Fu (Migration)

[2017] AATA 2623

Fu (Migration) [2017] AATA 2623 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yueqiong Fu

CASE NUMBER:  1729206

DIBP REFERENCE(S):  ADF2017/94950

MEMBER:Kira Raif

DATE:29 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2017 at 4:52pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 visa –  Previous breaches of immigration laws – Not a relevant eligible non-citizen – Ongoing criminal matter – Applicant on bail

LEGISLATION
Migration Act 1958 ss 73, 116(1)(e), 269
Migration Regulations 1994 Schedule 2 cls 051.211, 050.212, 050.223 Schedule 8 Conditions 8101, 8401, 8505, 8506, 8564

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

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 and Border Protection to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant is a national of China, born in September 1987. She travelled to Australia holding a Student visa and was granted another student visa, which was subsequently cancelled. The applicant became an unlawful non-citizen as a result of that cancellation. The applicant applied for the Bridging visa on 7 November 2017. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 9 November 2017 on the basis that the delegate was not satisfied the applicant would abide by visa conditions as required by cl. 050.223. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 28 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, father in law and mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

5. 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.

6. 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].

7. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

8. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

   Whether the applicant will abide by conditions - cl.050.223

9. The applicant made several applications for bridging visas but withdrew most of these. The present application was made on the basis that the applicant has an outstanding application for merits review in relation to the cancellation of her student visa and the Tribunal is satisfied the applicant meets cl. 050.212.

10. The Tribunal has considered whether the applicant will abide by the conditions that would be imposed on her visa. In the circumstances of the present case, the Tribunal considers that the conditions below should be imposed:

    8101The holder must not engage in work in Australia.

    8401The holder must report:

    (a)at a time or times; and

    (b) at a place;

    specified by the Minister for the purpose.

    8505The holder must continue to live at the address specified by the applicant before the grant of the visa.

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564No criminal conduct

11. The applicant provided to the Tribunal a copy of the primary decision record which sets out her immigration history. It indicates that the applicant entered Australia in May 2013 holding a student visa and she was granted another student visa in March 2017. That visa was to be in effect until April 2018 but was cancelled under s. 116(1)(e) of the Act because the applicant was charged on 7 September 2017 with manslaughter, use poison etc so as to endanger life and hinder investigation and the delegate formed the view that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The applicant made an application for review in relation to the cancellation decision and the matter is presently before this Tribunal. She has been granted bail in relation to the criminal matter.

12. The Tribunal has formed the view that the applicant is not a person of credibility. There are several aspects of the applicant’s evidence which the Tribunal found to be untruthful, which are set out below.

    a.The Tribunal questioned the applicant about her study in Australia. She said she completed a Bachelor of Nursing and was now undertaking a course in translating and interpreting. When asked about the relevance of a NAATI course to a nursing qualification, the applicant said that she decided after the death of her uncle several months earlier that she no longer wanted to be a nurse. The applicant said that she wanted to improve her English and that is the reason for the NAATI course. However, the applicant also told the Tribunal that she has no intention of living in Australia and wants to return to China once her course is completed (she said she already paid for the course and decided to complete it) and once she completes an English test. If that evidence was true, there appears to be little purpose in the applicant undertaking a translating and interpreting course, or an English course, and doing an English test, in order to return to China. Presumably if the applicant plans to work in China, her English proficiency gained as a result of a three year Australian university course would be sufficient. The Tribunal does not accept that the applicant has enrolled in an English course in order to improve her English before returning to China and the Tribunal has formed the view that the applicant has not been truthful about her intentions and the motivations for her current study.

    b.The applicant also said that she initially wanted to stay in Australia and work as a nurse but she later realised she did not want to be away from her parents. She made the decision to return to China but because she had already paid for the course, she decided to go ahead with it. The applicant ultimately told the Tribunal that she did try to register as a nurse but failed English and that is why she is doing the translating and interpreting course before attempting the English course again. In the Tribunal’s view, that is the real motivation for the applicant’s current study. That indicates that the applicant has not been truthful when suggesting that she wants to improve English to return to China and also that she has been less than truthful when she stated she has no intention of practising as a nurse in Australia.

    c.The applicant told the Tribunal that she has no intention of returning to her course. When asked why she is seeking review in relation to the cancellation of her student visa if she does not intend to study, the applicant said that she felt it was unfair that her student visa was cancelled, because she has not been convicted of any offence. However, the applicant (or her representative) must have realised that the applicant may not be entitled to hold the student visa if she has no intention of engaging in studies in Australia. That also brings into question the veracity of the applicant’s dealings with the Department and the Tribunal.

13. The Tribunal found the applicant’s explanation about the nature of her employment at Medi Beauty implausible. The applicant told the Tribunal that her normal job was a beautician and involved face massages, etc. However, the applicant’s evidence is that prior to joining this firm, she had no training as a beautician and has not worked as a beautician. The applicant said that she received on the job training when the company opened earlier in 2017 and suggested her employer tried to save money. The Tribunal does not accept the applicant’s evidence. If the applicant was employed to work as a beautician, the employer could have hired a beautician with some experience or training rather than hiring a person with no skills and experience in the industry whatsoever. The applicant also said her employer thought she had a good personality but the Tribunal is not convinced that a job would be offered only on the basis of her personality and not her training or experience. In the Tribunal’s view, it is much more likely that the applicant was hired because of her nursing qualifications and not because of her personality or her potential as a beautician. Again, the Tribunal is not satisfied that the applicant told the truth about the nature of her employment.

14. For the same reason, the Tribunal does not accept the applicant’s evidence that she never performed the duties of a nurse except for the one occasion. Given the applicant’s background and experience in nursing, coupled with limited (at best) experience as a beautician, the Tribunal does not accept that the applicant had not performed the duties of a nurse at any other time during her employment at Medi Beauty.

15. Overall, the Tribunal has formed the view that the applicant has not been truthful in her evidence relating to her study, her employment and her immigration plans. The Tribunal acknowledges that none of these matters establish the applicant’s unwillingness or inability to comply with visa conditions but the Tribunal does consider the applicant’s credibility to be relevant when assessing the veracity of her undertaking to abide by visa conditions.

16. The applicant admitted in her oral evidence to the Tribunal to breaching visa conditions in the past and the Tribunal considers that to be relevant to her future compliance. The applicant told the Tribunal that she was paid at Medi Beauty partly in cash and partly through bank deposits. When asked why that was the arrangement, the applicant said that her employer explained to her that she was only allowed to work 20 hours a week but she worked longer, so they split the payment. The applicant said she initially worked three days a week and later she worked four days a week, between 6 and 8 hours. That is, the applicant was well aware that she could only work 40 hours a fortnight (or she believed 20 hours a week) but she worked longer because her employer asked her to. She breached her student visa conditions knowingly and intentionally. It is also of considerable concern to the Tribunal that the applicant claims her employer explained to her that the payment would be split into cash and non-cash payments so that she could pretend to the Department that she was only working the allowed number of hours. That is, the applicant and her employer had gone to considerable lengths to perpetrate the fraud and the applicant’s engagement in such fraud was voluntary and intentional.

17. The applicant’s representative submits that this was the applicant’s first job in Australia and she did not understand the system and did not know what to do. The applicant said her employer was understaffed and asked her to work and she had to agree. The Tribunal does not accept that the applicant engaged in employment contrary to her visa requirements because she did not know what to do. Firstly, the Tribunal is of the view that as a holder of the visa, it was the applicant’s responsibility to ensure her understanding of visa conditions and her compliance with visa conditions. Secondly, the applicant’s evidence is that she was specifically informed by her employer that special payment arrangements were being made to enable her to claim that she was only working 20 hours even though she knew that was not the case. This is not about the applicant’s knowledge of employment laws but about her willingness to participate in fraudulent conduct, breach visa conditions and provide false information to the Department.

18. The applicant repeatedly told the Tribunal she did not think about these things. That suggests to the Tribunal the applicant’s indifference about visa conditions and compliance with visa requirements and laws in general. The Tribunal does not consider that these matters may be excused even if the applicant was engaged in her first job.

19. The applicant’s manipulations with the payment also suggest an intention to defraud the tax authorities if the applicant was to declare her bank income but not the cash income. In the Tribunal’s view, that indicates the applicant’s willingness to breach the law and that is relevant to the applicant’s future compliance with condition 8564.

20. The Tribunal questioned the applicant about her conduct that led to the charges. In relation to her assistance during the procedure, the applicant said her employer asked her to assist. She knew she was not registered as a nurse but she agreed because she was not sure what was involved. In the Tribunal’s view, it was the applicant’s responsibility to find out what was involved, and her ability to be involved, before agreeing to assist. The applicant has completed a bachelor of nursing in Australia, and has qualifications from China, and was highly capable of understanding what was involved in a medical procedure. She would have also been well aware, as a result of her Australian qualification, what work she could and could not do without registration. It was the applicant’s obligation to find out what work her employer expected her to do, yet the applicant told the Tribunal that she did not ask her boss what was involved.

21. The applicant told the Tribunal that she simply did what her employer asked and did not know it was illegal. The applicant had done nothing to satisfy herself that what she was doing was in compliance with the law. She has not made reasonable (or any) inquiries that would have been readily available to her. Again, the Tribunal has formed the view that the applicant was indifferent about her obligations under the various Australian laws and engaged in criminal conduct. The Tribunal is concerned that this may indicate the applicant may not comply with condition 8564.

22. The applicant told the Tribunal that this was her first job and she had only been working for four months and was not familiar with procedures. As noted above, the Tribunal does not consider that the applicant’s claimed lack of knowledge or lack of experience justifies her conduct or her failure to take any action to inquire.

23. The applicant told the Tribunal that when the police came, she was scared that she would be blamed for everything and she did not know what to say in front of another client. The applicant denied leaving the scene and said that on the day of the incident they were all questioned by the police and after a few days she attended Burwood police station and was interviewed. She was interviewed twice, once on the day of the incident and once a few days later and she told different stories and that is the reason she was charged with hindering an investigation. She first told the police that she was only a receptionist and was not in the room during the procedure but later on she told the truth to the police. While the Tribunal acknowledges that the applicant may have been scared, the applicant’s willingness to lie to the police during their inquiries also implies the applicant’s general disregard for the law.

24. The applicant’s representative submits that the applicant has learned her lessons and will not jeopardise her future. The Tribunal has formed the view that on multiple occasions, the applicant has shown a significant disregard for the Australian law. The representative notes that the applicant’s family will ensure the applicant’s compliance with the law. The Tribunal is mindful that this has not happened in the past and it is unclear in any case how this can be achieved.

25. The Tribunal finds that the applicant has shown a willing disregard for the Australian laws. She intentionally breached the conditions of her visa through employment, she performed the duties of a nurse while not registered, she engaged in deliberate fraud with her employer concerning the hours of employment and payment and she told untruths to the police investigating the incident. These breaches are serious. The Tribunal has also formed the view that the applicant gave untruthful information to the Tribunal. All these matters suggest, in the Tribunal’s view, that the applicant is willing to breach the law and is indifferent about doing so. The Tribunal acknowledges that the applicant has been granted bail and has paid a substantial bond. The Tribunal notes, however, that the requirements for the grant of bail are different to those required by cl. 050.223. For these reasons, the Tribunal is not satisfied the applicant will comply with condition 8564.

26. With respect to her employment, the applicant told the Tribunal that she does not need to work because her family can support her, as they did when she was doing her bachelor course. The applicant presented a substantial amount of financial records showing transfers made by her family over the years and the Tribunal accepts that the applicant had been supported by family in the past. The applicant’s spouse, mother and father in law also gave oral evidence, in addition to written declarations, confirming their willingness to support the applicant and the Tribunal accepts that evidence. The Tribunal is mindful, however, that the applicant did engage in employment after completing her nursing qualification despite the availability of financial support from the family. The applicant said she wanted to gain experience but the applicant’s past employment indicates her engagement in employment may not be for financial reasons and may occur irrespective of the applicant’s need to work. Thus, the Tribunal does not consider the presence of family and financial support in Australia would ensure the applicant’s compliance with condition 8101.

1. The applicant told the Tribunal that she wanted to get a job after she completed her course and thought it was time for her to work but now it would be impossible for her to get a job and she does not intend to work. The Tribunal accepts that it may be difficult for the applicant to obtain a job as a nurse but there is no reason why she could not work in any other occupation.

2. The Tribunal also places weight on the fact that when employed by Medi Beauty, the applicant engaged in employment in cash with the stated intention of not declaring part of that employment. That is, the applicant made arrangements to deliberately withhold information about her employment because she knew that she would otherwise be in breach of visa conditions. The Tribunal is concerned that the applicant may wish to do the same in the future. That is, while the applicant is aware that she is not permitted to work while holding a bridging visa, she may nevertheless choose to engage in undeclared cash employment. The Tribunal is not satisfied the applicant will abide by condition 8101.

3. The applicant’s evidence to the Tribunal is that a security of $20,000 is available to her and the applicant’s mother gave evidence that she has the funds. Given the Tribunal’s significant concerns noted above, the Tribunal does not consider any amount of security will act as a meaningful incentive for the applicant to abide by visa conditions.

4. The Tribunal is not satisfied the applicant will comply with conditions 8101 and 8564. The Tribunal is not satisfied the applicant meets cl. 050.223.

5. 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.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member