Liao (Migration)

[2024] AATA 2980

Liao (Migration) [2024] AATA 2980 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Runkai Liao

CASE NUMBER:  2426199

Home Affairs REFERENCE(S):               BCC2024/4041608

MEMBER:Alan McMurran

DATE:16 August 2024

PLACE OF DECISION:  Sydney 

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

Statement made on 16 August 2024 at 6:33pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – period of unlawful residence – acceptable arrangements to depart Australia – criminal convictions – airline ticket purchase – outstanding court matter – access to legal assistance – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 73, 116
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221 - 050.223, 050.617; Schedule 8

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Background

1. This is an application lodged 29 July 2024 for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.212 as at time of application and 050.223 at the time of decision.

3. The applicant, Mr Runkai Liao, is a single 24-year-old Chinese citizen from Hunan Province who arrived in Australia on 7 July 2018 on a TU 500 student visa granted 22 June 2018.The visa was cancelled under s 116(1)(b) of the Act on 18 October 2023 for non-compliance, and the applicant became unlawful. The applicant did not communicate with the Department after his visa was cancelled. The Department movement records for the applicant show that he has departed Australia while the holder of his student visa on 18 December 2018, 28 June 2019, and on 29 November 2019. He last entered Australia on 16 December 2021.

4. The applicant has a criminal history in NSW since 27 November 2023 when he was charged, convicted and subsequently fined for having goods in custody suspected of being stolen, including fraudulent identification documents and a credit card, and for being an excluded person entering a casino. Prior to this history, the applicant is recorded as having no interaction with the Department.

5. The applicant was apprehended by NSW Police on 27 July 2024 when charged with intimidation and trespassing offences. He had a dispute with a landlord because the landlord had locked him out for allegedly not paying a rental deposit. He was bailed to appear at Bankstown Local Court on 14 August 2024. He was interviewed and identified by an ABF Officer on 27 July 2024, and detained as an unlawful non-citizen and transferred to Villawood Immigration Detention Centre in Sydney. He has remained in detention at Villawood pending this review.

6. The applicant’s position to the Tribunal is that he intends to return to China and had arranged a ticket to travel to Beijing for 16 August 2024. He wishes to be released from detention so he can attend to his personal affairs including collection of his personal items from his rented premises and resolve the present proceedings before the Local Court. The applicant was interviewed a second time by telephone on 31 July 2024 by a Department Officer, and while remaining in detention.

7. On that occasion, the applicant is reported as having expressed a desire to leave Australia immediately. The applicant stated he had no intention of applying for any further visas, and only wanted his personal belongings returned and for the pending AVO charge to be dropped, before he departed. He insists he is intending to depart and he has been guided by a lawyer. He has no relatives in Australia and stated he intends to return to Beijing to live with his parents.

8. He stated he had purchased the ticket for Beijing and his reason for applying for the BVE is to enable him to secure his belongings and to depart. He intends to stay with a friend pending his departure.

   Department decision

9. The decision to refuse to grant the Bridging visa was made on 1 August 2024 on the basis that the delegate was not satisfied that the applicant met sub-clause 050.212(2) which requires that the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

10. The delegate recounted the applicant’s history which is not in dispute. The delegate found that the applicant’s intention to depart Australia was not genuine. This was because the applicant had stated he would not depart Australia until an AVO charge against him (still to be determined by a court) had been “dropped” and that these were matters beyond the applicant’s control. The delegate considered that the purchase of an airline ticket was simply designed to support the BVE application and was not genuine.

11. The delegate further found that the applicant had overstayed an earlier student visa after it was cancelled, and had become unlawful, and despite being aware of his unlawful status, did not attempt to rectify his circumstance. The delegate found that the applicant had claimed to have engaged a migration agent to obtain a further student visa, but had produced no supporting documentation for any proposed further visa.

12. The delegate found the applicant did not satisfy any of the remaining requirements in clause 050.212 of schedule 2 to the regulations.

    Tribunal process

13. The applicant appeared by video from Villawood Immigration Detention Centre in Sydney before the Tribunal on 9 August 2024 and 15 August 2024, to give evidence and present arguments.

14. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. No issues were raised concerning the interpreter and both the interpreter and the applicant confirmed they had understood each other in the language used. The applicant consented to the hearing and confirmed he was ready and willing to proceed as scheduled. The applicant was not represented and had no assistance for the hearing.

15. The applicant made submissions prior to the hearing. He submitted a copy of:

    ·     his Court Attendance Notice for Bankstown Local Court for 14 August 2024 and his related Bail Acknowledgement and conditions issued 27 July 2024.

    ·     a copy of a student Certificate of Enrolment (CoE),including pre-paid tuition fees of $1900, for a Diploma course commencing 1 April 2024 concluding on 29 June 2026.

    ·     a Letter of Offer from the course provider, Choice Academic, dated 9 March 2024. The offer was for a CRICOS registered course for a Diploma of Leadership and Management at a Paramatta campus, commenced 1 April 2024, and expected to finish on 29 June 2026. The course duration was for 102 weeks at a total cost of $12,400.00, payable pursuant to a student payment plan. The offer expired on 9 April 2024. The Offer Letter was not signed and was not accepted by the applicant and has now lapsed without acceptance.

16. He relied upon these documents, and his oral evidence, along with his prior statements to the interviewing Department officers on 27 July and 31 July 2024.

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

    The hearing – oral evidence and applicant’s claims - 9 August 2024 and 15 August 2024

18. The Tribunal commenced the hearing on 9 August 2024. The hearing was adjourned to 15 August 2024 when the applicant re-appeared and the hearing process was concluded.

    9 August 2024

19. On 9 August 2024, the Tribunal explained the process for the applicant and that it was only considering the issue of whether the applicant met criteria for the Bridging visa to be granted. The Tribunal explained the criteria, including that the Tribunal must find if there were acceptable arrangements made for the applicant to depart[1] Australia, and as relevant, any conditions[2] which would apply to the visa if granted.

    [1] Cl 050.212(2)

    [2] Cl 050.223

20. The applicant confirmed his visa history as contained in the following Department summary:

    ·     14/06/2018- Student (subclass TU 500) application commenced (offshore)

    ·     22/06/2018 - TU500 application granted 15/03/2024.

    ·     07/07/2018 -Arrived on a TU500 visa 18/12/2018 – Departed.

    ·     29/01/2019 - Arrived on a TU500 visa 28/06/2019 – Departed.

    ·     23/07/2019 -Arrived on a TU500 visa 29/11/2019 – Departed.

    ·     16/12/2021 -Arrived on a TU500 visa.

    ·     18/10/2023 - TU500 visa cancelled under s116(1)(b) for non-compliance.

    ·     18/10/2023 – UNC.

    ·     27/07/2024 - Located by NSWPOL and detained. (Under s189)

21. The applicant was asked why he had not contacted the Department about his visa status. The applicant responded simply that he “did not take the Department seriously” . He said that he had only learnt of his unlawful status and the cancellation of his visa when he entered detention on 27 July 2024. He maintained that he had remained an unlawful noncitizen for 9 months from 18 October 2023 until 27 July 2024, unaware of his status.

22. The Tribunal asked why he wanted the visa. The applicant stated that he had already  purchased an airline ticket to return to China on 16 August 2024. He had produced for the Tribunal a copy of a chat message on WeChat from his mobile phone showing a Booking.com confirmation for his travel, and receipt for payment of $388.15 for the fare. He wanted to leave detention before then, so he could organise his personal affairs, recover his passport and depart. He also said he did not want the court matter “hanging over my head”.

23. The Tribunal asked about any further visa intentions or further applications for a visa. the applicant stated he had no intention to apply for any further visas and all he wanted to do was to return to China to his family who were waiting for him in Beijing. He explained that he was to go to Bankstown Local Court in a few days, on 14 August 2024, and believed the Court matter, concerning an AVO dispute with a landlord, would be resolved on that occasion and he would then be able to depart as he had planned on 16 August 2024. He said he had received some advice from a lawyer about the process.

24. After some discussion, the Tribunal proposed that this application for review be adjourned until Thursday, 15 August 2024 so that he would know then whether he would be departing on Friday 16 August 2024 or remain in detention, pending a further outcome. If he was to depart as scheduled, the further review process would become unnecessary as he would not require the visa. He was unable to give any real indication about the pending court process, other than indicating he wanted it resolved as quickly as possible and that he would tell the judge he was ready, willing, and able to depart as planned.

25. The Tribunal explained the AVO issue was not a matter it could consider and the outcome would be determined by the court. The Tribunal proposed that if he consented to a short adjournment of a few days, he should seek advice about his prospects on the AVO and how he could arrange his departure, and the likely outcome, before the Tribunal hearing resumed, and so that he was better informed. It appeared to the Tribunal that the applicant did not have advice about the court process or prospects and options he might want to consider. The Tribunal provided him a reference to the migration advocacy service, RACS, which the applicant recorded.

26. The applicant indicated that he would consent to the adjournment proposal and cooperate with the Department and Border Force officers to arrange his departure, and seek their assistance to recover his passport. He said he would inform the Tribunal of the outcome.

27. On 15 August 2024, the applicant emailed the Tribunal and advised that: “I thought I could go home on time, but court hearing my criminal charges decided to extend the time”.

    15 August 2024 – review resumes

28. On 15 August 2024, the applicant again appeared by video from Villawood with the assistance of an interpreter in the Mandarin language. The Tribunal did not detect any issues with interpretation. The applicant spoke and understood some English but chose to use the interpreter for the most part, giving few answers in English.

29. At the outset, the applicant stated he was “still planning to leave tomorrow”. He said he had obtained the services of a lawyer. He said he had contacted the refugee service but because he was not seeking to remain in Australia, they were unable to assist. The Tribunal explored the issue with the applicant about his departure. The applicant informed the Tribunal the judge in the court process on 14 August 2024 had adjourned his matter to a hearing at Bankstown Local Court on 9 November 2024. He said he had entered a plea of not guilty and the court had been unable to finalise the matter without a hearing. He said he had told the judge that his visa had been cancelled, and he wanted to leave. He said he was told his visa was a matter for the Department and the AVO matter could not be heard before 9 November 2024. As a result, he was returned to the detention centre where he intends to await the hearing.

30. The Tribunal explained to him that it was necessary for this review hearing for the Tribunal to be satisfied that he was making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal asked what would happen with his proposed travel. He said he was not concerned about the ticket which would become invalid. He did not know when he might be able to travel or make further departure arrangements, as that was out of his control and now in the hands of the court. He said he had no other departure proposals at present. He said he was not in control of the situation and would not be able to “leave tomorrow” because of the pending court hearing.

31. The Tribunal put to him that it could not find there were acceptable arrangements in circumstances where his departure was not arranged and was presently indeterminate. At least until after 9 November 2024, the outcome from the court proceedings is unknown and where the applicant intends to defend the claim against him by an informant, who was to be his landlord. The applicant agreed that he did not currently have any acceptable arrangement for his departure because it was now “out of my control”.

32. The Tribunal explained that if the applicant were to be released into the community for the period before his court proceeding, and while he was making further arrangements to depart Australia, and if a Bridging visa were granted in such circumstances, it would be subject to conditions. The Tribunal indicated those conditions would include the applicant reporting to the Department and notifying the Department of any change in his address and contact details. The applicant was asked what he thought should happen in that period before the court hearing and fresh arrangements for his departure. The applicant indicated that he would be accommodated by a friend and former landlord at an address at Kingsgrove in Sydney. He said he had been staying with this person from June 2022 until October 2023. He was unable to make any further arrangements to depart.

33. The Tribunal asked questions about the applicant’s prospective accommodation. The applicant said he had answered an advertisement before meeting his former landlord. He said he had lived in the house with the landlord and one other occupant and was paying rent at $240 per week for a room. He said the landlord had become “a good friend”, and that he had nowhere else to go. He said his parents were helping him financially and paying his expenses, such as his rent and for a further proposed course of study which he had applied for in March 2024.

34. The applicant had provided the Tribunal a copy of a Certificate of Enrolment at Choice Academic, at its Parramatta campus, to study a Diploma of Leadership and Management. At the time that he had applied for the course, he stated he was unaware that his previous student visa had been cancelled in October 2023. At that time he had intended to resume further studies. He said his parents funded him $1900 for the initial application fee for the course which commenced on 1 April 2024, and is due to finish on 29 March 2026. The applicant produced a Letter of Offer which he did not sign and did not accept, and which has since lapsed. He informed the Tribunal he was not concerned about the payment of the initial application fee and he did not intend to pursue further studies in Australia.

35. The tribunal asked him about what he had studied since arriving in Australia in 2018. He said he had spent 4 ½ years at the University of Sydney, where he studied for a Bachelor of Commerce degree. He told the Tribunal he had been awarded the degree at the end of 2023. When asked about the award, he stated he had been informed at the end of 2023 that he had to complete a further test to finalise his studies. He said he took the test but failed. He was asked then how it was that he had stated that he had in fact been awarded the degree. He responded that he believed he had done everything necessary and “I think I should have been granted degree”. The Tribunal found that the applicant was not truthful, rather than simply inadvertent or forgetful, given his answers about his studies at university, where only when pressed did he admit he had “failed”.

36. It appeared to the Tribunal when considering the applicant’s responses, that overall he was reluctant to state the facts if they did not suit him, and that he was more concerned with his own beliefs as to circumstances which he considered should apply. For example, he believed it was acceptable that he return to live with his “friend” who had been his landlord, and to circumstances which had led to his previous criminal behaviour and then to the current issue before the Local Court. He had explained to the Tribunal that he had a gambling addiction which had led to his criminal convictions in November 2023 for use of fraudulent credit cards and a Chinese passport. He had also placed himself on list of persons “self-excluded” from the casino, so he would not enter, but he had entered nonetheless and been apprehended.

37. The applicant did not appear to the Tribunal to fully appreciate the seriousness of his conduct in breach of his visa conditions, including his repeated failure to notify the Department of his change of contact details and addresses. He stated he had moved “multiple times” but simply did not “take the Department seriously” and had not communicated. He said he now regrets that behaviour and wanted to apologise for his conduct and omission in not updating his contact details.

38. He was asked why he had left his “good friend” who was accommodating him up until October 2023. He said he had been living intermittently with his girlfriend and was not always at the Kingsgrove property. He said his girlfriend had returned to China “last month” in July 2024. He said he had seen an advertisement for another rental property in July 2024, at $165 per week. He had decided that he would move from the Kingsgrove property and away from his friend to a new address at Riverwood where it was cheaper. He said he was in the process of moving when the current court issue arose and that he had still been paying rent to the Kingsgrove landlord, until entering detention, when he had stopped. He told the Tribunal he would return to the Kingsgrove property if released from detention, as he had “nowhere else to go” and the landlord was a “good friend”.

39. He was asked how he was financially supporting himself. He said his parents provided for him as “I don’t have a lot”. He said he has “paid a lot of money to lawyers” for advice about his visa and his criminal matters. He was asked about his return trips to China which he explained were during university holidays. He said after departing on 29 November 2019, he had to remain in China because of the pandemic and could not return to Australia until 16 December 2021. In that two-year period, he had taken an intern role in China and also continued his Australian university studies online. He believes his parents will continue to support him financially until he returns China to live with them. He expressed no concerns about returning to China and emphasised that he wanted to depart Australian as soon as possible. He said he wants the Department to arrange his departure, but believes that is not possible while his court proceeding is pending.

1. The Tribunal asked if he wanted to make any additional comments about the Bridging visa application. He said again that he now regretted not “keeping up-to-date” with the Department. He said he did not know what else to say. The Tribunal asked if he had any other community support in Australia. He said he has no family here but “has friends I made at Uni” whom he keeps in touch with. He gave no information about any work he performs or community service he might provide or any community engagement.

2. He said he is fearful while in detention because of people he has met there and whom he described as “criminals”. He does not want to associate with them. He said if he could be released, he would be able to defend his criminal charge as otherwise, “I can’t see my lawyer face to face”. He had been assisted at the Local Court on 14 August 24 by Legal Aid. He said being in detention makes him “constantly anxious” and he fears he will have “panic attacks”. He said he wants to continue to defend his case, but will “definitely leave after the case” is finalised. He said he wants to be free from detention to assist his case preparations. He is aware that he may be required to remain in detention for another 3 months pending his hearing, which is causing his anxiety. He asked the Tribunal if it could make a decision on his visa “today”.

3. The applicant had no further matters to put to the Tribunal in support of his Bridging visa application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this case is whether the applicant meets the criteria for the granting of a Bridging visa (BVE).

5. The Tribunal has had regard to the information from the Department and the Tribunal files, and to the Act and Regulations, Policy guidance, relevant court decisions, the applicant’s oral evidence and documents submitted.

6. The available information includes an interview with the applicant by a Border Force officer on 27 July 2024 and a supplemental telephone interview with a department officer on 31 July 2024. The Tribunal has considered the notes from those interviews.

7. The Tribunal is concerned whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.[3] The Tribunal is also concerned whether the applicant would abide by any conditions for the visa were he to be released into the community pending his making any acceptable arrangements to depart Australia.

   [3] clause 050.212 (2)

8. The criteria has considered the available information and the Tribunal’s reasons for this decision are set out below.

   Immigration status of the applicant - cl 050.211

9. Clause 050.211 is met if, at the time of application:

   (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

10. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

11. The Tribunal is satisfied from the available evidence and information from the Department following interviews with the applicant that at the time of application, the applicant was (and remains) an unlawful non-citizen. The applicant does not hold any current visa which entitles him to remain in the country.

12. Accordingly, the applicant meets cl 050.211(1).

13. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa - cl 050.212

14. 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].

15. 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.

16. For the reasons below, the applicant does not meet cl 050.212.

    Acceptable arrangements to depart Australia

17. 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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance.[4]

    [4] Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26

18. It is also open to consider whether the applicant’s intentions in making any arrangements to depart were genuine. The Tribunal has had regard to the relevant court decision where it was considered that ‘genuineness’ should be considered.  (Lin at [30]).

19. The Tribunal has considered the evidence concerning the applicant’s arrangements for departing Australia. The applicant claims he had a ticket purchased from an airline booked for Friday 16 August 2024. The Tribunal accepts the evidence of purchase, notwithstanding no airline ticket was provided and confirmation comes from a social media platform and an accompanying receipt for payment. The ticketing appears to have been done from outside Australia, and not by the applicant himself.

20. The applicant’s ticket was purchased online and around the time of his arrest on 27 July 2024. There is no date evidencing the purchase of the ticket on the document provided from the applicant’s social media platform. According to the applicant’s evidence, the ticket purchase will be “invalid” when he does not depart as scheduled. He stated he “does not care about that”, which he later explained means the “money was not important”.

21. The Tribunal finds and the applicant concedes that he will not depart on 16 August 2024 because he is currently awaiting a court hearing in Sydney scheduled for 9 November 2024. Although he has been bailed to appear on that occasion, he will not be released from detention as an unlawful noncitizen while waiting for the hearing, unless he can obtain a Bridging visa for that purpose. The Tribunal finds that the evidence of the purchased airline ticket as produced, on its own, is not evidence of a genuine intention on the part of the applicant to depart Australia. On the applicant’s case, it was a contingency in the event that he was able to quickly resolve the criminal matters facing him. But on the facts, it is apparent that the applicant has no intention to depart while the criminal matters remain a focus for him.

22. The facts in this instance are similar to those in Lin’s case where the Court found that “there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant has no genuine intention of carrying through with those arrangements”.[5] That is because in this instance the applicant himself concedes he will not depart on 16 August 2024 without a trial of his criminal matters being concluded, which is now some months away. In his interviews the applicant states clearly that he “doesn’t want AVO before I leave”. He may have been under the impression it would be resolved on 14 August 2024, but his intention was not to leave until it was resolved. The Tribunal finds in this instance that the applicant did not have a genuine intention to depart despite it being apparent some arrangement was in place for him to do so, because he was not intending to leave unless and until his court process was concluded.

    [5] Lin at [30]

23. The delegate found that the applicant would not depart Australia unless charges against him were “dropped” and which might be contingent on factors beyond the applicant’s control, such as rulings by the court. Having listened to the applicant’s evidence, the Tribunal finds it is in agreement with the delegate’s conclusion. The applicant does not want the criminal charges to be left undefended and wants a hearing. He was offered an opportunity when interviewed by telephone by a Department officer to sign a request for removal so the Department might assist his immediate departure, and notwithstanding the court proceedings. The applicant responded that he would accept such an offer “if the AVO against me is dropped” and if the Department would assist him recover to his belongings including his wallet and passport. He has now entered a plea of not guilty and prefers a trial to any other option such as a guilty plea and conditional release, or by consenting to a request for removal by the Department and which might enable him to then make immediate plans to depart Australia. He chose not to do so. The Tribunal places no weight on the evidence of the purchased airline ticket as evidence of a genuine intention on the part of the applicant to depart Australia on 16 August 2024. This is because the applicant has said he will not do so until after his trial.

24. The applicant has made no other arrangements nor is making acceptable arrangements to depart Australia. He states he is unable to make any arrangements pending his appearance in court on the criminal matters. There is no evidence he will consent to the Department assisting him to depart regardless, and will make no arrangements to do so pending the court hearing outcome. The applicant was hopeful that court proceedings would be quickly resolved so that he could depart immediately. He does not state what arrangements he would make to do so in that event. It appears to the Tribunal that he is reliant on others for funding and to make those arrangements.

25. The Tribunal has not considered the details concerning the criminal charges. It concerns a dispute between the applicant and a prospective landlord and alleged behaviour of the applicant arising from that dispute. It is not known when that proceeding might be finally determined, even though a hearing is scheduled. The applicant offers no evidence from his lawyer whom he has retained to assist him as to why the applicant is unable to effectively assist the lawyer while preparing a defence, the applicant’s prospects, and possible delays or outcomes. The fact remains however and the Tribunal finds that the applicant is not making and is not the subject of acceptable arrangements to depart Australia.

26. On the available information and the applicant’s evidence, the Tribunal finds that the applicant has no financial independence and is unable to pay for his own departure arrangements. He is unable to work and has no income to support himself. There is no indication that he is in a position to support himself including to pay a claimed debt to his landlord, which he disputes, and to pay for his departure arrangements. The applicant is solely dependent upon his parents to provide him with financial support whilst remaining in Australia. There is no evidence of what that support may entail, the continued willingness of the parents to do so, and their capacity to do so.

27. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl 050.212(2).

    Whether the applicant continues to satisfy the time of application criteria at the time of decision - cl 050.221

28. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.

29. At the time of its decision, the Tribunal finds for the reasons given above that the applicant does not to satisfy the requirements of cl 050.212. This is because the applicant’s circumstances have not improved since his detention and if anything, have worsened given the delay that will now occur pending the resolution of his criminal matters.

30. The Tribunal finds that at the time of decision, the applicant continues to satisfy clause 050.211 as an unlawful non-citizen, but does not continue to satisfy cl 050.212 because cl 050.212 (2) is not met and therefore the applicant does not meet cl 050.221.

    The requirement to be interviewed by an authorised officer - cl 050.222

31. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

32. The exceptions are either:

    ·the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or,

    ·the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or

    ·the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or,

    ·for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

33. The applicant does not fall within any of the above exceptions.

34. As stated above in the Tribunal’s background information, the applicant was interviewed on two separate occasions, the first in person on 27 July 2024 by an officer from Border Force with the assistance of a Mandarin interpreter and secondly by telephone on 31 July 2024 by a Department officer.

35. Accordingly, the applicant meets sub-clause 050.222.

    Whether the applicant will abide by conditions - cl 050.223

36. 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.

37. 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.

38. 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].

39. 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.

40. In this case, cl 050.617 applies because it provides that unless there are relevant provisions mandating the imposition of mandatory conditions, the Tribunal has a discretion in an appropriate case as to the conditions which may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·     8101-no work

    ·     8207-not study

    ·     8401- must report

    ·     8506-notify any address change

    ·     8512-must leave/depart Australian by a date specified

    ·     8564-not engage in criminal conduct

41. The Tribunal has considered the applicant’s immigration history as disclosed in the documents in the Department file and confirmed by the applicant at the hearing. The Tribunal finds the applicant arrived in Australia on 7 July 2018. The Tribunal finds the applicant has remained in Australia unlawfully for a period of 9 months since his student visa was cancelled on 18 October 2023. The applicant has given evidence that he “did not take the Department seriously”, and was not conscious of any obligation to provide information about his whereabouts or to update his personal details and contact with the Department. This is so despite his evidence that he has moved a large number of times and stayed in different locations in Sydney. It is for that reason he states that he became unaware of the cancellation of his student visa.

42. The Tribunal has listened carefully to the applicant’s evidence. The Tribunal finds it is not satisfied that if he were released into the community, he would continue to maintain contact with the Department either as directed, or to report if he decided to change his accommodation arrangements. This is because he has not done so in the past and has paid no regard to his obligations as a visa holder under the Act and Regulations. The Tribunal accepts that he has apologised for his behaviour in the past but finds any expressed remorse is not genuine, because it is occasioned by the need for the applicant in his view to be released from detention. The Tribunal finds the applicant would not meet either reporting conditions or notifying any change of address.

43. The applicant has explained his criminal behaviour when charged and convicted in November 2023, and in respect of which he received fines when sentenced in December 2023.

44. The offences related to his actions because of a gambling addiction in entering the casino from which he had self-excluded and by using fraudulent documents including credit cards and a Chinese passport.

45. The Tribunal finds it is not satisfied because of the applicant’s recent criminal history and his current criminal matters that he has learned to respect and abide by Australian law. On the contrary, the Tribunal finds that he has displayed a flagrant disregard for the accepted standards of the Australian community to abide by its laws. On this basis, the Tribunal has not accepted the applicant’s stated apology and remorse which was done with the purpose of improving his prospects for the visa.

46. Similarly, the Tribunal finds there is no evidence that supports the applicant’s claim he has overcome his gambling addiction, and his need for funds is an incentive for him to again attempt to use whatever means at his disposal, including fraudulent documents, to pursue his addiction. In those circumstances, the Tribunal finds it is unlikely that the applicant would be able to comply with a condition  not to engage in criminal activity.

47. The Tribunal also finds that the applicant has little or no support from the community, having no relatives here and few friends or colleagues upon whom he could rely. He has no finance available to him other than from his parents and which provides him with a strong incentive to work illegally in the community and as he has done in the past, to continue his gambling addiction. It is unlikely in the Tribunal’s view that the applicant would abide by a condition not to engage in work.

48. 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.

    Conclusion

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

    DECISION

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

    Alan McMurran
    Member