1809823 (Migration)

1809823 (Migration) [2018] AATA 2501 (7 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809823
MEMBER:Michael Ison
DATE:7 May 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 07 May 2018 at 2:24pm
CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 0505 (Bridging (General)) – Abiding by visa conditions – Financial ability – Financial support by family – Criminal conduct – Breach of intervention orders – Work history – Management of immigration affairs – Ongoing communication with family – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 73, 359AA
Migration Regulations 1994, Schedule 2 cls 050.211, 050.212, 050.223, 050.617, 050.618
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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

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 A], [age] year old Indian national.
[Mr A] arrived in Australia on 11 April 2014 on a Student (Class TU) (Subclass 573) Higher Education Sector visa that was valid to 15 March 2015. [Mr A] was granted a student visa as a dependent of his wife who held the primary student visa and was studying in Australia.
[Mr A] was granted:
·a second Subclass 573 student visa on 25 September 2015 that was valid to 15 March 2017;
·a third Subclass 500 student visa on 24 July 2017 that was valid to 10 September 2017;
·a Bridging visa A (Subclass 010) on 9 September 2017 that was valid to 7 November 2017;
·a fourth Subclass 500 student visa on 7 November 2017 that was valid to 31 January 2018.
Each of the visas referred to above were granted to [Mr A] as a dependent of his wife, who continued to hold the primary student visa.
[Mr A’s] visa expired on 1 February 2018 and he became an unlawful non-citizen after that date.
[Mr A] did not obtain another visa.
Prior to the expiry of his visa, [Mr A] had separated from his wife.
[Mr A’s] wife and sister in law reported to Victoria police [in] March 2018 that [Mr A] was verbally abusing and harassing them.
Victoria police located [Mr A] [in] March 2018 and issued a safety protection notice to protect [Mr A’s] wife, which was subsequently replaced by an intervention order preventing [Mr A] from approaching or contacting his wife.
[Mr A] was placed into immigration detention [in] March 2018.
[Mr A] applied for a [permanent] visa on 4 April 2018.
[Mr A] applied for a Bridging (Class WE) (Subclass 050) visa on 5 April 2018.
[Mr A’s] application for a bridging visa was refused by a delegate of the Minister on 9 April 2018.
At the time [Mr A] applied for the bridging visa, class WE contained two Subclasses: Subclasses 050 and 051. In the present case, [Mr A] 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 provides that to be granted a bridging visa the Minister must be satisfied that the applicant will comply with any conditions imposed on that visa.
As noted above, the decision to refuse to grant the visa was made on 9 April 2018. The delegate of the Minister was not satisfied that [Mr A] would comply with condition 8101 (no work) or condition 8401 (report as directed).
The hearing
[Mr A] appeared before the Tribunal on 13 April 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
[Mr A] was represented in relation to the review by his registered migration agent, [Mr B] from Milestone Education and Immigration Services Pty Ltd. [Mr B] attended the Tribunal hearing.
The Tribunal asked [Mr A] at the start of hearing whether he had read the decision of the delegate of the Minister and whether he understood that decision. [Mr A] said he was not aware of the delegate’s decision. [Mr B] told the Tribunal [Mr A] was aware of the delegate’s decision and that [Mr B] had explained the decision to [Mr A].
At the hearing the Tribunal informed [Mr A]:
·The Tribunal was reviewing the decision by the delegate of the Minister to refuse [Mr A’s] application for a Bridging E (Class WE) visa;
·The Tribunal was satisfied [Mr A] had made a valid application for a Bridging E (Class WE) visa as [Mr A] had made an application for a substantive visa that can be granted in Australia, being a protection visa, and that application had not yet been decided, which meets the requirements of cl.050.212(3) of Schedule 2 to the Regulations;
·The only issue before the Tribunal therefore, was whether [Mr A] would comply with any conditions the Tribunal considers reasonable to impose if [Mr A] were granted a Bridging E (Class WE) visa; and
·The consequences of being granted or not being granted a bridging visa.
The Tribunal explained the delegate’s decision to [Mr A] in the following terms:
·The delegate was not satisfied you would comply with the conditions they thought appropriate to apply to any bridging visa granted to you. Those conditions include condition 8401 that you must report at a time and place specified by the Minister. As your relationship with your wife had allegedly ceased the delegate found you were unlawful since 31 January 2018. The delegate went on to find as you had not contacted the Department during your period of unlawfulness and your answers were vague during your compliance interview you would not remain engaged with the Department and report to the Department as required.
·The delegate also found you have been working at a car wash up until recently and would not comply with condition 8101 that you must not work whilst you are on a bridging visa.
The delegate of the Minister did not make any adverse findings against [Mr A] in relation to discretionary conditions 8506 (must notify the Department at least two days in advance of any change of address) and 8564 (no criminal conduct) which the delegate also thought reasonable to impose on any bridging visa that would be granted to [Mr A].
Written submissions and documents provided to the Tribunal on behalf of [Mr A]
Prior to the hearing the Tribunal received a four page written submission dated 12 April 2018 from [Mr B] for [Mr A]. The submission set out [Mr A’s] recent circumstances in Australia and made submissions that [Mr A] would comply with the conditions the delegate said should be imposed on any bridging visa granted to him.
During the hearing the Tribunal asked [Mr A] whether he had read the submission and whether he agreed with or wanted to change any of its contents. [Mr A] told the Tribunal he had not read the submission. [Mr B] said the submission was based on [Mr A’s] instructions but because [Mr A] is in immigration detention he had not had the opportunity to give it to [Mr A] to read.
During the hearing the Tribunal indicated to [Mr A] that he needed to provide evidence to the Tribunal of the funds available to him to live in the community without having to work. The Tribunal also expressed its concern about [Mr A’s] evidence of his ongoing poor relationship with his two brothers-in-law in Australia.
In response to these matters, [Mr B] submitted that he had spoken to family and friends of [Mr A] and that he would provide statutory declarations and submissions in support of [Mr A’s] evidence about his financial means and his ability to comply with the conditions of any bridging visa granted to him.
Given the funds [Mr A] says will be available to him are to come from family and friends, some of whom are overseas, the Tribunal gave [Mr A], through [Mr B], one week, being Friday 20 April 2018, to provide this evidence.
After the hearing the Tribunal received an email from [Mr B] dated Thursday 26 April 2018 1:52 PM stating that [Mr B] will need until the next day to provide all required documents.
The Tribunal did not receive any communication from [Mr B] on Friday 27 April 2018.
On Tuesday 1 May 2018 a Tribunal officer rang [Mr B’s] office four times, left a voice message and sent [Mr B] an email requesting [Mr B] urgently contact the Tribunal to advise when, if it all, he would be providing submissions on behalf of [Mr A] to the Tribunal.
On Wednesday 2 May 2018 the Tribunal received an email date stamped 1:14 PM from an associate of [Mr B’s], advising that [Mr B] had become unwell on Tuesday afternoon but was expected back in the office on Thursday 3 May 2018.
The Tribunal responded to that email at 3:27 PM on Wednesday 2 May 2018 to [Mr B] and his associate to advise that it had been 19 days since the hearing and six days since the Tribunal had last heard from [Mr B], such that the Tribunal may proceed to makes its decision without further delay, noting the applicant [Mr A], is in detention and such cases are expected to be expedited and decided upon by the Tribunal quickly.
At the time of this decision the Tribunal has not received any further communication from [Mr B] or his associate.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
An applicant for a Bridging E (Class WE) visa must, at the time of application, satisfy cl.050.211 and cl.050.212. The Tribunal has already stated it is satisfied that [Mr A] satisfies the requirements of cl.050.212.
The Tribunal is also satisfied that [Mr A] satisfies the requirements of cl.050.211 because at the time of application [Mr A]:
·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 rr.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
Clause 050.221 requires that an applicant for a Bridging E (Class WE) visa must continue to satisfy the criteria set out in cl.050.211 and cl.050.212 at the time of the Tribunal’s decision.
The Tribunal is satisfied [Mr A] continues to satisfy the requirements of both clauses at the time of this decision as [Mr A] remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense and his application for a substantive visa able to be granted in Australia, in this case a protection visa, remains on foot.
The issue in this case therefore is will [Mr A] comply with any conditions that would be imposed on any bridging visa that may be granted to him.
Whether the applicant will abide by conditions - cl.050.223
Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to [Mr A], he will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.
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 [Mr A] would abide by conditions imposed, the Tribunal is to consider the likely conduct of [Mr A].
In that context, relevant considerations may include [Mr A’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 [Mr A] had shown any contrition for his unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].
If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, [Mr A] meets cl.050.223. However, if not satisfied that [Mr A] will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
No security was imposed by the delegate of the Minister, noting the delegate refused [Mr A’s] application. The Tribunal does not consider the imposition of a security in the circumstances of [Mr A]’s application would ensure [Mr A] will abide by the conditions imposed on any bridging visa granted to him.
In relation to the conditions that could be imposed on any bridging visa granted to [Mr A], in this case cl.050.617 applies because [Mr A] does not meet the requirements of cl. 050.611 to cl. 050.616A inclusive.
Clause 050.617 provides that the decision maker can impose any one or more of the following conditions on a Bridging E (Class WE) visa granted to a non-citizen under Part 050 of the Regulations:
·8101 – no work;
·8104 – no more than 40 hours work a fortnight;
·8116 – work limitation;
·8201 – study limitation;
·8207 – no study or training in Australia;
·8401 – report at time and place specified by the Minister;
·8402 – report within 5 working days of grant to Immigration and every week thereafter;
·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 the visa holder’s passport or obtain a 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.
The Tribunal considered the application of each of these visa conditions in [Mr A’s] circumstances.
The Tribunal considers that the following conditions should be imposed on any Bridging E (Class WE) visa granted to [Mr A] in the circumstances of this case:
·8101      The holder must not engage in work 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;
·8564The holder must not engage in criminal conduct.
The Tribunal asked [Mr A] whether he had any objection to any of these conditions being imposed if a bridging visa was granted to him. [Mr A] responded that he will not be working as he has money and he would report to the Department, twice a week if necessary.
The Tribunal asked [Mr B] whether he wanted to make any submissions on behalf of [Mr A] in relation to the imposition of the above conditions. [Mr B] did not make any submissions.
The likely conduct of [Mr A]
The Tribunal notes the following in the delegate’s decision dated 9 April 2018 (unedited):
[Mr A] became unlawful on 01/02/2018 as his visa expired.
[Mr A’s] relationship with his wife breakdown [sic] and are now separated. However time of separation is unclear.
[Mr A] was aware he no longer had a valid visa and failed to present to the department to rectify his immigration status.
[Mr A] stated he can be reliant on funds from his family to support him. [Mr A] was unable to demonstrate how they would provide support only stating that they would do that.
[Mr A] numerous times throughout the BV E interview stated he relied on his wife to rectify his visa situation. This is whilst he confirmed an active AVO is against him and he is no longer in a relationship with his wife.
I have also assessed [Mr A] against 050.223 in Schedule 2 of the Regulations. I am not satisfied [Mr A] will report as directed as required by condition 8401 Must report at a time and place specified by the Minister. This is particularly given he has made no effort to contact the department since becoming unlawful on 31/01/2018.
Nor am I satisfied that the detainee will comply with condition 8101 No work, particularly given he has worked whilst unlawful and without lawful authority to do so.
… The detainee provided rather vague responses during interview and I am unable to have confidence in his willingness to remain engaged with the Department if he was to be released.
Had [Mr A] not been located by police there is no evidence before me to indicate he would have voluntarily presented to the department or have made arrangements to depart or rectify his immigration status.
At the hearing and in written submissions [Mr A] gave evidence that he:
·Was living on and off with his wife at the time his wife’s primary visa and his dependent visa expired and had no knowledge that his wife did not include his name on her application for another primary visa because she had told him that she would include him in the application;
·Was concerned his wife may not include him on her new visa application because he was aware that her two brothers living in Australia were allegedly putting pressure on his wife to divorce him and find another partner;
·Believes his wife was granted a Temporary Graduate (Subclass 485) visa on 18 March 2018 as she had completed her Master of Accounting studies;
·Only became aware he was not included on his wife’s visa as a dependent when on 18 March 2018 he asked his wife for a copy of his visa to give to his employer because he was working as [an occupation];
·Was allegedly told by his wife that at that time the lawyer she had instructed in India to lodge her application had made a mistake in not including [Mr A] as a dependent on her visa application and that she needed $1,000 to give to the lawyer to fix that mistake;
·Gave his wife $1,000 on 18 March 2018;
·Received a phone call from his wife on 19 March 2018 in which she allegedly stated that [Mr A] would receive his visa soon;
·Called his wife multiple times to obtain a copy of his new visa, which resulted in his wife calling the police and alleging that [Mr A] was harassing her;
·Was arrested by police on 22 March 2018 and placed in immigration detention the same day;
·Received on 23 or 24 March 2018, whilst in detention, a copy of an intervention order his wife had obtained against him;
·Has a poor relationship with his two brothers-in-law who [Mr A] alleges have been using his wife to get him to hand over all his earnings so that she will give the money to them;
·Will not need to work as he has $6,500 in Australia, has brothers in [different countries] who can provide financial assistance as needed and is owed another $6,000 to $7,000 by friends in Australia having helped a friend to buy a car and another to pay their study fees;
·Is due to be repaid the loans he made [in] April 2018 and [in] May 2018;
·Did have a job working in a [workplace] but does not have that job now;
·Was working as [an occupation] just before being detained;
·Intends to divorce his wife; and
·Will change his place of residence if released from detention to avoid further contact with his brothers-in-law.
On 12 April 2018 the Tribunal received a Security Risk Assessment of [Mr A] from Serco Group Pty Ltd (Serco). Serco manages the Maribyrnong Immigration Detention Centre for the Australian government. The Tribunal considers the Security Risk Assessment to be a document that is provided in confidence to the Tribunal.

The Security Risk Assessment contained information about [Mr A] that was potentially adverse to his application. As [Mr A] had not seen that information prior to the hearing the Tribunal followed the procedure under s.359AA of the Act to share that potentially adverse information with [Mr A] and to obtain his response to it.
During the hearing the Tribunal read the following to [Mr A] and also gave both [Mr A] and [Mr B] a written copy of what the Tribunal read out:
[Mr A] I am going to formally share with you under s.359AA of the Migration Act some information that is potentially adverse to you.
This information I will put to you is information that without explanation is something that I consider would be the reason, or part of the reason, for affirming the Department’s decision that I am reviewing.
The potentially adverse information is information I have on the Tribunal file that you do not have. It is part of a security assessment, in which the following matters are noted:
-[Mr A] has a history of domestic problems including verbal abuse, harassment and striking his wife on the head one occasion with a chopping board in 2016;
-[Mr A] has been issued with two IVO’s protecting his wife;
-[Sentence deleted];
-[Mr A] has repeatedly called his wife since the second IVO has been in place despite the IVO conditions including that he must not approach or contact his wife;
-[Mr A] was doing burnouts in front of his wife’s house;
-[Mr A] drove his vehicle at family members in front of his wife’s house;
-Police found various [items] at your [home];
That information is important in your case because it could lead me to the view that you will not comply with condition 8564 no criminal conduct. I could form that view because in the absence of explanation from you the information indicates you have a history of having two intervention orders (IVO) in favour of your wife against you, one of which has expired. In relation to the current IVO there are allegations you have breached that IVO. There are also allegations [prohibited goods] belonging to you was found when you were [detained]. I have not formed any view in relation to those allegations, and will not form any view until I hear from you, but I could.
That is important because if I do form that view that would be a reason, or part of the reason, for affirming the decision of the Department in your case and refusing your application for Bridging visa E on the grounds the Tribunal is not satisfied you would not engage in further criminal conduct.
I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and consider your response to that information.
Do you want to comment on or respond to the information I have just provided to you now or would you like additional time to consider it before you respond?
[Mr A] requested, and was granted by the Tribunal, a 15 minute adjournment so that he and [Mr B] could consider the potentially adverse information put to [Mr A] by the Tribunal before [Mr A] responded to that information.
When the hearing resumed, both [Mr A] and [Mr B] told the Tribunal they had sufficient time to properly consider the information the Tribunal shared with them. [Mr A] then gave the following evidence in response to the potentially adverse information:
·[Mr A] has never struck his wife with anything, they have just had arguments;
·The chopping board allegation was made by his brothers-in-law who were at [Mr A] and his wife’s house when [Mr A] and his wife had an argument over him throwing out an old pressure cooker. [Mr A] says the allegation was false;
·[Mr A’s] wife obtained an intervention order against him in 2016 but withdrew the order after one month and returned to live with [Mr A] in Noble Park;
·[Mr A’s] wife obtained the second intervention order against him in March 2018 in the circumstances described in paragraph 56 above;
·[Sentences deleted];
·[Mr A] has communicated with his wife using [social media] whilst he has been in detention;
·[Mr A] is aware that communicating with his wife is potentially a breach of the current intervention order his wife has against him. However, [Mr A] does not believe that should be an issue as his wife started those communications, it was just between the two of them and [Mr A] believes his wife will withdraw the intervention order as his wife has done nothing wrong and he believes the issues in their relationship are caused by her brothers;
·He alleges his brothers-in-law are abusive towards him and swear at him and hit him, particularly when they are drunk, and threaten him;
·When [Mr A] separated from his wife he was going to live in a house on his own but was so scared his brothers-in-law may come and abuse him that he went into shared accommodation instead and lives with an Indian family; and
·The allegations of [Mr A] doing ‘burnouts’ and driving his vehicle at family members are false. He is [an occupation] and [in] March 2018 delivered a pizza next door to his wife’s house. This led to what he alleges are the false allegations.
[Mr B] requested the opportunity to make written submissions on behalf of [Mr A] in relation to these [matters]. As noted above the Tribunal agreed to this request.
The Tribunal also informed [Mr A] that the Tribunal has a copy of his movement records on its file but does not consider the information in those records to be either adverse to [Mr A] or relevant to the issues being considered by the Tribunal in this review. The Tribunal nevertheless gave [Mr A] the opportunity to comment on his movement records, which he declined. The Tribunal also asked [Mr B] if he wanted to make any submissions on [Mr A’s] movement records. [Mr B] declined to do so.
Will [Mr A] comply with condition 8101 (no work)?
The Tribunal was not convinced by [Mr A’s] evidence that he will not work if he is granted a bridging visa and released into the community.
[Mr A] has not provided the Tribunal with any written documentation to support his evidence that he has funds available to him in Australia or to substantiate the loans he says he has made to others.
The evidence [Mr A] gave in relation to financial support being available from his brothers overseas was vague and lacking in detail. [Mr A] did not indicate how much money each of his brothers could give him, how often or for how long.
The Tribunal discussed its concerns that [Mr A] may need to work if granted a bridging visa with [Mr A] during the hearing. The Tribunal very clearly communicated that if the Tribunal was going to be able to give more than little weight to [Mr A’s] evidence in this regard it was important that [Mr A] provide written documentation, such as statutory declarations from his brothers overseas, to support the evidence he gave.
[Mr A] told the Tribunal he would have the loans repaid into his bank account and would also have his brothers transfer funds into his account so he could show those transactions to the Tribunal.
[Mr A] has not provided any written documents since the hearing to support his evidence in this regard at the hearing.
[Mr A] gave evidence of his work history during his time in Australia, which indicates he has been working since shortly after arriving in Australia. This shows he has had an ability to obtain work in Australia in the past. His work as a car wash attendant and [an occupation] is potentially work that is relatively easily available in the community.
Given the unconvincing and vague nature of [Mr A’s] evidence of his financial circumstances, the Tribunal finds that [Mr A] will not comply with condition 8101 (no work) if he is released into the community on a bridging visa.
Will [Mr A] comply with condition 8401 (report as directed) and condition 8506 (notify Immigration at least 2 working days in advance of any change of address)?
The Tribunal accepts [Mr A’s] evidence that in the past he has relied on his wife, as the primary visa holder, to attend to their immigration affairs, which presumably included dealing with the Department.
[Mr A] intends to move residence and has a history of stable accommodation arrangements such that there would be no impediment to him informing the Department of his address or any change to it.
It is apparent to the Tribunal that [Mr A] is now very much aware of his immigration status and is now being assisted to manage his immigration affairs by [Mr B]. [Mr A’s] evidence indicates that he no longer relies on his wife to manage his immigration affairs. [Mr A] indicated to the Tribunal he is seeking his own substantive visa rather than being a dependent on his wife’s visa.
In those circumstances the Tribunal finds that [Mr A] will engage with the Department as required.
The Tribunal finds that [Mr A] will comply with condition 8401 (report as directed) and condition 8506 (notify Immigration at least 2 working days in advance of any change of address).
Will [Mr A] comply with condition 8564 (not engage in criminal conduct)?
[Information deleted].
For similar reasons, the Tribunal also gives little weight to the allegations that [Mr A] was doing ‘burnouts’ in front of his wife’s house and drove his car at family members. [Mr A] also denied these allegations and no information was placed before the Tribunal to indicate [Mr A] had been charged with any criminal offences over those allegations. The Tribunal also did not have the benefit of evidence from [Mr A’s] wife or brothers-in-law to substantiate or otherwise these allegations.
However, [Mr A] has admitted to potentially breaching the current intervention order his wife has in place against him. This evidence concerned the Tribunal.
The Tribunal has not been provided with a copy of either the first or second intervention orders. [Mr B] indicated to the Tribunal that he would provide a copy of the second intervention order with submissions and that his submissions would specifically address the Tribunal’s concerns about the risk of [Mr A] breaching condition 8564 (not engage in criminal conduct).
As noted above, the Tribunal has not received any submissions and related documents from [Mr B] on behalf of [Mr A], since the hearing.
The Tribunal questioned [Mr A] during the hearing about the potential breach of the intervention order and also raised its concern that further interaction with his brothers-in-law could lead to him breaching condition 8564.
[Mr A’s] evidence that he thought his wife would withdraw the second intervention order and that he would move to a new address which he would keep secret from his brothers-in-law did not alleviate the Tribunal’s concerns nor convince the Tribunal that he would not engage in any criminal conduct in the future.
Intervention orders are issued by the courts, in this case of Victoria, to protect a person or people from the risk of imminent harm. The conditions of each order respond to the specific circumstances of each application and a breach of any of the conditions is a criminal offence.
[Mr A’s] evidence indicated that he did not regard complying with the conditions of the second intervention order obtained by his wife as a serious obligation. His evidence that it was just a matter between his wife and he revealed to the Tribunal [Mr A] lacked an understanding of both the nature and purpose of an intervention order and his strict obligations as a result.
The Tribunal also remains concerned that [Mr A] will have ongoing interaction with his brothers-in-law. In the Tribunal’s view, based on [Mr A’s] evidence, such interaction is likely. [Mr A] gave evidence he intends to divorce his wife but also gave evidence his wife would withdraw the intervention order, because she had done so with a previous intervention order after they resumed their relationship at that time.
If [Mr A] does have ongoing interaction with his brothers-in-law then, based on [Mr A]’s evidence of them making allegedly false allegations against him in the past, it will likely result in further allegations of criminal conduct against [Mr A]. The Tribunal also remains concerned the interaction itself could cause [Mr A] to engage in criminal conduct, even if it is in response to the actions or alleged provocations of his brothers-in-law.
Based on [Mr A’s] evidence to the Tribunal, the Tribunal finds that [Mr A] will not comply with condition 8564 (not engage in criminal conduct).
Conclusion
On the evidence before it, the Tribunal is not satisfied that [Mr A] will abide by all conditions imposed on the visa if granted. Therefore, [Mr A] does not meet the requirements of cl.050.223 of Schedule 2 to the Regulations.
In summary, the Tribunal finds:
·[Mr A] has not provided evidence to the Tribunal’s satisfaction that he has sufficient means and support to live in the community without needing to work, such that the Tribunal is not satisfied he will comply with condition 8101 (no work);
·[Mr A] is now aware of his immigration status and has taken control of the management of his immigration affairs, including by retaining the services of a registered migration agent, such that the Tribunal is satisfied [Mr A] will comply with condition 8401 (report as directed) and condition 8506 (notify Immigration at least 2 working days in advance of any change of address); and
·[Mr A] has admitted to potentially breaching the terms of an intervention order his wife currently has against him and has not demonstrated an understanding of his strict obligations to comply with that order. [Mr A] is also likely to have ongoing interaction with his wife and her family in Australia such that he is at risk of engaging in criminal conduct. As a result, the Tribunal is not satisfied [Mr A] will comply with condition 8564 (not engage in criminal conduct).
For these reasons, [Mr A] does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. [Mr A] 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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2018] AATA 2501

7 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction