Chhibber (Migration)

[2020] AATA 5963

Chhibber (Migration) [2020] AATA 5963 (16 December 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kartik Chhibber

CASE NUMBER:  2017586

DIBP REFERENCE(S):  BCC2020/2528498

MEMBER:Hugh Sanderson

DATE OF DECISION:  16 December 2020

DATE CORRIGENDUM

SIGNED:18 December 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The text “(insert date of the written statement)” has been removed

The text “16 December 2020” has been replaced with “16 December 2020”

The text “Statement made on 16 December 2020 at 3:15pm” has been replaced with “Statement made on 16 December 2020 at 3:15pm”

Hugh Sanderson
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kartik Chhibber

CASE NUMBER:  2017586

DIBP REFERENCE(S):  BCC2020/2528498

MEMBER:Hugh Sanderson

DATE:16 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2020 at 3:15pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – financial means to self-support – no criminal conduct requirement – pending criminal charges – reporting and notification requirements – previous non-compliance and failure to engage with the Department – security bond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8401, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 October 2020. 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 (the Regulations).

3. The decision to refuse to grant the visa was made on 3 December 2020 on the basis that the delegate was not satisfied the applicant would abide by the conditions imposed on any Bridging visa granted to him.

   Background

4. The applicant is a citizen of India and is currently 25 years old. He first entered Australia in October 2013 holding a Student visa. He was granted a series of Student visas after that date. His last Student visa was cancelled on 22 August 2018 as the applicant was not enrolled in any registered course. The applicant applied for a review of that decision with the Tribunal (differently constituted). The Tribunal affirmed the decision to cancel the applicant’s Student visa on 20 December 2018. The applicant unsuccessfully appealed that decision to the Federal Circuit Court. The appeal was dismissed with an order for costs against the applicant on 29 April 2020.

5. The applicant was located by the Queensland police on 10 October 2020, who charged him with four counts of contravening a Domestic Violence Order on 6 July 2020 (those offences allegedly occurring on 7 July 2020, 3 August 2020 and 21 August 2020), two counts of failure to appear in accordance with an undertaking and a breach of bail conditions. The applicant was ordered to appear in the Brisbane Magistrates Court on 4 December 2020. The applicant was then required to attend the Department as he was found to be an unlawful noncitizen.

6. The applicant was interviewed by an officer from the Department on 10 October 2020. He claimed that he was aware that he did not hold a visa to remain in Australia but claimed that he had applied for an emergency travel document four weeks previously. He said that once he had his passport he would return to India. He claimed to have tried to contact the Department by telephone but could not provide any evidence of this. He claimed that he was mentally unwell at the time and was in hospital.

7. The delegate who considered the application was satisfied the applicant was making arrangements to depart Australia and would comply with the conditions of the visa and granted him a further Bridging visa on the same day. That Bridging visa expired on 16 October 2020 and the applicant remained in Australia as an unlawful noncitizen. The applicant lodged the current application on 24 October 2020. The applicant was interviewed by an officer from the Department on 4 November 2020.

8. The delegate who considered the application noted the following issues:

   • When interviewed on 4 November 2020, the applicant claimed that he was not aware of his unlawful status in August 2018 when he had previously stated that he was aware that he did not hold a visa and was applying for an emergency passport;
   • Although coming to Australia on a Student visa, the applicant did not show any genuine intention to study in Australia;
   • Although claiming to have been hospitalised in Australia, no evidence was provided to support this claim;
   • The applicant claimed that his mental health issue was because he was scared of losing his girlfriend, his job and his future;
   • The applicant had been working for a solar panel company doing door knock sales;
   • The applicant claimed that he needed to have work rights to help with his mental health;
   • He has a relationship with a girlfriend in Australia, but they are not living together due to the Domestic Violence Order and he was currently living with a close family friend;
   • When asked if he intends to depart Australia once the criminal proceedings had been finalised, the applicant said “who would want to leave this beautiful country? I only applied for the travel document because my parents told me to do so when I spoke with them. I was very sick at the time”;
   • The applicant asked if the interviewing officer could guarantee he would be able to return to Australia as his girlfriend lived in Australia;
   • Despite being charged with possessing dangerous drugs in 2018 and possessing dangerous drugs in 2020, the applicant claimed he never took drugs;
   • The applicant claimed the domestic violence charges were because he was having an argument with his girlfriend and neighbours heard and his girlfriend will now be supporting him in court;
   • The contravention of the domestic violence order occurred because he went to see his girlfriend;
   • The unlawful possession of vehicles charge was brought about because he was using an Indian driver’s licence; and
   • He failed to appear in court because he forgot about it due to his mental health.

9. The delegate first considered whether the applicant would comply with condition 8101, that he not engage in work in Australia. The delegate noted the applicant had ignored Australia’s immigration laws by working in Australia while he was an unlawful noncitizen and failed to initiate engagement with the Department. The applicant had indicated that he wanted to work which would assist him in his mental health issues. Taking these matters into account, the delegate was not satisfied the applicant would comply with the condition that he not engage in employment in Australia.

10. The delegate next considered whether the applicant would comply with condition 8401, that he report at a time or times and at a place as specified by the Minister. The delegate noted the applicant’s failure to engage with the Department during the periods which he had remained in Australia as an unlawful noncitizen. The applicant was invited to attend an appointment on 24 April 2020, but he failed to attend. Due to his previous non-compliance and failure to engage with the Department the delegate was not satisfied the applicant would comply with a condition that he report at a time or times and at a place specified by the Minister.

11. The delegate next considered whether the applicant would comply with condition 8564, that he not engage in criminal conduct. The delegate noted the criminal charges which were pending against the applicant. Despite participating in a drug diversion assessment program as a result of charges brought in 2018, the applicant had again been charged with further drug related offences in 2020, including a new charge of possessing dangerous drugs on 22 August 2020. The delegate noted further that the contravention of the domestic violence orders took place over a period of time when the applicant was aware that he was not allowed to approach the protected person. Although the cases were still pending, the fact that the applicant had been charged with further offences, including a failure to attend court, indicating a willingness to ignore Australia’s criminal laws. Accordingly, the delegate was not satisfied that the applicant would not engage in criminal conduct.

12. The delegate noted the letter from Dr Joseph on behalf of the applicant stating that the applicant’s financial circumstances were quite precarious and that he was in a relationship. It was claimed that any separation from his girlfriend would have negative effects on him. There was no information from the girlfriend indicating that she was supporting any application and the current protection order meant that they should have no contact.

13. Accordingly, the delegate was not satisfied the applicant would abide by the conditions of any Bridging visa granted to him and therefore did not meet the criteria in cl.050.223. The delegate considered whether the imposition of a security bond would assist in securing compliance with the conditions, however, was not satisfied that any security would mean the applicant would abide by the conditions.

    Information to the Tribunal

14. The applicant provided further documents to the Tribunal including copies of a Temporary Protection Order dated 24 March 2020 and 9 December 2020 and an application to withdraw the Domestic Violence Application signed by Ms Murray dated 27 April 2020.

15. In a statement by the applicant, the following was claimed:

    • After undertaking Certificate courses with Oceana College, they refused to give him a release letter to allow him to re-enrol with Griffith University and they tried to make him re-enrol with them, and as he did not want to do that, they falsely advised the Department that he was not attending classes and his Student visa was cancelled;
    • The applicant believed that he had been automatically granted a Bridging visa when he appealed to the Tribunal and then to the Federal Circuit Court about the decision to cancel his Student visa;
    • On 12 October 2018 he was sitting in a car with a friend smoking a joint and he was charged and sent on a drug diversion course;
    • The applicant met Jordan Murray in March 2019 on an internet dating site and they started dating in April 2019;
    • In February 2020 he was renting a car with payments coming out of his ANZ bank account, however, at some point the account was locked and the payments were not made to the rental car company;
    • The applicant was charged with unlawful possession of the motor vehicle, but the police said that charges would be dropped if he could show the bank statements, but he was unable to do that as he did not have his passport;
    • In early 2020 he was admitted to Prince Charles Hospital for a few days because of his mental health issues;
    • After being released, he had an argument with Ms Murray and she accidentally smashed a bottle of perfume on the street. People called the police and a Domestic Violence Order was made against him;
    • When Ms Murray saw that the applicant was restrained from coming within 100 metres of her, she immediately took action to have the Domestic Violence Order revoked but it was not acted on by the court;
    • When the Federal Circuit Court dismissed his appeal in April 2020, he was attending by telephone and didn’t understand his application had been dismissed;
    • The applicant contravened the Domestic Violence Order on four occasions because he was still living with Ms Murray;
    • In late August 2020 the police found 0.2 grams of cannabis in his pocket and was charged with possession of drugs;
    • The next day the applicant was admitted to hospital for about three or four weeks receiving injections of antipsychotic medication;
    • The applicant struggled to comply with his bail and court obligations because of his mental health problems and the effects of the antipsychotic medication;
    • After being arrested by police in October 2020 he was first advised that he did not hold a Bridging visa and was then granted a Bridging visa for seven days by the Department so he could depart Australia;
    • As his Indian travel documents were only received on 8 December 2020 he was not able to depart Australia in time and was again placed into immigration detention on 4 December 2020;
    • The applicant intends to apply for a Partner visa and is unsure whether he would apply for that visa before or after he departed Australia; and
    • On 9 December 2020 the Domestic Violence Order was varied at the request of Ms Murray to allow the applicant to come within 100 metres of her if she has given written consent to do so.

16. Ms Murray provided a statement where she made the following claims:

    • She has been diagnosed with depression, anxiety and post-traumatic stress disorder and is receiving treatment from a private psychologist;
    • She and the applicant moved in together in October 2019 and, after living there for about three months, they moved to live with her mother;
    • While living with some friends in February 2020 they had an argument in the street and neighbours were called and when the police arrived, because she was venting, she claimed to the police the applicant would not leave her alone;
    • She was aware that the police were applying for a Domestic Violence Order on her behalf, but she was not aware of the requirement that the applicant not come within 100 metres of her and when she became aware of this she applied to the court to have the order revoked;
    • As they kept living together, the applicant was then charged with breaching the Apprehended Violence Order but the applicant was never violent or abusive to her;
    • When the applicant was granted bail, he did not realise he had to report to the police which was why he failed to comply with the condition;
    • On 9 December 2020 she made application to the court to vary the Temporary Protection Order allowing the applicant to come within 100 metres of her with her written consent;
    • Her mental health has deteriorated since the applicant has been held in immigration detention; and
    • She would like to sponsor the applicant for a Partner visa if he stays in Australia or if he goes back to India, but the delay if he goes back to India would make things worse for her.

17. Ms Murray’s grandmother, Carol Mason, and her partner, Shaynee Mason, gave statements claiming that the applicant was a well-mannered person, willing to help out whenever needed and very much in love with Ms Murray. It was claimed that they had never seen or heard any sort of abuse from the applicant towards Ms Murray and believed he should be released into the community.

18. The applicant appeared before the Tribunal by telephone on 15 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Murray. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

19. The applicant was given a warning that as he was facing criminal charges he was not required to provide any evidence that could incriminate him or be relevant in those proceedings.

20. The applicant said that Ms Murray had not worked over the time that he had known her. He said that she had previously had a hairdressing shop but this had closed. He believed that she received a Newstart allowance. He said that she also suffered mental health issues. He said that her mother works full-time. The applicant said that his mother is a housewife and his father is in charge of a government hospital in New Delhi.

21. The applicant said that he had not been doing any study in Australia since his Student visa was cancelled in 2018. He said that he did not believe that he was allowed to study. The Tribunal noted that he had been charged in 2018 with charges relating to drug use. The applicant said that he was smoking a joint and was charged by the police. He said that in 2020 he was again found with some marijuana and was charged with possession of the drug. He said that when interviewed by the Department he said that he never takes drugs because he does not consider cannabis as a drug. He said that he had been using cannabis since he was in grade 11 in India. He said that he was aware that it was illegal to use the drug in Australia.

22. The applicant said that he had been charged with unlawful possession of a vehicle because he had rented a car and his bank had failed to pay the daily fee for the car. He said that he did not know why the bank had not made the payment as his account was locked. He said that he claimed to the Department that he was charged with this because he had an Indian driver’s licence, because when the police spoke to him he was confused and was not sure what was going on.

23. The applicant claimed that he was attending the Woolloongabba Community Mental Health unit every fortnight. He saw either Dr Joseph or Dr Gordon.

24. The applicant said that when he had been charged with the breach of the Apprehended Violence Order it was because he was within 100 metres of Ms Murray. The Tribunal noted that he had been charged on four separate occasions. He said that he had been told on each occasion that he was not allowed to go within 100 metres but he did not think he was doing anything wrong and he was sorry for that.

25. The applicant said that while he was in Australia he was working with his cousin as a door-to-door sales representative. He said that his family had given up on him and he got no support from them. He said that he was working no more than five or 10 hours a week and would earn from $500-$600 per week. He said that he had savings of about $500 and Ms Murray did not have any savings left after she had withdrawn her superannuation. He said that he had spoken to his parents and he believed they would provide support because things were now okay.

26. The applicant said that he wants the visa because he has an intention to depart Australia. He said that he was waiting for travel documents which was why he had not left earlier. He claimed that he had spoken to the Department before his last Bridging visa expired to explain why he needed a further Bridging visa due to the delay in getting the travel documents.

27. The applicant said that he planned to fight the fact that he had his Student visa cancelled. He said that he did not know his appeal to the Federal Circuit Court had been dismissed because he was on the telephone and did not understand and it was disconnected. He claimed not to have been told the application had been dismissed after that. He did not contact the Court or the Department to find out what had happened.

28. The applicant claimed that his family now wants him to return from Australia. He said that if he got a Bridging visa he would sort out the problems of his lost passport and would then depart Australia. He claimed that he had entered a guilty plea in relation to all the criminal charges he faces in Queensland.

29. The Tribunal raised the issue of whether the applicant would be willing or able to lodge bond to ensure compliance with the conditions of the visa. He said that he could not afford a bond of $10,000, but would ask family friends to raise $2,000.

30. Ms Murray gave evidence in support of the application. She said that she was currently working doing cold calls for the solar company that the applicant was previously working for. She said that she had about $6,000 in savings which was from the money the applicant had previously earned and other savings.

31. Ms Murray said that if the applicant was granted a Bridging visa that she would give written authority for him to live with her. She said that she is currently living with her mother. She said that they were working on applying for a Partner visa and they plan to marry and would like to apply for the visa onshore. She said that the applicant would like to visit his family in India but stay in Australia.

1. Ms Murray said they were not aware that the applicant’s Student visa appeal to the Federal Circuit Court had been dismissed. She claimed that the phone had dropped out during the hearing and due to their lack of knowledge they did not know what to do.

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

   CONSIDERATION OF Claims and evidence

3. The issue in this case is whether the applicant would abide by the conditions of any Bridging visa granted to him.

   Whether the applicant will abide by conditions – cl.050.223

4. 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.

5. 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].

6. 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.

7. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   • Condition 8101 – That the applicant not work in Australia;
   • Condition 8401 – That the applicant report at the time or times and places as specified by the Minister;
   • Condition 8506 – That the applicant notify immigration at least two working days in advance of any change of address; and
   • Condition 8564 – That the applicant not engage in any criminal conduct.

   Condition 8101 – That the applicant not work in Australia

8. There is little financial documentation provided by the applicant to show his current financial position, or the financial position of any person claiming to be willing to support him. The claims made by the applicant are that he has only about $500 in savings. He claimed that he was previously working five to 10 hours a week earning about $500-$600 a week. These claims in themselves appear implausible as it is unlikely that a door-to-door salesperson would be earning from $60-$100 per hour as those figures suggest as a door-to-door salesperson. As indicated above, there have been no financial documents provided by the applicant to substantiate any of the claims as to his financial situation.

9. The applicant claims to be in a relationship with Ms Murray. Ms Murray stated that she has only recently started work for the same organisation the applicant was previously working for. There is no documentary information about her financial situation. The applicant indicated that throughout the time that he was in a relationship with Ms Murray that she was in receipt of unemployment benefits. She claimed to have savings of about $6,000, however, it is difficult to see how she could have accumulated those savings based on her and the applicant’s income and any funds they had access to.

10. Ms Murray’s mother and grandmother have also offered support to the applicant. Again, there is no documentary evidence provided as to their financial situation or their capacity to provide for the applicant.

11. The applicant provided inconsistent information as to any support he would be able to receive from his parents. He has stated variously that his parents have not supported him, that he is following his parents’ directions and that he believes that his parents would provide him support. There is no documentary evidence to support any claim that his parents have provided him any support while he has been in Australia. There is no evidence of any money transfers or evidence of the applicant receiving any money from his parents.

12. When interviewed by the Department, the applicant indicated that he wanted to have work rights because he believed that this would assist his mental health issues. To the Tribunal, he indicated that he loved doing his job, going house-to-house selling solar panels. This is inconsistent with his claims that his mental health means that he has isolated himself in his own home.

13. The Tribunal is not satisfied that if the applicant were granted a Bridging visa he would comply with the requirement that he not work. The Tribunal accepts that after his Student visa expired he believed, on the poor advice of his agent, that he had a Bridging visa that allowed him to continue to work the hours that he had when he was a student. The Tribunal does not accept that the applicant worked the hours that he now claims over that period. The Tribunal does not accept that the applicant has any independent means to support himself if the Bridging visa is granted to him and that he will be required to work to earn an income. The applicant was previously employed by a relative and he stated that he enjoyed the work and wanted to return to the work as he believed that it was beneficial for his mental health. The Tribunal finds that if a Bridging visa is granted to the applicant, it is likely that he would continue to work for his relative in breach of the condition that he not work and that work would be full-time.

14. The applicant’s appeal to the Federal Circuit Court was dismissed on 29 April 2020. The Tribunal finds that the applicant would have been aware after that time that he did not have any right to work in Australia. Despite this, the applicant continued to work in Australia without any work rights.

15. For the above reasons, the Tribunal finds that the applicant would not comply with condition 8101 that he not work if a Bridging visa is granted to him.

    Condition 8564 – That the applicant not engage in any criminal conduct

16. The applicant has been charged with a number of offences which are pending before the Magistrates Court. The applicant indicated that he has already pleaded guilty to these offences. These charges relate to breaching a domestic violence order, unlawful use of a motor vehicle, and possessing a dangerous drug. The applicant was charged in 2018 with possession of an illegal drug (marijuana) and attended a drug diversion course.

17. When interviewed by the Department, the applicant stated he never takes drugs. At the hearing, the applicant explained this by saying that he has been a user of marijuana since he was in year 11 in high school in India. He continued using marijuana in Australia. He did not consider, however, marijuana to be a drug. He was aware that it was illegal to use marijuana in Australia.

18. Although the applicant may have a particular opinion as to whether marijuana is a drug or not and whether its use should be illegal, the fact is that the use of marijuana is considered a dangerous drug in Queensland and most states of Australia and he was aware that the use and possession of marijuana was illegal. He had already been charged with possessing marijuana and was required to attend a drug diversion program. Despite this, he continued to use marijuana and was eventually charged with possessing a dangerous drug.

19. The fact that the applicant was aware the use of marijuana was illegal, had previously been charged with the possession of marijuana, had been sent to a drug diversion program and yet continued to use marijuana indicates the applicant is willing to ignore Australia’s criminal laws.

20. This attitude of the applicant that he is able to ignore Australia’s criminal laws is repeated in the fact that he has been charged with four contraventions of a Domestic Violence Order. The applicant claimed that he believed that the Domestic Violence Order had been revoked at the request of Ms Murray. He believed that he would not be in breach of the law if he was within 100 metres of her. Although this may be accepted on the first occasion the applicant was found to be in contravention of the Domestic violence Order on 6 July 2020, the Tribunal does not accept that he was not aware that he was in breach of the order and committing a criminal offence on the three subsequent occasions he was charged with the contravention of the Domestic Violence Order on 7 July 2020, 3 August 2020 and 21 August 2020.

21. This again indicates an attitude the applicant has that he can ignore Australia’s criminal laws if he should so wish. The applicant acknowledged that he had been told that he was not allowed to be within 100 metres of Ms Murray by the police and despite this he was willing to ignore that direction. There is nothing to indicate that at any time from when the applicant was first told on 6 July 2020 that he was not allowed to come within 100 metres of Ms Murray until after the last charge that he was in breach of the order on 21 August 2020 that he or Ms Murray took any steps to have that order revoked or varied.

22. The Tribunal acknowledges that Ms Murray has now taken steps to have that order varied and will be providing a written statement to allow the applicant to come within 100 metres of her and that they plan to live together. This does not, however, overcome the fact that the applicant was wilfully in breach of the order after being advised by the police that he was not allowed to come within that distance of Ms Murray. This shows the applicant’s willingness to ignore Australia’s criminal laws and that he may again engage in criminal activity.

23. The applicant has also been charged with unlawful possession of a motor vehicle. The information now provided by the applicant was that he had rented a car but due to a problem with his bank, he had not made the payments for the rental for a couple of days. This is inconsistent with the information he provided when interviewed by the Department, which was that he had been stopped by the police because he was using an Indian driver’s licence. No information has been provided which would corroborate the applicant’s claim that he had made arrangements with his bank for automatic payments to the rental company. No explanation has been provided as to why the bank would stop those automatic payments. The Tribunal finds the fact that the applicant continued to use a rental car while not paying for it indicates a willingness to contravene Australia’s criminal laws.

24. The Tribunal finds the applicant has engaged in multiple repetitive criminal activities. Although the applicant has tried to dismiss and minimise those activities, the Tribunal finds the fact that he does not consider the criminal activity that he has been engaged in as serious and that they are repeated indicates the applicant will engage in criminal activity if a Bridging visa is granted to him. The Tribunal does not accept that if the argument the applicant had with Ms Murray was of only a trivial nature that neighbours would have called the police and, after the police spoke with Ms Murray, the police would have applied for a Domestic Violence Order for her protection.

25. The Tribunal is not satisfied that if a Bridging visa is granted to the applicant he would comply with condition 8564 that he not engage in criminal conduct.

    Condition 8401 – That the applicant must report at a time or times specified by the Minister

26. The applicant’s last substantive visa was his Student visa that was cancelled on 22 August 2018. He was not granted a Bridging visa after that date, despite applying for a review of the Department’s decision to the Tribunal and then appealing the Tribunal’s decision to the Federal Circuit Court. The Tribunal accepts that over this period the applicant was under the misguided belief that he did hold a Bridging visa which was granted to him automatically in light of the review application and subsequent appeal.

27. As stated in the delegate’s decision, a status resolution appointment was made with the applicant on 24 April 2020. The applicant did not attend this appointment. The fact that the applicant did not engage with the Department at that time indicates a willingness to ignore Australia’s immigration laws and the requirements upon him to ensure that he engage with the Department to ensure he has the right to remain in Australia.

28. The applicant’s appeal to the Federal Circuit Court was dismissed, with an order for costs, on 29 April 2020 by Judge Vasta. The applicant was ordered to pay the costs of the Department in the sum of $5,600. The order notes that the applicant appeared on his own behalf by telephone link.

29. Despite the applicant’s appeal to the Federal Circuit Court being dismissed, the applicant remained in Australia as an unlawful noncitizen. The applicant and Ms Murray claimed that they did attend the Court by telephone on 29 April 2020, but as their phone dropped out they did not know what the orders were. The Tribunal does not accept this. The applicant would have been aware of the purpose of the listing before the judge. If, as was claimed, his telephone line dropped out the Tribunal does not accept that he would have just believed that nothing happened and remained in Australia. At the very least, the applicant would have been prompted to contact the Federal Circuit Court or the Department to enquire what orders have been made on 29 April 2020. The fact that the applicant did nothing indicates a willingness to ignore Australia’s immigration laws and remain in Australia without any clear indication that he had the right to do so.

30. Although the Tribunal accepts that up until the dismissal of his Federal Circuit Court appeal the applicant was under the mistaken belief that he had the right to remain in Australia, the Tribunal finds that once his appeal had been dismissed the applicant was aware that he did not have a continuing right to reside in Australia and intentionally remained in Australia as an unlawful noncitizen. The applicant made no attempt to engage with the Department until he was located by the Queensland police in October 2020. There is nothing to indicate that he would have taken any steps to engage with the Department unless he was charged with offences by the police.

31. The applicant claimed that he had not been able to depart Australia earlier as he was required to obtain travel documents to be able to return to India as he had lost his passport two years previously. There is nothing to indicate why, if he had lost his passport, he had not taken any steps to have it replaced sooner.

32. When interviewed, the applicant has provided various statements to indicate that he intends to remain in Australia regardless of any legal right to do so. When asked by the Department if he intended to depart Australia once his criminal matter had been finalised he responded “who would want to leave this beautiful country? I only applied for the travel document because my parents told me to do so when I spoke with them. I was very sick at the time”. This does not indicate a person who has any intention to depart Australia or to comply with conditions that he report to the Department.

33. The applicant claims to be in a relationship with Ms Murray. Various statements were made as to their intention to apply for a Partner visa. It is likely that the intention of both the applicant and Ms Murray is to apply for that visa onshore. The applicant’s agent advised that if the applicant were granted a Bridging visa, whether any onshore Partner visa application would be made would depend on the likely success of that application. When interviewed by the Department, the applicant asked if the Department could guarantee that he would be able to return to Australia as he has a girlfriend in Australia. These facts lead the Tribunal to conclude that if the applicant believes he would not be successful in being able to apply for an onshore Partner visa that he would fail to report to the Department at a time and place specified by them.

34. Although the applicant claims that he is required to remain in Australia due to the criminal charges and his claim that he requires treatment for his mental health issues, there is nothing to indicate the applicant has made any attempts to arrange any flights or other substantive arrangements to depart Australia.

35. The applicant was also charged with failing to appear in court. The applicant claimed that this was due to his mental health condition and he simply forgot to attend. Tribunal does not accept this. The evidence of the applicant was that he continued to work as a door-to-door salesperson until his detention. The fact that he was able to carry out this work indicates that he was able to engage with people and carry out responsible tasks. That he failed to attend court indicates a willingness to ignore requirements to report for any legal reason.

36. The Tribunal finds that if the applicant is granted a Bridging visa the applicant will again fail to engage with the Department and will fail to report at the time or times and places as specified by the Department. Accordingly, the Tribunal is not satisfied the applicant would abide by condition 8401.

    Requirement for a bond

37. The Tribunal has considered whether the imposition of a security bond would assist in ensuring compliance with the above conditions. This issue was raised by the Tribunal with the applicant at the hearing. The applicant provided little information as to what, if any, security bond could be raised or an amount that would be appropriate. The Tribunal has no documentary evidence as to the applicant’s financial circumstances or his capacity to provide a security bond.

38. As set out above, the Tribunal has significant concerns as to whether the applicant would comply with the above conditions if a Bridging visa was granted to him. In all the circumstances, the Tribunal is not satisfied that a security bond would assist in compliance of the visa conditions.

    Overall assessment

39. 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.

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

41. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible noncitizen 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

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

    Hugh Sanderson
    Member