2321010 (Migration)

[2024] AATA 533

2321010 (Migration) [2024] AATA 533 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2321010

MEMBER:Member Nathan Goetz

DATE:3 January 2024

PLACE OF DECISION:  Melbourne

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

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (the Act) in relation to this review that information that would identify the applicant must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about the applicant’s protection visa application (noting several provisions in the Act restrict publishing material that identifies protection visa applicants: ss 91X, 431 and 501K).

Statement made on 03 January 2024 at 10:55am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – forced home demolition – intention to work in Australia – family in China – claimed family financial support – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 189, 360
Migration Regulations 1994, Schedule 2, cls 050.211, 050.223, 050.613, 050.618, 051.211; r 2.20

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
MHA v Parata [2021] FCAFC 46

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging E (Class WE) visa.

2. The applicant was unrepresented in the review.

   BACKGROUND

3. The applicant identifies as a male citizen of China presently located in Australia. He last entered Australia [in] November 2023 holding a maritime crew visa. On 5 December 2023 that visa ceased, and he became an unlawful non-citizen. He was located the same day and detained under s 189 of the Act as an unlawful non-citizen.

4. On 14 December 2023 the applicant applied for the bridging visa. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the Subclasses are set out in Parts 050 and 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. On 19 December 2023 the delegate refused to grant the applicant the visa.

6. On 21 December 2023 the applicant applied to the Tribunal for merits review of the decision.

7. On 21 December 2023 the Tribunal wrote to the applicant under s 360(1) of the Act and invited the applicant to appear at a Tribunal hearing scheduled for 1pm on 2 January 2024 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. As the applicant was in an immigration detention centre, the Tribunal determined that a Tribunal hearing conducted via MS Teams was appropriate in all the circumstances.

8. On 2 January 2024 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR THE GRANT OF THE VISA

9. According to the delegate decision record, the applicant did not satisfy cl 050.223 of Schedule 2 to the Regulations. The decision record explains the delegate’s reasoning for that decision.

10. This clause provides the following:

    050.223 

    The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

11. Despite this, in the letter notifying the applicant that the visa application was refused, the applicant was advised that the visa was refused because the applicant did not satisfy cl 050.211(2) of Schedule 2 to the Regulations.

12. This clause provides the following:

    050.211 

    (1)  The applicant is:

    (a)  an unlawful non-citizen; or

    (b)  the holder of a Bridging E (Class WE) visa; or

    (c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.

    (2)  The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11), (17) or (18).

13. This inconsistency is regrettable because it has the potential to confuse visa applicants. Thankfully, that has not occurred in this review because when the applicant applied to the Tribunal for review of the decision, he provided a written statement which asserted that the applicant would comply with visa conditions if the bridging visa was granted.

14. At the Tribunal hearing, the applicant confirmed that he understood that the visa was refused by the delegate because the delegate found that the applicant would not comply with the conditions that would attach to the bridging visa.

15. The Tribunal is satisfied that it is undertaking a merits review of the decision to refuse to grant the applicant the bridging visa on the basis that he did not satisfy cl 050.223 of Schedule 2 to the Regulations. The fact that the notification letter asserted that the visa had been refused on a different criterion does not invalidate the delegate decision: MHA v Parata [2021] FCAFC 46.

16. 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].

17. 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.

18. The conditions which must be imposed on the bridging visa if granted are provided in cl 050.6 of Schedule 2 to the Regulations. In the circumstances of the applicant’s review, cl 050.613A applies because the applicant has applied for a protection visa and is not in a class of persons specified by the Minister in writing for the purpose of cl 050.613A. This requires that Condition 8101 must be imposed, unless condition 8116 is imposed. It also provides that conditions 8104, 8201, 8207, 8401, 8402. 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548 may be imposed.

19. Clause 050.618 also applies because this allows Condition 8564 to be imposed in addition to any other condition.

20. The Tribunal considers that the following conditions should be imposed on the bridging visa if granted:

    8101:The holder must not engage in work in Australia. This is a mandatory condition and must be imposed because Condition 8116 has not been imposed.

    8401:The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified, orally or in writing, by the Minister from time to time. This is a discretionary condition and should be imposed because the Department should be able to require a non-citizen to report to the Department to ensure the orderly administration of the applicant’s visa application.

    8506:The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. This is a discretionary condition and should be imposed because the Department should know at all times the location of non-citizens in Australia.

    8564:   The holder must not engage in criminal conduct.

21. Conditions 8101, 8401 and 8506 were the same conditions considered by the delegate. At the Tribunal hearing, the applicant told the Tribunal that he understood that Conditions 8101, 8401, 8506 and 8564 would be imposed on the bridging visa if granted, indicated that he understood those conditions, and agreed to abide by them.

22. As detailed previously, Bridging E (Class WE) visas contain two subclasses. The delegate did also did not determine whether the applicant met the requirements for the Subclass 051 visa. The Tribunal on review must also consider whether the applicant satisfies criteria for the Subclass 051.

23. This clause requires the following:

    051.211 

    The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

24. Subregulation 2.20(7) applies to a person who has not turned 18 years of age.

25. Subregulation 2.20(8) applies to a person who has turned 75 years of age.

26. Subregulation 2.20(9) applies to a person who has a special need based on health or previous experience of torture or trauma in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment.

27. Subregulation 2.20(10) applies to a person who is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

28. Subregulation 2.20(11) applies to a person who is a member of the same family unit of a non-citizen to whom subregulation 2.20(10) applies.

29. At the Tribunal hearing, the applicant was made aware that the Tribunal would also consider whether the applicant met the requirements for Subclass 051.

    CONSIDERATION OF EVIDENCE

30. The Tribunal considered all the evidence provided in support of the visa application and the review application, including the oral evidence provided at the Tribunal hearing.

31. According to the protection visa application form (which is the same form used for the bridging visa application form), the applicant identifies as a male citizen of China who was born on [date] in [a named town in] Hebei state/province, China. In that form, he identified that he departed China on a passport issued under the authority of China and entered on this existing travel document, but also suggested that he was an unauthorised maritime arrival. He provided a copy of his Chinese passport.

32. Department records demonstrate that on 22 September 2022 the applicant was offshore and granted a maritime crew visa which was valid until 5 December 2023. The records show that while holding this visa, the applicant arrived in Australia [in] February 2023, departed Australia [later in] February 2023, arrived in Australia [in] April 2023, departed Australia [later in] April 2023 and arrived in Australia [in] November 2023. The applicant told the Tribunal hearing that he did not leave the vessel on any of the previous occasions he travelled to Australia.

33. On 5 December 2023 the applicant was signed off from the vessel he was travelling on and became an unlawful non-citizen. He was subsequently detained as an unlawful non-citizen in the migration zone and detained in an immigration detention centre under s 189 of the Act. The applicant told the Tribunal hearing that left the vessel and was found three hours later in a park and was arrested by police before being taken to the police station and subsequently placed into immigration detention.

34. On 14 December 2023 the applicant applied for a protection visa. No decision has been made by a delegate of the Minister whether to grant or not grant the protection visa. The same day he applied for the protection visa, he applied for the bridging visa that is the subject of this review.

35. The applicant told the Tribunal hearing that he left the vessel because he was being bullied and harassed on the vessel and that he could not return to China because if he returned to China, he would be forced to sign a document that would allow his home to be demolished. He told the Tribunal that the house had not been demolished to date and that it would not be demolished without him signing the agreement. He told the Tribunal that he wished to stay in Australia for about 6 months and believed that he would be able to return to China after that period because the people wanting to demolish his house would give up on finding him.  

36. In the visa application form, the applicant detailed no employment history. At the Tribunal hearing, the applicant said that he worked for the shipping company for about two years. He said that he had also worked previously [in other occupations]. He told the Tribunal he was unaware of the conditions which attached to his maritime crew visa because the company had organised the visa for him.

37. In the visa application form, he declared that he was not married and did not identify any family in China. At the Tribunal hearing, the applicant identified that he was married [in] December 2008 to [Wife A], who was born on [date] and that they had a son [named] who was born on [date]. He indicated that the presence of his family in China would be an incentive for him to return to China once the risk to him disappears.

38. At the time the review application was lodged, a letter was submitted by a person named [Uncle A] who was identified as the applicant’s uncle. The statement indicated that this uncle was in China. The statement was addressed at whether the applicant would comply with conditions that would attach to the bridging visa if it was granted. There was also a request by the applicant that the Tribunal take oral evidence from this uncle. The Tribunal agreed to this request and spoke to the applicant’s uncle at the Tribunal hearing.

39. At the Tribunal hearing, [Uncle A] told the Tribunal that he was the applicant’s father’s brother. This was consistent with the applicant’s oral evidence given at the Tribunal hearing. The uncle also told that the Tribunal that the applicant’s parents have land that they farm which is their source of income, which was consistent with the applicant’s oral evidence given at the Tribunal hearing. This would be consistent with the letter provided by the applicant’s mother, [Mother A], who claimed that she would support her son to live in Australia by transferring $4,500 per month to her son. She attached what appeared to be a national identity card to support her identity. This was provided to the delegate.

40. The visa application form declared that the applicant received no assistance completing the form. At the Tribunal hearing, the applicant said that his uncle helped him to complete the visa application. He told the Tribunal that he provided the information in the form to his uncle. The form was written in English and when the Tribunal asked whether his uncle could read and write English, the applicant said that his uncle did not and that his uncle asked a friend to fill out the form. The contents of the form include a declaration that the applicant was persecuted in China, which is why he left that country.

41. The evidence about the completion of the visa application form was different between the applicant’s oral evidence and that of his uncle. At the Tribunal hearing, his uncle told the Tribunal that the reason his nephew was in Australia was for work, and he did not assist the applicant with the preparation of the visa application form. He did not claim to have arranged a friend to help the applicant to complete the visa application form. The only assistance that the uncle had provided the applicant was financial support, which was a transfer of $7,000 to meet his living expenses in Australia, and an offer to meet his ongoing expenses in Australia while he did not have a job. The uncle told the Tribunal that he completed his letter, which was written in English, with the assistance of ‘Google translate.’

42. The letter identified that if the applicant was granted a bridging visa, he would reside at [Address 1 in] South Australia which was an address provided by [Ms A]. The applicant and [Ms A] know a mutual friend named [Friend A] and [Ms A] had agreed to rent a room of this apartment to the applicant for $180 per week. This rent will be paid by the applicant’s uncle, who asserted that he has a [business] in China and can financially support the applicant in Australia.

43. The applicant’s uncle attached a bank transaction statement for the period of 20 June 2023 to 20 December 2023 from [Bank 1], as well as what appeared to be confirmation of bank balance amounts for 60,000RMB and 10,000RMB. The applicant’s uncle also offered to provide a security bond in the written statement.

44. The applicant’s uncle asserted in the statement that the applicant had no intention of working in Australia and did not understand the conditions of his previous visa which prohibited him from disembarking from the ship and remaining in Australia. This was inconsistent with the uncle’s oral evidence which suggested that the applicant was in Australia to work. The statement also suggested that the applicant was unable to provide accurate information about a potential residential address because the address he proposes to live at was organised by the applicant’s friend [Friend A].

45. This was clearly addressing the fact that the applicant had said to the delegate that he would live at the address contained in the visa application form, being [Address 2 in] Western Australia, which was actually the address that the applicant was detained for quarantine purposes according to the delegate decision. It was therefore curious that the applicant would again identify at the Tribunal hearing that [Address 2] was where he would be living and suggested that this was [Ms A’s] address. He told the Tribunal that [Friend A], who lives between China and Australia comes from the same village as the applicant and that the applicant’s parents called [Friend A] to help the applicant once he was in Australia.

46. The Tribunal observed to the applicant that his uncle’s oral evidence that the applicant came to Australia to work (which was inconsistent with the uncle’s written statement in any event) and that the inconsistent evidence about the completion of the visa application form may suggest that the applicant was not a witness of truth. In response, the applicant told the Tribunal that his uncle drinks a lot of alcohol which would explain that, but was quick to suggest that the Tribunal could still rely upon his uncle’s evidence about the support he would give him because the uncle had provided bank statements about the amount of money, he had in a bank account.

    FINDINGS AND REASONS

47. The issue in this review is whether the applicant satisfies cl 050.223 or cl 051.211 of Schedule 2 to the Regulations.

48. If the Tribunal determines that the applicant satisfies either cl 050.223 or cl 051.211 of Schedule 2 to the Regulations, the correct or preferable decision is to set aside the delegate decision of 19 December 2023 and remit the visa application back to the delegate for reconsideration with a direction that the applicant satisfies cl 050.223 or cl 051.211 of Schedule 2 to the Regulations.

49. If the Tribunal determines that the applicant does not satisfy either cl 051.223 or cl 051.211 of Schedule 2 to the Regulations, the correct or preferable decision is to affirm the decision under review.

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

    If a bridging visa is granted to the applicant, will the applicant abide by Conditions 8101, 8401, 8506 and 8564 that would be imposed on the bridging visa for the purpose of cl 050.223 of Schedule 2 to the Regulations?

51. The Tribunal did not find the applicant or his uncle to be impressive witnesses. The Tribunal found the applicant to be untruthful about the circumstances of the completion of the visa application form. If it was true to that the applicant’s uncle had assisted him to complete the form, or arranged another person to do this, the Tribunal is satisfied that the uncle’s oral evidence had been consistent with the applicant’s oral evidence. It was not. Further, the applicant’s uncle’s evidence was that the reason the applicant came to Australia was to work, which is inconsistent with the reason for leaving China as declared in the visa form (which the applicant claimed his uncle had assisted him to complete), and also inconsistent with the applicant’s uncle’s written statement that the applicant did not have an intention to work in Australia.

1. The Tribunal is not satisfied that the applicant’s uncle wrote the letter he claimed to have written and translated via ‘Google translate’ because of the inconsistency between the oral evidence and the written statement. The Tribunal is not persuaded that this inconsistency is due to the applicant’s uncle having a drinking problem. The Tribunal’s assessment is that the uncle’s claimed drinking problem was fabricated by the applicant in an attempt to explain the deficiency in his uncle’s evidence.

2. The Tribunal’s assessment is that the applicant, or whoever it was that assisted the applicant to complete the visa application form, has a flexible approach to the truth and was prepared to hide evidence from the decision-maker. Examples include declaring that the applicant was not married and had no family in China, when the opposite is apparently true. The Tribunal’s assessment is that this flexible approach to the truth is present in the present bridging visa application.

3. Turning to the specific conditions which would attach to the bridging visa if granted, the Tribunal makes the following findings:

   8101:   The holder must not engage in work in Australia

4. The Tribunal is not satisfied that the applicant will not work in Australia. The oral evidence given by the applicant’s uncle at the Tribunal hearing was that the applicant’s purpose of being in Australia was to work. This purpose was also consistent with the applicant’s oral evidence about only wanting to be in Australia for 6 months and then return to China. It is fanciful to believe that if the applicant was being persecuted in China as he claimed because someone wanted to demolish his house and he refused to consent to this demolition, the risk he faced in China would suddenly disappear after 6 months. The Tribunal finds the more likely explanation to be that the applicant has a job secured for 6 months while he is in Australia, and plans to work here before returning to China.

5. While the applicant has an offer of ongoing assistance from his uncle in China in term of payment of rent and meeting of living expenses, and his uncle has apparently given the applicant a large cash sum, the Tribunal finds it more likely that the cash sum and offer of meeting living expenses have been made with a view to the applicant being released from detention and will cease upon his release when the applicant commences work in Australia.

6. The Tribunal acknowledges the offer of $4,500 per month from the applicant’s mother via an email. However, that letter was not accompanied with any bank statement to demonstrate that his mother had access to that sort of money, nor was the applicant’s mother requested by the applicant to give oral evidence at the Tribunal hearing for the assertion to be tested. The Tribunal finds the more likely scenario to be that the applicant’s mother’s letter was not a true reflection of the claimed financial support available to the applicant because if it was, financial statements and oral evidence would have been provided to the Tribunal.

7. The Tribunal is not satisfied that the applicant will comply with Condition 8101 if granted the visa.

   8401:The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified, orally or in writing, by the Minister from time to time.

8. The Tribunal is not satisfied that the applicant will report as required. The Tribunal comes to this conclusion because the Tribunal is satisfied that the applicant’s purpose of being in Australia is to work, and that the applicant has been dishonest in his oral evidence about the preparation of the visa application form, and the omission of details concerning his spouse and child in China. The Tribunal’s assessment is that the applicant is prepared to say or not say whatever he thinks will assist him to achieve his desired migration outcome.

9. As the Tribunal has found that the applicant’s intention is to work in Australia, the Tribunal is satisfied that the applicant will not report to Immigration as directed because such reporting may identify to Immigration that the applicant is currently working (and where he is working). Further, in the event that the applicant is directed to report to Immigration for the purpose of detention and removal from Australia to China in the event that the protection visa application is refused during the next 6 months when the applicant identified that he would be in Australia, the Tribunal assesses that the applicant will not report because he does not want to be removed from Australia during that time.

10. The Tribunal is not satisfied that the applicant will comply with Condition 8401 if granted the visa.

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

11. The Tribunal is not satisfied that the applicant will notify Immigration of any proposed change in his residential address. The Tribunal comes to this conclusion because the applicant gave inconsistent evidence about [Ms A’s] address, which the Tribunal attributes to the fact that the applicant will not be staying at [Ms A’s] address as claimed.

12. The Tribunal is satisfied that if the applicant is released on the bridging visa, he will not advise of any change of address during the 6 months he proposes to live in Australia because if his protection visa application is refused during that time and the applicant is compelled to leave Australia, he will not want his residential location known to Australian authorities because he does not want to be targeted for removal from Australia as he is here to work.

13. The Tribunal is not satisfied that the applicant will comply with Condition 8506 if granted the visa.

    8564:   The holder must not engage in criminal conduct.

14. The Tribunal is not satisfied that there is any evidence that the applicant has engaged in any criminal conduct in the past. In considering the applicant’s future conduct, the Tribunal is satisfied that the absence of any criminal history means the Tribunal can be satisfied that it is unlikely the applicant will engage in future criminal conduct in Australia.

15. The Tribunal is satisfied that the applicant will comply with Condition 8564 if granted the visa.

16. However, the applicant is not a person who will abide by the conditions that would be imposed on the bridging visa if granted.

17. As the Tribunal is not satisfied that the applicant will comply with the Conditions that would attach to the bridging visa if granted, the issue of whether to impose a security to ensure compliance with visa conditions does not arise.

    Is the applicant an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11) for the purpose of cl 051.211 of Schedule 2 to the Regulations?

18. The Tribunal accepts that the applicant was born on [date], making him [age] years of age at the time of decision. He therefore fails to satisfy subregulation 2.20(7) and (8).

19. There is no evidence that a medical specialist appointed by Immigration has certified that the applicant cannot properly be cared for in a detention environment. He therefore fails to satisfy subregulation 2.20(9).

20. There is no evidence that the applicant is a spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, or that he is a member of the same family unit as a non-citizen who is a spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. He therefore fails to satisfy subregulation 2.20(10) and (11).

21. Therefore, the applicant is not an eligible non-citizen referred to in any of the subregulations provided in cl 051.211 of Schedule 2 to the Regulations.

    CONCLUSION

22. For the reasons given above, the applicant does not satisfy cl 050.211 of Schedule 2 to the Regulations.

23. For the reasons given above, the applicant does not satisfy cl 051.211 of Schedule 2 to the Regulations.

    DECISION

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

    Nathan Goetz

    
    

    Member