ORJI (Migration)

[2017] AATA 2497

ORJI (Migration) [2017] AATA 2497 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAMUEL CHINYEAKA ORJI

CASE NUMBER:  1726013

DIBP REFERENCE(S):  ADF2017/94950

MEMBER:Linda Symons

DATE:1 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criterion for a Subclass 050 (Bridging (General)) visa:

·cl.050.223 of Schedule 2 to the Regulations.

Statement made on 01 November 2017 at 9:09am

CATCHWORDS
Migration – Subclass 050 (Bridging (General)) visa – Student visa – Cancelled – Detained – Siblings support applicant – Credible witnesses – Applicant will abide by bridging visa  conditions

LEGISLATION
Migration Act 1958 ss 73, 116, 189
Migration Regulations 1994 rr 2.43(1)(o), Schedule 2 cls 050.223, 050.617, Schedule 8 Conditions 8101, 8104, 8105, 8401, 8506, 8564

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied to the Department of Immigration and Border Protection (the Department) for the visa on 19 October 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). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 23 October 2017 on the basis that the delegate was not satisfied that the applicant would comply with the conditions of the visa if granted a Bridging visa. He applied to the Tribunal on 24 October 2017 for review of that decision.

4. The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his sister, Chimeziem Chiazokam Orji (known as Becky), by telephone.  

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in this case is whether the applicant satisfies the requirements of cl.050.223.

   Whether the applicant will abide by conditions - cl.050.223

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, he 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.

9. 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].

10. 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.

11. In this case, cl.050.617 applies because the applicant has applied for a merits review of a decision to cancel his Student visa. This clause prescribes that certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8104      -          Work limitations.

    ·8401      -          Report as directed.

    ·8506      -          Notify change of address.

    ·8564      -          Must not engage in criminal conduct.

    The applicant’s immigration history

12. The evidence before the Tribunal indicates that the applicant arrived in Australia on 19 October 2017 as the holder of a subclass 500 Student visa. His evidence is that he enrolled in a Diploma in Learning and Management at the Australian Academy of Commerce. He stated that this is a two-year course. He stated that it is his intention to undertake an Advanced Diploma in Learning and Management at the Australian Academy of Commerce upon completion of the Diploma in Learning and Management. He stated that it is his intention to return to Nigeria, upon completion of both courses, to work in a family owned company.

13. On 14 September 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Student visa. The NOICC indicates that the Department conducted an investigation into the circumstances leading to the grant of his subclass 500 Student visa and information was obtained which indicates that a Departmental employee may have acted improperly to grant him his Student visa. It indicates that it appears that his Student visa would not have been granted if not for the suspected fraudulent conduct of the Departmental employee. It indicates that fraudulent conduct referred to in r.2.43(1)(o) is not limited to conduct by the visa holder. The NOICC does not indicate what the fraudulent conduct was or whether the applicant had any knowledge of or involvement in the fraudulent conduct.

14. The applicant’s evidence is that he urgently consulted a migration agent and responded to the NOICC on 19 September 2017. On 12 October 2017, the Department issued a Notification of Cancellation of the applicant’s Student visa under section 116 of the Act. His evidence is that, although he read the Notice of Cancellation, he did not fully understand what was required of him. He stated that on 13 October 2017 he informed his education provider and his employer of the cancellation of his Student visa. He stated that he then consulted his migration agent and was advised of the importance of applying to the Tribunal for a review of this decision. He stated that his migration agent did not advise him that he needed to urgently apply for a Bridging visa E. He stated that he contacted his eldest brother, who lives in Malaysia and supports him financially, to send him some money to pay for the Application for Review to the Tribunal and other expenses. He stated that he received the money from his eldest brother on 16 October 2017 and made arrangements to instruct a different migration agent (his current migration agent).

15. The applicant’s evidence is that at approximately 9:30pm on 16 October 2017 the NSW Police attended his residence and detained him. He stated that he explained to them that he was still within the timeframe to lodge an Application for Review with the Tribunal and was informed that this did not matter as he had failed to apply for a Bridging visa. The records of the Department indicate that, in fact, it was Australian Border Force officers who detained the applicant under section 189 of the Act on 16 October 2017 as he did not have a valid visa at that time.

16. On 17 October 2017, the applicant lodged an Application for Review with the Tribunal in relation to the cancellation of his Student visa. This application is still pending. On 19 October 2017, he lodged an application for a Bridging visa E. He provided the Department with a number of supporting documents including a Statutory Declaration by himself dated 19 October 2017, a Commonwealth Bank statement for his sister, Chimeziem Chiazokam Orji, evidence of his family’s ownership of a Company (business) in Nigeria and a bank statement from the First Bank of Nigeria. On 23 October 2017, the Department refused the application for a Bridging visa E. On 24 October 2017, he applied to the Tribunal for a review of that decision.

    Compliance with condition 8104 – Work limitations

17. The Tribunal must determine whether it is satisfied that the applicant will abide by condition 8104 (Work limitations) if granted the Bridging visa. It has had regard to the following considerations.

18. The applicant’s evidence is that he attended the Australian Academy of Commerce four days a week as a full-time student. He stated that he worked part-time in the construction industry. He stated that he commenced work in January 2017. He stated that in the construction industry there were different roles such as being a labourer, working in form work, working in carpentry, operating a forklift etc. He stated that he initially worked as a labourer and was then moved to the carpentry section. He stated that he did not exceed 20 hours of work per week when his course was in session.

19. The evidence before the Tribunal indicates that the applicant’s Student visa was subject to condition 8105. There is no evidence before the Tribunal to indicate that he did not comply with condition 8105. The Tribunal is of the view that it would be unusual for a first-year student enrolled in a Diploma of Learning and Management to obtain employment in the area of management and learning. The Tribunal is also of the view that working on a part-time basis in the construction industry is not inconsistent with him being a genuine student.

20. The applicant’s evidence is that he does not need to work to support himself. He stated that he worked in the construction industry to get the experience, acquire another skill and occupy himself gainfully when he was not studying. He stated that his brother, Chiebuka, also works part time in the construction industry. He stated that if he is granted a Bridging visa that is subject to condition 8101 he will not work in Australia and has no need to do so.

21. The applicant’s evidence is that his eldest brother, who resides in Malaysia, is paying for his tuition fees for his studies in Australia. He stated that he has no outstanding tuition fees. He stated that his brother, Chiebuka, and his sister, Chimeziem, came to Australia before he did and rented a unit in Lidcombe. He stated that they are both on the lease and pay the rent on the unit. He stated that they also pay for utilities, food and other living expenses. He stated that they are both full-time students but also work part-time. He stated that he makes little contribution towards the household expenses. He stated that if he is granted a Bridging visa these financial arrangements will continue.

22. The applicant’s sister, Chimeziem, gave consistent evidence. She also stated that they do everything as a family and she and her brother Chiebuka are prepared to continue to provide the applicant with accommodation, food, utilities and offer him their ongoing support. The Tribunal has before it evidence of her Commonwealth Bank account balance of $ 899.50 as at 18 October 2017. She stated that she is prepared to be a guarantor, if required, but has limited resources to lodge a security bond.

23. The Tribunal finds the applicant and his sister, Chimeziem, to be credible witnesses. The Tribunal accepts that his brother and sister in Australia have provided him with free accommodation, food and utilities and are prepared to continue to do so if he is granted a Bridging visa. The Tribunal accepts that his brother who lives in Malaysia pays for his tuition fees in Australia and that he has no outstanding tuition fees or other debts. The Tribunal accepts that his brother who leads in Malaysia is also assisting him financially in relation to proceedings before the Tribunal. The Tribunal accepts that he has complied with condition 8104 in the past. The Tribunal is satisfied that the applicant will abide by this visa condition without further incentive to do so.

    Compliance with conditions 8401, 8506 and 8564

24. The Tribunal must determine whether it is satisfied that the applicant will abide by conditions 8506 (Notify change of address), 8401 (Report as directed) and 8564 (Must not engage in criminal conduct) if granted the Bridging visa. It has had regard to the following considerations.

25. The applicant’s evidence is that his brother, Chiebuka, and his sister, Chimeziem, came to Australia before he did and rented a unit in Lidcombe. He stated that he has resided with them at this address since he arrived in Australia and has not resided at any other address in Australia. He stated that he provided the Department with this address. He was located by Australian Border Force officers at this address. He stated that, if he is granted a Bridging visa, it is his intention to continue to reside with his brother and sister at this address.

26. The Tribunal is satisfied that, in the unlikely event that the applicant intends changing his address, he will notify the Department.

27. The applicant’s evidence is that he would like to complete his course of studies in Australia. He stated that, in the event that his application for review to the Tribunal in relation to the cancellation of his Student visa is unsuccessful, he will return to Nigeria. The Tribunal accepts that he is committed to completing his studies in Australia. The Tribunal is of the view that, if he is granted a Bridging visa, he is unlikely to engage in any conduct that may jeopardise his studies in Australia. The Tribunal is also of the view that the time he has spent in detention has had a very sobering effect on him and that he would not put himself at risk of being detained again.

28. The applicant’s evidence is that he has not engaged in any criminal conduct in Australia or in Nigeria. There is no evidence before the Tribunal to indicate that he has done so in the past or is likely to do so in the future.

29. In view of the above, the Tribunal is satisfied that the applicant will abide by conditions 8401, 8506 and 8564 without further incentive to do so.

    Conclusion

30. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criterion for a Subclass 050 (Bridging (General)) visa:

    ·cl.050.223 of Schedule 2 to the Regulations.

    Linda Symons
    Member