Singh (Migration)

Singh (Migration) [2020] AATA 4372 (8 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jaideep Singh
CASE NUMBER: 2010793

DIBP REFERENCE(S): BCC2020/1780934
MEMBER:Michael Ison
DATE:8 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 08 July 2020 at 9:40am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by any Bridging E visa conditions – period of unlawful residence – working in Australia for cash payments – financial support from family – applicant charged with criminal offenses – limited contact with Department or police – breaching bail reporting conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 359
Migration Regulations 1994, Schedule 2 cls 050.211, 212, 222, 223, 050.617, 051.211; Schedule 8, Conditions 8101, 8564; r 2.20
CASES
Applicant VAAN of 2001 v MIMA (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

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).
Background
The applicant is Mr Jaideep Singh, a 32 year old Indian national. The applicant arrived in Australia on 12 July 2007 as the holder of a Student (Subclass 572 Vocational Education and Training Sector) visa. The applicant was granted a subsequent Student visa and sought a third Student visa which was refused on 28 April 2010. Due to notification errors the Department identified in relation to that refusal, the applicant was re-notified on 16 September 2014 and again on 11 October 2019. The applicant had been granted a Bridging A (Subclass 010) visa at the time of application for his third Student visa. That Bridging visa did not cease due to the notification errors until 8 November 2019 after which time the applicant remained in the community as an unlawful non-citizen until he applied for a Partner visa on 22 June 2020.
The applicant was detained in immigration detention on 10 June 2020 and at the time of this decision is being held at [an Immigration Detention Centre].
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the Bridging E (Class WE) (Subclass 050) visa on 22 June 2020, when he applied for the Partner visa. At the time of the applicant’s application, 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 which requires the Minister, or the Tribunal on review, to be satisfied that the applicant would abide by any conditions attached to a Bridging E visa granted to him.
The decision to refuse to grant the visa was made by a delegate of the Minister on 25 June 2020. The delegate was not satisfied that the applicant would abide by four conditions which the delegate decided were appropriate to attach to any Bridging E visa granted to the applicant. This meant the delegate found the applicant did not meet the requirements of cl.050.223 and for this reason the delegate refused to grant the Bridging E visa.
Tribunal hearing
The applicant appeared before the Tribunal on 6 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Palakdeep Kaur Bamrah, who is the applicant’s de facto partner and sponsor for the Partner visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant appeared by video link from [his Detention Centre]. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal, to which the applicant responded no. The Tribunal informed the applicant that it would allow the applicant an opportunity to address the Tribunal toward the end of the hearing on any matter he felt was relevant to his review.
The applicant made a written submission to the Tribunal sent by email on 5 July 2020. That submission included a two page written submission from the applicant, two hospital discharge reports in relation to the applicant’s father in India dated 16 June 2018 and 12 March 2019, copies of 12, predominantly monthly, funds transfers from Ms Bamrah to the applicant’s mother in India made between March 2019 and April 2020 and a copy of correspondence dated 3 July 2020 from the applicant’s lawyer and migration agent to the Department in relation to the applicant’s application for the Partner visa.
The Tribunal has considered all of the information before it, including the evidence of the applicant and Ms Bamrah, the written submissions from the applicant and the information on the Tribunal file and the Tribunal’s copy of the Department’s file.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the applicant eligible for a Bridging E visa?
In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 Bridging visa, which are set out in cl.050.2 of Schedule 2 to the Regulations.
An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212.
Immigration status of the applicant - cl.050.211
Clause 050.211 provides:
(1)The applicant is:
(a)  an unlawful non-citizen; or
(b)  the holder of a Bridging E (Class WE) visa; or
(c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2)The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
The applicant must continue to satisfy this criterion at the time of decision: cl.050.221
The Tribunal is satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
The grounds for seeking the visa - cl.050.212
At the time of the Bridging E visa application, the applicant must meet one of the alternative criteria set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations.
The applicant must continue to satisfy this criterion at the time of this decision: cl.050.221.
In this case, the applicant is seeking to meet cl.050.212(3).The applicant does not claim to meet any of the other alternative criteria in cl.050.212.
Subclause 050.212(3) provides:
(3)     An applicant meets the requirements of this subclause if:
(a)  the applicant has made, in Australia , a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b)  the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
In relation to this requirement the delegate of the Minister found:
I am satisfied that you meet the requirements in subclause 050.212(3) in Schedule 2 of the Regulations because on 22 June 2020 you have lodged an application for a Partner visa which has not been finally determined.
The applicant confirmed to the Tribunal in his oral evidence that he has applied for a Partner visa, that Ms Bamrah is his sponsor for that visa, that Ms Bamrah is a permanent resident of Australia and that visa application has not been finally decided. The Tribunal accepts this evidence.
The Tribunal is satisfied on the evidence before it that the applicant meets cl.050.212(3).
The requirement to be interviewed by an authorised officer - cl.050.222
Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.
The information before the Tribunal is that the applicant was interviewed by an officer authorised for the purposes of cl.050.222 in relation to this Bridging E visa application on 24 June 2020.
For these reasons, the Tribunal finds that the applicant meets cl.050.222.
Determinative issue – abide by any conditions attached to the Bridging E visa
Clause 050.223 of Schedule 2 to the Regulations states:
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
The issue in this case therefore is will the applicant abide by any conditions that would be imposed on any Bridging E visa that may be granted to him.
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 the unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]. The Tribunal explained this to the applicant during the hearing.
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 the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
The conditions that must or may, depending on the applicant’s circumstances, be imposed on a Bridging E visa are set out in cl.050.6 of Schedule 2 to the Regulations, which contains clauses 050.611 to 050.620.
In this case, cl.050.617 applies because the applicant has applied for a Partner visa that has not been finally determined.
Clause 050.617 provides that the decision maker can impose any one or more of the following conditions on a Bridging E visa granted to a non-citizen under clause 050 of the Regulations:
·8101 – no work in Australia;
·8104 – work limitation (40 hours a fortnight);
·8116 – work limitation (only work in activity specified in a legislative instrument);
·8201 – study limitation;
·8207 – no study or training in Australia;
·8401 – report at time and place specified by the Minister;
·8402 – report to Immigration within 5 days of grant and then report weekly;
·8505 – live at the address the applicant specified before the grant of the visa;
·8506 – notify Immigration in advance of any change in address;
·8507 – pay the costs of the visa holder’s detention;
·8508 – make a valid application for a visa that can be granted in Australia;
·8510 – show Immigration a valid passport or obtain a valid passport;
·8511 – show an officer a ticket for overseas travel;
·8512 – leave Australia by the date specified by the Minister; and
·8548 – not engage in any study or training in Australia for more than 4 months.
Clause 050.618 provides that in addition to any other condition imposed, condition 8564 (not engage in criminal conduct) may also be imposed. Clauses 050.619 and 050.620 provide for the imposing of conditions in particular circumstances that are not relevant in this review.
The Tribunal considered the application of each of these visa conditions in the applicant’s circumstances.
The Tribunal considers the following conditions should be imposed on any Bridging E visa granted to the applicant:
·8101      The holder must not engage in any work in Australia;
·8207      The holder must not engage in any studies or training in Australia;
·8401      The holder must report at a time and place specified by the Minister;
·8506      The holder must notify Immigration at least 2 working days in advance of any change to the holder’s address;
·8510      The holder must show Immigration a valid passport or make arrangements to Immigration’s satisfaction to obtain a passport; and
·8564      The holder must not engage in criminal conduct.
These are the same conditions the delegate considered reasonable to impose in the applicant’s circumstances.
The Tribunal asked the applicant if he had any objection to any of these conditions being imposed if a Bridging E visa was granted to him. The applicant responded no and that he would comply with all conditions of any Bridging E visa granted to him.
Conditions 8207 not engage in studies and 8510 show a valid passport
There is no evidence before the Tribunal that the applicant intends to engage in further studies in Australia. The applicant told the Tribunal his plan for the future is to marry Ms Bamrah and to have a family together. Ms Bamrah gave evidence about the history of her relationship with the applicant, including how they met and courted, and their plans for the future together. The Tribunal accepts this evidence.
The applicant told the Tribunal he had surrendered his passport to Queensland police in Mackay in 2014 as part of his bail conditions in relation to criminal charges filed against the applicant, which the Tribunal addresses in detail in these reasons below. The Tribunal accepts this evidence.
The Tribunal finds that based on the evidence before it the applicant will abide by conditions 8207 and 8510.
Condition 8101 not engage in work in Australia
Ms Bamrah gave evidence that she will support the applicant in the community and he will not need to work. Ms Bamrah told the Tribunal that she rents an apartment in Sydney where the applicant lived with her prior to being detained and will resume living with her if granted a Bridging E visa. Ms Bamrah told the Tribunal she works as an information technology specialist for a publicly listed company and told the Tribunal her annual salary. The Tribunal is not aware of what assets Ms Bamrah has but she told the Tribunal she has minimal liabilities. No documents were provided in support of this evidence but the Tribunal accepts Ms Bamrah’s evidence of the support she can provide to the applicant.
Ms Bamrah also explained to the Tribunal that the copies of the 12 money transfers from her to the applicant’s mother in India were gifts to the applicant’s mother from the applicant, it is just that the transfers are organised by Ms Bamrah and appear in her name. The Tribunal accepts this evidence.
The Tribunal read to the applicant during the hearing the following extract from the primary decision and invited the applicant to comment on the delegate’s findings:
During a phone interview with you on 24 June 2020 you stated you will support yourself financially without working and you have $[amount range] in savings. You stated your partner who is permanent resident will be your primary carer and will provide financial support to you. You also stated you have your brother and family members overseas willing to provide you with financial support if required. You further stated during the phone interview that if you are released from detention you will be residing with your partner, Ms Palakdeep Bamrah, at [address]. Although you stated during the interview that you have $[amount range] in savings to support yourself, you have not provided any evidence of this nor have you provided any evidence of community support being available to you. I also note that during your recent interview with ABF officers on 10 June 2020, you stated that you would be unable to support yourself without working. You also admitted that you were working cash in hand to support yourself since you became UNC. (sic)
The applicant told the Tribunal that he did say what is stated in the primary decision but that he did not say he had been working cash in hand since November 2019 when his Bridging A visa ceased. The applicant told the Tribunal he had been working casually as a chef using a tax file number but had also worked casually at times as a removalist, for which he was paid cash in hand and did not pay tax. The applicant also told the Tribunal as work had been harder to find this year, particularly with the COVID-19 global pandemic, he had also undertaken casual work he found on the Airtasker and Gumtree internet websites and that he was also paid cash in hand for this work.
The applicant further told the Tribunal that he worked as a chef at specific establishments in Queensland between 2014 and 2018 and that he had done so using a tax file number and having income tax deducted from his pay. The applicant told the Tribunal he had submitted his income tax returns for the past two financial years.
The Tribunal accepts the evidence of the applicant documented in the preceding two paragraphs.
The applicant told the Tribunal he will definitely not need to work if he is granted a Bridging E visa. The applicant gave evidence he has a younger brother who is living in the United States of America who has provided AUD[amount] to assist with the applicant’s partner visa application and has AUD[amount range] in savings to provide further financial support if required. The applicant did not provide any documents or a statement from his brother to support this evidence.
The applicant also told the Tribunal that his parents in India will provide financial support to the applicant if required as they have [an investment] in the applicant’s name in India which they are prepared to sell so they can make funds available to the applicant. Again, the applicant did not provide any documents or a statement from his parents to support this evidence.
The evidence of financial support from the applicant’s parents seemed inconsistent to the Tribunal with the level and frequency of the financial support the applicant has recently provided to his parents. The applicant submitted and explained to the Tribunal that his father had a serious illness resulting in hospitalisation and an operation and the applicant worked in part to support his parents during that time. In support of this evidence, the applicant provided two hospital discharge reports in relation to the applicant’s father in India dated 16 June 2018 and 12 March 2019.
The Tribunal notes that the evidence of funds transfers from the applicant, via Ms Bamrah, to his parents was 12 transfers occurred between March 2019 and April 2020. This is after the applicant’s father had been discharged from hospital and according to the applicant’s evidence recovered from his illness. The Tribunal gives the applicant the benefit of the doubt in this regard and accepts the applicant was assisting his parents financially when and after his father could not work and now the applicant’s parents are in a position to offer the applicant at least some financial support.

The Tribunal accepts the applicant’s evidence that his family can provide financial support to him in Australia should he be granted a Bridging E visa. It is not clear to the Tribunal from the applicant’s evidence the extent of financial support available from the applicant’s family or how long such financial support may be able to be provided for but the Tribunal accepts, in addition to the support offered by Ms Bamrah, that there is additional financial support available to the applicant.
The Tribunal was not convinced by the applicant’s evidence that he will not work if granted a Bridging E visa. It was apparent to the Tribunal from the applicant’s evidence that he is familiar with Australia’s employment and income tax laws to the extent that he is aware he is required to declare his income so it can be assessed for tax purposes once he earns above the taxable threshold. The Tribunal acknowledges it is not illegal to work for cash payments and not declare those payments if the person’s income from that and all other work does not exceed the income tax threshold. However, the applicant’s evidence indicates to the Tribunal that the annual amounts he earns as income usually requires him to submit an income tax return. The applicant’s evidence is that he has recently, if not predominantly then at least regularly, worked for cash payments which he does not declare for tax purposes. The applicant offered no explanation for doing this.
The applicant’s evidence of working for cash without declaring that income indicates to the Tribunal that the applicant does not respect Australia’s personal income tax laws and is prepared to ignore those laws when it suits him. The applicant’s evidence in this regard caused the Tribunal concern that even if condition 8101 no work was imposed on a Bridging E visa granted to the applicant, the applicant may ignore that condition when it suits him.
The applicant’s financial position, at least as explained to the Tribunal, added to the Tribunal’s concerns. The applicant told the Tribunal that Ms Bamrah and he have spent approximately [amount] in applying for a Partner visa, which includes the [amount range] the applicant had saved and an [amount] gift from the applicant’s brother. The applicant also gave evidence, discussed in more detail in paragraphs 95 to 100 of these reasons, that he has unpaid fines in amounts the applicant could not recall from earlier criminal prosecutions.
In the applicant’s written submission to the Tribunal dated 5 July 2020, the applicant stated:
I had to earn and save for resolving my pending charges, as my previous lawyer had mentioned I will need at least [amount] for my case in Brisbane. I wanted to have enough savings for applying my Partner VISA as well. (sic)
The case the applicant is referring to is that he has been charged with two counts of rape in Queensland arising out of an incident that occurred in 2012. The Tribunal addresses this in detail when considering condition 8564 in paragraphs 102 to 105 of these reasons.
The Tribunal is concerned given the financial pressures on the applicant and Ms Bamrah of funding the process of applying for the Partner visa and the need to fund the applicant’s defence to the criminal law charges, the applicant may disregard condition 8101 and work in cash in hand jobs if he is granted a Bridging E visa.
The Tribunal notes that according to the copy of the correspondence in relation to the Partner visa application provided by the applicant to the Tribunal, the applicant has engaged a solicitor who is a migration agent to provide advice and assistance in relation to that application. According to the applicant’s evidence to the Tribunal the applicant has also retained a separate criminal law solicitor and a separate barrister in relation to the rape charges.
The applicant’s evidence indicates to the Tribunal that the applicant and Ms Bamrah have already spent significant funds on their Partner visa application and the applicant will incur significant additional expenses to defend the criminal charges pending against him. The applicant could not recall when asked by the Tribunal when his next court hearing date is in relation to the rape charges so the timing of the expenses in relation to the criminal law matters is not known by the Tribunal.
In the applicant’s circumstances the Tribunal has significant concerns that the applicant will need to work as he stated in his 10 June 2020 interview with Department officers or even with Ms Bamrah’s support and the support of his family, will be strongly tempted to work cash in hand jobs to build up savings to fund his defence to the criminal charges, pay his outstanding fines and pay any additional expenses in relation to his Partner visa application. Given the applicant’s recent demonstrated disregard for Australian law in working cash in hand jobs without declaring that income the Tribunal is not assuaged by the applicant’s written and oral reassurances that he will respect condition 8101 and not work if granted a Bridging E visa.
For these reasons the Tribunal finds that the applicant will not abide by condition 8101 must not work in Australia if he is granted a Bridging E visa. This finding means that the applicant does not meet the requirements of cl.050.223 of Schedule 2 to the Regulations.
As the Tribunal spent a considerable period of time during the hearing discussing the remaining conditions with the applicant, for the sake of completeness the Tribunal has set out its consideration of those conditions.
Condition 8401 report at a time and place and condition 8506 notify Immigration of changes of address
The primary decision set out the applicant’s visa history in Australia including the applicant last holding a substantive visa, a Student visa, in 2010 and becoming an unlawful non-citizen in November 2019 when the applicant’s last Bridging visa expired.
The applicant explained his study history including having completed a Certificate III in Commercial Cookery and a one year business course, which the applicant could not recall the name of.
The applicant gave evidence that he went to see a lawyer who was also a migration agent in Brisbane in 2010 before his Student visa expired and it was their advice to enrol in a business course for which he paid significant fees and then applied for a new Student visa. The applicant said he did not hear back from this lawyer in relation to his new Student visa application and so went to see him when there was only a week left before his Student visa expired. At that meeting the applicant said the lawyer told him his application was refused because false financial documents, which the applicant had not provided, had been submitted and that the applicant had a week to depart Australia or could appeal the refusal to the Tribunal. The applicant said he asked the lawyer to do the best he could. The applicant told the Tribunal he doesn’t know whether the lawyer filed an appeal with the Tribunal as the lawyer did not ever report back to the applicant.
The applicant told the Tribunal that was the last time he was aware of his visa status before he was informed by a staff member at the Immigration Detention Centre that he held a Bridging visa in 2019. The applicant described this as “…a big wow for me…” when he found out he had been granted a Bridging visa. The Tribunal notes that the applicant’s application for a third Student visa was refused in April 2010 but there were irregularities in the Department notifying the applicant of this decision as the applicant was notified in 2010, 2014 and again in October 2019 of that refusal.
Even though the applicant did not become an unlawful non-citizen until November 2019 the Tribunal was concerned about the applicant’s apparent lack of engagement with the Department since 2010.
The applicant’s evidence was that he was poorly advised in 2010 and did not know whether he had a visa or not from 2010 and the situation was out of his control. He said he spoke to his girlfriend at the time, who was an Australian citizen, and they discussed marrying and applying for a Partner visa so the applicant could stay in Australia. The applicant’s evidence was that his girlfriend ultimately decided she could not proceed with that course of action. The applicant indicated that if he had been properly advised by the migration lawyer he could have pursued an application for a visa granting him permanent residency in Australia at the time but because of the poor advice he could not do that.
The Tribunal asked the applicant what contact he had with the Department after that time or what efforts he made to find out his visa status. The applicant said he received a phone call from the Department in 2010 during which he was advised he had two days to leave but told the Department officer he needed more time to sort out his affairs before leaving.
The applicant said he next contacted the Department a few months later in 2010 because he didn’t know what was going on. He telephoned the Department and said he pretended to be asking questions for a friend.
The applicant said he also contacted the Department when he lived in Mackay in Queensland between 2012 and 2014.
The applicant was imprisoned for a short period in August – September 2014 and told the Tribunal during this time he was visited by two people, one of whom he could identify as a Department officer. The applicant said they told him he must sign some paperwork for immigration purposes, they obtained his signature and left without explaining to the applicant what he had signed and without leaving the applicant a copy of what he had signed.
The Tribunal notes that even after these interactions with the Department the applicant’s evidence is he was unaware of his visa status until he was informed in June 2020 by an Immigration Detention Centre officer he held a Bridging visa.
The Tribunal read to the applicant during the hearing the following extract from the primary decision and invited the applicant to comment on the delegate’s findings:
I note that you have made no effort to contact the department since becoming an UNC on 09 November 2019 and you remained unlawfully in the community until being located by ABF officers. I hold a great concern that you are likely to repeat this should you be released and do not receive a favourable outcome from your Partner Visa application. I find that had you not been located and detained by ABF, you would have remained concealed in the community rather than rectifying your immigration status. Taking note of the above I am not satisfied that you will report as directed, particularly given you made no effort to contact the Department since your last visa ceased. As such, I am of the view that you will not abide by visa conditions 8401 (report as directed) and 8506 (notify change of address).
The applicant told the Tribunal in his response that such matters were out of his knowledge and he had no idea whether he had a visa at the time. The applicant told the Tribunal that he was living his life until 2020 to save money to apply for a Partner visa and to defend the criminal charges.
The applicant told the Tribunal if he knew he did not have a visa from November 2019 he would have done something about it.
The Tribunal discussed this with the applicant. The applicant agreed with the Tribunal that he knew at all material times that he had to hold a visa to be able to remain in Australia.
In his written submission to the Tribunal the applicant wrote:
I would like to affirm, that the delay in taking the right steps towards resolving my status in Australia and fighting my pending charges, has been due to situations beyond my control. I did not receive proper guidance on my VISA status and was struggling to understand my position and rights in the country. All I know, clearly, that my Student VISA was refused in 2010 and the immigration lawyer, from SKD migration told me, that I had a week to leave the country. In 2014, when I was in QLD Correctional Centre, 2 people came to me and took my signatures saying that this is for immigration purposes (I would like to elaborate on this more, if you permit me to). When I got out, I had no financial support, had to move places to find shelter and survived one day at a time. I was suffering through a lot of hopelessness, as my future was uncertain. My parents and I had put in a lot of hard work and money for me to come from Punjab to Australia and make a life. All these events put me under constant stress and depression for so many years and I tried to heal myself. After meeting my partner, I found some direction. I saw a lawyer in 2019, who advised, to wait for 18 months to apply for a Partner VISA. At the beginning of this year my partner and I had made a promise that we will resolve my issues, so we can move towards starting a good life. However, COVID-19 affected the world and caused a lot of stress to us, where I had no work and my partner was working 12-14 hrs daily. There has never been an intention to deceive anyone. I assure you that my primary focus in life now, if I get out on a BVE, would be to fight my charges and be there for my partner.
The applicant also read this paragraph to the Tribunal from his mobile telephone as part of his closing submission to the Tribunal.
The Tribunal was not convinced by the applicant’s evidence that he will comply with conditions 8401 and 8506. The Tribunal shares the concern of the primary decision maker that if the applicant does not receive a favourable outcome on his Partner visa application he will cease engagement with the department, become an unlawful non-citizen again and not return to India as required.
The Tribunal’s concerns were heightened by the applicant’s statement that he and his parents had spent a lot of money for the applicant to come to Australia to make a life. The only substantive visas the applicant has held in Australia are Student visas, which are temporary visas. They are short term visas intended to allow the holder to study in Australia, obtain qualifications and then return home. It is not unlawful for Student visa holders to form the view they would like to stay in Australia and to pursue lawful pathways to realise that aim, provided that if those pathways are not realised they remain prepared to return home. The Tribunal is concerned from the applicant’s statement and oral evidence that his intention in coming to and remaining in Australia has been to reside in Australia permanently to live.
The applicant had earlier given evidence that he has now spent most of his life in Australia, has adopted Australian habits and beliefs while acknowledging his roots and maintaining his religious beliefs and he wants to stay in Australia. The Tribunal acknowledges that the presence of Ms Bamrah in Australia, who gave evidence she arrived in Australia in early 2016, provides a powerful incentive for the applicant to seek to remain in Australia. To this end the applicant is legitimately seeking a Partner visa as he is entitled to.
The applicant also gave evidence that he has twice breached his bail conditions arising from the rape charges by not attending court and not reporting when and as required. The applicant blamed his circumstances and lack of knowledge for these occurrences and it did not appear to the Tribunal that the applicant genuinely accepted responsibility for those breaches. The applicant told the Tribunal that in 2014 he was imprisoned for “two to three weeks” due to a failure to attend court. The applicant said after his time in prison he was released with [money amount] and had no shelter, no work and did not understand what was going on. As a result the applicant breached his weekly reporting to police obligation by moving from Mackay, where he settled after being released from prison in 2014, to the Gold Coast without making arrangements with Queensland police to continue his reporting. The applicant said at this time he was scared and depressed and had no idea about the correct processes. The applicant told the Tribunal he accepts now that he did not make the right decisions and has learned from those situations.
The Tribunal is prepared to accept the applicant’s evidence that he may have experienced financial difficulty at those times, including only having temporary accommodation, but the Tribunal does not accept the applicant’s evidence that these events occurred due to circumstances beyond his control. There is no evidence before the Tribunal to support the applicant’s claim he was depressed at the time. The Tribunal does not discount that this may have been the case, but there is no evidence before the Tribunal that the applicant sought medical assistance or has been ever been formally diagnosed as depressed.
What concerns the Tribunal is that the applicant was imprisoned for missing a court hearing date and then subsequently failed to engage with Queensland police to ensure his weekly reporting arrangements could be continued when he moved to the Gold Coast. This is not isolated behaviour from the applicant. The applicant’s lack of meaningful engagement with the Department for many years or taking any other measures such as checking Visa Entitlement Verification Online or seeking migration advice to clarify his visa status is also of concern to the Tribunal.
The primary decision maker noted in their decision that there is also an arrest warrant issued in Queensland for the applicant’s arrest. This could be because the applicant has failed to appear at a procedural hearing in relation to the rape charges or because the applicant has failed to pay earlier criminal law fines. The Tribunal asked the applicant about this warrant and the applicant replied that he is not sure about the history of the rape charges and his criminal law lawyer has applied for information from Queensland about the charges, but that information has not been received yet.
Based on the applicant’s evidence to the Tribunal, the applicant’s behaviour in Australia of missing a court date, breaching his bail reporting conditions, having a warrant outstanding for his arrest in Queensland, failing to take meaningful efforts to find out his visa status for many years and becoming an unlawful non-citizen but remaining in the community for approximately 6 months before applying for a Partner visa, is the behaviour of someone who picks and chooses when they will engage with Australian authorities and picks and chooses when they will comply with Australian law. Despite the applicant’s evidence that he respects Australian law, the applicant’s actions in Australia in the Tribunal’s view undermine such claims.
While a decision is pending on the applicant’s Partner visa application, the Tribunal expects the applicant will remain living with Ms Bamrah, she will support him financially providing him with a stable address and will support him to comply with the reporting conditions of any Bridging E visa granted to him.
However, the Tribunal has no confidence that the applicant will continue to comply with conditions 8401 and 8506 if he does not achieve the migration outcome he seeks in relation to the Partner visa application. The Tribunal formed the view, based on all the information before it, that if the applicant’s application for a Partner visa is not successful the applicant, given his past conduct and present intentions, is more likely than not to remain in Australia rather than return to India as required.
For these reasons the Tribunal finds that the applicant will not abide by conditions 8401 report as required and condition 8506 notify immigration of any change of address if he is granted a Bridging E visa.
Condition 8564 not engage in criminal conduct
The Tribunal read to the applicant during the hearing the following extract from the primary decision and invited the applicant to comment on the delegate’s findings:
Departmental records indicate that you have a history of assault/obstruct police officer, stealing and driving offences in Queensland. You also have an outstanding bench warrant for your arrest in Queensland for two counts of rape charges.

The applicant could not recall what he was charged with in relation to these matters, what his plea was in relation to those charges or what his sentence was in relation to the matters where the applicant pleaded or was found guilty. The applicant was very definite that he has not ever been charged with stealing offences. The only information before the Tribunal in this regard is the primary decision. The Tribunal accepts there is no information before it, other than the primary decision, to confirm the applicant was charged with stealing offences.
In relation to the other matters, the applicant told the Tribunal he committed a drink driving offence in 2012 and in 2014 he was fined for assaulting or obstructing police. The applicant explained in 2014 he was leaving a hotel in Airlie Beach when he had an interaction with a “group of Australians” that resulted in the police directing the applicant to leave the hotel in a certain direction. The applicant’s evidence is he did not follow this direction completely as it took him in the wrong direction to where he was staying, resulting in him being arrest, whereupon his shirt was ripped and he was later charged.
The applicant told the Tribunal he was fined for both the drink driving offence and the assault or obstruct a police officer offence but could not recall the amount of those fines or their total. The applicant also told the Tribunal his licence was suspended for a year because of the drink driving offence and he has not yet paid the fines imposed upon him.
The applicant also told the Tribunal he has been fined for breaching an Apprehended Violence Order (AVO). The applicant explained to the Tribunal the circumstances of that offence. The applicant’s evidence is he had broken up with a girlfriend at the end of 2011 or start of 2012 and they were living together at the time. The applicant had a key to their place of residence and returned to collect his belongings after his ex-girlfriend had obtained the AVO. The applicant told the Tribunal his ex-girlfriend’s mother drove past at the time he was at the premises and reported the applicant to police, resulting in the applicant being charged with breaching the AVO. The applicant gave evidence “those charges” were dismissed.

100. The applicant then told the Tribunal as he was leaving court and walking toward his car he happened to be walking in the same direction as his ex-girlfriend and her mother, though they were walking on opposite sides of the road. The applicant explained his ex-girlfriend’s mother approached a nearby police car and officer and reported the applicant, resulting in him being charged with a fresh breach of the AVO. The applicant told the Tribunal he was found guilty of that breach but could not recall whether he was fined for that breach or only for the drink driving and assault or obstruct police matters.
101. The applicant said since 2014 he has not had any issues with the criminal law in Australia, noting the rape charges relate to an incident that occurred in 2012. The applicant specifically gave evidence he has not been charged or convicted of any criminal offences since 2014. The Tribunal accepts there is no evidence before it of the applicant having been charged or convicted of any criminal offences after 2014, but also notes at the time of this decision there is an outstanding warrant for the arrest of the applicant.
102. In relation to the outstanding rape charges the Tribunal explained to the applicant that it is not the role of the Tribunal to determine his guilt or otherwise. The Tribunal explained to the applicant that he is not compelled to answer the Tribunal’s questions about the circumstances of the rape charges in the following terms:
In Australia the burden of proof in criminal matters rests on the prosecuting authorities. They have to prove your guilt beyond a reasonable doubt. This means an accused does to have to prove their innocence. Because of this, people charged with criminal offences have the right to not have to answer any questions that may or may tend to incriminate themselves. As the Tribunal proceedings recorded and could be accessed by the prosecution and used against you, you may choose to rely on that privilege and not answer questions about the circumstances of those criminal charges pending their resolution. If you do choose to rely on that privilege to not answer the Tribunal’s questions about the circumstances of the criminal charges filed against you then the Tribunal will make no adverse inferences or findings against you as a result.
It is important to understand that if you do choose to answer questions about the circumstances that led to you being charged with criminal offences, you may waive your right to rely on your privilege against self-incrimination. This means if you choose to put forward your version of events about those charges you will no longer be able to choose not to answer the Tribunal’s questions about those circumstances.

103. The applicant confirmed he understood the nature of his privilege against self-incrimination and indicated he did not wish to waive his privilege. The applicant told the Tribunal he is honest, is not guilty of those offences and has nothing to hide. Given the applicant’s desire not to waive his privilege, the Tribunal chose not to ask him questions about the circumstances leading to the rape charges.
104. While discussing this condition with the applicant, he told the Tribunal he had learned his lesson from the incidents in 2010 and 2012. The Tribunal thought the applicant was referring not to the rape charges but another incident that the Tribunal was not aware of in 2012. The Tribunal asked the applicant what he was referring to. The applicant told the Tribunal a very detailed and long account of an incident that occurred in 2012. Toward the end of this explanation, the Tribunal asked what happened to the applicant as a result of this incident. The applicant told the Tribunal it was this incident that led to him being charged with rape.
105. The Tribunal acknowledges that the applicant answered a question of the Tribunal. The Tribunal finds that the applicant did not intend to – expressly or impliedly – waive his privilege against self-incrimination when he answered the Tribunal’s question. If the Tribunal had formed the view that the applicant in putting forward his version of events about the rape charges had waived his privilege then the Tribunal would have asked the applicant a number of questions about his evidence in this regard that may (or may not) have led to the Tribunal making adverse findings against the applicant. However, as the applicant was unrepresented before the Tribunal and had earlier indicated he did not wish to waive his privilege against self-incrimination, the Tribunal adopted the approach of treating the applicant’s privilege as though it remained intact and did not ask the applicant further questions about the rape charges. In this context, the Tribunal makes no adverse findings or inferences against the applicant in relation to the outstanding rape charges.
106. The Tribunal asked the applicant whether he had ever used illegal drugs in Australia. The applicant said he had not. The applicant subsequently told the Tribunal he had used marijuana firstly a couple of times in 2015 and then early in 2020 and most recently, but only once, in March 2020.
107. The Tribunal shared with the applicant information that would be the reason or a part of the reason for the Tribunal to affirm the decision that is under review in accordance with the procedure set out in s.359AA of the Act. The Tribunal explained to the applicant the information was a note to an answer in the applicant’s Located Person Interview conducted on 10 June 2020 that he had used marijuana that morning.
108. The Tribunal explained the relevance of this information to the applicant review and the consequences for the applicant’s review if the Tribunal relied upon the information. The applicant confirmed at the relevant times he understood both the information’s relevance to and consequences for his review.
109. The Tribunal offered the applicant additional time to consider the information before responding to or commenting upon it. The applicant sought additional time and the Tribunal granted a short adjournment of the hearing.
110. Upon the resumption of the Tribunal hearing the applicant told the Tribunal that he did tell the Department officer who interviewed him that he had smoked marijuana that morning and that this was his last use of marijuana.
111. The Tribunal noted to the applicant he had previously told the Tribunal he last used marijuana in March 2020. The applicant responded that he does not use marijuana on a regular basis, he has used it a couple of times this year and that when he has been without work and had family issues using marijuana helped him get through his depression, but he is better now, has gained a clear vision and purpose whilst detained and will not use marijuana again.
112. The applicant did not explain to the Tribunal why he had given evidence he last used marijuana in March 2020 and then subsequently gave evidence his last use was on the day he was apprehended and placed in immigration detention. The Tribunal notes that the possession and use of marijuana remains illegal in all States and Territories of Australia even if the policing of that offence varies.
113. The applicant’s evidence of his historical and very recent use of marijuana – and his failure to provide an open and frank account of that use to the Tribunal when first asked about it – repeats for the Tribunal a pattern of the applicant picking and choosing when he will comply with Australian laws and picking and choosing when he will engage and co-operate with Australian authorities.
114. Given the applicant’s criminal history in Australia of being convicted, according to his own evidence, of a drink driving offence, an assaulting or obstructing police offence and a breach of an AVO, in addition to the applicant’s history of twice having breached his bail conditions and there also being an outstanding warrant for his arrest in Queensland, together with the applicant’s evidence of recent marijuana use and the applicant’s failure to be completely frank about that with the Tribunal when first asked, the Tribunal finds that the applicant will not comply with condition 8564 not engage in criminal conduct if he is granted a Bridging E visa.
Other matters
115. Ms Bamrah gave evidence to the Tribunal that she and the applicant’s family could raise funds to post a security bond if that would assist the Tribunal to find the applicant would comply with the conditions that may be attached to any Bridging E visa granted to him. Ms Bamrah indicated they could raise [amount] but after discussion with the Tribunal confirmed they could raise and post up to [larger amount] as a security bond for the applicant.
116. The Tribunal has considered whether a security bond would help to secure the applicant’s compliance with the conditions that may attach to any Bridging E visa granted to him. Given the findings made by the Tribunal in these reasons for decision the Tribunal is of the view that a security bond would not assist in that regard. In particular, but not only, the Tribunal is of the view that a security bond in any amount would not provide sufficient incentive to secure the applicant’s compliance with the conditions of any Bridging E visa granted to the applicant if the applicant receives an adverse outcome in relation to his application for a Partner visa.
117. In his closing evidence to the Tribunal, the applicant gave evidence that he is a different person following his time in immigration detention and he and Ms Bamrah have a clear plan for the way forward and he just wants to continue his spiritual journey, be a good partner to Ms Bamrah and not cause her to suffer any further, start a family with Ms Bamrah as they are both getting older and their parents are worried, and live a good life including volunteering in and supporting the community and being a good member of society. This evidence did not persuade the Tribunal that the applicant would comply with the conditions of any Bridging E visa granted to him or that the lodging of a security bond would assist to ensure the applicant complies with those conditions. The Tribunal remains of the view, despite the applicant’s closing evidence, that he has an established history in Australia of picking and choosing when he complies with Australian law and picking and choosing when he engages with and co-operates with Australian authorities and that this behaviour will continue.
Conclusion
118. 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 of Schedule 2 to the Regulations.
119. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
120. 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
121. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2020] AATA 4372

8 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal