LE (Migration)

[2017] AATA 1150

LE (Migration) [2017] AATA 1150 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713583

MEMBER:James Silva

DATE:5 July 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 05 July 2017 at 3:05pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Ongoing judicial review proceedings – Tribunal’s refusal of Partner visa application – Unlawfulness – Strong wish to stay in Australia – Poor migration history

LEGISLATION
Migration Act 1958, ss 73, 116
Migration Regulation 1994, Schedule 2, cl 050.212(3A), cl 050.223, cl 050.612A, cl 051.211, Schedule 8, Condition 8101, Conditions 8401, Condition 8505, Condition 8564

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for 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 Vietnam, born in [year]. He entered Australia [in] August 2009 holding a [temporary] visa.

3. The applicant was detained [in] June 2017, and remains in [name] Immigration Detention Centre (IDC).

4. [In] June 2017, he lodged a Bridging visa E application, on the basis that he has ongoing judicial review proceedings. A delegate of the Minister refused this application [in] June 2017. The delegate was not satisfied that the applicant would abide by the conditions of the visa, as required by cl.050.223, and found that no amount of security would act as an incentive for him to abide by the visa conditions. The applicant seeks review of the delegate’s decision.

5. The issue in this case is whether, if he is granted a Bridging visa, the applicant will abide by the conditions imposed on it: cl.050.223 of the Migration Regulations.

6. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

7. In summary, the Tribunal is not satisfied that the applicant will abide by the conditions of a Bridging visa, especially the mandatory condition that he must not work. The applicant has shown a disregard for Australian migration law, including visa overstays totalling more than three years, and breaches of visa conditions, including his most recent Bridging visa. The applicant has given vague and unreliable evidence about his past activities, and his future intentions, including what he plans to do if his current application for judicial review to the Federal Circuit Court does not succeed. The applicant has a strong desire to remain in Australia, and the Tribunal considers that he will seek to do so, irrespective of whether he has permission to do so. The applicant’s wife has offered a security bond. However, the Tribunal is not satisfied as to the source of these funds. In any event, it is not satisfied that any amount would serve as an incentive for the applicant to abide by the visa conditions.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

8. 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.

9. In this case, the applicant has lodged his Bridging visa E application on the basis that he has made a valid application for a substantive visa of a kind that can be granted if he is in Australia, and has applied for judicial review of a decision to refuse to grant the visa: r:050.212(3A).[1]

   [1] Note: In this case, it is immaterial that the (then) Migration Review Tribunal affirmed the decision not to grant the applicant a Partner visa, on the grounds that it was not satisfied that ‘compelling reasons’ exist to permit him to make this particular application for a Partner visa in Australia.

10. The Tribunal considers that the following conditions should be imposed in the circumstances of this case[2]:

    8101     The holder must not engage in work in Australia. (mandatory)

    8401     The 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.

    8564No criminal conduct.

    [2] Reg. 050.612A sets out that condition 8101 must be imposed, and that any one or more of conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed

11. The Tribunal has before it a range of material, including relevantly:

    §  The applicant’s review application, lodged online. This has attached to it the primary decision record of [June] 2017 (namely, a copy of the notification letter, and Attachment A that contains the delegate’s summary of the applicant’s migration history and the written reasons for refusing the application). The decision record includes information from the applicant’s Client Compliance Interview held [in] June 2017, and the interview with the delegate, which the Tribunal drew on at the hearing.

    §  At hearing, the applicant indicated that he may wish to provide some more supporting material. The Tribunal allowed him until 12 noon on 5 July 2017 to do so. Shortly after noon, his representative advised that he had no further documents to submit.   

12. The applicant appeared before the Tribunal to give evidence and present arguments on 4 July 2017. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s representative participated via telephone [link]. The applicant nominated [Ms A] as a witness, but advised that she was unable to give oral evidence due to work commitments.

13. A summary of the relevant law is attached to this decision.

    The applicant’s migration history

14. The applicant’s migration history is a key factor in assessing his future compliance with visa conditions. A brief summary follows:

    § The applicant arrived in Australia [in] August 2009 on a [temporary] visa, which was originally valid until [September] 2013. The Department cancelled this visa under s.116 of the Act [in] February 2012. From [February] 2012 until [April] 2014, the applicant remained in the community without a valid visa.

    §  [In] April 2014, the applicant lodged a Partner visa application, on the basis of his marriage to [Ms A], an Australian permanent resident. The Department refused the application [in] September 2015. The applicant sought merits review of the decision, and on 18 January 2016, the (then) Migration Review Tribunal (MRT) affirmed the delegate’s decision to refuse the visa. The applicant requested Ministerial Intervention, but this was finalised as ‘Inappropriate to Consider’ [in] March 2016. During this period, the applicant held a Bridging visa E, which expired [in] April 2016.

    §  [In] April 2016, the applicant was granted a Bridging visa E, valid to [later in April] 2016, on the basis that he intended to depart Australia. He did not depart, but remained in Australia without a valid visa.

    §  [In] June 2017, [Police] found the applicant at [City 2][Australian] Airport. Immigration officers detained him as an unlawful non-citizen, and transferred him to [name] IDC.

15. In sum, the applicant remained in Australia without a valid visa from February 2012 to April 2014, and again from April 2016 to June 2017, a total of more than three years. Relevantly, the second of these overstays occurred after the applicant had been granted Bridging visa E, on departure grounds. At hearing, the applicant acknowledged this breaches of Australian migration law, expressed his regret, and promised to abide by all future visa conditions. He gave no further comment.

16. Although the applicant did not directly explain why he had breached migration law, he and his representative suggested some factors that might be relevant: (a) that he had been frank about his strong wish to remain in Australia; (b) his wish to stay with his wife [Ms A], who suffers severe depression and stress; (c) his own feelings of depression; and (d) his youth and lack of experience. The Tribunal is not satisfied that any of these factors, individually or together, adequately explains his poor migration history.

    §  First, the applicant’s strong wish to remain in Australia is clear. His admission of this reinforces the Tribunal’s concerns about his past breaches of migration law, or his willingness to do so again. The Tribunal places no weight on it as evidence of the applicant’s frankness.

    §  The applicant has presented no persuasive evidence that [Ms A] suffers severe depression or stress, or that he suffers depression. He told the Tribunal that they cannot afford medical treatment. This does not sit well with his evidence about his savings and car ownership; his claim that his parents send him money from Vietnam, and will continue to do so; and [Ms A]’s offer of a security bond of $10,000. The Tribunal also asked if he or [Ms A] had any mental health problems that interfered with their work or other aspects of life. The applicant gave no examples of this. In sum, the Tribunal accepts that the applicant’s uncertain migration status may have caused him and [Ms A] some stress. However, it is not satisfied on the available evidence that either suffers depression or any other mental health problem. As such, the Tribunal does not accept that this is a factor that explains or mitigates his past migration history.

    §  The Tribunal accepts that the applicant is relatively young. However, he appears to have been able to access some degree of community support and legal guidance. The Tribunal is not satisfied that this explains or mitigates his poor migration history.

17. In light of the above, the Tribunal finds that the applicant has a poor migration history, and that he has shown a general disregard for Australia’s migration laws. He has acknowledged his past ‘mistakes’. However, he continues has a strong wish to remain in Australia, and the Tribunal considers that he will do or say what he regards as necessary to achieve this outcome.  

    The applicant’s future intentions

18. The applicant has stated that, if granted a Bridging visa E, he wants to continue living with and supporting his wife (at least emotionally). They do not want to be separated. [Ms A] was not available to give evidence at hearing. The Tribunal proceeds on the basis that the applicant and [Ms A] may be a couple, although the relationship to be assessed in the course of a Partner visa application.

19. An immediate issue is the applicant’s options to pursue a Partner visa application. He lodged a Partner visa application in April 2014. The Department found, and the MRT later affirmed in January 2016, that he did not hold a substantive visa at the time of application, and that there were no compelling reasons to permit him to lodge an application in Australia. It was only after his Immigration detention in June 2017, more than a year later, that the applicant lodged an application for judicial review by the Federal Circuit Court of the MRT’s decision. The matter is due for mention [in] July 2017. The Tribunal understands that the applicant faces the option of pursuing this judicial review application in Australia (possibly in detention, if he is not granted a Bridging visa E), or of returning to Vietnam to lodge a fresh application there.

20. The Tribunal’s focus is on whether the applicant meets the requirements to be granted a Bridging visa, and it cannot speculate on the course of his judicial review application. However, it considers that the applicant’s wish to remain in Australia is so strong that, if granted a Bridging visa E, he will likely breach his visa conditions if he concludes that the judicial review is not proceeding favourably, and, in any event, that he will need to work to meet his (and [Ms A]’s) expenses.

21. The applicant said he plans to live with [Ms A] at their home in [Suburb 1], [an] apartment which they have rented for $[amount] per week, over the past three years. He said that the expenses are high, but [Ms A] can meet them. He added that his parents will also send some money, if needs be, by selling some property in Vietnam. The applicant provided scant evidence to support his claims. [Ms A] was not available, and the applicant did not seek written or oral statements from members of her family, mutual friends or the community. The Tribunal has not received any further material to show that the couple have in fact lived at the [Suburb 1] address, or why they opt for the added expense of [that particular] apartment, but accepts for the purpose of this decision that they may have done so. 

22. The applicant said he proposes to stay at home, and help his wife. Aside from mentioning her mental health problems, he did not give further insight as to what he actually plans to do. His evidence about his living arrangements, his ability to meet future expenses, and/or an eventual move to [City 1] was vague, and unsupported by persuasive evidence. He appeared to have given little thought to these matters. The Tribunal does not accept that he gave a full and frank account of his future planned activities.

23. The applicant’s claims and evidence about his future living arrangements and his intentions lack credibility. The Tribunal is concerned that he will explore all avenues to remain in Australia, irrespective of migration laws, rather than contemplate returning to Vietnam and lodging a Partner visa application there (if he and [Ms A] wish to pursue that option). In the Tribunal’s view, if his ongoing Federal Circuit Court appeal is unsuccessful, he will have a strong incentive to remain in the community.

    Compliance with condition 8101

24. The applicant claims that he would comply with condition 8101 of a Bridging visa E, as his wife could support him, and he will continue to receive financial support from his parents in Vietnam. He reiterated this at hearing. He said that he expected to stay at home to live with his wife, and provide her support, as she suffers from depression and stress. The Tribunal has received no details of [Ms A]’s employment or income, her outgoings, or her capacity to support the applicant. It has also received no evidence of the applicant’s parents having given him ongoing financial support from Vietnam.

25. The applicant has previously [worked], earning $[amount] a week, cash in hand[3]. He told the Tribunal that he has bank savings or about $[amount] to $[amount], and a car worth about $[amount] (he gave the value at $[higher amount] to $[amount] in an earlier interview). As noted in the delegate’s decision, he has earlier stated that he support himself without working. Asked about this comment at hearing, he merely restated that [Ms A] will now support him.

    [3] As noted in the delegate’s decision record.

26. The Tribunal does not accept that the applicant has given a truthful account of his past income or expenses, or his future plans. His account of his and [Ms A]’s living arrangements in [City 2] is also problematic. He said that he flew to [City 1] in June 2017 to look for accommodation, because the cost of living in [City 2] was high. This suggests that, even at a time when both the applicant and [Ms A] were working, they felt budgetary pressures. The Tribunal does not accept that the applicant now intends to live on [Ms A]’s income and/or remittances from his parents in Vietnam, and that he plans to stay in his current flat in [Suburb 1]. It considers that he will have strong incentives to work, in breach of condition 8101.  

27. The Tribunal finds that the applicant has given an incomplete picture of his past work and living arrangements, and a misleading account of how he and [Ms A] plan to meet their living expenses in the future. The Tribunal is not satisfied that the applicant will abide by condition 8101, of not working in Australia.

    Compliance with other conditions

28. The Tribunal has also considered whether the applicant will comply with conditions 8401, 8505 and 8564.

29. Condition 8401 requires that the visa holder must report at a time or place specified by the Minister, and condition 8505 requires that the holder must continue to live at the address specified by the applicant before the grant of the visa. The applicant claimed that he has lived at one address in [Suburb 1] for the past three years. [Ms A] provided a copy of her driver’s licence with this address, but there is little supporting evidence as to his own residence there. He implied that the Tribunal should take into account that he took no steps to evade Department officers, even though he did not initiate contact to regularise his migration status.

30. There is no direct evidence that the applicant has breached these conditions in the past. However, the Tribunal considers that he has shown a strong interest in remaining in Australia, with or without permission. It finds that he has previously worked without permission, and will be motivated to do so again. If the applicant works in breach of condition 8101, or if his ongoing judicial review application before the Federal Circuit Court does not lead to a favourable outcome, he will have a strong incentive to remain in the community undetected. The applicant’s past cavalier attitude to and poor compliance with other visa conditions adds to the Tribunal’s concerns. On the available material, the Tribunal is not satisfied that the applicant will abide by conditions 8401 or 8505.

31. The Tribunal has no evidence before it to suggest that the applicant will breach condition 8564 (No Criminal Conduct), and is therefore satisfied that he will abide by that condition

    Security

32. The Tribunal has considered whether the applicant will abide by conditions 8101, 8401, 8505 and 8564, if a security is required, as a financial incentive for his compliance.

33. [Ms A] offered to lodge a security bond of $10,000, to ensure the applicant’s compliance with the visa conditions. At hearing, the applicant said that the couple had saved this money, based in part on money that his parents had sent from Vietnam.

34. The Tribunal does not accept on the limited available evidence that [Ms A] or the applicant have $10,000 that represents their own savings, and which would act as an incentive for the applicant to comply with the visa conditions.

35. Furthermore, given the applicant’s poor migration history and low credibility, the Tribunal is not satisfied that the applicant will abide by visa conditions, even with a security of any amount (including the mooted security of $10,000). It therefore finds that he does not meet cl.050.223.

36. Other considerations: The submission of 3 July 2017 mentions a number of other factors that the representative invited the Tribunal to take into account. It states that the Tribunal should not speculate on the outcome of the Federal Circuit Court’s first mention date of [July] 2017, but take into account that the applicant may be in detention for a long time, depending on when the Court sets a hearing date. (This presupposes that the applicant will choose to remain in detention, rather than return to Vietnam to lodge a fresh Partner visa application). It urges that the Tribunal take account of the applicant’s age and ‘undiagnosed’ psychological issues, further suggesting that, if the applicant were granted a Bridging E visa, he would like to address his mental health problem. The Tribunal is not satisfied that the applicant suffers any such problems, for the reasons stated above. It detected no interest on his part in seeking medical assistance, either in detention or if he is granted a Bridging visa. The wide-ranging submission also pointed to the high public cost, and questionable deterrent effect, of keeping the applicant in detention. This presupposes that the applicant will choose to remain in detention, rather than return in Vietnam, and it also invites the Tribunal to engage on public policy questions that are beyond the scope of this review.

1. The Tribunal has reflected on this submission in the assessment above, but it has no discretion in assessing whether the applicant meets the requirements to be granted a Bridging visa E.

   Conclusion

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

3. 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

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

   James Silva
   Member

   
   

   RELEVANT LAW

   Class WE visas contain 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.

   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.

   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].

   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.