1810866 (Migration)

[2018] AATA 2104

1810866 (Migration) [2018] AATA 2104 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810866

MEMBER:Nora Lamont

DATE:27 April 2018

PLACE OF DECISION:  Melbourne

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.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8401,8402, 8506, 8564 will be imposed if the visa is granted

Statement made on 27 April 2018 at 12:06pm

CATCHWORDS
Migration – Refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – Criminal offences – Risk to the community – Family violence against the applicant’s wife – Abide by future visa conditions – No history of non-compliance – Credible before the Tribunal – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 73,116, 359AA
Migration Regulations 1994, Schedule 2, cls 050,211, 050,212, 050.221, 050.223, Schedule 8

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

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

2.  The applicant applied for the visa on 28 March 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 the visa was made on 13 April 2018 on the basis the applicant did not satisfy 050.223 because the delegate was not satisfied that the applicant would abide by future visa conditions. As the applicant did not meet the requirements in clause 050.223, the delegate found the applicant did not satisfy the criteria for the grant of the bridging visa. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother and the applicant’s advisor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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 is a national of Lebanon and is [an age] year old married male with three small children. The applicant first arrived in Australia in 2010 on a Family Sponsored Visitor Visa. The applicant applied for a protection visa in 2011 which was refused on June 11 2011. The applicant did not seek a review at the Tribunal. The applicant married in Australia in 2011. In 2012 the applicant returned to Lebanon. On 20 August 2015 the applicant was granted a Subclass 309 Partner visa and returned to Australia on 28 August 2015. The applicant’s first child was born in [year], with the subsequent children being born in [years].

7.  [In] December 2017 the Department received information from [Police] that the applicant was charged with the following criminal offences: Unlawful assault, wilful damage/injury property, recklessly causing injury, assault with a weapon. These charges were the result of family violence against the applicant’s wife.

8.  The applicant was granted bail [in] December 2017 (the day of the offending) and an active family Violence Safety Notice was served on the applicant at the [Police] Station. [In] December 2017 the applicant attended [the] Magistrates Court where the Interim Intervention Court Order was made against him. The interim order prevents the applicant from any contact with his wife and his [children].

9.  On 2 January 2018 the Department commenced cancellation consideration of the applicant’s Partner (provisional) visa under s.116(1)(e)(ii) of the Migration Act. On 31 January 2018 the Department issued the applicant with a Notice of Intent to Consider Cancellation under s116 of the Migration Act. The applicant was given five days to respond however the notice was returned to sender. On 5 March 2018 the Department cancelled the applicant’s visa on the grounds that the applicant was deemed to be a risk to the community.

10.  On 20 March 2018 the applicant sought merits review of the cancellation decision with the AAT and that review is currently pending.

Tribunal Hearing

11.  With the review application the Tribunal was provided with the following documents:

·     A submission from the applicants Registered Migration Agent

·     A letter from [a social service] organisation

·     Copy of the applicants [Police] Criminal History Report

12.  At the hearing the applicant confirmed his migration history and the circumstances up until he was detained. The applicant had originally arrived in 2010 on a sponsored visitor’s visa as he has [brothers] and many Aunts and Uncles who live in [Australia]. The applicant applied for a protection visa which was refused in 2011 and married [to] an Australian citizen. The applicant then returned to Lebanon. In 2015 the applicant was granted a 309 Partner (provisional) visa and arrived in Australia in August. The applicant told the Tribunal that his wife lived next door to one of his brothers and that it was an arranged marriage. The applicant told the Tribunal that his parents remain living in Lebanon. The applicant said that he was working casually at his brother’s [shop] in [a suburb] prior to being detained at immigration detention.

13.  At the hearing the applicant told the Tribunal that his wife has a [medical condition] and DHHS has been involved with the family for several years. The applicant explained that his wife was not capable of taking care of the children by herself and he was required by DHHS to care for the children. This meant he could only work 20 hours a week at his brother’s [shop] in [in a suburb]. The applicant told the Tribunal he loves his children and spent most of his time with them teaching them and loving them. The applicant said that on the day of the offending the applicant had gone to the [shop] to help his brother with some renovating. His wife had come in a taxi and with the [children] to the shop. His wife was shouting in the shop and he drove her and the children home in his brother’s car. The Tribunal discussed with the applicant what occurred that day and what was written in the hearing record from his interview with the Department. The applicant’s account of what occurred did not vary from the account that the applicant gave to the Department. The applicant told the Tribunal he was remorseful, and wanted to live with his wife and children as a family. The applicant appeared to the Tribunal to realise the magnitude of his offending and the consequences of that offending at the hearing.

14.  The Tribunal put to the applicant the following adverse information it has before it under 359AA, for his comment and response. The family’s DHHS officer reported to the Department that the applicant did not follow through with safety plans as instructed and that the applicant’s wife said that the applicant would go out during the day and at night leaving her alone with the children. The Tribunal had before it emails from DHHS outlining that the applicant’s wife had told DHHS after the family violence incident that the applicant would often go to work and leave his wife alone with the children and go out at night and leave her to care for the children. The applicant reported to the Tribunal that he only ever left the children with his wife if he went to get the shopping done. The applicant also stated that he followed the DHHS safety plan at all times, the children had a routine and that he was a good father. The applicant indicated that he had been working with other social workers from [a health service] and they had reported good progress and that they were happy with the way the family was progressing prior to the family violence incident.

15.  The applicant has been taking part in counselling and parenting workshops with [a social service] agency. The Tribunal received a letter from [the social service agency] indicating their support of the applicant and that they felt he was genuinely remorseful, was focused on improving himself and building stronger relations with his children. The Tribunal gives weight to the fact that the applicant has been engaging in self-reflection and seeking assistance in managing his relationships.

Whether the applicant continues to satisfy the time of application criteria - cl.050.221

16. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The applicants visa a 309 Partner Visa (provisional) has been cancelled by the Department because of his police charges and the applicant was indeed an unlawful non-citizen as the applicant did not hold a Bridging E visa. Therefore the Tribunal finds the applicant satisfies 050.211 both at the time of application and at the time of decision. The applicant has since applied for review of the decision to cancel his Subclass 309 provisional visa with the Tribunal therefore the applicant satisfies requirements in 050.212(4) in schedule 2 of the Regulations. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

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 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.

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. 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].

19.  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.

20.  The applicant has no previous criminal record in Australia or in Lebanon. The applicant’s advisor provided information that the police have agreed to drop three of the charges with the applicant pleading guilty to one charge. The applicant was charged [in] December 2017 and was issued with an interim intervention order. The applicant visa was not cancelled until 5 March 2018 a period of over two months in which the applicant did not commit criminal activity nor did the applicant breach any of his bail or intervention order conditions. The Tribunal is satisfied that as the applicant does not have an extensive criminal background, and has not breached his bail or intervention order conditions the applicant will comply with the Bridging Visa conditions imposed upon him.

21.  The applicant’s children are currently living with the applicant’s mother in law and the applicant has not seen his children or his wife since December. The Tribunal is satisfied that the applicant will reside with his brother.

22.  Given that the applicant had work rights on his subclass 309 Partner visa and that he was previously employed working in the family business of his brother with who he will be residing the Tribunal finds no reason why the applicant should not be allowed to work if granted a bridging visa.

23.  The Tribunal has carefully considered the material before it and relevant factors in the context of assessing whether it is satisfied that the applicant will abide by conditions imposed on the BVE. Before the Tribunal the applicant stated he would live with his brother if granted the BVE. His brother confirmed this to the Tribunal at the hearing. In the time the applicant was in the community on bail and prior to his being taken into immigration detention the applicant was living with his brother. The applicant and his brother told the Tribunal that the applicant was living with his brother as part of his bail conditions and should he be granted a bridging visa the applicant would continue to live with his brother. The applicant was also working with his brother prior to being in immigration detention. The Tribunal has considered the applicant’s response when information was put to him for comment, and gives weight to the applicant’s family relationship with his brother and weight to the fact that the applicant was living with his brother before going into immigration detention.

24.  The Tribunal takes into account that this is the applicant’s first criminal offence. Whilst the Tribunal finds it concerning that the applicant has been arrested and charged with family violence and whilst there is some risk involved the applicant has been open and honest in his responses. The applicants own immigration history does not reveal any history of non-compliance and the applicant appears to have been cooperative with the Department and he was generally credible before the Tribunal.

25.  The Tribunal finds that conditions should be applied. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

8401  the holder must report:

a)At a time or times; and

b)At a place;

Specified by the Minister for the purpose.

1. The holder must report:

   a) Within 5 working days of grant, to an office of Immigration; and

   b) To that office on the first working day of every week after reporting under paragraph (a)

8506 The holder must notify immigration at least 2 working days in advance of any change in the holder’s address

1. must not engage in criminal conduct  

26. The Tribunal had regard for the imposition of condition 8101 No Work but found that in this particular case there is no compelling reason why the applicant cannot work as he had work rights on his subclass 309 visa prior to its cancellation and was working with his brother in a family business.

27. Therefore, taking into consideration all of the above and notwithstanding some concerns about the family violence, on the evidence before it and giving weight to the relationship with his brother, his close family ties in the community , his general politeness and cooperation with the Department and the Tribunal, his lack of prior criminal offending, and his compliance in past immigration matters the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

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

DECISION

28.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.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8401,8402, 8506, 8564 will be imposed if the visa is granted

Nora Lamont
Member