2429896 (Migration)

[2024] AATA 3497

2429896 (Migration) [2024] AATA 3497 (3 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2429896

MEMBER:Antonio Dronjic

DATE:3 September 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 03 September 2024 at 4:01pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – grounds for seeking the visa – substantive visa application – abide by visa conditions imposed – immigration history – no work requirement – reporting and notification requirements – no criminal conduct requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.223, 050.613A; Schedule 8, Conditions 8101, 8401, 8506, 8564

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) 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 20 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).

3. The decision to refuse to grant the visa was made on 22 August 2024 on the basis that the delegate was not satisfied the applicant will comply with conditions to which the visa would be subject, regardless of any amount of security that could have been imposed.

4. The applicant appeared before the Tribunal on 2 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The hearing was initially set down as a combined hearing for two Bridging E visa review applications made by the same applicant at a different point in time. At the commencement of the hearing, the applicant withdrew the application made on 27 September 2021 (file no 2429898).

6. The Tribunal explained to the applicant that the first issue before it is to consider whether the grounds for the Bridging E visa were made out. If the Tribunal is satisfied that the applicant meets one of the alternative grounds set out in cl 050.212, it will then consider what conditions should be imposed if the bridging visa is to be granted and whether the applicant will abide by the conditions.

7. The Tribunal informed the applicant that it will consider the following conditions to be imposed in the circumstances of this case if the bridging visa is to be granted and whether the applicant will abide by those conditions:

   ·8101 – The holder must not engage in work in Australia.

   ·8401 – The holder must report at a time or times, and at a place, specified by the Minister for the purpose.

   ·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address.

   • 8564 – Must not engage in criminal conduct.

8. The Tribunal explained those conditions to the applicant. The Tribunal indicated that in making its decision, it will consider the applicant’s immigration history, his evidence and other material held on the Tribunal and Departmental files.

9. The applicant is [age] years of age and a citizen of Nepal. He has [number] siblings, [number] of whom live in [Country 1] and one in Nepal. His parents also live in Nepal. He stated in his evidence that he only maintains contact with his sister who is living in [Country 1]. He also claims that he spoke with his parents on 1 August 2024 and informed them of his current detention. In his evidence he stated that both his parents and sister from [Country 1] promised to provide financial support if needed. No other evidence to support this claim was provided. He has no relatives in Australia.

10. In Nepal, the applicant completed high school. He worked in [Country 2] and [Country 3] as a [Occupation 1]. He does not have any savings or property under his name in Nepal or Australia. He first came to Australia in May 2019 as a dependent holder of a student visa. Together with his ex-wife, he applied for a Subclass 485 visa and was granted an associated bridging visa A on 11 March 2021.

11. According to the primary decision record, in March 2021, he was convicted of Unlawful Assault, Assault by Kicking, Making Threats to Kill and Contravening a Family Violence Intervention and was sentenced to an 18-month Community Corrections Order.

12. On 21 September 2021, his Bridging A visa was cancelled by the Department under s 116(1)(g). The applicant sought review of that decision and [in] July 2022, the Tribunal (differently constituted) affirmed the primary decision. The applicant confirmed in his evidence that the primary decision record contains an accurate summary of his immigration history in Australia.

13. The applicant and his ex-wife separated [in] September 2021 and according to his recollection, they divorced in 2023. He has had no contact with his ex-wife since that time.

14. The applicant gave evidence that in December 2021, he met his new partner, [Ms A] through social media. [Ms A] was previously married and has two children aged [age] and [age]. She works at [Employer 1] and receives social security payments from Centrelink. The applicant claims that he resided with [Ms A] and her children at her three-bedroom house located in [Suburb 1], Victoria between January and March 2024. When questioned why he left the house in [Suburb 1], the applicant stated that [Ms A] had ‘some’ mental health issues. In addition, his workplace was in [Suburb 2], Victoria, a suburb located some 1.5 hours away from [Suburb 1].

15. He confirmed in his evidence that, despite knowing that he was not permitted to do so, he continued to work in Australia as he needed money to support himself. When questioned, the applicant stated that in the past he used drugs, ‘ice and meth’, and that he has been ‘clean’ since May 2024.

16. The applicant stated that, from March 2024 to May 2024, he resided at a caravan park located at [Suburb 2]. He lost his job [in] April 2024 and was no longer able to pay rent. He became homeless and was living on the streets of Melbourne from 1 May 2024 until 27 July 2024, when he reported to [the] police station and was subsequently detained by the Department. He added that winter was setting in and he no longer wanted to live on the streets. He stated that he previously experienced homelessness in September 2022.

17. When asked why he did not return to his partner’s home in [Suburb 1] when he lost his job, the applicant stated that [Ms A] was not ready to have him back and needed more time. He added that on 26 August 2024, [Ms A] visited him at the detention centre.

18. The applicant gave evidence that he has an account with the Commonwealth Bank with less than $500 in it. He claims to have some $5,000 in his superannuation account.

19. When questioned if he informed the Department of his residential addresses, the applicant stated that he lost his telephone and was unable to do so. He gave the same explanation when asked if he attempted to contact the Department and legalise his immigration status in Australia.

20. He claims that his passport was stolen in February 2023. When asked if he applied for a new one, the applicant stated that he did not because he needed to travel to the Nepalese Embassy in Canberra to do so.

21. He further stated that, if granted a Bridging E visa, he will reside with [Ms A] and her children. He claims that he will receive financial support from his parents and sister. When asked if [Ms A] had provided a written declaration confirming that she offered him accommodation if he was released from detention, the applicant stated that she had not. He conceded that he is unable to provide supporting documentary evidence related to his parents’ and sister’s financial assistance.

22. The Tribunal noted that, according to the primary decision record, in August 2023 the applicant was charged with contravening a Community Corrections Order and that he is currently subject to three Intervention Orders protecting three separate individuals. The applicant stated that he has no knowledge of those charges or any current intervention orders issued against him.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. Clause 050.211 is met if, at the time of application:

    (a)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (b)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17).

25. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

26. Based on the evidence before it, the Tribunal finds that the applicant meets the requirements of this clause because at the time he made the application, he was an unlawful non-citizen. Accordingly, the applicant meets cl 050.211(1).

    The grounds for seeking the visa – cl 050.212

27. At the time of the visa application, the applicant must meet one of the alternative criteria 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. In this case, the applicant is seeking to meet cl 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.

    Substantive visa application

29. Clause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

30. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.

31. Based on the evidence before it, including the Department’s records and applicant’s oral evidence the Tribunal is satisfied that the applicant has an ongoing protection visa application (Permanent Protection (XA 866)) lodged with the Department on 20 August 2024. This is a substantive visa of a kind that can be granted if the applicant is in Australia and this application has not been finally determined. Accordingly, the applicant meets cl 050.212(3).

    Whether the applicant continues to satisfy the time of application criteria – cl 050.221

32. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and cl 050.212 at the time of decision. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and cl 050.212 and therefore meets cl 050.221.

    The requirement to be interviewed by an authorised officer – cl 050.222

33. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

34. Based on the evidence before it, the Tribunal is satisfied that the applicant meets the requirements in cl 050.222 in Schedule 2 to the Regulations because, according to the Departmental records, he was interviewed by an authorised officer on 21 August 2024.

    Whether the applicant will abide by conditions – cl 050.223

35. 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.

36. 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 (2002) 70 ALD 289 at [15]–[16].

37. 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. For the following reasons, the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed.

38. In this case, cl 050.613A applies as the applicant has applied for a protection visa on or after 1 July 1997. This clause prescribes that, in addition to mandatory condition 8101, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8101 – The holder must not engage in work in Australia.

    ·8401 – The holder must report at a time or times, and at a place, specified by the Minister for the purpose.

    ·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address.

    • 8564 – Must not engage in criminal conduct.

39. The Tribunal considered that the applicant’s immigration history speaks against his current claims that he will comply with conditions placed on his visa. The applicant has been in Australia since May 2019. His Bridging A visa was cancelled by the Department on 21 September 2021. The applicant sought review of that decision and on 8 July 2022, the Tribunal (differently constituted) affirmed the primary decision.

    Condition 8101

40. The applicant gave evidence that, despite knowing that he was not permitted to work in Australia, he continued to [work] until April 2024.

41. According to the primary decision record, during the interview the applicant stated that he needed to work because he had expenses including supporting his partner and her children. He provided no evidence to support this claim. He further stated that he will request some work rights as he needed to earn money to support himself if he is released from detention.

42. The applicant stated that he has no savings. He claims that, if released from detention, he will reside with his partner, [Ms A], and will receive financial support from his parents and sister who lives in [Country 1]. He provided no supporting documentary evidence to substantiate those claims. [Ms A] did not provide any written statements, nor did she give evidence at the hearing in support of the applicant’s claim.

43. Given the applicant’s immigration history, previous breaches of immigration laws, the significance of the migration laws that were breached and the wilfulness with which those laws had been breached, the Tribunal has formed the view that the applicant will not abide by condition 8101.

    Conditions 8401 and 8506

44. Based on the evidence before it, including the applicant’s oral evidence given at the hearing, the Tribunal finds that the applicant made no attempts to engage with the Department to resolve his immigration status.

45. He has failed to inform the Department of his residential addresses. Before being detained, he was homeless and the reason why he reported to the police station on 27 July 2024 was his unwillingness to live on the streets of Melbourne during winter months.

46. The applicant gave evidence that he moved residential address on several occasions since September 2021 but never informed the Department of his movements in Australia. The Tribunal does not accept the applicant’s explanation that he was unable to do so because he lost his mobile phone as there are other ways to contact the Department.

47. The Tribunal finds that there is an unacceptable risk that the applicant, if granted a bridging visa, will disappear into the community, and will not notify the Department of any changes in his address as required by the relevant condition.

48. Given the applicant’s immigration history and his previous actions, the Tribunal has formed the view that he will not abide by conditions 8401 and 8506.

    Condition 8564

49. According to the primary decision record, [in] March 2021, the applicant was convicted of Unlawful Assault, Assault by Kicking, Making Threats to Kill and Contravening a Family Violence Intervention Order. He was sentenced to an 18-month Community Corrections Order and ordered to undertake community work and rehabilitation programs. The Departmental records further indicate that [in] August 2023, the applicant was charged with Contravening a Community Corrections Order and is subject to three Intervention Orders protecting three separate individuals. The applicant claims to have no knowledge of those charges and intervention orders from 2023.

50. Based on the evidence before it and having regard to the totality of the applicant’s past conduct and behaviour, drug use, past convictions, and having assessed his likely future conduct, the Tribunal is not satisfied that the applicant will not engage in criminal conduct and abide by condition 8564.

51. 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.

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

53. 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

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

    Antonio Dronjic
    Member