2410074 (Migration)

2410074 (Migration) [2024] AATA 1563 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2410074

MEMBER:Rachel Da Costa
DATE:9 May 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 09 May 2024 at 12:17pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – period of unlawful residence – applicant convicted of several offences – offers of accommodation and support – financial resources – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.222, 050.223, 050.613, 051.211; Schedule 8
CASES
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

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.
The applicant applied for the visa on 26 April 2024. 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, which requires the Minister to be satisfied that if the Bridging visa is granted, the applicant will abide by the conditions (if any) imposed on it.
The decision to refuse to grant the visa was made on 30 April 2024 on the basis that the delegate was not satisfied that the applicant met the requirements in cl 050.223. The applicant has provided the Tribunal with a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments. The hearing was conducted using the Microsoft Teams videoconference platform. The applicant is currently residing in [a named detention centre]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The applicant is [an age]-year-old male from China.
Migration, visa and criminal history
The applicant’s migration, visa and criminal history is set out in the delegate’s decision and the Tribunal discussed this with the applicant in the hearing:
·     [June] 2018: the applicant arrived in Australia as the holder of a Student visa and has not departed since.
·     26 June 2020: Student visa ceased and the applicant applied for a Visitor visa; he was granted a Bridging visa A in association with the application.
·     10 March 2021: Visitor visa application was refused.
·     14 April 2021: Bridging A visa ceased.
·     15 April 2021: the applicant became an unlawful non-citizen and currently remains unlawful.
·     [April] 2021: the applicant was charged with drug-related offences and remanded in criminal custody.
·     [December] 2022: the applicant was convicted of drug-related offences and sentenced to [term] in prison with a non-parole period of 3 years.
·     [April] 2024: the applicant was released on parole from prison and immediately detained under s 189 of the Act and transferred to [the named detention centre].
·     26 April 2024: the applicant applied for a permanent Protection visa (class XA) (subclass 866), which is also an application for an associated Bridging visa E (class WE) (subclass 050/051).
The Bridging visa application made 26 April 2024 as part of the Protection visa application is the subject of this application for review.
Evidence before the Department and Tribunal
The Tribunal has before it the Departmental and Tribunal files. Relevant documents on those files include:
·     Australian Border Force (ABF) Field Operation Located Person Interview form dated [in] March 2024;
·     ABF Field Operation Located Person Interview form dated [in] April 2024;
·     Parole reporting arrangements document from NSW Justice dated [in] April 2024;
·     Bio-data page of the applicant’s Chinese passport with expiry date [in] 2028;
·     Application for a Protection visa form dated 26 April 2024 with written statement of claims attached;
·     Notes of delegate’s interview with the applicant on 29 April 2024, the relevant parts of which are referred to in the delegate’s decision;
·     Delegate’s decision record dated 30 April 2024;
·     Statutory declaration of Ms [Friend A] dated 1 May 2024;
·     Statutory declaration of [Friend B] dated 1 May 2024;
·     Employment reference from [Employer A], [Agency 1], dated 10 October 2022.
Where relevant, these documents are referred to in more detail below.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The delegate found that the applicant meets cl 050.212(3) and that he continues to meet cl 050.221 and cl 050.222.
The issue in this case is whether the applicant meets cl 050.223.
Whether the applicant will abide by conditions - cl 050.223
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.
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].
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.
To determine what conditions, if any, must or may be imposed on the Bridging visa, the Tribunal must go to cl 050.6. In this case, cl 050.613A applies because the applicant has applied for a Protection visa and the applicant is not in a class of persons specified by the Minister by instrument in writing for that paragraph. Subclause 05.613A makes it clear that in the applicant’s circumstances, condition 8101 must be imposed on the Bridging visa. Clause 050.613A prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:
8101: (NO WORK) The holder must not engage in work in Australia.
8207: (NO STUDY) The holder must not engage in any studies or training in Australia.
8401:   (REPORT AT SPECIFIED TIME AND PLACE) The holder must report:
(a)       at the time or times; and
(b)       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.
These are the same conditions considered by the delegate. The Tribunal explained the conditions to the applicant in the hearing and he confirmed that he understood them. The Tribunal asked the applicant how it could be confident that he would abide by the conditions if he was released on a Bridging visa. The applicant responded with a detailed description of his migration history, his work history, the circumstances which led him to being imprisoned and expressed remorse for his actions. He stated that he did not know that the parcel he agreed to pick up for his co-worker contained drugs and he regrets wasting three years of his life in prison when he was only [age] years old. He said he was young and ignorant at the time and he apologises to his parents, friends and the Australian government. The Tribunal is prepared to accept that the applicant regrets the actions which led to him being imprisoned for three years.
In discussing the applicant’s visa history with him in the hearing, it was apparent to the Tribunal that the applicant did not have a good understanding of the visas he had applied for in the past, when they ceased, or the conditions attached to those visas. The applicant said his representative had looked after these things for him. His lack of awareness included if, and when, he had become an unlawful non-citizen, whether he had previously applied for a Visitor visa, and the detail of work rights attached to past visas. The Tribunal put to the applicant its concern that he appeared to be someone who did not pay attention to his visa situation and take steps to inform himself so that he could be sure he was complying with visa conditions. The applicant responded that he hoped the Tribunal can be assured he will pay attention to those matters even though in the past he had little knowledge. He said that while in prison he familiarised himself with legal matters and has learned things now. The Tribunal has considered the applicant’s response, but it does not allay the Tribunal’s concerns. The Tribunal finds that the applicant did not take responsibility in the past for informing himself about his visa situation and applicable conditions and had a relaxed attitude towards compliance with Australia’s migration laws. The applicant continues to be unaware of matters such as when he became an unlawful non-citizen and which visas he applied for in the past, so despite his assurance that he now has better knowledge of legal matters surrounding his visa situation, the Tribunal does not accept that this is the case.
Condition 8101 – no work
In the hearing, the Tribunal asked the applicant how it could be confident that he would comply with the “no work” condition on the Bridging visa. The applicant responded that he made a good friend in prison who is in his [age range]. This is [Friend B]. He told [Friend B] about his experience and how he regretted the past and [Friend B] had sympathy. The Tribunal asked the applicant how he could support himself in Australia without working. The applicant responded that he wishes to use the skills he has learned here to improve himself and [Friend B] said he would support the applicant with free accommodation and $2000 so he can engage in society again. The Tribunal asked the applicant how long [Friend B] would support him for and the applicant responded that [Friend B] said he would support him until he gets his “true” visa (which is a Protection visa). The applicant does not know how long this might be, but after he is released he will try his best to apply for a work permit. The Tribunal asked the applicant what he would do when the money from [Friend B] runs out, given $2000 won’t last very long in Australia. The applicant said that his friend [Friend A] can help him and even if he runs out of money, he won’t engage in criminal activities anymore.
The Tribunal asked the applicant what he would do if he was not granted work rights. The applicant responded that [Friend B] and [Friend A] would help him until he gets his visa (meaning his Protection visa). The Tribunal expressed its doubt about this given the period of time involved is unknown and could be lengthy. In their Statutory Declarations, neither [Friend B] nor [Friend A] have indicated that they would provide the applicant with ongoing, indefinite financial support. The Tribunal asked the applicant whether there was anyone else apart from [Friend B] or [Friend A] who would support him and he said there was not.
The Tribunal asked the applicant whether he had any money in savings or any assets. The applicant said he had $5000 which was with another friend called [Friend C]. The Tribunal put to the applicant that he had previously said in interviews that he had no money and no assets, which raised a concern about whether he was giving truthful evidence. The applicant said [Friend C] would confirm the information, the money comes from the applicant’s previous savings before he went to prison and includes the proceeds from the sale of a car the applicant owned.
The applicant gave evidence that he used to work in [industry 1] doing [occupation 1]. The Tribunal asked him whether he had permission to work in Australia in the past under his visa. He responded that his representative told him that he had permission, but he had little knowledge about it so he was not quite sure. Now he has better knowledge about these legal matters.
The Tribunal put to the applicant that he had recently given different evidence in various interviews about his financial situation, who would support him in Australia and his need to work, which raised a concern about whether the Tribunal could rely on his evidence as being truthful. The Tribunal put to the applicant that based on the evidence, it might not be satisfied that he has the means to support himself indefinitely if he is granted the Bridging visa and does not have permission to work. Therefore, the Tribunal might not be satisfied that he would abide by the “no work” condition of the Bridging visa. The applicant responded that he would not work until he gets his work rights and [Friend B] will keep supporting him until that time.
The Tribunal has considered the applicant’s response but it does not allay the Tribunal’s concerns for the following reasons. In his ABF interview [in] March 2024, the applicant said that he had no money in the bank in Australia or assets and he would rely for financial support on family overseas. In his ABF interview [in] April 2024, the applicant said he has no money in Australia and he would have to work to support himself. In his interview with the delegate on 29 April 2024, the applicant said he has $5000 in savings from past work and selling a car, he would live with a friend in [Suburb 1], he had an uncle ([named]) who would pay for his expenses indefinitely until he was granted a Protection visa but he could not provide the uncle’s contact details because they were not in regular contact and only communicated via WeChat. He also referred to a friend called [Friend D] in [Suburb 2] who would provide assistance with accommodation, food and travel expenses. On 1 May 2024, the applicant provided a Statutory Declaration from [Friend B] (who lives in [Suburb 1]) who offers to provide the applicant with free accommodation and $2000 to help his reintegration in Australia. In her Statutory Declaration of the same date, [Friend A] says she is “happy to help his to start his new life and help his everything I can same as he helped me a lot in my life as well”, but she is not more specific than this. In the Tribunal hearing, the applicant said that both [Friend B] and [Friend A] would help him until he gets his Protection visa. He did not mention [Friend D], and he gave evidence that he has lost contact with his uncle.
These changes in the applicant’s evidence over time raise doubts for the Tribunal about the applicant’s credibility generally, his claim to have money in savings and the extent and duration of financial support available to him. It appears to the Tribunal that the applicant has changed his evidence over time as he has realised the potential significance of his financial situation on the likelihood of him being granted a Bridging visa. Even if the Tribunal accepts [Friend B] will provide the applicant with accommodation and $2000, based on the evidence before it the Tribunal does not accept that [Friend B] and [Friend A] will support the applicant financially for an indefinite period until he is granted work rights, which is by no means certain. In the absence of credible, objective evidence to support the applicant’s claim, the Tribunal does not accept that he has $5000 in savings. The evidence indicates that the applicant’s financial position is very limited and so is his ability to support himself without working. The Tribunal put to the applicant that the fact he said he intended to apply for work rights suggests that he needs and wants to work in Australia. The Tribunal also considers that the applicant is highly motivated to work in Australia and to remain in Australia on a permanent basis. For the reasons set out above, including the Tribunal’s concerns about the credibility of the applicant’s evidence about his financial situation and his intentions around work, along with the Tribunal’s finding above about the ongoing lack of attention the applicant has paid to his visa situation and compliance with conditions, the Tribunal is not satisfied that if the Bridging visa is granted the applicant will abide by the “no work” condition.
Condition 8207 – no study
The Tribunal discussed the “no study” condition with the applicant. The applicant gave evidence in the hearing that when he came to Australia on his Student visa he studied English at a private college [in Suburb 2]. He did not complete his studies because things happened and his family could not support him anymore, so he had to study and work. The delegate’s decision refers to the applicant telling the delegate that he intended to study and his uncle would help him with the cost of study and rent. When asked about this in the hearing, the applicant said he had lost contact with the uncle and he was willing to study if his visa permitted him to do so, like he did in the past. When asked how the Tribunal could be confident that the applicant would abide by the visa condition not to study, the applicant said that unless he was granted a visa which permitted him to study, he would not study in Australia. Based on the Tribunal’s doubts about the applicant’s credibility, including changes in his evidence over time about his intentions and the situation with his uncle, along with the Tribunal’s concerns set out above regarding the applicant’s ongoing lack of attention towards his visa situation and compliance with conditions, the Tribunal is not satisfied that if the Bridging visa is granted the applicant will abide by the “no study” condition.
Condition 8564 – no criminal conduct
The Tribunal also discussed the “no criminal conduct” condition with the applicant in the hearing. The Tribunal asked the applicant how it could be satisfied that he would not engage in criminal activity again, particularly if he does not have the right to work and earn money. The applicant responded that he had spent three years in prison which was a waste of his life, he reflected on his past and learned something about Australian law. He said he would not commit the same mistakes again and is horrified when he recalls what he did. He said he has to abide by his bail conditions which include not committing offences. The Tribunal asked the applicant why he wants to be granted the Bridging visa and he said he wants the chance to stay in Australia so he can have the opportunity to improve himself. If the Bridging visa is granted, he will leave detention and try to get integrated into society again. After he gets his work rights, he will work diligently and try to use the skills he has learned, including [occupation 1], cooking and some English, to try to make a contribution to Australian society. The Tribunal asked the applicant why he wouldn’t return to China to his family. He said it was because of the freedom and democracy he felt in Australia. When asked if there were any other reasons, he said that before coming to Australia he had never felt as free. The applicant said that he would not make the same mistakes in the future as he had done in the past and he will not do anything illegal. The Tribunal accepts that the applicant does not wish to return to prison and he is on parole until [July] 2026. The applicant appears to have a better understanding of his parole conditions than he does of his visa-related matters. The Tribunal considers that applicant has a strong incentive to abide by the “no criminal conduct” condition and is satisfied that he will do so if the Bridging visa were granted.

In considering whether or not the applicant will comply with the conditions of a Bridging visa, the Tribunal has taken into account the positive character references provided by his friends, [Friend B] and [Friend A], and the positive comments made by [Employer A] in the October 2022 employment reference which describes the applicant has hardworking, well-mannered and with great opportunities for growth. For the reasons set out above, the positive references from these people do not outweigh the Tribunal’s concerns about whether the applicant would comply with the visa conditions.
For all the reasons set out above, the Tribunal is not satisfied that if the Bridging visa is granted the applicant will abide by conditions 8101 and 8207. The Tribunal is satisfied that the applicant will abide by condition 8564. In light of these findings, it is not necessary for the Tribunal to assess and make findings on whether the applicant will abide by conditions 8401 and 8506.
The delegate did not request a security bond to be provided as they were not satisfied that a security bond would act as an incentive for the applicant to abide by the visa conditions. Based on all the evidence before it and the Tribunal’s findings above, the Tribunal is not satisfied that the applicant would abide by the conditions if a security bond was required.
Conclusion
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Rachel Da Costa
Member

[2024] AATA 1563

9 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction