1805581 (Migration)

[2018] AATA 1073

1805581 (Migration) [2018] AATA 1073 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805581

MEMBER:Meena Sripathy

DATE:9 March 2018

PLACE OF DECISION:  Sydney

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

·cl.050.221 of Schedule 2 to the Regulations; and

·cl.050.223 of Schedule 2 to the Regulations.

Statement made on 09 March 2018 at 2:02pm

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Abiding by visa conditions – Intending to depart Australia – Awaiting hearing of criminal charges – Brief period of employment without permission – Complying with bail conditions – Family and community support

LEGISLATION

Migration Act 1958, ss 73, 189, 269, 417

Migration Regulations 1994, Schedule 2 cls 050.212, 050.221, 050.223, 050.617; Schedule 8

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 501K of the Migration Act 1958 and replaced with generic information.

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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa [in] February 2018. 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 [in] March 2018 on the basis that the delegate was not satisfied that the applicant will abide by conditions if granted a BVE. The applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The issue in this case is whether the applicant will abide by conditions imposed on the visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and History

6. The applicant arrived in Australia [in] September 2014 as the holder of a [temporary] visa that was valid until [December] 2014. [In] October 2014 he applied for a Protection visa, which was refused by the Department [in] February 2015. Following this he sought review to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) on 18 March 2015. The AAT affirmed the refusal of the visa on 14 September 2016. The applicant sought Ministerial intervention under s417 of the Act in October 2016, which was finalised as ‘not referred’ [in] March 2017, following which he sought judicial review of the AAT’s decision. His judicial review application was finalised [in] November 2017. The applicant subsequently sought Ministerial intervention again [in] June 2017 and which was again not considered by the Minister and advised to him [in] October 2017.

7. [In] December 2017 the applicant lodged an application for a [different temporary] Visa, which was refused by the Department [in] January 2018 and he applied for review of that decision to the AAT [in] February 2018. This application is ongoing.

8. The applicant’s last Bridging Visa granted to him on the basis of his ongoing judicial review application ceased [in] December 2017. He was after that an unlawful citizen (UNC). He was located by the Australian Border Force (ABD) [in] February 2018 when attending [a named] Police Station to report as per bail conditions, and was subsequently detained under s189 of the Act.

9. In a Located Person Interview conducted with the applicant [in] February 2018 the applicant provided details of a brother in Australia ([named]) with whom he is in contact but rarely visits.  He indicated that he works as an [occupation 1] (and had last worked that day).  He indicated his address and that he had lived there for the past 3 years. He indicated that he has [number] criminal charges pending against him. In response to the question whether he can support himself in Australia without working he stated “no of course not”.  He stated he had $[amount] and [an amount] car loan liability. He indicates he cannot return to his home country because he is persecuted as a Christian by Muslims. He is not prepared to depart Australia willingly, and refers also to being unable to depart until the court proceedings are completed.   He has a court appearance on [a date in] July 2018.

10. A document entitled Detention Note included in the applicant’s Departmental file provides details of the applicant’s immigration history and other circumstances. He was interviewed again by an officer of the Department [in] February 2018.  Notes of responses to questions asked of him at this time are generally consistent with the information previously provided.  He indicated he suffered from [two conditions] and has an ongoing review in relation to a [different temporary] visa application.  He has a court proceeding [in] July 2018 and made reference to charges against him including [two specified charges], and an AVO. He indicated having [an amount] loan to [named bank] relating to his car. 

11. [In] March 2018 the Tribunal received a letter from [Mr C] stating that he had spoken by phone to the applicant from [the] Detention Centre and the applicant has requested the following information be conveyed.  The interview he had with the case officer utilised an Arabic interpreter but not Egyptian and he believes there may have been misunderstandings.  He denies the criminal charges against him and has engaged a lawyer to defend the matter. He provided information about his financial circumstances, stating that he was working as an [occupation 1] but did not know he did not have permission to work. He states he will abide by any conditions imposed on the visa.  If he has no permission to work he will abide by that and can be supported by his brother in [another state] and also by the two friends who will attend the hearing to give evidence in support. He indicated he has two loans of $[amount] and is making repayments on these. He stated he had a lawyer/migration agent in the past and paid $[amount] costs and is now relying on [Mr C] to explain some documents to him. He has a lawyer for the criminal charges against him and has obtained Legal Aid for that matter.  He has been under the care of a psychologist [named] for 2 years and also a psychiatrist [named], whom he last saw [in] February 2018. He has had 2 panic attacks since being at [the detention centre] and was taken to [a named] Hospital. He does not smoke or drink and is willing to sell his car and will be supported by his brother [named] and two friends [Mr A], [age] years, and [Mr B] [age] years. He was attending Police station 3 times a week, and they agreed to reduce it to once a week from [date] due to his compliance.  Contrary to the comment by the case officer, he states he wishes to return to Egypt as soon as possible after his criminal matter is resolved. He states he was told by the police he cannot return to his home country pending the criminal matter.

12. At the hearing the applicant gave evidence about his immigration history, his living and work background prior to being detained, the criminal proceedings he is presently involved in, and his plans regarding accommodation and support if he were to be released.  He brought along with him a folder of documents relating to the criminal proceedings. 

13. The applicant confirmed that he arrived in Australia in September 2014 on a [temporary] visa, and subsequently applied to change his status.  This application was refused and he appealed the decision to the AAT, Federal Court and made a request for Ministerial Intervention. He confirmed these proceedings were finally resolved in November 2017.  In December 2017 he applied for a [different temporary] visa, which was refused by the Department and he applied for review of that decision to the AAT in February 2018.  The Tribunal explained that it is satisfied on the basis of the pending review of the [different temporary] visa that he continues to meet the threshold eligibility criteria for the present application. The remaining issue for the Tribunal is whether he will comply with conditions that may be imposed on the visa. 

14. When asked why he came to Australia in 2014 he said he came to seek a better life.  He had problems there with some Muslims and he wanted to get away from them and to seek a better future.  The Tribunal put to him that this appears to be inconsistent with him having a genuine intention to stay temporarily in Australia which was the basis for the grant of a [temporary] visa.  He made no comment in response.

15. When asked what he did after arriving, he said he started working from around December or early January 2015.  He only worked after he was granted permission to work, which was arranged by the migration agent he had engaged.  He worked for over a year and a half at a [business] and after that he became an [occupation 1]. He worked as an [occupation 1] until the Saturday he was brought into immigration detention.  He was living in share accommodation in [named suburb], where he had been living for the past 2 and a half years. He paid rent up until last week.  He was on the lease along with two others for this property, but he told the Tribunal that he will not be returning to this accommodation and has already told the other two co-tenants. When asked what his plan is if he is released, he said that he has been offered accommodation by two people, [Mr A] and Ms [Mr B] who have attended as witnesses. They have both been in Australia for 50 years and have their own homes and have offered to have him stay with them and support him.  The Tribunal asked the applicant how he knows these people. He said he met both of them through his church since coming to Australia. They are not related to him. They have both been providing him support and friendship since he has been in Australia.  He also has a brother in [another state], whom he has been in contact with since coming to Australia.  His brother is married and has a child.  He and his wife are [a different occupation]. The applicant says he is in daily contact with his brother and his brother is aware of and supports his situation and is willing to provide him financial support if necessary. When asked why his brother has not provided any evidence to demonstrate his support, the applicant said he is in [another state] and was unable to travel to [City 1] because of his work and family commitments but he is willing to support him financially and can be a sponsor if necessary. The applicant can get evidence from him if necessary. The Tribunal indicated that it will consider any evidence he provides.

16. In Egypt, the applicant has his mother and [specified siblings]. He is in regular contact with them since coming to Australia. He does not send or receive money from his relatives in Egypt.

17. The Tribunal asked the applicant if he knew when his last Bridging Visa expired. He said he did not.  He did not attend the Court on the date of his hearing because he was in hospital.  He received some correspondence from the Court informing him that his case was dismissed for non attendance but he claims he never received anything from the Department. 

18. The Tribunal asked him about the circumstances of being located by Immigration. He confirmed it was when he was reporting to the police as required by his bail conditions. The Tribunal asked why he is on bail. He explained that he had a girlfriend for about 18 months. In the end she went to the police and made a complaint against him and the police charged him with various offences including [two specified charges].  In total there are [number] charges against him and an AVO.  The applicant said he denies it all and he has proof they were in a relationship and she went to the hotel willingly with him.  He referred to material in the folder he brought along.  He is pleading not guilty to the charges.  The case is coming to the court again [in] July 2018.  The charges were laid in September 2016.  In August 2017, his bail conditions were changed from reporting 3 times a week to once a week and he was told he cannot leave Australia until the case is resolved. He has a lawyer and barrister representing him in the criminal case.

19. The Tribunal explained that one of the conditions that may be imposed if a bridging visa is granted is condition 8464 which requires that he not engage in criminal activities, and given this history it may have a concern he will not comply with this condition and invited his comment on this.  The applicant said he has never had any issues prior to this since he came to Australia. He has a lot of psychological issues and he is getting help with them.  The allegations against him are all lies and untrue and he has pleaded not guilty. The applicant repeated that he has no previous record of any criminal charge or conviction. He also pointed out that he will be under the guidance and support of [Mr A] [Mr B], and also his brother and psychiatrist and they will not allow him to do anything wrong.  He said they all know about the charges and they are all supporting him and helping him.  [Mr B] will be providing a statement in support for the criminal matter, as will his psychologist.

20. The applicant gave the following evidence about the circumstances of [Mr A] and [Mr B]. They both live alone with their wives in their own homes and have sufficient income to support themselves. They are [ages] respectively. They are both long term Australian residents and have children and grandchildren here, who live separately.    When asked why they are prepared to support him, he said they know him and respect him and believe he is a good person. They know about his circumstances and believe in him and so are willing to support.

21. The applicant said after the criminal case is finished he will return to Egypt.  He would return now but he is not permitted to depart Australia until the case is completed. The Tribunal asked why, when interviewed by Immigration [in] February, he said that he cannot return to Egypt because of his problems with Muslims.  The applicant denies he said this. He said there may have been a problem with the interpreter because they did not use an Egyptian interpreter. He said his problems with Muslims have been resolved for some time now and he has no issue to return to Egypt.  The Tribunal asked, if this is the case, why did he pursue his permanent visa application to the Federal Court until recently. He said his migration agent at that time, [named], told him to do this and that he can continue to have a work permit until the court process is finished. She told him he would not get permission to work if he applied for a criminal justice visa to stay here. The Tribunal put to him that given his conduct remaining in Australia when he says he had no problem to go back, it may have difficulty accepting that he is being truthful now about his future intentions. In response, the applicant repeated that he has no problems to go back to Egypt now and is only not able to  because of the court case. He repeated that he continued the Federal Court process on the advice from his agent and so that he would be able to support himself while he went through the court process.

22. Regarding his debts, the applicant clarified that he has [an amount] finance loan from [a named] bank relating to his car, which is worth more than that.  If he cannot make the repayments they will take the car.  He also has another $[amount] [bank] loan which he is repaying for the past 18 months. 

23. The Tribunal took evidence from [Mr A]. He provided evidence about his living arrangements and family.  He confirmed he met the applicant though the church about 3 years ago and that he only met him in Australia.  The applicant approached him and asked if he could be friends as he has no family in [City 1]. He has seen the applicant weekly since then at church and speaks with him several times a week.  He had basic knowledge about the applicant’s background, what he was doing in Australia and his living arrangements. The witness was aware of the criminal proceedings against the applicant, as the applicant told him about it in general terms but he has not asked for details.  He gave him advice to get a lawyer for the case. The witness is aware he was reporting to the police regularly and it is in this context that he was taken into immigration detention. He told the Tribunal he is prepared to support the applicant because he considers him a good man and he likes him.  His wife has also met him and agrees to support the applicant. When asked why the Tribunal should not be concerned he will engage in criminal activities, the witness said that he (the witness) has been in Australia for over 45 years and he respects the law in this country and he will make sure the applicant respects the law also.  He considers the applicant to be a good man who works hard.

24. Mr [Mr B] gave evidence to the Tribunal about his own family and living circumstances.  He said he met the applicant through the church also. The witness stated he is the President of [Community Group 1] and the applicant has been a member of his organisation for the past two and a half years and has done work as a volunteer for them. Since the applicant’s court proceedings the witness has come to know the applicant’s brother and has also spoken to his mother in Egypt. The witness confirmed that he knows all about the applicant’s criminal proceedings because he told him from the beginning. He sees the applicant regularly, at least twice a week. He confirmed that he has offered for the applicant to stay with him and his wife in their home, until the court case is completed and then he will return to Egypt.  He is prepared to support him because he knows the whole story and he believes him. Also it is the role of his [Group] to help Egyptians who are in need of support. The witness said he also knows the applicant’s brother is willing to provide financial support for him. The witness said the applicant needs to be out of detention to be able to prepare his defence in the criminal matter.

25. The Tribunal asked the applicant if he wishes to make any comment on the witness’ evidence, but he had nothing further to add. It asked the applicant to provide documentary evidence in support of his witnesses’ claimed circumstances regarding their home and financial capacity to support him. It also invited him to provide a statement and evidence from his brother.

26. On 9 March 2018, the Tribunal received the following documents in support:

    ·A signed statement from the applicant’s brother, [named], indicating his relationship to, and support of, the applicant and undertaking to provide financial support to him. Evidence of his bank statement, tenancy for his [business] and Australian passport was attached in support. 

    ·Evidence in support of [Mr A] circumstances, including his wife’s payslip, rates notice and water bill in respect of his property and copy of his Australian passport.

    ·Evidence in support of [Mr B], including utility bills relating to his property, statement of balance in his account and  a statement on letterhead of [Community Group 1], of support of the applicant.

    FINDINGS AND REASONS

1. The delegate’s decision statement indicates that the delegate was satisfied the applicant was the subject of a substantive visa application that has not been finally determined and therefore satisfied cl. 050.212 at time of application.

2. At time of this decision the Tribunal notes that the application for review of the [different temporary] visa refusal is still pending before the AAT and therefore he continues to satisfy 050.212.

   Whether the applicant will abide by conditions - cl.050.223

3. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

4. 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].

5. 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.

6. Relevantly, for this case, cl.050.617 applies and indicates that any one or more of the prescribed conditions may be imposed on the applicant’s Bridging visa; that is, they are all discretionary and none are mandatory. The delegate indicated the following minimum conditions 8101 (no work), 8401 (report as directed) 8506 (notify new address) and 8564 (must not engage in criminal conduct). 

7. The Tribunal notes however that the last several BVEs held by the applicant did not contain a no work condition, and therefore he was permitted to work up until his last BVE expired [in] December 2017. It also notes that having lodged a substantive visa application for a [different temporary] Visa prior to the expiry of his BVE, he was likely also to be eligible to seek a further BVE on the basis of the same conditions at that time, had he applied for the visa prior to being detained. 

8. In these circumstances the Tribunal is of the view that it is appropriate and reasonable to impose the same conditions that were previously imposed: 8207 (no study), 8401 (report as directed) 8506 (notify new address) and 8564 (must not engage in criminal conduct).

9. In any event, the applicant has indicated that he is prepared to comply with any conditions imposed on the visa, and if a no work condition is imposed he has access to financial support from his brother and the two gentlemen from the community who attended to give evidence, [Mr A] and [Mr B].  Both of these men have offered accommodation, food and support to the applicant.  The Tribunal accepts this, on the basis of the oral evidence from [Mr A] and [Mr B]. It also accepts, given the documents provided following the hearing, that they have capacity to provide the support as offered.  The Tribunal also notes and accepts the evidence provided from the applicant’s brother indicating his willingness and capacity to support the applicant.

10. The main concern in this matter for the Tribunal is whether the applicant will comply with condition 8464 in light of the criminal charges made against him.  In considering this, it takes into account the nature and the number of charges that have been laid against him which it considers to be of a very serious nature. The applicant adamantly denies all of the charges and told the Tribunal he is defending the matter. The Tribunal accepts that a significant aspect of the Australian legal system is the concept that a person is innocent until proven guilty and it takes into account that the applicant has pleaded not guilty to all the charges.  It also takes into account that he is likely to be disadvantaged in preparing his defence if he continues to be held in immigration detention, and this may have an impact on the timely progression of that matter. The Tribunal observes the applicant is currently on bail in respect of the criminal matter, and has been so since being charged in September 2016.  It accepts his evidence that he was on strict reporting conditions for bail, which was reduced from three times a week to once a week from last August, and that his bail conditions continue until the next court appearance [in] July 2018. 

11. In considering whether the applicant would engage in criminal conduct on the basis of this history of criminal charges, the Tribunal accepts that he has not yet been found to be guilty of any of the offences. It also accepts that if released, the applicant would continue to be subject to strict bail conditions and that he is highly motivated to comply with those bail conditions pending his hearing [in] July 2018 and that this of itself is a strong incentive for him to refrain from any criminal activity. If found guilty of the offences, he will be sentenced for that matter in accordance with the criminal law.

12. Apart from these criminal charges the subject of the current proceedings, there is no other information before the Tribunal to indicate that the applicant has engaged in any other criminal activity.  Regarding his migration history, he had lawful status up until December 2018.  He was therefore unlawful prior to being located for a relatively short period, and he claims he was unaware his bridging visa had expired.  The Tribunal also observes that he was located by Immigration in the context of complying with his bail conditions, and this is an indicator he will comply with reporting conditions.

13. The Tribunal accepts that the applicant’s brother and his supporters in the community, [Mr A] and [Mr B] are aware of his criminal matter and have undertaken to guide and support him and ensure his compliance with conditions. The Tribunal takes into consideration the applicant’s evidence, also given separately by his witness, that he intends to depart Australia as soon as he is permitted following the criminal proceedings, and that his bail conditions do not permit him to depart Australia prior to that time. It has also considered his evidence of his fears regarding personal harm in detention and history of mental health issues.

14. Taking all of the above into account and 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.

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl.050.221 of Schedule 2 to the Regulations; and

    ·cl.050.223 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member