JO (Migration)

[2018] AATA 885

JO (Migration) [2018] AATA 885 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JaeHwan JO

CASE NUMBER:  1800087

DIBP REFERENCE(S):  ADF201//208

MEMBER:Kira Raif

DATE:10 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2018 at 12:17pm

CATCHWORDS
Migration – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – Previously a student visa holder – Poor study history – Worked unlawfully – Willing to engage in fraudulent activities to extend his stay – Non-compliance with visa conditions – No acceptable arrangements to depart Australia

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994 Schedule 2 cls 050.212, 051.211, 050.221, 050.223 Schedule 8 Conditions 8101, 8401, 8505, 8506, 8510, 8511, 8512, 8564

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 is a national of Korea born in November 1988. The applicant applied for the visa on 28 December 2017. The decision to refuse to grant the visa was made on 2 January 2018 on the basis that the applicant did not meet cl. 050.212 because the delegate was not satisfied the applicant was making acceptable arrangements to depart Australia. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212 and cl. 050.223.

5. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

6. In this case, the applicant is seeking to meet cl.050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3, whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

   Acceptable arrangements to depart Australia

7. When making the application, the applicant stated that he was planning to depart Australia and the applicant presented a booking for his departure in January 2018. For the reasons that follow, the Tribunal is not satisfied that the applicant has a genuine intention to depart or that he will depart on the specified date.

8. The applicant provided to the Tribunal a copy of the primary decision record which outlines the following immigration history for the applicant.

9. The applicant first entered Australia holding a Working Holiday visa in October 2009 and departed after one year. He then returned to Australia in November 2010 holding a Student visa but the Immigration records show that while the applicant was holding that visa, there were multiple course variation notices when the applicant altered his study plan, did not pay the fees and ceased studying. The applicant told the Tribunal the he enrolled in a Dental Technology course but because of his gambling problem, he could not pay the course fees. The applicant said he completed English courses and three semesters of the Dental Technology course by the end of 2012 and after that time he started working ‘cash in hand’ and he was not studying. The Tribunal considers the applicant’s evidence problematic. When the applicant determined that he could no longer engage in studies, he did not depart Australia but instead decided to engage in employment, instead of pursuing studies, which was the purpose of his Student visa. That is, the applicant chose to remain in Australia when he knew that he could no longer fulfil the purpose of his Student visa.  The applicant’s desire to remain in Australia appears to have been stronger than his desire to comply with visa conditions.

10. The applicant also told the Tribunal that a friend suggested to him that he could enrol in a course that he did not have to attend in order to extend his Student visa. The applicant said that he heard from others that he could find such a course that he did not have to attend at all and apply for another Student visa. The applicant must have recognised that enrolling in a course that he had no intention of attending and applying for a Student visa on the basis of such enrolment was contrary to the requirements of the Student visa. The applicant appeared to be unconcerned by the fact that by engaging in such actions, he would be breaching the immigration laws. It appears that the applicant’s intention was to remain in Australia by any means and he was prepared to engage in fraudulent activities to extend his stay.

11. The applicant told the Tribunal that he approached a ‘friend’ who was arranging visas. The applicant said that this person was able to arrange employment for Working Holiday visas even when people did not work and also Student visas without people having to attend classes. That is, the applicant was well aware that such activities were fraudulent and not in compliance with the requirements of the immigration laws and that he would be obtaining and holding the visa by fraudulent means. Yet the applicant chose to approach that person and rely on that person to get him the visa. Again, the applicant appears to have a strong desire to remain in Australia by any means and his conduct indicates that he is willing to breach the law in order to remain in Australia.

12. The applicant also told the Tribunal that when he stopped studying in 2012, he was working ‘cash in hand’. That suggests that the applicant was ware that he had limited employment rights and that he was working knowing that he could not do so. Again, the applicant’s conduct shows his willingness to breach the laws in order to fulfil his desire to remain in Australia.

13. Significantly, the applicant’s Student visa expired in August 2013. The applicant did not depart Australia. He did not contact Immigration to regularise his status. He continued to live in Australia as an unlawful non-citizen for a very lengthy period until he was located in December 2017. That is, for nearly four and a half years the applicant remained in Australia unlawfully and has not taken reasonable steps to regularise his unlawful status. In the Tribunal’s view, such conduct reflects the applicant’s desire to establish residence in Australia, his complete indifference about his obligations under the Migration Act and his willingness to breach the immigration laws in order to remain in Australia.

14. In oral evidence to the Tribunal the applicant said that after the expiry of his visa in 2013, he lodged an application for another Student visa and he believed he had a valid visa until 2018. There is no evidence before the Tribunal of such an application being made. The applicant said that he is a victim of fraud. He said that he approached another person to arrange a visa for him and he saw evidence of visa grant on this friend’s IPad and he believed his friend. The Tribunal finds the applicant’s evidence unconvincing. The applicant’s own evidence is that this ‘friend’ was engage in fraudulent activities by obtaining visas – the applicant mentioned work visas without employment and student visas without course attendance. The applicant’s decision to entrust his visa application to such a person shows the applicant was knowingly and intentionally involved in visa fraud. The Tribunal is also mindful that the applicant had previously sought visas and would be familiar with the visa processes. He would know that when granted the visa, he would be issued with paperwork relating to visa grant. The applicant told the Tribunal he did not have any papers advising of visa grant other than what he saw on this person’s computer. The applicant also told the Tribunal that he has not engaged in any study since 2012 and the applicant would have recognised that engagement in studies was central to his ability to be granted, and maintaining, the Student visa. In such circumstances, the Tribunal is not satisfied that the applicant genuinely believed he held a Student visa until 2018.

15. The applicant’s evidence to the Tribunal is that he was planning to depart in February 2018 but because he has puppies, he was making arrangements to take the puppies with him. The applicant presented with his application a booking for departure for 17 January but he told the Tribunal he needs more time to make arrangements for quarantine and he needs to be released from detention to make arrangements and get the exact date of travel. The applicant told the Tribunal that he thought he could leave Australia by the end of January but he cannot make arrangements until he gets the exact dates and makes inquiries about the dogs. That is, at the time of this decision, the applicant has not made any arrangements to depart. His booing for 17 January does not reflect the applicant’s intention to depart as on his own evidence, the applicant cannot depart on that date. He has not made other arrangements. At best, he has made inquiries about the quarantine and arrangements for the dogs but the applicant has no set the date of departure and has not made any practical arrangements to depart.

16. Given the applicant’s very lengthy stay in Australia, including over four years as an unlawful non-citizen, the Tribunal is not satisfied that the applicant has any intention to leave Australia. The Tribunal has formed the view that the applicant has a strong desire to remain in Australia and had done so in the past knowing that he was in breach of the immigration laws. The Tribunal is not convinced by the applicant’s assertions that he will now depart because he was done very little in the past to either depart when he was no longer able to fulfil the purpose of his visa, or to ensure his compliance with immigration laws.

17. The applicant’s immigration history and the lengthy period of unlawful residence in Australia suggest to the Tribunal that the applicant does not have a genuine intention to depart Australia. Thus, the presentation of the departure booking is not sufficient, in the circumstances of this case, to satisfy the Tribunal that the applicant will depart, particularly since the applicant’s own evidence is that he cannot leave on that date. For the reasons stated above, the Tribunal is not satisfied that the applicant has a genuine intention to depart and the Tribunal is not satisfied that he will depart Australia. The Tribunal is not satisfied that the applicant has made acceptable arrangements to depart or that he is the subject of acceptable arrangements to depart Australia. The Tribunal is not satisfied the applicant meets cl. 050.212(2).

18. There is nothing before the Tribunal to indicate that the applicant meets any of the alternative criteria in cl. 050.212. In particular, the Tribunal notes that the applicant has not provided any evidence of having made an application for a visa onshore or that she will make such an application. There is no evidence that the applicant has any outstanding application before the Department, the Tribunals, the Courts or the Minister. The Tribunal is not satisfied that the applicant meets any of the criteria in cl. 050.212.

    Whether the applicant will abide by conditions - cl.050.223

19. Having found that the applicant does not meet cl. 050.212, it is not necessary for the Tribunal to consider whether he meets cl. 050.223. However, the Tribunal makes the following findings.

20. In the circumstances of the present case, the Tribunal considers that the conditions below should be imposed:

    8101   The holder must not engage in work in Australia.

    8401   The holder must report:

    (a)at a time or times; and

    (b) at a place;

    specified by the Minister for the purpose.

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

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

    8510   Within the time specified by the Minister for the purpose, the holder must either:

    (a)show an officer a passport that is in force; or

    (b)make an arrangement satisfactory to the Minister to obtain a passport.

    8511   Within the time specified by the Minister for the purpose, the holder must show an officer a ticket to travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival.

    8512   The holder must leave Australia by the date specified by the Minister for the purpose.

    8564   No criminal conduct

21. In considering whether the applicant will abide by visa conditions, the Tribunal has had regard to her past conduct. The applicant’s immigration history is set out above and the applicant confirmed it in his oral evidence to the Tribunal.

22. The Tribunal has formed the view that the applicant may not have been a genuine Student, given his poor study history during the period when he held the Student visa, as well as the fact that he did not depart Australia when he realised he could no longer engage in studies and instead sought to apply for a Student visa on the basis of a course which he had no intention of attending.

23. The applicant remained in Australia as an unlawful non-citizen for a lengthy period of over four years. He made not taken reasonable or adequate steps to regularise his status. As noted above, the Tribunal is not convinced by the applicant’s evidence that he believed he held a Student visa because the applicant never received any paperwork about visa grant, he knew the person he approached to get the visa engaged in fraudulent conduct and because he had not engaged in any studies since 2012. In the Tribunal’s view, the applicant knew, and should have known in his circumstances, that he did not have a visa.

24. The applicant also told the Tribunal that he engaged in employment before when he knew he had no employment rights or limited employment rights. He specifically made arrangement to work ‘cash in hand’ so as not to be detected. The applicant told the Tribunal he worked as an Uber driver and a delivery person and he no longer has a license but there are plenty of jobs the applicant could do without a license and the Tribunal is not satisfied the absence of the license would preclude the applicant from engaging in employment. The Tribunal acknowledges the applicant’s evidence that he asked for money from his parents to meet his expenses but the Tribunal is mindful that despite the availability of such funds, the applicant chose in the past to engage in employment rather than rely on his parents.  The Tribunal is not satisfied the applicant will comply with condition 8101.

25. The Tribunal has formed the view that the applicant has shown a complete disregard for the Australian immigration laws and a willingness to breach these laws to suit his circumstances. The Tribunal has formed the view that the applicant has a strong desire to remain in Australia. The Tribunal is of the view that the applicant will wish to remain in Australia for as long as possible if he is released from detention, despite arranging the booking for overseas flight. The applicant’s evidence is that he has an ongoing lease (he presented a copy to the Tribunal) and will not have to move. However, given the applicant’s past conduct, the Tribunal is concerned that the applicant will again choose to extend his stay in Australia. The Tribunal is not satisfied the applicant will maintain contact with Immigration or that he will report, as he had failed to do in the past. The Tribunal is not satisfied the applicant will inform the Department of her whereabouts. The Tribunal is not satisfied the applicant will comply with condition 8401, 8505 and 8506.

26. The applicant told the Tribunal that he was making arrangements to depart in February 2018 and he was already making inquiries about the quarantine. However, as noted above, the applicant has not taken any steps to enable him to depart and throughout his stay in Australia the applicant has done little to ensure compliance with visa conditions. The Tribunal has formed the view that the applicant does not have a genuine intention to depart Australia and that he will not depart Australia by the specified date, despite his assurances to the contrary. The Tribunal is not satisfied the applicant will comply with condition 8512.

27. On the evidence before it, the Tribunal is not satisfied that the applicant will comply with conditions 8401, 8505, 8506 and 8512. He does not meet cl. 050.223.

28. 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

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

    DECISION

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

    Kira Raif
    Senior Member