2412476 (Migration)

[2024] AATA 2107

2412476 (Migration) [2024] AATA 2107 (27 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr David Ho (MARN: 9903257)

CASE NUMBER:  2412476

MEMBER:Penelope Hunter

DATE:27 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 27 May 2024 at 11:30am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – lengthy periods of unlawful residence – regular employment for cash payments – arrangements to depart Australia – fear of loan sharks – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 73, 359
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223; 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 501Kof the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 May 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 050.233, which requires the Minister to be satisfied that if the Bridging visa is granted, the applicant will abide by any conditions (if any) imposed on it.

3. The decision to refuse to grant the visa was made on 16 May 2024 on the basis that the delegate was not satisfied that the applicant would comply with the requirements of cl 050.223 of Schedule 2 of the Regulations. The applicant has provided the Tribunal with a copy of the delegate’s decision record.

4. The applicant appeared before the Tribunal on 23 May 2024 via telephone. The applicant is currently situated at Yongah Hill Detention Centre in Perth. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review, although his representative did not attend the hearing.

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

   CLAIMS AND EVIDENCE

7. The applicant is [an age] year old male citizen of Malaysia.

8. In their decision record, the delegate set out the following migration history of the applicant:

   • 21 January 2009 the applicant was granted an ETA (Visitor) (Subclass 976) visa.
   • [February] 2009, the applicant arrived in Australia.
   • 6 May 2009, the applicant’s visitor visa ceased.
   • 7 May 2009, the applicant became an unlawful non-citizen.
   • 27 June 2016, the applicant lodged and application for a protection (Subclass 866) visa.
   • 28 June 2016, the applicant was granted a bridging visa (subclass 030) in association with his protection visa application.
   • 9 March 2017, the Department refused the applicant’s protection visa application.
   • 24 March 2017, the applicant sought a review at the Tribunal.
   • 7 August 2018, the Tribunal (differently constituted) affirms the decision to refuse the applicant’s protection visa.
   • 4 September 2018, the applicant’s Subclass 030 visa ceased.
   • 5 September 2018, the applicant became an unlawful non-citizen.
   • 2 May 2024, the applicant was located by the Department and detained.

9. The Tribunal discussed this history with the applicant at hearing and he did not dispute the details.

   Evidence before the Tribunal

10. The Tribunal has before the Department file in relation to the visa application, and documents submitted to the Tribunal on review. The relevant documents include:

    ·Field Operation Located Person Interview form dated 2 May 2024.

    ·Bridging visa application form submitted on 14 May 2024.

    ·Notes of the delegates interview with the applicant on 15 May 2024.

    ·The delegate’s decision record of 16 May 2024.

    ·The applicant’s representative’s submissions of 20 May 2024.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS OF THE TRIBUNAL

11. 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.

12. In his bridging visa application form the applicant set out that he was seeking the visa on the basis that was intending to depart Australia. The applicant confirmed this was still the case at the hearing.

13. It was on this basis that it is found that the applicant satisfied the requirements in cl 050.212(2) of Schedule 2 to the Regulations.

14. The issue in this case is whether the applicant meets cl 050.223 of Schedule 2 to the Regulations.

    Whether the applicant will abide by conditions - cl 050.223

15. 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.

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. To determine what conditions, if any, must of may be imposed on the Bridging visa if granted to the applicant, cl 050.6 of the Regulations provides direction. In the primary decision, the delegate indicated it would impose the same condition that the Tribunal considers should be imposed given the circumstances of the case, namely:

    ·8101 No Work.

    ·8207 No Study.

    ·8401 Report as Directed.

    ·Condition 8505 Reside at a specified address.

    ·8510 Show a valid passport.

    ·8511 Present a valid departure ticket.

    ·8512 Depart by a specified date.

19. The Tribunal explained these conditions to the applicant at the hearing and he confirmed that he understood them. The Tribunal asked the applicant if he disputed that these conditions would be appropriate and he did not.

    Condition 8101 No work

20. The delegate in the first instance was not satisfied that the applicant would abide by this condition. When asked how he would support himself financially the delegate records that the applicant said that his friends would support him financially, yet the delegate noted that the applicant did not provide any evidence or details to substantiate these claims.

21. The delegate recorded that the applicant stated when interview that he had worked at multiple places receiving cash payments, and considered that this indicated that the applicant was willing to circumvent the system and able to find employment as required without the right to do so.

22. The delegate further noted that the applicant had never held a visa with work rights in Australia for the almost fifteen years he had remained onshore. That he had a long history of non-compliance, completely disregarding his visa conditions and unlawful status.

23. At the hearing, the applicant confirmed that he understood the delegate’s concern and when asked by the Tribunal if he would like to comment on those concerns. The applicant said that he promised to abide by any conditions but that he just needed a few months to settle his affairs in Australia. He said that even though he had been in Australia for 15 years he had kept in contact with his family and he was looking forward to being reunited with them.

24. The applicant said that he was not aware that he did not hold a valid visa when he was detained by Border Force Australia. He claimed that he had instructed an agent in the past to lodge his protection visa application and this agent became uncontactable. He said that he did not get any letters from the Department from his agent about this visa application. If he had he would have taken the refusal on review. He also acknowledged that he had heard the Department had tried to telephone him and he said that with all the scam calls at the moment he would not pick up an unrecognised number. The applicant at first claimed it was in 2019 he asked an agent to lodge a protection visa application on his behalf and said he had a letter from his agent saying that he could remain in Australia until advised by the Department that they had dealt with his visa application. Upon further questioning the applicant said the letter was issued in 2017 and it was since then he not been able to contact his agent. The applicant also said that some of his friends from his church had their matters ongoing for five or six years so he thought he would be okay. The Tribunal put to the applicant that seven years was not a reasonable time to be without contact from his agent and he was asked how he expected the Department to contact him and what steps he took to enquire as to his visa status. The applicant claimed that he did not have any idea what to do, that was why he had engaged an agent. He said that he did not know how to go online. The Tribunal put to the applicant that he could have asked his friends at church about the process and he replied that he thought his situation was like them where his friends had waited several years without contact.

25. The Tribunal has considered the applicant’s claim that he did not know he did not have a valid visa and notes that the applicant has a positive obligation under the Act to ensure his contact details are correct and up to date. It is not accepted that the applicant made any reasonable enquiries about the status of his protection visa application, or that he could reasonable consider the Department knew how to contact him. The Tribunal is also considered that he had the skills to instruct another agent to make enquiries on his behalf. He has also not provided an explanation for the seven years prior to this that he spent as an unlawful non-citizen prior to lodging his visa application. It does not accept that the applicant was unaware of his visa status and finds his claims that he believed he continued to hold a bridging visa lack reliability.

26. The applicant did concede to the Tribunal that he had never held work rights in Australia and that he had worked in the past. However, he claimed to the Tribunal that he never had any factory or proper job he just worked in casual jobs because he needed to survive. He said he had in the past worked picking [fruit] and also as [another occupation]. He claimed that he had not worked since 2019 because he was supported by his good friends. These friends also allowed him to stay in their house for free in exchange for [a particular task].

27. Pursuant to the provisions of s 359AA of the Act the Tribunal identified to the applicant information contained in the Field Operation Located Person Interview form dated 2 May 2024, contained in the Department file. Particularly, the information that he told the officer that he had been working from 2019 to the present for [Mr A] at a particular factory in [Town 1] fruit picking and packing for cash. The Tribunal advised the applicant that the information was relevant because it was inconsistent with what he had told the Tribunal that he had not worked in Australia since 2019 and never in any factory. Further, that if the Tribunal relied upon it, it may find his evidence not to be credible, and consequently that it may not be satisfied that he would abide by the conditions of his visa if released. The applicant elected to comment immediately and said that when he was arrested it was early in the morning. He first claimed that he did not have an interpreter and then he conceded that he did. He claimed that what he told the officer was that he had not worked since 2019 and he suggested that the Department field officer was confused. Due to the concerns regarding the reliability of the applicant, the fact that he had conceded to the delegate that he had worked for cash in the past and the length of time that the applicant has been in Australia without any other demonstrated means of support, the Tribunal does not accept the claims of the applicant that the delegate mistakenly recorded information about his employment. The Tribunal has also had regard to the fact that the bridging visa that the applicant held from 2016 to 2018 did not have work rights. The applicant breached this condition in the past. The Tribunal also does not accept that he has not worked since 2019. It is considered that the applicant deliberately was attempting in his evidence to obfuscate the extent of his non-compliance with visa conditions and Australian migration laws in the past to assist a positive visa outcome. As the applicant has worked in Australia in the absence of work rights for a considerable time in the past the Tribunal places weight on this as an indicator that the applicant would continue to engage in this conduct in defiance of conditions if granted the visa.

28. The applicant claimed that if released he would be supported by his good church friends. Despite being on notice of the delegate’s concerns that there was no evidence to substantiate this, the applicant has provided no additional material from his good friends to support his claims to the Tribunal. His representative’s submissions are also silent on the applicant’s community support. The applicant further claimed that the owners of the property he was previously living in would continue to provide him with accommodation. He identified the address as the property in [Town 1] disclosed as his residential address in the visa application. When asked who he was living with the applicant said it was a husband and wife and their two children, he did not provide names. The applicant has also provided no evidence to the Tribunal to support the claim that he has free accommodation. In the absence of support the applicant will need to work to afford to live in the community until he departs and he has shown a capacity and ability to obtain employment outside the formal system.

29. The applicant further told the Tribunal that he would not need to work, because he had between $5,000 and $7,000 in savings the support of friends. He wished to obtain a bridging visa so he could sell his car and he could get a better price for it if he was not in detention. He wished to have the time to say goodbye to the friends he had made over the last 15 years and there was a lot of places that he had not visited in Australia and wanted to see them because he may not be able to come back. He said that he was very sick and old and only needed two or three months more so that he would not leave Australia without regrets. He claimed because of his age and health he would not be able to work in the future.

30. The applicant was asked about his health and his claims that for this reason he would abide by the conditions. He said that he had high blood pressure, he confirmed that this could be treated with medication. The Tribunal asked the applicant if this condition had caused problems for him in the past and he said that he did not know that it was an issue until he was detained. The Tribunal does not accept that the applicant’s health would provide any obstacle to him working in the future.

31. The Tribunal noted that the applicant had set out in the visa application that he would returning to Malaysia even though he may be risking his life among loan sharks from whom he had previously borrowed a significant amount of money. When questioned about this at the hearing the applicant said that when he was detained by Border Force Australia he had said this but while he was in immigration detention he had contacted his family and they said that it would work out for him and that the police in Malaysia would be able to deal with the situation. The Tribunal put it to the applicant that it was not only when he was taken into immigration detention on 2 May 2024 that he raised this claim, but also in his visa application of 14 May 2024, and when interview by the delegate on 15 May 2024. In response, the applicant claimed that at that time he did not know about the situation in Malaysia, he had since spoken with his family, they had spoken to a lawyer, his brother had said he could assist him financially. The applicant also argued that he had been told the police were also effective and it had been 15 years and the loan shark may not be in business anymore. The applicant told the Tribunal that he now did not need to make money or worry about this issue. The Tribunal put to the applicant that had earlier said that he had kept in contact with his family throughout his time in Australia and in these circumstances it might not accept that he did not previously ask them about the loan sharks. The applicant said that he did not talk to them about loan sharks before, he thought he had a valid visa in the past it was only because he knew he needed to return to Malaysia that he raised it. The Tribunal does not accept as reliable his response that he had only just found out from his family that this will not be an issue for him. If he had been in contact with them as he maintained it is not accepted that he would not have ever enquired on these matters. It does not accept that these concerns could have dissipated in the days between his interview before the delegate and the Tribunal hearing. It is not satisfied that the concerns of the applicant about debts in Malaysia are not ongoing. It is further considered that the need for the applicant to have funds to address these debts would provide a significant motivator for the applicant to seek to work.

32. Finally, the Tribunal is not satisfied that the applicant needs several months to travel, sell his car and say goodbye to friends in the circumstances. It is considered that the applicant is seeking to delay his departure so he can work to save money to address his needs.

33. Considering the totality of the evidence the Tribunal places weight on the applicant’s history of non-compliance with visa conditions and Australian migration laws. Fifteen years is a considerable time for the applicant to have worked in Australia without ever holding valid work rights. The Tribunal is also not satisfied as to the reliability of the applicant’s claims that he would abide by the condition in the future and he has provided no evidence to corroborate his claims of support. It is not satisfied on the evidence that he has means of support or that his concerns about debts in Malaysia have resolved. It is considered that he has strong motivators to continue to work and he had demonstrated with his extensive period in the community he has the connections and ability to do so.

1. On the evidence the Tribunal is not satisfied that the applicant will abide by condition 8101 if granted.

   8401 report as directed and 8505 reside at a specified address

2. Delegate records in their decision record that the applicant stayed in Australia for without a visa for 12 years and 9 months. They also expressed concern that had Australian Border Force not located him would have remained in the community without a visa. It was noted that attempts had been made to contact the applicant in 2018 to seek to regularise his status which went unanswered.

3. When asked to comment on these matters the applicant said that he would continue to reside at his previous residential address in [Town 1]. Yet the Tribunal note that he had not in the past taken any steps to advise the Department of his contact details in circumstances where he claimed he believed he still had a valid bridging visa, despite a positive obligation to do so. Further, as previously discussed he has not presented any supporting evidence that his friends will support him or that the property owner will let him reside rent free.

4. As to the applicant’s claims that he needed some time in Australia to resolve some matters. He claimed in the visa application he would depart by 13 July 2024. At the hearing he frequently made reference to a period of three months. When the Tribunal identified to the applicant that it was of concern that the date of his departure kept extending he said that he could probably do it in two months. This did not satisfactorily address the Tribunal’s concerns.

5. As to why the applicant needed to remain in the community, there was firstly his car. The Tribunal asked the applicant if he had ever held a Western Australian drivers licence and he said he had not but his still had his Malaysian licence. The applicant was asked where he got the money to buy the car and he said it was a gift from his friend. He was asked if the car was registered in his name and he said that it was in the name of his friend. The Tribunal put to the applicant that his friend could then sell it on his behalf. The applicant then made claims that his friend had moved to Melbourne and that it would be easier for the applicant himself to do it and get a good price. The Tribunal does not accept that the applicant needs to reside in the community for several months to sell a car that he was given for free, registered in the name of someone else, and the claim that he needs to remain in the community for this reason demonstrates to the Tribunal his unreliability as a witness.

6. The applicant further said that with time he could obtain a new Malaysian passport and arrange a ticket to depart. The applicant was asked what steps he had taken to make these arrangements since he was detained and he said that he had not taken any yet, he was waiting to be released from detention.

7. The applicant also said that he wanted several months so he could travel as he had not previously had the opportunity. It was put to the applicant that the 15 years he had spent onshore was sufficient time to have travelled in Australia. He said that he had not had the opportunity before and with the money he could get from the sale of his car he could afford to travel. The Tribunal raised concerns that the applicant would abide by the relevant conditions if he planned to go travelling, and the applicant said he would just do some travel around Perth. When asked where he wanted to travel the applicant identified the sites of the Pinnacle and the city of Busselton. The Tribunal put to the applicant that these were not within Perth and he claimed that he could undertake day trips and continue to reside at the address. The Tribunal considers the stated intention of the applicant that he wanted to do some travelling as inconsistent with the undertaking that he would abide by the condition to reside at a specific address. In any event it is considered that the applicant’s evidence on this matter lacked reliability and had been manufactured to assist the visa application.

8. Once more the Tribunal has had regard to the previous claims of the applicant regarding his concerns about debts to loan sharks in Malaysia and the risk to his life. It does not accept that the evidence of the applicant that he has resolved these fears. It is considered that his concerns on this matter provide an ongoing motivation for him to disappear once more into the Australian community in defiance of conditions imposed on his bridging visa that he remain at a specified address and report as directed.

9. Upon consideration of this evidence, having regard to the length period in the past that the applicant has not abided by his visa conditions or Australia’s migration laws, the absence of any evidence that he can reside at the stated address in the future and because the Tribunal does not accept as reliable the evidence of the applicant regarding the reasons he needs to stay in the community, it is not satisfied that the applicant is motivated to depart within the timeframe as claimed or that he would abide by condition 8401 or condition 8505.

   Conclusion

10. Having found by that the applicant will abide by condition 8101, 8401 or 8505 it is not necessary for the Tribunal to consider further conditions.

11. 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.

    DECISION

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

    Penelope Hunter
    Member