicant came on a temporary work visa, and worked on a farm in Adelaide for a year [specified duties]. He then got another temporary work visa, and worked on a farm in [Town 1] for about six months.

   In August 2021, the applicant applied for a protection visa. He paid his employer $200 to complete the application for him. He didn’t know what a protection visa was, nor did he ask his employer. He thought it allowed him to keep working. His employer told him he had to go to Melbourne for fingerprinting, but he was too busy, so he didn’t go. He didn’t know this would make his application invalid.

   The applicant understood that once his protection visa application was found to be invalid and the associated bridging visa ceased, he was unlawful. He didn’t seek any legal advice about what he should be doing to address his situation. At the time, he was working on a farm at [Town 2], Victoria, [specified duties]. Knowing he was unlawful, he continued working on the same farm [until] he was apprehended by Victoria police for breaching a domestic violence order. While working in Australia, he has sent $400-500 twice a month to his parents to help support them and his children.

   The applicant doesn’t have friends in Australia. He has been in a relationship here for about two years, which ended when he breached the domestic violence order and the police apprehended him. He can’t remember the date of the order, it was sometime last year. The conditions of the order were to have no contact and stay 100 metres away from his partner. The applicant said he breached the order three times, while also saying he and his partner remained living together at the [Town 2] caravan park in a rented caravan. They had arguments and he came back and apologised, she wanted him back and accepted his apology, then they argued again, and she called the police. She shouldn’t have accepted him because she knew it was in breach of the order.

   The applicant thought he was guilty because he breached the order, and he thought he would be deported for being without a visa and unlawful. His employer told him last year that he was going to apply again for a protection visa again for him, but he doesn’t know why that didn’t happen, maybe the employer forgot or got too busy.

   When asked by the Tribunal about the criminal charges against him, apart from the breach of the domestic violence order, the applicant said he doesn’t know what the charges are because all the documents went to the police and he didn’t get to see them, and he doesn’t know what happened in the [Town 1] court other than his lawyer telling him that everything was good and giving him the number of a lawyer who could prepare a protection visa application for him. He also doesn’t know if there other outstanding charges against him. The Tribunal noted to the applicant the charges of theft, aggravated assault and failure to answer bail referred to in the delegate’s decision record and the Immigration officer’s record of interview. He said he doesn’t know about those, and can’t remember what was discussed in the interview with the Immigration officer, which he said was last week.

   When asked by the Tribunal whether he would go back and live with his partner, the applicant said he’s not sure. He hasn’t been in contact with her for two weeks; he doesn’t know if she’s still living in the caravan. When put to him that living with the partner would be a breach of the domestic violence order, he said he won’t go back.

   When asked by the Tribunal what he thinks about his offending behaviour, the applicant said it’s not good and doesn’t want to do it again.

   When asked by the Tribunal if his family knows about his circumstances, the applicant said he told them the police caught him, he’s waiting to see if he gets his visa back or is deported. When asked whether his wife knows about the domestic violence order against him in relation to his partner in Australia, the applicant said he forgot to say he’s been divorced for a long time.

   The applicant has bought land in Vanuatu and his brother there has started building the house. He has bought the land for all his family, and the house is for himself.

   Last week the applicant called his employer and gave him the number for the lawyer who could help with the protection visa application. The employer called the lawyer, but the applicant doesn’t know about the application. When asked by the Tribunal the basis on which he would be applying for protection, the applicant said to keep on working. The Tribunal noted to the applicant that a protection visa is not a work visa. The applicant said he wanted to apply for protection to get out of detention then apply for a different visa, maybe a work visa.

   The Tribunal explained to the applicant that if he were granted a bridging visa, there would be certain conditions imposed, the first being that he must not work in Australia. The applicant said he would comply with this condition. The Tribunal queried this response given the applicant’s earlier evidence that he is in Australia to work and earn money to pay for his land and house in Vanuatu and to provide financial support to his parents and children, and that he had been working since he arrived in Australia. The applicant said that as soon as he applies for a protection visa and gets out of detention, he’ll apply for a work visa so that he can work.

   The applicant plans to work in Sydney and live with his brother. His brother works for [an industry 1] company there, and has told the applicant he can work there too. The applicant doesn’t know the name of the company; they [do specified work]. His brother has been in Australia for about a year on a work visa.

   The Tribunal explained the next condition, being that the applicant must notify Immigration at least two working days in advance of any change to his address. The applicant said he would comply with this condition. The Tribunal queried this response given that the applicant remained unlawful for 14 months. The applicant said he wants to apply for the work visa straight away.

   The Tribunal explained the next condition, being that the applicant must not engage in criminal behaviour. The applicant said he’ll stop all criminal behaviour, he doesn’t want to get involved.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the Tribunal is satisfied that the applicant has met the time of application and time of decision criteria applicable to a subclass 050 bridging visa, and if a bridging visa is granted, the applicant will abide by the conditions imposed on it.

   Immigration status of the applicant - cl 050.211

10. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

11. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

12. On the evidence before it, the Tribunal is satisfied that the applicant was at the time of application an unlawful non-citizen. Accordingly, the applicant meets cl 050.211(1).

13. On the evidence before it, the Tribunal is satisfied that the applicant was not at the time of application an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl 050.211(2).

14. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa - cl 050.212

15. 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.

16. In this case, the applicant is seeking to meet cl 050.212(3)(b). 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

17. Subclause 050.212(3)(b) is met if the Tribunal is satisfied that the applicant will apply in Australia for a substantive visa of a kind that can be granted if the applicant is in Australia within a period specified for doing so.

18. ‘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. 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 an application being made: s 5(9) of the Act.

19. The Tribunal notes the applicant’s evidence that he wants to apply for a protection visa so he can get out of detention then apply for a visa that will allow him to continue working in Australia.

20. A protection visa comes within the definition of ‘substantive visa’ under the Act.

21. The Tribunal is not required to consider the applicant’s reasons for applying for a protection visa or the merits of any such application.

22. On the evidence before it, the Tribunal is satisfied that at the time of application the applicant would have applied for a substantive visa of the kind specified. Accordingly, the applicant meets cl 050.212(3)(b).

    Whether the applicant continues to satisfy the time of application criteria - cl 050.221

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

24. On the evidence before it, the Tribunal is satisfied that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221.

    The requirement to be interviewed by an authorised officer - cl 050.222

25. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

26. On the evidence before it, the Tribunal is satisfied that the applicant was interviewed by an authorised officer. Accordingly, the applicant meets cl 050.222.

    Whether the applicant will abide by conditions - cl 050.223

27. 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.

28. 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].

29. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

30. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

31. In this case, cl 050.617 and cl 050.618 apply because the remaining clauses of 050.6 do not apply in the circumstances of this case. These clauses prescribe that, in addition to any mandatory conditions, certain conditions may be imposed. They provide as follows:

    050.617 

    (1)  In any other case--any 1 or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.

    (2)  Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.

    050.618  

    In addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.

32. 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.

    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.

    8508(MAKE VALID VISA APPLICATION) The holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified by the Minister for the purpose.

    8564(NO CRIMINAL CONDUCT) The holder must not engage in criminal conduct.

    Condition 8101 (NO WORK)

33. The Tribunal notes the applicant’s evidence that he is in Australia to work and earn money to pay for his land and house in Vanuatu and to provide financial support to his parents and children, and that he has been working since he arrived in Australia, including during the 14 months that he was an unlawful non-citizen.

34. The Tribunal notes the applicant’s evidence that he wants to apply for a protection visa so he can get out of detention then apply for a visa that will allow him to continue working in Australia.

35. The Tribunal notes the applicant’s evidence that he intends to work in Sydney doing [industry 1] work with a company his brother is employed by.

36. The Tribunal considers the applicant’s reasons for working and earning money in Australia remain compelling and paramount to him.

37. The Tribunal considers the applicant has demonstrated an ongoing wilfulness to work in Australia regardless of whether he is lawfully permitted to do so.

38. The Tribunal considers it is likely the applicant would continue to work in Australia regardless of a no work condition imposed on his bridging visa and regardless of whether or not he may at some time in the future apply for a visa that permits him to work.

39. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8101.

    Condition 8506 (NOTIFY CHANGE OF ADDRESS)

40. The Tribunal notes the applicant’s evidence that he didn’t go to Melbourne to satisfy the fingerprinting requirements of his protection visa application because he was too busy.

41. The Tribunal notes the applicant’s evidence that he was aware he became an unlawful non-citizen when his protection visa was found to be invalid and the associated bridging visa ceased in June 2020.

42. The Tribunal considers there is no credible evidence before it that the applicant took steps to remedy his unlawful status or demonstrated any sense of responsibility for or concern about his unlawful status.

43. The Tribunal considers the applicant has demonstrated an ongoing wilfulness to flout the law when he chooses.

44. The Tribunal considers it is likely the applicant would still be unlawful and working in Australia if he hadn’t been apprehended by Victoria police and transferred to Immigration detention.

45. The Tribunal considers it is likely the applicant would not notify Immigration of his change of address as required by the condition.

1. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8506.

   Condition 8508 (MAKE VALID VISA APPLICATION)

2. The Tribunal notes the applicant’s evidence that he wants to apply for a protection visa so he can get out of detention then apply for a visa that will allow him to continue working in Australia.

3. The Tribunal considers the applicant is highly motivated to apply for a protection visa as he believes it provides a pathway to apply for a visa that permits him to work. On that basis, it is likely the applicant will ensure that he makes a valid protection visa application.

4. On the evidence before it, the Tribunal is satisfied that the applicant will abide by condition 8508.

   Condition 8564 (NO CRIMINAL CONDUCT)

5. The Tribunal notes the applicant’s evidence that his partner shouldn’t have accepted him back because she knew that he would be in breach of the domestic violence order.

6. The Tribunal notes the applicant’s evidence initially that he’s not sure if he would go back to live with his partner, then his later evidence that he wouldn’t go back to live with his partner, prompted by the Tribunal commenting that to do so would be a breach of the domestic violence order.

7. The Tribunal considers the applicant’s attitude to his breaches of the domestic violence order demonstrate a wilful disregard for the seriousness of his offending behaviour, a failure to acknowledge and take responsibility for his offending behaviour, and an ongoing wilfulness to blame the victim of his offending behaviour.

8. The Tribunal considers the applicant has demonstrated an ongoing wilfulness to flout the law when he chooses.

9. The Tribunal considers it is likely the applicant would commit further breaches of the domestic violence order.

10. The Tribunal notes the applicant’s evidence that he doesn’t know about the other charges against him, what happened in the [Town 1] court, or whether there are other outstanding charges against him.

11. The Tribunal considers this evidence lacks credibility given that the applicant attended the court and had a lawyer representing him in relation to the various charges.

12. The Tribunal notes the applicant’s evidence that he can’t remember what was discussed in his interview with the Immigration officer.

13. The Tribunal considers this evidence lacks credibility given that the interview occurred only two weeks prior to the Tribunal hearing, was conducted in a formal setting with a Bislama/English language interpreter present, and went for over an hour.

14. The Tribunal considers the applicant’s claims of no knowledge and no memory demonstrate a wilful disregard for the seriousness of his offending behaviour, and a failure to acknowledge or take responsibility for his offending behaviour.

15. The Tribunal notes the applicant’s evidence that he thinks his offending behaviour is not good and doesn’t want to do it again, that he’ll stop all criminal behaviour, he doesn’t want to get involved.

16. The Tribunal considers this evidence is inconsistent with and does not credibly counter his other evidence and prior behaviour.

17. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8564.

    Overall assessment of whether applicant will abide by conditions

18. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by all of the conditions imposed on the visa if granted.

19. Therefore, the applicant does not meet cl 050.223.

    Security for compliance with conditions - cl 050.224

20. Clause 050.224 requires that if an authorised officer has requested a security for compliance with the conditions indicated will be imposed on the visa, the security has been lodged.

21. The Tribunal notes that the authorised officer has not requested a security.

22. The Tribunal considers there is no evidence before it that supports a conclusion that a security would be an effective means of ensuring that the applicant will abide by the conditions imposed on the visa if granted. The Tribunal relies in this regard on its reasons previously given in this decision record for not being satisfied the applicant will abide by all of conditions.

23. The Tribunal is not satisfied that the applicant would abide by the conditions imposed on the visa if granted even where there is a financial incentive to do so. Accordingly, the issue of the imposition of a security does not arise.

    CONCLUSIONS

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

25. 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 a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    Kate Chapple

    Member