2404406 (Migration)

[2024] AATA 2748

2404406 (Migration) [2024] AATA 2748 (21 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mukesh Chand (MARN: 0962241)

CASE NUMBER:  2404406

MEMBER:Lilly Mojsin

DATE:21 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2024 at 11:56am

CATCHWORDS   
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Tribunal is not satisfied that the applicant would abide by his visa conditions – an unlawful non-citizen – criminal conviction – evidence regarding financial situation was vague and unconvincing – non- compliant immigration history – not satisfied that the applicant will abide by conditions 8101, 8401 and 8564 imposed on the visa if granted – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.222, 050.223, 050.224, Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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) 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 1 March 2024. 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 050.223, which concerns compliance with visa conditions.

3. The decision to refuse to grant the visa was made on 6 March 2024 on the basis that the delegate was not satisfied the applicant will comply with the conditions imposed on the visa. The delegate also found that cl.050.224 does not apply as an authorised officer has not required that a security be lodged. The delegate did not consider that a security of $5000 was adequate, at this time.

4. The applicant appeared before the Tribunal on 20 March 2024, via video, from Villawood 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 and that he did not need the services of an interpreter. The Tribunal was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant’s immigration history obtained from the Department decision, provided by the applicant with the review application, was confirmed by the applicant as correct at the Tribunal hearing, and is as follows:

   VISA HISTORY

   ·On 5 June 2016 the applicant was granted a Student (TU-573) visa in order to study bachelor [course]. He finished a Diploma [course] in 2018.

   ·On 30 September 2020 the applicant’s Student (TU-573) visa ceased and the applicant became an unlawful non-citizen.

   ·On 4 November 2021 the applicant’s Student (TU-500) application was refused, and the applicant’s WC-030 bridging visa ceased, with the applicant become an unlawful non-citizen.

   ·On 24 May 2022 the applicant lodged an application for a Permanent Protection (XA-866) visa.

   ·On 2 August 2022 the applicant’s Permanent Protection (XA-866) visa application was deemed invalid.

   ·On 6 September 2022 the applicant’s WC-030 bridging visa ceased, and the applicant became an unlawful non-citizen.

   ·On 27 September 2023 the applicant was granted a WE-050 bridging visa on criminal detention grounds.

   ·On 6 October 2023 the applicant lodged an application for a Combined Partner (UK820/ BS 801) visa and an application for a WE-050 bridging visa.

   ·On 12 October 2023 the applicant’s WE-050 bridging visa was refused, and he sought merits review at the Administrative Appeals Tribunal (AAT) on the same day.

   ·On 20 October 2023 the AAT[1] affirmed the refusal decision of the applicant’s WE-050 bridging visa.

   [1] AAT 2316387

   ·On 1 March 2024 the applicant lodged an application for a WE-050 bridging visa.

   ·On 6 March 2024 the applicant’s WE-050 bridging visa was refused.

   As to the applicant’s criminal record, the Department decision records:

   ·On 16 September 2022 the applicant was charged with driving and drug related offences and was refused bail.

   ·On 21 September 2022 the applicant was convicted of the following offences:

   oThree counts of contravene prohibition/restriction in AVO (Domestic)

   oFour counts of drive motor vehicle during disqualification period (Second offence)

   oTwo counts of possess prohibited drug

   ·The applicant was sentenced to eighteen months imprisonment with a non-parole period of nine months to commence on 16 September 2022 and end on 6 June 2024.

   ·On 4 October 2022 the State Parole Authority revoked the applicant’s Intensive Correction Order and gave a fixed sentence of three weeks, four days to commence on 16 September 2022 and end on 10 October 2022.

   ·On 7 December 2022, after the applicant had sought appeal, the sentence was upheld, but varied to serve the time by way of Intensive Correction Order in the community.

   ·On 28 January 2023 the applicant was charged with proceed of crime under $1,800 and possession of drugs. Applicant said it was 2 charge of prohibited drugs. In court he provided details. He pleaded guilty to drugs and not guilty for cash.

   ·On 21 March 2023 the State Parole Authority revoked the applicant’s Intensive Correction Order and gave a fixed sentence of one year, three months and one day, to commence on 21 March 2023 and end on 21 June 2024.

   ·On 13 November 2023 the applicant was convicted of two counts of possess prohibited drug which were finalised as a Section 10A – no penalty imposed.

6. Prior to the Tribunal Hearing the applicant’s representative provided a submission. In that submission it was noted, regarding the applicant’s drug use, that drug use was widespread among the acquaintances of the applicant. During that time, he used to spend a lot of time with friends and did not worry about anything else. This might have been why the applicant did not adhere to bail conditions, such as reporting as directed.

7. The applicant's partner is currently residing in their apartment along with her mother, while the applicant is in detention. The partner is employed on a casual basis and contributes to the rent using her wages, as well as funds from Centrelink. Additionally, the partner's mother also contributes towards the rent and other expenses while also paying for her own rent and expenses as her other children reside in different rented accommodation.

8. Upon discovering that his partner was pregnant, the applicant had an epiphany that he needed to change his lifestyle in order to become a better parent. He made a conscious decision to give up drugs and cut ties with his old friends. He assured his partner that he would lead a family-oriented life henceforth, ensuring that their child would grow up in a drug-free environment.

9. The applicant is firm in his commitment to comply with the visa conditions, as he has a permanent partner and wishes to reside with her and start a family. He is determined not to engage in any actions that could endanger his partner visa application.

10. The applicant has quit using drugs and stopped associating with his previous acquaintances. The applicant is happy to provide a security bond in the form of:

    Cash    $ 5,000.00;

    [A] Car worth approximately $14,000.00; Motorbike worth approximately $ 5,000.00.

11. The total amount of security will approximately be $ 24,000.00. The applicant and his partner do not have any other assets or savings that they could offer for security except for the above cash and vehicles.

    Tribunal hearing held on 20 March 2024

12. At the Tribunal hearing the applicant confirmed his migration and criminal history, as detailed in the delegate’s decision record (a copy of which he provided to the Tribunal).

13. The Tribunal discussed his studies and work history in Australia. He had worked as a [occupation] at numerous [workplaces] and before that when he lived with a home stay, he worked in a [shop]. The last time he was employed was in 2020, in a [workplace]. He knew his wife for a long time and they started living together end 2021 start 2022. His wife has been supporting him.

14. He told the Tribunal that the last time he had taken drugs was some time ago, it was 2 weeks before he got locked up, probably around 7 March 2023. He takes cannabis and Xanax.  When his wife had a miscarriage there was a lot of tension and he relapsed.

15. In regard to adhering to his bail conditions, such as reporting as directed, he applicant said that he has been in prison for 6 months and then went to Villawood. His wife is his big support.  He has to adhere by conditions other wise he will be sent back home. He realises the consequences.

16. The applicant’s only family in Australia is his wife and her mother. His 2 sisters live in [another country] and his mother lives in Bangladesh. His parents are not together and he does not communicate with his father. His mother will come to Australia during Ramadan.

17. His wife owns a [car] and he owns the motor bike. His wife accumulated money to buy the car because she works at [different workplaces]. She saved the money and got some from her father. His wife is [age] years of age and she has been working 1.5 years, she had a gap in between and she had been working at [workplace]. He thinks she got the car from her extended family.  She bought it for less than $14000 but it is worth $14000. She bought it when he was in [a suburb].

18. The applicant gave evidence in regard to his plans if released from detention. He would like to live in their townhouse in [a] Street, [a suburb]. It is an apartment, leases in both names. The rent is $460, it is a 3 bedroom townhouse. His mother-in-law spends time with them, she lives one street away and she contributes to the rent, sometimes she pays half.   

19. In regard to supporting himself, he said his mother is coming and he has her support. His second sister lives in [another country] and she says she will support him. His wife and mother-in-law will also support him.  Mother-in-law is retired and she is in receipt of a pension. His wife works [part-time]. She has [a disorder] and she receives a form of disability support. She uses the disability support to support herself. He has about $1700 -1800 in bank. His mother said she will help him with cash.

20. The Tribunal referred to the No Work condition and the applicant said his focus is on his wife and the mental health has taken a toll on him. One year being away has taken a toll.

21. When asked why he does not want to go back to Bangladesh he said he has only worked in Australia. He has a wife and there are opportunities here and he wants to stay with his wife. His wife is nervous about going to Bangladesh and to go there she would want to take her mother.   

22. The Tribunal referred to his criminal record and raised with the applicant that his criminal record was a concern and suggested he would breach condition 8564 – Must not engage in criminal conduct. The Tribunal asked the applicant how it could be satisfied he would not engage in criminal conduct given his conviction and drinking/drug problems. He said previously he did not think. He has made mistakes. His parole officer has told him if he breaks the law, he will have to go inside again. He is reading books and trying to break his habits, he has too much to lose. He has been away from everyone for one year. His friends have now moved to different places. He has been having counselling and they are planning to have a child.

23. The Tribunal spoke to [Ms A], the applicant’s wife, by telephone. She said that they married on [date] December 2022, and her husband has been imprisoned most of the time, but she could not state how long.  She has known him for 3 years. She knows him very well, they are always on the phone. She is working casually and is looking to find a second job. She gets some money from Centrelink. She gets $450 per week from Centrelink and abut $200-300 per week depending on how many shifts she works. When put to her that this was not a lot of money to live on, she agreed. Her mother gives her money when she needs it. Her mother is on a carers pension but also gives her money. Her mother does not own her own home and her brother and sister live with her mother. Her brother will be moving away and her mother and sister, who is a teenager, will come and live with them too. They are planning to live together when her husband comes home.

24. She does not take drugs. Her husband will not take drugs again as she has gotten rid of people he did drugs with. He will be with her, her mother and sister.  She is willing to provide  security, her car. She will be able to get around if she sells her car by bus and her mother has a car.

25. [Ms B] also gave evidence to the Tribunal, by telephone. She said that her daughter needs her husband by her side. She suffers from depression and a mental illness. When asked how she is able to afford to support her daughter whilst on a pension, she said she has some savings, she does the best she can. She even provides for her grandchildren. She has $5000.  Asked what she would do if the applicant returned to his drug habits, she said it will not happen as the environment is different.  He has changed from when he was in jail.

26. The applicant said that he has been reflecting on himself and the past 2 years especially his driving offences. He is not a criminal. He is not proud that he broke the law and it is not his intention to commit crimes but when he was on marihuana he would forget things and forget to turn up. He wants to have a kid and a house with his wife. He has some savings in the bank but was not able to access them until released from detention.

    FINDINGS

27. 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.

28. The Tribunal accepts that the applicant satisfies 050.212(3) in Schedule 2 of the Regulations because on 06 October 2023, whilst in immigration detention, the applicant lodged an application for Combined Partner (UK 820/ BS 801) visa and that application has not been finally determined.

29. The applicant has been interviewed by an officer authorised by the Secretary for the purposes of cl 050.222. The applicant therefore also satisfies cl. 050.222.

30. The issue to be determined in this review is whether the applicant will satisfy cl.050.223.

31. 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.

32. 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].

33. 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.

34. The Tribunal considers that the following conditions should be imposed:

    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.

35. It is not in contention that the applicant has been charged with and committed crimes in Australia and has been sentenced to a term of imprisonment. It is also not in contention that the applicant did not report to his parole officer in accordance with the terms of the parole order.  His explanation was that the drugs affected his memory causing him to not attend the required appointments. It is also not in contention that the applicant has been unlawful at various times thereby breaching immigration laws.

36. The Tribunal gives the applicant the benefit of the doubt and accepts that he will comply with 8506 (notify change of address) and 8207 (no study).

37. In regard to Condition 8101 (No Work) the applicant advised the Tribunal that his wife and his mother-in-law would provide him with accommodation and financial assistance so that he is not required to work.

38. The Tribunal accepts that the applicant’s wife suffers from [a disorder]. The Tribunal accepts that the applicant’s wife wants him released to be with her and that her mother is willing to assist her financially. Both the applicant’s wife and mother-in-law are in receipt of social security payments, and his wife additionally earns a salary from part-time employment which varies. She intends to find a second job but was not aware how this would affect her social security situation.

39. The applicant and his wife’s evidence regarding their financial situation was vague and unconvincing. They all claimed that mother-in-law would come to live with the applicant, and his wife, when he came out of detention but the mother-in-law was presently renting another  apartment nearby with her teenage daughter. The mother-in-law was paying rent at her own apartment but was also assisting the applicant’s wife financially paying a proportion of the rent and also assisting her grandchildren. She claimed she had $5000. The applicant claimed he had some money in a bank account, the exact amount he was not sure about. It appeared to be less than $5000. He claimed that his mother and sisters would also help him. There is no other evidence before the Tribunal as to the financial circumstances of the applicant and/or any persons who it is claimed will assist the applicant financially to remain in the community without earning any income. The Tribunal is not satisfied that the applicant has demonstrated that he will have sufficient income with which to live on without having to work and therefore without restoring to breaching visa condition 8101 (no work).

1. Therefore, the Tribunal is not satisfied that the applicant will comply with visa condition 8101 (no work).

2. In regard to condition 8564 (no criminal conduct) and condition 8401 (report at a specified time and place), the applicant is remorseful over his past criminal actions and how it has affected not only him but his relationship with his wife. But in light of the applicant being convicted for criminal offences that resulted in custodial sentences, and subsequently breached ICOs resulting in them being revoked and being sent back to prison and not abiding by parole conditions, the Tribunal is not satisfied that the applicant will not breach these conditions, if granted the visa.  

3. Clause 050.224 states that:

   If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.

4. The delegate considered whether a security bond will act as an incentive for the applicant to abide by visa conditions and found that no amount of security will act as an incentive for the applicant to abide by the abovementioned visa conditions, if one could be provided.

5. Departmental guidelines state that the decision maker is to take into account all factors relevant to the applicant’s ability to satisfy them that they will comply with visa conditions, including consideration of the financial and personal circumstances of the applicant or guarantor. The amount of security should be sufficiently high to encourage compliance with any conditions imposed on the visa but not so high as to be beyond the applicant or guarantor’s capacity to pay.[2]

   [2] PAM 3 Compliance and Case Resolution – Program visas – PAM – Bridging E visas – BVE 050 securities – Authorised officer requires a security (re-issued 19/11/16).

6. The Tribunal has considered the applicant’s offer to pay a $24000 security bond to secure compliance with conditions of a BVE. This security comprised a motor bike, a motor vehicle and cash of $5000. The Tribunal is not satisfied that the applicant and his guarantors, his wife and mother-in-law, have provided sufficient information regarding their finances for the Tribunal to assess their financial and personal circumstances.

7. Given the nature of the applicant’s criminal history and non- compliant immigration history and the lack of sufficient information regarding their finances, the Tribunal finds no amount of security will act as an incentive for the applicant to abide by the abovementioned visa conditions.

8. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions 8101, 8401 and 8564 imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

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

10. 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

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

    Lilly Mojsin
    Member