Zhou (Migration)

[2024] AATA 1634

Zhou (Migration) [2024] AATA 1634 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junming Zhou

REPRESENTATIVE:  Mr Simon Jeans

CASE NUMBER:  2408352

Home Affairs REFERENCE(S):               BCC2024/2233958

MEMBER:Angela Julian-Armitage

DATE:24 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 24 April 2024 at 3:22pm

CATCHWORDS   
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Tribunal is not satisfied that the applicant would abide by his visa conditions – criminal conviction– financial difficulty – intentions to not leave Australia – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 5, 73, 189
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.224

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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The application for the visa was lodged on 11 April 2024. 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 as provided for in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevant to this matter, the primary criteria include cl 050.212(3A)(b)(i).

3. The decision to refuse to grant the visa was made on 15 April 2024 on the basis that the delegate was not persuaded that the applicant would  abide by any mandatory or discretionary conditions that may be place on the visa should it be granted.

4. The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   BACKGROUND

6. The applicant was born on 3 May 1990 in China and hold Chinese citizenship and Chinese passport. He arrived in Australia on 4 February 2017 as the holder of a Student (Class TU) sub-class 500 visa with validity to 30 September 2019. He has applied for and been granted subsequent student visas which permitted him to remain in Australia and study until 30 May 2021. The applicant then became an unlawful non-citizen and remained so until 3 December 2021 when he applied for a Bridging visa E on the basis that he had applied for a substantive visa. This Bridging visa E was granted on the basis that the applicant would depart on or before 11 April 2022. Departmental records indicate that he did not depart and was once again an unlawful non-citizen.

7. The applicant made a further application for a Bridging visa E on 22 June 2022 on departure grounds requiring him to leave the country on or before 22 September 2022. Departmental records indicate that he did not depart and that he applied for another Bridging visa E on 21 September 2022 based on an application for a substantive visa and also due to a judicial review which was on foot.

8. On 3 April 2023, the Applicant was convicted and sentenced to 12 months incarceration for possess loaded firearm in a public place and possess unregistered firearm. He appealed the sentence and was successful resulting in a community service sentence which he has been unable to complete as he was released from custody on 8 April 2023 and detained pursuant to s189 of the Act in Villawood Immigration Detention Centre where he has been since.

9. During the time the applicant has been in detention, he has applied for several Bridging visas E including the one subject to this review.

10. The applicant has told this Tribunal that he hopes to be able to wait for the hearing of his judicial review application to be heard in the community. He also told this Tribunal that he only has 2 subjects to undertake in order to complete his Masters in Structural Engineering. His evidence was also that he continues to suffer from mental health issues and would prefer to be treated for that condition when he is in the community.

11. The applicant was questioned by this Tribunal in relation to the mandatory condition 8101- no work that would be imposed on his Bridging visa E should it be granted and also the discretionary conditions like to be imposed being 8207-no study,  8506 notify change of address and 8564- must not engage in criminal conduct.

12. In response to the questions relating to conditions, the applicant said that he still had saving in order to meet his day to day living. The amount he claimed to have been in the vicinity of  $7,000 which he said was in the custody of his previous landlord Mr Chenliang LI. It is worth mentioning that this amount is inconsistent with the amounts the applicant told the Department he had access to; (see 15 April 2024 Decision Record at page 5 para 2). Furthermore, there has been no evidence provided to satisfy this Tribunal, other than a letter from Mr Li, that the applicant has the funds he claims.

13. Putting aside the noted inconsistencies, at the hearing before this Tribunal, the above amount of $7000 was the applicant’s evidence that he has available to him together with a further sum claimed to be held in an account in China of between $2000 and $3,000 (no evidence of this). All in all it is not a great deal of money for him to be able to support himself in the current economic climate with high levels of rent as well as rising food costs.

14. On the day of the hearing and just before it was due to commence, the applicant’s representative advised the Tribunal that he had sent through some submissions and a letter. The Tribunal was able to access this material after the hearing concluded and noted that Mr LI had provided a copy of his driver licence and a short letter stating  the applicant had resided in unit 7 in an apartment complex in Kensington NSW and that the applicant had lived there since 2017. Mr LI said he would accommodate the applicant should he be able to be released and could move into unit 11 of that complex which is where Mr Li’s parents live until he is able to find a place to live on a more permanent basis. He advised that the rent required by his parents would be $350 per week and that he confirmed that he was holding the sum of $7,600 which belonged to the applicant.

15. It was the applicant’s evidence that he planned to give Mr Li some of those funds by way of appreciation for all Mr Li had done for him and rent. When pressed on how much he would be giving, the applicant agreed that he would be left with around $5000 to be applied to his future rent and day to day expenses.

16. In relation to the no study condition, the applicant said that he doesn’t have a Confirmation of Enrolment  at this stage and would abide by the condition. As for the notify change address condition, he stated that he has always resided at the same address since he has been in Australia. The applicant also assured that the criminal activities in the past were due to a supreme level of ignorance as to the variation of laws from State to State and that had he known this before he would never have purchased the subject item.

    Whether the applicant will abide by conditions - cl 050.223

17. Clause 050.223 requires that the Tribunal is satisfied, at the time of decision, that were a bridging visa to be granted to the applicant, he would abide by any conditions imposed on that visa. 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.

18. 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. This Tribunal has indicated above what conditions would be imposed.

19. 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].

20. Whilst the applicant has advised that he would comply with the mandatory and discretionary conditions this Tribunal has flagged would be imposed, there are financial issues that could well preclude the applicant’s compliance. Without having to ponder further that the mandatory condition of no work, the applicant’s own evidence is that he would have access to some $5,000 to be spent on his day-to-day expense. This amount would only see him able to pay his bills for a period of some two and a half months based on $350 rent per week and a further and conservative amount of $150 to be spent on food, utilities and transport.

21. In addition to this financial difficulty the applicant could well face, the Tribunal also harbours concerns with respect to the applicant stating on more than one occasion that he does not intend to ever leave Australia. This comment was put to him by the Tribunal with the applicant confirming this intent. His reasons were twofold in that he wants to complete his master’s degree here in Australia and also he wants to get away from the experiences of his past.

22. I note that the delegate considered the imposition of an associated security pursuant to cl 050.224 and came to the conclusion that security “no amount of security will act as an incentive for you to abide by the abovementioned visa conditions if one could be provided”. This Tribunal agrees with the delegate’s position as the applicant in this case has opening stated his intentions to not leave Australia.

23. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by some of the conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

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

25. 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

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

    Angela Julian-Armitage
    Member