He (Migration)

[2019] AATA 4290

He (Migration) [2019] AATA 4290 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927087

MEMBER:Denise Connolly

DATE:3 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2019 at 8:33am

CATCHWORDS
MIGRATION – refusal – Bridging E (Class WE) visa – Subclass 050 – student visa cancelled for non-enrolment – no intention of studying – unlawful work – changes of address without notifying Department – application for protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(3), 050.223

CASE
Applicant VAAN of 2001 v MIMA (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 23 September 2019. 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). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 25 September 2019 on the basis that the delegate was not satisfied the applicant would abide by visa conditions.

4. The applicant appeared before the Tribunal on 2 October 2019 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s witnesses, his girlfriend, Ms [A] and his friend, Mr [B].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It confirms that the applicant satisfies one of the grounds as set out in cl.050.212 because he has applied for a substantive visa (a protection visa) that has not been finally determined: cl.050.212(3).

8. The delegate’s record sets out the applicant’s migration history. The applicant first arrived in Australia [in] February 2016 as the holder of a [Student] visa valid until [March] 2018. He has not departed Australia since first arriving. The applicant’s student visa was cancelled [in] July 2017 as he was found to be in breach of condition 8202 (remain enrolled in a registered course, and maintain satisfactory attendance and course progress). The applicant then remained in the community as an unlawful non-citizen. He was located at a residential address in [Suburb], NSW [in] September 2019. Since then he has been detained at [an] Immigration Detention Facility.

9. The applicant lodged a protection visa application on 23 September 2019. This triggered an associated Bridging visa E application, the subject of this review.

10. The delegate considered the applicant’s migration history and evidence he gave at an interview on 24 September 2019 but was not satisfied the applicant would abide by visa conditions imposed on a Bridging visa E, having formed the view that conditions 8101 (no work), 8207 (no study), 8401 (report as required), 8506 (notify change of address), and 8564 (not engage in criminal conduct) should be imposed on the visa. The delegate noted that when the applicant was interviewed he acknowledged that he was aware he had not been holding a valid visa and that his previous visa would have expired. The delegate recorded that the applicant stated he had a girlfriend who holds a student visa and works part-time. He indicated that she would provide community support along with his [relative] and the [relative]’s family who could also support him financially. The delegate recorded that the applicant stated he had been working and operating multiple businesses in Australia and his income was over [amount] a year. The delegate formed the view that the applicant’s intention was to stay and work in Australia whether lawfully or unlawfully. He formed the view that the applicant had no intention of studying in Australia noting that his student visa was cancelled for not abiding by visa conditions. He found it concerning that the applicant chose to continue to work in Australia after the student visa was cancelled. He was not satisfied that any community support would stop the applicant working in Australia.

11. The delegate found that the applicant remained unlawfully in Australia for over 2 years and made no attempts to contact the Department to resolve his immigration status. He could find no information to indicate that the applicant had made any attempts to regularise his immigration status. He formed the view that the applicant would have remained in Australia unlawfully indefinitely and would not have engaged with the Department had he not been located by Border Force officers. He was not satisfied the applicant would comply with conditions 8101, 8401 or 8506.

12. The delegate was also concerned that the applicant did not lodge a protection visa application until after he was detained. He formed the view this raises doubts about the seriousness of his claims for protection. Given his period of unlawfulness and his failure to engage with the Department, the delegate was not satisfied the applicant should be granted a Bridging visa E. He was not satisfied the applicant meets cl.050.223.

    Hearing on 2 October 2019

13. At the hearing the Tribunal explained the requirements of the law. It explained the possible relevant visa conditions: no work, report as directed, notify change of address, and must not engage in criminal conduct. It also explained that, if it had concerns as to whether the applicant would comply with visa conditions, it would consider the issue of whether a security bond would provide the applicant with an incentive to comply with those conditions. It also explained that, while it had not yet made its findings, there may be circumstances in which no amount of security would satisfy the Tribunal that the applicant would comply with visa conditions. The following is a summary of the applicant’s oral evidence.

14. The Tribunal asked the applicant if he had with him his passport. He indicated that he thought it must have been confiscated. The Tribunal asked if he recalled what he had told the Department about his passport when interviewed. He said that he told the officer he left his passport at his [relative]’s place in Melbourne. The Tribunal asked how it was then confiscated. He indicated that after he was located Border Force searched his room and found his passport.

15. The applicant asked the Tribunal to take evidence from Ms [A], his girlfriend. The Tribunal asked about the relationship. He indicated that she had been his girlfriend for more than a year. She studies [subject] but he does not know what sort of course or the name of the school at which she studies.

16. The applicant also asked the Tribunal to take evidence from Mr [B]. The Tribunal asked how the applicant communicates with Mr [B]. He indicated he speaks a little bit of Mandarin. The Tribunal asked about their relationship. He indicated they are friends and that his girlfriend introduced them. The Tribunal asked why they were introduced. He indicated they went to his house to visit, to join a meeting. The Tribunal asked if Mandarin was spoken at the meeting. He indicated the meeting was in English. The applicant indicated he could speak some English. The Tribunal asked when he first visited Mr [B] at his house. He could not remember but thought it was many months ago. He then stated that he only went to his house twice. The Tribunal asked why Mr [B] wanted to give evidence. He indicated that he came to the hearing to help the applicant. The Tribunal asked what Mr [B] knows about him. He indicated he knows the applicant is from China.

17. The Tribunal asked the applicant about his migration history, when he arrived in Australia, why he came and what visa he held. He indicated he arrived in Australia in February 2016 as the holder of a student visa. He indicated that he studied in Australia, but not at a school, just English at his [relative]’s home. He has never attended a college, university or school in Australia. He has undertaken no formal study in Australia.

18. The Tribunal asked about the applicant’s work in Australia. He indicated he started [doing a job task] in Australia in May 2018. The Tribunal asked what work he did between February 2016 and May 2018. Initially he denied working in Australia during that period. The Tribunal questioned what he had been doing in Australia in the period if he was not studying or working. He then indicated he was just ‘helping’ his [relative], [Mr C], do some work [at a work location]. The Tribunal noted that the applicant had denied working in Australia and suggested that it might form the view that helping his [relative] do some work was in fact working. He insisted he was just helping [at a work location] but he was not working. The Tribunal asked whether he was being paid. He said that his [relative] provided him with accommodation and food but no cash. The Tribunal asked if his [relative] paid any superannuation, taxation or workers insurance on behalf of the applicant. He stated that his [relative] did not pay those things. He indicated that his [relative] owned the business where he helped [at work locations]. The Tribunal explained its concerns that his [relative] may have been employing the applicant unlawfully if it was the case that he was not paying him while the applicant worked [at the work location]. It explained that this may raise concerns about his [relative] being his guarantor.

19. The Tribunal noted that the decision record stated that the applicant’s student visa was cancelled because he did not comply with student visa conditions. It asked why he did not comply with the student visa conditions by commencing his study. The applicant indicated that he was enrolled at a school in Adelaide but he had no relatives there. He wanted to stay in Melbourne where his [relative] lived. The Tribunal indicated that it may form the view he wanted to live in Melbourne with his [relative] because he wanted to work. The applicant denied this and said that he just wanted to stay in Melbourne with his family so they could look after him. He indicated he had no money. The Tribunal noted that the applicant had been granted a student visa which indicated that he told the Department he had sufficient funds to support himself while studying in Australia. He indicated that he did not bring enough money with him; only [amount]. The Tribunal asked, in those circumstances, if he intended to commence working as soon as he arrived in Australia. He indicated that he did not intend to work in Australia. The Tribunal questioned how he thought he was going to survive here if he only brought [amount] to Australia. He indicated his [relative] was going to support him.

20. The Tribunal asked the applicant why he thought he could hold a student visa if he was not studying in Australia. He indicated that he did not know he had to go to school in Australia. He thought his private study of English at his [relative]’s home was sufficient.

21. The Tribunal asked the applicant why he did not inform the Department that he did not commence studying at college in Adelaide, the basis on which his student visa was granted. He indicated that he did not know he needed to tell the Department that he was not studying.

22. The Tribunal asked the applicant why he did not return to China if he did not want to study in Adelaide. The applicant indicated he thought he held a valid student visa for 2 years. The Tribunal explained that student visas are granted so that the visa holder can study in Australia at an educational institution. The applicant claimed he thought he would improve his English at home and then look for a job.

23. The Tribunal explained that it may not be satisfied the applicant will comply with visa conditions given his migration history. It explained the purpose of the security bond. It noted that the applicant had indicated that his [relative] would provide a security bond. The applicant confirmed his [relative], [Mr C], had agreed to provide a security bond of [amount]. The Tribunal raised its concern that his [relative] [Mr C] may want the applicant to work voluntarily for his [business], as he has in the past, in exchange for providing the security bond. The applicant indicated that he just helped his [relative] for one or 2 days. The rest of the time he stayed at home and studied. The Tribunal explained that this suggests he studied English for 5 days a week for 2 years. It asked, given that length of study, if he was able to give his evidence in English. The applicant indicated he did not study English the whole time; he also did the housework and cleaning. The Tribunal explained to the applicant that it may be concerned the applicant will work for his [relative] if he is released from detention. He indicated he would not work for his [relative] because his [relative] and his [relative]’s wife will take care of him. Also his girlfriend can support him. He confirmed she holds a student visa. He indicated that, if his [relative] and girlfriend cannot support him, his migration agent may apply for a working visa. He will also ask people in China from his village to help him financially. The Tribunal asked, that if there were people who were able to assist him financially in China, why he did not want to go home. He indicated he cannot go home because he owes a lot of money from gambling in China. He claimed that the authorities will arrest him.

24. The Tribunal then invited the applicant to comment on or respond to information it considers may be the reason or part of the reason for affirming the Department’s decision. It explained that he may seek further time and it would consider whether it is reasonable to give him more time. He indicated he wished to comment on the information at the hearing.

25. The Tribunal explained that the Department has recorded that when he was interviewed he stated that he cannot support himself without working and that he had only [amount] in his bank account. He also indicated that he needs to pay rent and has debts of [amount] in Australia and [amount] in China. He also indicated that he needs to look after his girlfriend. The Tribunal explained that this information is relevant because it indicates the applicant will seek to work in Australia if he is released from detention. It explained that this is relevant because, if he works in Australia as the holder of a Bridging E visa, he would be in breach of condition 8101. The Tribunal explained that if it relies on the information and finds that the applicant would likely work if released from detention, it would not be satisfied that he will comply with conditions imposed on the visa and, subject to his comments or response, it would affirm the Department’s decision. The applicant indicated that he said to the delegate that he had to work in the past. He denied saying that he would need to work in the future.

26. The Tribunal explained to the applicant that it was recorded by the delegate that when he arrived in Australia in February 2016 as a student visa holder he did not commence his course in March 2016 as required, or later in September 2016, as required by conditions on his student visa. It explained there is information from the Department’s records indicating that the applicant’s student visa was then cancelled on 17 July 2017. The Tribunal explained that this information is relevant because it indicates that the applicant did not intend to study in Australia. It explained that it may also indicate that he is willing to breach visa conditions. It explained that it may also indicate that the applicant is willing to work unlawfully in Australia as he has done since his student visa was cancelled in July 2017. The Tribunal explained that if relied on, subject to his comments or response, the Tribunal may form the view that the applicant will not abide by visa conditions and if it makes that finding, it will affirm the Department’s decision. The applicant indicated he did not know that his student visa was cancelled in 2017. He thought his student visa was valid until August 2018. The Tribunal explained that this suggests he knew he was in Australia unlawfully for about a year, since August 2018. The applicant indicated he was going to ask his [relative] to renew his student visa. He indicated after August 2018 he asked his [relative] to talk to a migration agent to help him renew his visa. The Tribunal questioned how he could have had his student visa renewed if he had not undertaken any study in Australia. The Tribunal also explained that his evidence suggests that his [relative] knew he was here unlawfully and this might cast doubt on his reliability as a guarantor. Also the Tribunal raised its concern that, given Ms [A] holds a student visa, she should have known that he should have been studying in Australia as the holder of a student visa. The applicant indicated he did not tell his girlfriend he was here unlawfully. He then indicated he thought he held a valid student visa until August 2019.

27. The Tribunal explained that there is information indicating that the applicant stated he wanted to apply for protection because he could not apply for any other visa. It explained that this is relevant because the Tribunal may find that he only applied for the visa as an application of last resort and that he did this merely to be released from detention and not because he fears harm. It explained that while it is not considering his protection visa application, given this information, it may be concerned that it is not a genuine application. The applicant acknowledged that he does not want to be a refugee. He indicated that he is young and he can fight for himself. However he has a huge debt in China and he wants to have an opportunity to work in Australia so he can repay his debts. He admitted he has not made any attempt to pay his debts in China thus far.

28. The Tribunal asked what address the applicant gave to the Department. He indicated he gave his [relative]’s address in Melbourne. The Tribunal asked the applicant when he moved to Sydney. He indicated he moved to Sydney in February 2018. The Tribunal asked if he told the Department that he had moved to Sydney. He indicated he did not tell them because his home address did not change. The Tribunal questioned why he thought his home address was the Melbourne address if he was in fact living in Sydney. He indicated he went to Melbourne to see his [relative] every one or two months.

29. The Tribunal noted the applicant had indicated to the Department that he lived in [Suburb] with Ms [A]. The Tribunal asked for her mobile number. He could not remember it. He indicated he would need to look at his phone. He indicated they had lived there together as a couple since July 2018 with another couple.

30. The Tribunal asked the applicant if he had any other evidence to give. He promised he would comply with visa conditions and that he would report as required.

31. The Tribunal took evidence from Ms [A]. She indicated she ‘needs this guy’ to look after her while she finishes school. She then said that she can guarantee he will comply with the law.

32. The Tribunal took evidence from Mr [B]. He indicated that he was at the hearing to support the applicant who he has known for a while. Ms [A] is a friend of his wife. He speaks a little Mandarin such as thank you and hello. He indicated they meet quite frequently, about once a week. The Tribunal asked the applicant if he wanted to comment on the apparent inconsistency in the frequency of their meetings. The applicant indicated that sometimes they eat together at restaurants. Mr [B] indicated that he would provide financial support to the applicant. He is an engineer and company owner. The Tribunal asked why he would support the applicant. He indicated there is a strong relationship between Ms [A] and his wife.

1. The Tribunal asked the applicant if there was any other evidence he wished to have taken into account before it made its decision. He indicated if he is released he will report to the Department as required. He indicated he wanted the Tribunal to rely on the financial documents on the Department’s file in relation to his [relative]’s capacity to provide a security bond. The Tribunal noted that those documents were a [Bank 1] transaction account in his [relative]’s name indicating a balance of [amount] and [a Bank 2] company account indicating a balance of [amount]. The Tribunal noted that the second account was a company account and not his [relative]’s personal account. The applicant had no other evidence to give and wished for the Tribunal to rely on these documents.

2. The Tribunal notes that on the Department’s file there is a statutory declaration signed by Mr [C], the applicant’s [relative], on 23 September 2019, indicating he will provide community support to the applicant, along with financial support and living arrangements Mr [C]’s wife, [Ms D], also provided a statutory declaration to the same effect.

   Assessment of the evidence

3. The Tribunal accepts that the applicant meets cl.050.212(3) because he has applied for a substantive visa that has not been finally determined. He therefore meets one of the time of application criteria in cl.050.212 and so the Tribunal must consider whether the applicant will abide by conditions imposed on a bridging visa if one is granted.

   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, he will abide by any conditions imposed on it. Conditions that may be imposed on the 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 must or should be imposed in the circumstances of this case: 8101 (No work), 8401 (Report at specified time and place), 8506 (Notify change of address) and 8564 (Must Not Engage in Criminal Conduct).

8. There is no dispute the applicant first came to Australia in February 2016 as the holder of a student visa and he has not departed Australia since that date. The Tribunal notes however the applicant’s evidence that he did not ever attend an educational institution in Australia. The Tribunal has considered the applicant’s explanation for why he did not attend the course in which he was enrolled; that it was based in Adelaide and his supporting relatives lived in Melbourne and that he thought he could undertake informal study of English at his [relative]’s home. The Tribunal does not accept that the applicant was not aware that, as the holder of a student visa, he was required to attend the course in which he was enrolled. It is of the view his explanations about why he did not remain enrolled in a registered course and maintain satisfactory attendance and course progress are disingenuous. It considers this breach significant as studying in a registered course is fundamental to the student visa. The Tribunal is not satisfied the applicant’s explanation for the student visa condition breach establish that there were any mitigating circumstances.

9. The Tribunal also has concerns about the applicant’s evidence in relation to his employment at his [relative]’s [business] in the period February 2016 to May 2018 in which he indicated that he was merely ‘helping’ his [relative] one or 2 days a week. The Tribunal is of the view his evidence in relation to this issue is highly unpersuasive and reflective of his willingness to give the Tribunal untruthful evidence to overcome the concern that while he came to Australia as the holder of a student visa he has not studied here and has only worked since his arrival, including during the period in which he was here unlawfully, from July 2017 until he was located by Border Force officers in September 2019.  The Tribunal is of the view the applicant’s evidence regarding his understanding of his student visa conditions and ‘helping his [relative] at the [work location]’ raises serious concerns about the reliability of his oral testimony and his assertions that he will comply with visa conditions imposed on a bridging visa.

10. The Tribunal also notes the applicant’s oral evidence to the Tribunal regarding his understanding of the period of validity of his student visa was inconsistent. Initially he told the Tribunal that he thought the visa was valid until August 2018. He then changed his oral evidence and indicated he thought it was valid until August 2019. The Tribunal is of the view this demonstrates the applicant’s willingness to change his evidence to overcome its problematic nature. The Tribunal is concerned this casts doubt on the reliability of his assertions that he will comply with visa conditions imposed on a bridging visa.

11. The Tribunal has considered the applicant’s claims that he asked his [relative] to talk to a migration agent about renewing his student visa. However it finds this evidence unpersuasive as the applicant had not studied, and was not studying, in Australia so there appears to be no prospect of success in relation to a student visa application. It does not accept that the applicant believed he could hold a student visa merely by informally studying English at his [relative]’s place. Nor does it accept that he had asked his [relative] to see a migration agent about renewing his student visa. The Tribunal is of the view the applicant was fully aware, at least by August 2018, that he no longer held a student visa and that he was residing and working in Australia unlawfully. It is not satisfied he had any intention of addressing his immigration status by approaching the Department, or having an agent approach the Department on his behalf.

12. The Tribunal also notes that when interviewed by the delegate the applicant stated that he cannot support himself without working, he had only [amount] in his bank account, he is renting and in debt ([amount] in Australia and debts of [amount] in China) and that he needs to look after his girlfriend. The latter claim is consistent with Ms [A]’s evidence that she ‘needs this guy’ to look after her. However when the information from the interview was put to the applicant under s.359AA he merely said that he had indicated he had to work in the past but he did not say he had to work in the future. Having considered all of his evidence the Tribunal is satisfied the delegate recorded the applicant’s oral testimony as it was given. It is satisfied that the applicant did indicate to the delegate that he needed to work to support himself because of his financial circumstances and his girlfriend’s reliance on him. The Tribunal is of the view the applicant has demonstrated a willingness to work in Australia unlawfully and that he is highly motivated to work. While he has indicated his [relative] will provide him with financial support, the Tribunal notes that his [relative] had him working [at the work location] ‘voluntarily’ in exchange for accommodation and food and that his [relative] did not pay superannuation, taxation, or workers insurance on his behalf. The Tribunal is of the view this raises serious concerns about his [relative]’s employment practices and casts doubt on the claims that his [relative] will support him financially. Having considered all of the evidence the Tribunal is concerned that the applicant will work for his [relative] even if it is in a ‘voluntary’ capacity. The Tribunal has serious concerns the applicant will not comply with condition 8101 if a bridging visa is granted. This conclusion is supported by the applicant’s own evidence that, if his [relative] and girlfriend cannot support him, his migration agent will apply for a working visa for the applicant. The Tribunal has formed the view that the applicant intends to work if granted a bridging visa. It is also not satisfied that the applicant would wait until any application for permission to work is granted. It has serious concerns the applicant will commence working as soon as he is released from detention.

13. The Tribunal is also concerned, despite his assertions, that the applicant will not report as required. It notes that when he moved to Sydney in February 2018 he did not inform the Department of his new address. His explanation for this, that he continued to use his [relative]’s address in Melbourne because he visited every one or two months, is unpersuasive. The Tribunal is of the view the applicant did not inform the Department of his change of address because he wished to remain in the community undetected. It is not satisfied the applicant was unaware that his student visa was cancelled particularly given that he had not been maintaining enrolment and participating in the course as required. It does not accept his explanation for why he thought he did not need to maintain enrolment and participate in the course. Overall the Tribunal is not satisfied the applicant will report as required and notify the Department of any change of address. It is of the view the applicant has demonstrated a wilful and strong disregard for Australia’s immigration laws.

14. The Tribunal raised with the applicant its concern that he may have applied for the protection visa merely as an application of last resort and that this may cast doubt on his claims to fear harm in China. It takes into account his claims that he is in debt in China and fears the authorities. It also takes into account his evidence that he does not want to be a refugee and that he wants an opportunity to work in Australia to repay his debts. However it also notes that he has made no attempts to repay the debt in China. While the Tribunal is not considering the applicant’s protection visa claims it has serious concerns that he made the visa application merely as a means of being released from detention so he can continue to work in Australia.

15. The Tribunal has considered Mr [B]’s evidence that he will provide the applicant with support. It also takes into account his girlfriend’s assertions that she will guarantee the applicant will comply with visa conditions. While it accepts his witnesses are willing to support the applicant, the Tribunal is not satisfied their support will be sufficient to deter the applicant from pursuing paid employment in Australia, particularly given his past conduct and evidence regarding his debts.

16. Overall, given his migration history, his willingness to breach visa conditions and to live and work unlawfully in Australia for a significant period, his wilful disregard of Australia’s immigration laws and his concerning evidence about his employment with his [relative], the Tribunal is not satisfied the applicant will comply with conditions 8101, 8401 and 8506.

17. Having found that it is not satisfied the applicant will comply with conditions which would be imposed on a Bridging E visa the Tribunal has considered whether the payment of a security would assist it to be satisfied that the applicant would abide by the conditions on the visa. The Tribunal explained to the applicant that it may not be satisfied that any amount of security would be sufficient to provide the incentive to abide by conditions imposed on a Bridging E visa.  The applicant’s [relative], Mr [C] has provided a Statutory Declaration attesting that he is willing to provide a security. The applicant told the Tribunal he is willing to provide a security bond of [amount].  He asked the Tribunal to rely on Mr [C]’s financial documents provided to the Department, the [Bank 1] statement showing a balance of [amount] and [a Bank 2] company account showing a balance of [amount]. The Tribunal has concerns about whether the company account can be used for the purpose of providing security for the applicant. For the purposes of this decision, it accepts Mr [C] is willing to provide this amount. However the Tribunal is of the view, given the applicant’s oral evidence about his previous ‘voluntary’ employment with Mr [C], that there may be an expectation that the applicant will work for Mr [C] in the future. It notes the applicant worked ‘voluntarily’ for Mr [C] in the past after his student visa was cancelled in July 2017. Having considered all of the evidence and circumstances in this case the Tribunal has concluded that even if $30,000 is made available for a security bond it has concerns about whether any amount of security would provide sufficient incentive for the applicant to abide by visa conditions, given his past migration history and his strong desire to remain and work in Australia. The Tribunal is not satisfied that Mr [C]’s payment of a security bond would provide the applicant with a sufficient incentive to abide by visa conditions.

18. The Tribunal finds that the applicant has knowingly lived and worked unlawfully in Australia. It finds his migration history demonstrates a willingness to breach visa conditions, a wilful disregard of Australia’s migration laws and a willingness to remain in Australia unlawfully for 2 years.  It is concerned that he has been dishonest in his oral evidence about his understanding of his student visa conditions, his previous employment and his decision not to tell the Department that he had moved to Sydney.  It has concerns that he has lodged a protection visa application merely to prolong his stay and work in Australia. It accepts that he does not want to return to China and it is concerned, despite his assertions to the contrary, that he will be willing, in the future, to continue to remain here unlawfully if his protection visa application is unsuccessful. Overall the Tribunal is not satisfied the applicant will abide by all of the conditions imposed on a Bridging E visa, even if a security bond is paid.  It is also concerned that he may not report to the Department as required if his protection visa application is unsuccessful because he has a strong desire to remain in Australia. Considering the applicant’s serious disregard for Australia’s migration laws in the past, the lack of mitigating circumstances and the concerns about the reliability of aspects of his oral evidence, it has concerns as to whether any amount of security will provide a sufficient incentive for the applicant to abide by the conditions imposed on the visa.

19. 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.

20. 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

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

    Denise Connolly
    Member