2428909 (Migration)

[2024] AATA 3173

2428909 (Migration) [2024] AATA 3173 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Vivian Wei Wei Wang (MARN: 0853910)

CASE NUMBER:  2428909

MEMBER:Sheridan Aster

DATE:26 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 August 2024 at 4:25pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with the visa conditions – lengthy stay in Australia – period of unlawful residence and employment – protection application – Australian permanent resident child – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 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

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 13 August 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 will be discussed below.

3. The decision to refuse to grant the visa was made on 16 August 2024 on the basis that the applicant would not comply with the conditions of the visa. The applicant appeared before the Tribunal by video on 26 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant arrived in Australia [in] April 2007 on a [Student] visa. On 2 June 2007, the applicant was granted a second [Student] visa with partial permission to work. On 21 April 2009, that visa was cancelled because the applicant did not comply with one of the mandatory conditions of the visa. Condition 8202 required the applicant to be enrolled in a full-time course of study or training.

7. The applicant has not departed Australia since he arrived in 2007. He remained in Australia with no valid visa from 2009 until he was identified by New South Wales Police [in] August 2024 during a traffic stop. The applicant was referred to Australia Border Force and taken into immigration detention.

8. [In] August 2024, while in detention the applicant made an application for a Subclass 866 Protection (Class XA) visa, which is also taken to be an application for a Subclass 050 or 051 Bridging E visa. In this case, Subclass 050 is the relevant Bridging visa.

9. The issue in this case is whether the applicant would abide by the conditions of the visa.

   Whether the applicant will abide by conditions - cl 050.223

10. 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.

11. 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.

12. 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.

13. In this case, cl 050.613A applies because the applicant has applied for a protection visa and is not covered by another relevant provision. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. Condition 8101 is mandatory in the current matter. The condition requires that the applicant not engage in work in Australia.

14. The applicant lived and worked in Australia with no valid visa for more than 15 years while avoiding detection by Australian authorities. In the circumstances, the Tribunal considers that the following conditions should be imposed:

    ·8401: The holder must report at the time or times, and at a place or in a manner specified by the Minister.

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

15. In assessing the applicant’s likely conduct, 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.[1]

    [1] Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

16. The decision of the delegate outlines that the applicant was interviewed by Departmental officials on 13 and 14 August 2024. During those interviews the applicant told the officials that he wanted to remain in Australia and work. He was aware that his student visa had been cancelled but did not contact the Department to resolve his immigration status because he was concerned about being asked to leave Australia.

17. On 21 August 2024, the Tribunal received a written statement from the applicant and supporting documentation. The applicant outlined that he has [an age]-year-old daughter with his former partner. His daughter is an Australian permanent resident. The applicant requested that he be released from immigration detention so that he can maintain regular contact with her. He declared that he would live with a friend in Brisbane, [Friend A], who has agreed to financially support him while his Protection visa application is assessed. The applicant declared that he would comply with the Bridging visa conditions and depart Australia voluntarily if his Protection visa applicant were unsuccessful.

18. In support of the statement, the applicant supplied:

    ·A certificate issued by the Western Australian Registrar of Births, Deaths and Marriages recording the birth of [Daughter A] on [date]. [The applicant] is recorded as the father.

    ·Notice that the applicant’s daughter was granted a Subclass 801 Partner visa on 21 September 2023. The Tribunal notes that her name is listed as [Daughter A name variant].

    ·A statement from [Friend A], dated 20 August 2024. [Friend A] declared that she would act as guarantor for the applicant. [Friend A] met the applicant in around 2017 and he has been friends with her partner, [Friend B], for more than ten years. [Friend A] said she lives with her [Friend B] and her children. They are financially stable and have their own property. She further declared that she would be willing to pay a security bond if required.

    ·Notices of assessment issued by the Australian Taxation Office to [Friend A] for the financial years ending 30 June 2022 and 2023. Her taxable income was reported as $72,620 and $45,140 respectively.

    ·Water and electricity bills issued to [Friend A] at her stated address in Brisbane.

    ·A Queensland driver’s licence issued to [Friend A].

    ·A [Bank 1] statement issued to [Friend A] for the period 1 July to 15 August 2024. The closing balance is recorded as $12,380.

19. At the Tribunal hearing the applicant gave evidence that he was stopped and identified by police when he was driving in [Town 1]. He lived in [City 1] at the time and his daughter lived in Sydney. The applicant gave up legal guardianship soon after her birth and his daughter took her mother’s surname. There are no formal custody arrangements in place, but the applicant would visit her on weekends when he was free.

20. The applicant was unable to articulate any mitigating circumstances as to why he was in breach of immigration laws for such an extended period. In contrast to the information he reportedly provided to the Departmental officials, the applicant said he could not recall being notified about the cancellation of his student visa. When asked why he never contacted the Department for advice about his immigration status, the applicant said he was young and didn’t know who to speak to. The Tribunal does not accept this as a reasonable explanation. The applicant had twice previously applied for visas successfully and would have been aware of the appropriate authority to contact.

21. The applicant lived and worked in the community for more than fifteen years without detection by Australian Border Force. The Tribunal raised concern that if he were granted a bridging visa, he might disappear into the community again and fail to report as directed. The applicant said he understood the concern but provided an undertaking that he would not. The applicant said he has a child, and this would make him report.

22. As previously outlined, the applicant requested that he be released from immigration detention so that he can maintain regular contact with his daughter. However, his daughter lives in Sydney and his friend who agreed to host him lives in Brisbane. The applicant alleged that he would travel between the two locations with another friend who works [in his industry] and travels long distances for work. The Tribunal does not accept that the applicant is motivated to live in Brisbane, with no entitlement to work, and travel between Brisbane and Sydney by car to visit his daughter while he awaits the outcome of his protection visa application.

23. The Tribunal accepts that the applicant has a relatively good record of compliance with other Australian laws. At the Tribunal hearing, he gave evidence that he had only received two speeding fines during his stay in Australia. He had never been charged with an offence. The applicant also explained that he held an Australian Business Number and paid taxes until it was cancelled in 2016. However, he had not paid taxes since that time.

24. The Tribunal finds that the applicant wilfully remained living and working in Australia unlawfully since 2009. He made no attempt to regularise his migration status and continued to accept work even after he was unable to pay tax. The applicant’s daughter was born in [year] and it is unclear how being a father would motivate the applicant to comply with the requirement to report or notify the Department of his address almost eight years later.

25. The applicant told the Tribunal that he has no money saved and would rely on [Friend A] to pay the security if an amount were required. He said [Friend A] is a friend and she has confidence in him. He would not like to let her down. In light of the applicant’s long history of non-compliance with immigration laws, along with the absence of any personal contribution to a security, the Tribunal does not accept that applicant will abide by the conditions regardless of any security.

26. 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.

27. 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

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

    Sheridan Aster
    Member