NITTIS (Migration)

[2017] AATA 2517

NITTIS (Migration) [2017] AATA 2517 (16 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Antonia Nittis

CASE NUMBER:  1717463

DIBP REFERENCE(S):  ADF2017/70349

MEMBER:Hugh Sanderson

DATE:16 August 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 16 August 2017 at 12:44pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 visa – Unlawful  citizen – Economic migrant –Not a genuine temporary entrant – Repeatedly failed to satisfy temporary visa conditions – Husband’s carer – Detained by Police – Willing to ignore Australia’s immigration laws

LEGISLATION
Migration Act 1958 ss 73, 359AA
Migration Regulations 1994 Schedule 2 cls 050.212, 050.212(2)-(9), 050.223, 116

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 applied for the visa on 7 August 2017. 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).

3. The decision to refuse to grant the visa was made on 9 August 2017 on the basis that the delegate was not satisfied the applicant met the criteria in cl.050.212(2) as the delegate was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia.

   Background

4. The applicant is a citizen of the Philippines and is currently 57 years old. She first entered Australia on 26 May 2007 holding a subclass 676 Tourist visa. That visa was subject to a no work (condition 8101) and no further stay (condition 8503) condition. The visa expired on 26 August 2007. The applicant remained in Australia as an unlawful noncitizen after that date.

5. In July 2016 the applicant lodged the first of four applications to waive the no further stay condition on her stay in Australia. All those applications were refused by the Department. She then presented herself to the Department on 14 November 2016 and was granted a Bridging visa on departure grounds. She was granted a second Bridging visa on departure grounds on 21 November 2016, however, by the time of this visa expired on 28 November 2016 the applicant had not left Australia. She remained in Australia as an unlawful noncitizen. She made her last application to waive the no further stay condition with the Department in July 2017.

6. On 2 August 2017 the applicant was located by the NSW Police when they attended on her residence for a welfare check. She has been held in detention since that date.

7. When interviewed by the Department the applicant made the following claims:

   ·She came to Australia on a tourist visa and she was a single mother and needed to work to get some money to send to her children;

   ·She wanted to apply for a Partner visa sponsored by her husband, Michael Nittis who is 91 years old and who supports her;

   ·She had applied for a waiver of the no further visa condition, but had been unsuccessful;

   ·Her agent has now said that she will apply for a Protection visa because she does not need to apply for a waiver for that visa application;

   ·She did not know the details of the Protection visa as this was up to her agent; and

   ·She could not leave Australia because her husband relies upon her and he needs her as he has nobody else to look after him.

8. The police officer who attended the home of the applicant and Mr Nittis reported the following:

   ·When the police attended there were members of Mr Nittis’s family present, including his daughter, Maria, who is a general practitioner doctor;

   ·Maria has a power of attorney over her father’s affairs and has accommodation at her house to be able to care for her father;

   ·Maria stated that she is not estranged from her father but that the applicant had attempted to block his children from their home and stop all communication with him;

   ·Maria was aware of the health condition of her father and his medication needs; and

   ·The police did not have any concerns that Mr Nittis would not be properly cared for by his family.

9. The applicant applied for the Bridging visa on 7 August 2017 on the grounds that she was making arrangements to depart Australia, claiming that she intended to depart Australia on 30 August 2017. It was claimed that the applicant wanted to have ample time to arrange care for her husband and that she was the only one trusted by her husband to manage his day-to-day arrangements and medication. It was claimed that her husband had been living alone since the applicant’s detention with only a friend of the applicant visiting him to ensure he is well. She also claimed that she wanted to settle personal matters and obligations before she departs to the Philippines.

10. The delegate who considered the application noted the following issues:

    ·The applicant had not provided any evidence of a valid ticket or booking to leave Australia;

    ·Apart from the statement by the applicant, there was no other evidence which would indicate that acceptable arrangements have been made for the applicant to depart Australia;

    ·After arriving on a Visitor visa in 2007, the applicant chose to remain as an unlawful noncitizen for nine years before approaching the Department;

    ·The applicant had been granted two Bridging visas on departure grounds in 2016 but failed to depart Australia of her own accord;

    ·The applicant has shown deliberate contempt towards Australia’s immigration laws;

    ·If not located by the NSW Police, there is no information which would indicate she would have approached the Department voluntarily; and

    ·When interviewed on 2 August 2017 the applicant indicated that she had no intention to depart Australia and was aware that she had remained in Australia unlawfully.

11. Taking all these factors into account, the delegate was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia and therefore did not meet the criteria in cl.050.212(2). It was noted that the applicant had not made any other claims to meet the time of application criteria in cl.050.212. Accordingly, the application was refused.

12. The delegate also noted that if the applicant did meet the time of application criteria they would not be satisfied, based on her immigration history and lack of regard for Australia’s immigration laws, that she would meet the time of decision criteria in cl.050.223. This would include complying with the conditions that she would not work (condition 8101), resided a specified address (condition 8505), report as directed (condition 8401) and depart by a specified date (condition 8512).

    Information to the Tribunal

13. The applicant appeared before the Tribunal on 16 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Mr Nittis, and a friend, Merle Watson, who both provided written statements. The applicant was represented in relation to the review by her registered migration agent.

14. The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant that it would be putting to her information which would be the reason, or a part of the reason, for affirming the decision and explaining to her why that information was relevant. The Tribunal would then invite the applicant to comment on or respond to the information. If she required more time, she could request an adjournment.

15. The applicant said that she had not left Australia after previously being granted a Bridging visa to do so because she wanted to extend the time to look after her husband. She said that she had asked her agent to extend her bridging visa, but her agent let her down. She said that she had not bought a ticket to leave Australia.

16. The Tribunal noted that in her application in answer to the question “Have you been granted a bridging visa previously on the basis that you are making arrangements to depart Australia?” she answered “No”. The applicant said that she answered it this way because she was terrified and she was crying and she was cranky. She said that her agent did not give her the correct advice.

17. The applicant said that when she arrived in Australia it was on a Tourist visa and that it was her intention just to have a holiday in Australia. She said the reason she stayed in Australia was that Australia was a beautiful country and she wanted to spend more time in Australia. The Tribunal referred to the process in s.359AA of the Act set out above. The Tribunal referred to the interview conducted with the applicant by the Department when she was first placed in detention. In that interview, she said that when she arrived in Australia in 2007 on a Tourist visa she came here to work to get some more money she could send back to her children. This was relevant as it indicated a willingness not to comply with Australia’s immigration laws and also undermined the credibility of the information the applicant was giving to the Tribunal as her statement to the Tribunal as to why she came to Australia in 2007 was inconsistent with what she had stated when first interviewed.

18. The applicant said that she did come to Australia to work because the Philippines is a poor country and she wanted to be able to give her children a good education. The applicant said that she has mixed emotions now and she is not lying.

19. The Tribunal referred to the interview given by the applicant to the Department when she was first detained. In that interview she said that she would apply for a Protection visa, but when asked if she was a refugee from the Philippines she said that it was the only visa her agent said that she could apply for as she did not need a waiver for the protection visa but she had not spoken to her agent to know what it was. This was relevant as it indicates this indicated a determination to remain in Australia despite not having any valid claim for a Protection visa and that she was willing to provide false information to be able to remain in Australia which undermined her credibility.

20. The applicant said that she was thinking what she could do to be able to live in Australia because she is married and has to live in Australia and wants to do so legally.

21. The applicant said that her husband is all alone in Australia and does not have any family. She then acknowledged that he has a daughter, Maria, who would visit him fortnightly. She said that she could not remember the last time she visited them, but believed it was 16 July 2017. She said that Maria does nothing for her father, but that she had a good relationship with her. She then said that Maria was grumpy about her father changing his will. She said that she worked as a forensic doctor.

22. The Tribunal again referred to the process under s.359AA of the Act and referred to the Department’s interview with Sgt Catherine Betro who was the detaining officer. This stated that there were members of Mr Nittis family present when the applicant was detained and that Mr Nittis’ daughter, Maria who is a general practitioner, was able to care for Mr Nittis. Maria had a power of attorney over her father’s affairs and had accommodation at her house which would cater for all her father’s health issues. This indicated that the applicant’s husband did not require any assistance from the applicant or that she was required to manage the affairs of her husband and her claims were not credible.

23. The applicant said that Maria did not come to help them. She said that all that Maria said was not right and that it was Maria who rang the police who came to the house when she was taken to detention.

24. The Tribunal asked the applicant what arrangements it was that she had to make as was stated in her application. She said that she had to go back home to be with her husband. She said that he had been living in his home for 30 years. She said that her husband wants to be with her and will travel to the Philippines. She said that he could not travel with her before as it was dangerous and he asked her not to leave.

25. The applicant said that her agent had arranged pay for a flight to the Philippines. The agent provided a copy of the itinerary confirmation for the applicant to depart Australia on 30 August 2017. The agent advised the Tribunal that the ticket was purchased on 14 August 2017.

    Other witnesses

26. The applicant’s husband gave evidence in support of the application. He said that he sees Maria, his daughter, every second week. He said that she does things for him if he asks her. He said that he does not stay at her place because there was no reason to stay at her place, but she had offered to have him to stay there. He said that he was currently living by himself and does all his own cooking, shopping and other chores.

27. The applicant’s husband said that he plans to stay in Australia, but might go and visit the applicant if she goes to the Philippines. He said that he would stay there as long as he could. He said that the applicant had been looking after him.

28. The Tribunal asked the applicant’s husband what was the change in the circumstances from November 2016 when the applicant had been granted a Bridging visa to depart Australia and stayed so that she could look after him and now. The applicant’s husband said that it was more difficult now.

29. The applicant’s friend, Mel Watson, gave evidence. She said that she knew the applicant since 2007 and she was staying with her, on and off, after she arrived in Australia. She said that she had to come to Australia to work to provide for her children. She claimed that she did not know that the applicant arrived on a Tourist visa and had no work rights.

30. Ms Watson said that she needs to arrange everything for her husband which was why she needed the Bridging visa.

31. The Tribunal discussed with the applicant, her husband and the applicant’s agent the issue of a bond. The applicant’s husband indicated that he would possibly be able to pay a bond of between $5,000 and $10,000.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. The issue in this case is whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

34. 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.

35. In this case, the applicant is seeking to meet cl.050.212(2), that she is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

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

    Acceptable arrangements to depart Australia

37. 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 (PAM3), 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]).

38. The applicant has now provided evidence of the purchase of a flight to the Philippines on 30 August 2017. This ticket was only purchased two days prior to the hearing on 14 August 2017 by the applicant’s agent. The Tribunal has considered whether the applicant’s intentions in making these arrangements to depart are genuine.

39. The Tribunal did not find the applicant a credible witness. During the hearing, she changed her evidence on a number of occasions. This included details of her intentions of why she first came to Australia in 2007, originally stating that it was only for a holiday which was inconsistent to the information she provided when interviewed by the Department which was that she came to Australia to work and get money to support her children. She then changed her evidence to say that she did come to Australia to work.

40. In her application, she stated that she had not been granted a bridging visa previously on the basis of making arrangements to depart Australia. This is incorrect. She claimed that this was because she was “terrified”, “crying and cranky” and that it was her agent’s fault. The Tribunal does not accept that in responding to this question the applicant would not have been aware that she had been previously granted a Bridging visa on the grounds of departing Australia and had failed to comply requirement. The Tribunal finds that the applicant had deliberately provided false information as to her immigration history in this application.

41. The applicant said that her husband has no one to look after him and he is all alone. She then changed this evidence to say that he has a daughter, Maria, who visits them once a fortnight. She then claimed that Maria does nothing for them. The Tribunal does not accept this and finds that the applicant has manipulated her evidence to try to support her application without any consideration for the truth.

42. The applicant has shown herself to be willing to ignore Australia’s immigration laws on multiple occasions. She entered Australia on a Tourist visa. The Tribunal finds that the reason the applicant entered Australia was to remain in Australia and find work to provide funds for her children. The Tribunal finds that the applicant never had a genuine intention to visit Australia temporarily. This shows the applicant has been willing to ignore the immigration laws to be able to remain in Australia.

43. The applicant remained in Australia for nine years as an unlawful noncitizen. She worked in Australia to support her children despite never holding work rights. She did not make any efforts to contact the Department or regularise her immigration status at any time over that period. She was aware that she was in Australia unlawfully. This again shows the applicant is willing to ignore Australia’s immigration laws for her own benefit.

44. The applicant was granted two Bridging visa is on the grounds of making arrangements to depart Australia in November 2016. There is no information before the Tribunal that the applicant made any arrangements at that time to depart Australia or that she had any intention to do so. Although claiming that she had asked her agent to extend her Bridging visa at that time, there is nothing to indicate that the applicant did anything to contact the Department directly after her last Bridging visa expired to regularise her immigration status. The Tribunal does not accept that the applicant was not aware that her Bridging visa had expired and that she was remaining in Australia as an unlawful non-citizen after that date. It was only once the applicant was placed in detention that she made an application to be able to be granted a visa to remain lawfully in Australia. There is nothing to indicate that unless detained by the police she would not have remained living in Australia without contacting the Department. This again indicates the applicant has shown a disregard for Australia’s immigration laws and is willing to conceal herself within the Australian community regardless of immigration status.

45. The fact that the applicant has been willing to ignore Australia’s immigration laws on multiple occasions and remain in Australia as an unlawful noncitizen, particularly after she was previously granted Bridging visas on the grounds of making arrangements to depart Australia, must be given significant weight when considering whether the applicant is making or is subject to acceptable arrangements to depart Australia and whether those claimed arrangements are genuine.

1. The applicant claims that she failed to depart Australia when she was granted the previous Bridging visas as she needed to care for her husband. There is no information before the Tribunal that the circumstances have changed since she was previously granted Bridging visas to depart Australia and failed to do so because of her claimed need to care for her husband. This would indicate that if she were granted a Bridging visa the applicant would again fail to depart Australia.

2. The fact that the applicant has now purchased a ticket for a flight to depart Australia must be given some weight when considering whether she is making or the subject of acceptable arrangements to depart Australia. This ticket was purchased only two days prior to the hearing by the applicant’s agent. There is no information that at any time prior to this the applicant had done anything to make arrangements to depart Australia. There is no information before the Tribunal that the applicant has made any other arrangements for her departure.

3. The applicant claimed that she needed to make arrangements for her husband. She said that her husband had no one else who would be able to help him. The Tribunal does not accept this. The husband’s daughter, Maria, who was a doctor, lives in Australia and appears to have a good relationship with him. She is reported to visit him once a fortnight and, if he requests it, helps him. There is no information which would indicate that the applicant is making any arrangements for the care of her husband if she did depart Australia or that her husband could not get any care from his daughter as arranged by her.

4. The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. Significant weight must be placed on the fact that the applicant has previously been granted Bridging visas on the grounds that she was making arrangements to depart Australia and that she did not comply with these visas. There is no information which would indicate that the circumstances the applicant faces at this time are any different to the circumstances she was facing in November 2016 when she failed to comply with the Bridging visas granted to her and then remained in Australia as an unlawful noncitizen. Although the fact that the applicant has now purchased, through her agent two days prior to the hearing, a ticket for a flight to depart Australia must be given some weight, the Tribunal finds the weight of evidence does not support a finding that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

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

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

7. 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. 116 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

   DECISION

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

   Hugh Sanderson
   Member