1825579 (Migration)

1825579 (Migration) [2018] AATA 4838 (11 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825579
MEMBER:Alison Mercer
DATE:11 September 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 11 September 2018 at 4:42pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General) – ability to abide by visa conditions – current application for judicial review – risk to the community – anti-social and criminal behaviour – criminal charges dropped – chance the applicant may relapses into heavy alcohol use – ability to support himself in the community – reliance on friends and family – no outstanding debts – no security bond – generally credible witness – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 46A, 91K, 116, 189, 195A, 137K, 269, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.612A, Schedule 8, conditions 8101, 8303, 8401, 8506, 8564
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
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).
The applicant applied for the visa on 28 August 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.
The decision to refuse to grant the visa was made on 31 August 2018 on the basis that the delegate was not satisfied that, given the applicant’s immigration history, the applicant would abide by the conditions that the delegate was minded to impose on any bridging visa granted to him. Specifically, the delegate:
·accepted that the applicant met the threshold requirements for a subclass 050 bridging visa E in cl.050.212 and cl.050.221 as the applicant had made an application for judicial review of an earlier decision made by the Immigration Assessment Authority (IAA) to refuse to grant him a class XE subclass 790 Safe Haven Enterprise visa (SHEV), and that review application was ongoing at the time of the delegate’s decision;
·stated that he would impose conditions 8101, 8207, 8401, 8506 and 8564 on any bridging visa E granted to the applicant but was not satisfied that the applicant would abide by these conditions because of his ‘historical and recent behavioural issues and inappropriate conduct whilst in the community [which] demonstrates a disregard for Australian law;’
·found that the applicant originally arrived in Australia as an Illegal Maritime Arrival from Sri Lanka in September 2012, had been granted a series of bridging visas, had made an invalid protection visa application before being invited to, and applying for, a SHEV in late 2015. This was refused in February 2018 and the applicant had sought judicial review of that refusal decision;
·further found that, in the meantime, the applicant had been counselled in mid-2015 regarding several (unspecified) behavioural incidents and had disclosed at a Compliance Client Interview that he had been arrested for public drunkenness [in] May 2018 and had been reported [in] May 2018 for threatening staff of an accommodation lodge with a knife and expressed thoughts of harming members of the public, and had attended a therapeutic appointment [in] May 2018 at which he was highly intoxicated and aggressive towards staff;
·in addition, noted that the applicant had been the subject of 3 other criminal charges, 1 of shop stealing and 2 of failing to answer bail, for which he was not convicted but received a 12 month good behaviour bond;
·found that the Department cancelled the bridging visa E then held by the applicant [in] May 2018 pursuant to s.116(1)(e)(i) of the Act on the basis that the applicant posed a risk to the health and safety or good order of the Australian community. He was detained pursuant to s.189(1) of the Act and transferred to [City 2 Detention Centre];
·was not satisfied that the applicant would abide by condition 8101 (‘no work’) as he was not satisfied that the applicant would be able to support himself in the community without working as the applicant had told him when interviewed that he had no savings and his Centrelink payments had been cancelled. The applicant further indicated that he had worked [in a role] for cash in hand in the past and needed to work to support himself and pay off a debt in Sri Lanka equivalent to approximately AUD $12,000;
·also thought that from the applicant’s previous conduct, he had a clear disregard for visa conditions, public safety and the law and would be highly likely to breach condition 8564 (‘the applicant must not engage in criminal conduct’) and was therefore a risk to the safety of the Australian community; and
·found that the applicant therefore did not satisfy cl.050.223. The delegate stated an authorised officer had not required that a security be lodged by the applicant and thus the applicant’s ability to lodge one to satisfy cl.050.224 was not relevant in this case.
The applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant confirmed that he made an application for judicial review on 25 June 2018 in relation to the SHEV refusal by the IAA and that he had been told that there would be a hearing in November 2018.
The Tribunal discussed with the applicant that its role was to review the refusal of his most recent bridging visa E application, not to examine the merits of his SHEV application and the associated issues of whether he faced harm if returned to Sri Lanka and should be granted protection in Australia. It indicated that it appeared that the applicant met the threshold eligibility criteria for a bridging visa E, in that he had an ongoing judicial review application in relation to the refusal of a substantive visa. The Tribunal therefore stated that it had to consider whether to grant him a bridging visa E, which required it to assess whether he would abide by the conditions that would be placed on that visa. The Tribunal indicated that the conditions that it would impose on any bridging visa E granted to the applicant were:
·Condition 8101 (mandatory) – must not engage in work in Australia;
·Condition 8303 (discretionary) – must not become involved in actions disruptive to or violence threatening harm to, the Australian community or a group within the Australian community;
·Condition 8401 (discretionary) – must report at time(s) and place specified by the Minister;
·Condition 8506 (discretionary) – must notify Immigration at least 2 working days in advance of any change of address; and
·Condition 8564 (discretionary) – must not engage in criminal conduct.
The applicant indicated that he understood these and accepted that they would be imposed on any bridging visa granted to him.
The applicant confirmed his migration history, as set out in the delegate’s decision. He stated that he came to [Island 1] by boat in September 2012 due to problems he experienced in Sri Lanka for being a Tamil with LTTE connections. His [siblings, parents], and his wife and their [children] remain in a village in the Northern Province of Sri Lanka. The applicant had a paternal uncle in [City 1], with whom he initially lived when he came to Australia from [Island 1]. The applicant said that he had a Department case manager who assisted him to make the various protection-related applications between 2012 and 2014 recorded by the delegate. He lived with his uncle in [City 1] for about 8 months and then moved to [City 2] on the encouragement of friends, with whom he shared accommodation. Initially he had a bridging visa that did not have work rights but he received Centrelink payments. Later on, he obtained permission to work and did [work] on a sporadic basis. He had lived in [City 2] since that time, although he visited [City 1] on occasions to see his uncle.
The Tribunal asked the applicant about the reference in the delegate’s decision to the applicant being subject to a Code of Behaviour assessment on 8 May 2015, and being counselled for breaches of this shortly afterwards on 28 May 2015. The applicant said that he was not really sure about this and could not recall exactly what happened. He told the Tribunal that at this time, he was mentally unstable as he had just been told that his wife in Sri Lanka had [a serious medical condition]. He said that this was very distressing and he had to seek help for his mental health. The applicant said that his wife had to have extensive [treatment]. He described himself as being in shock. Around this time, he himself suffered [from a serious medical emergency]. He was extremely worried about who would look after his [children] (then in their [teens]) if he and/or his wife died. The applicant said that after his [medical incident], he was in hospital for a month then he returned to his shared accommodation. The Tribunal asked him what counselling he received about his behaviour during this period. The applicant said that he started drinking heavily because of the mental stress he was under, and he probably did things while drunk, but he cannot remember what they were. He emphasised to the Tribunal that he no longer drank as he had decided that he had to stop for the sake of his wife and children. Back then, he did not really know what he was doing, but people told him he had done things that he did not remember. When asked what kinds of things, he said that he had been told that, when drinking, he would get into fights, urinated in public and stole some things. He told the Tribunal that he did not know or remember this until he was detained and told that such behaviour was the reason for the cancellation of his bridging visa.
The applicant said that anything like this that he did, he did without realising it, and he had changed. He also said that during one period, he was asked to stay in accommodation for people with mental health issues, and this made things worse, as he was sharing a room with mentally ill people who drank heavily. He could not communicate with them because of his limited English and ended up just drinking with them to get by. Therefore, it was hard to remember exactly what he did during this time.
The Tribunal raised with the applicant that the delegate’s decision records that he engaged in some serious anti-social and criminal behaviour in May 2018, including threatening staff at an accommodation lodge with a knife while highly intoxicated and admitting to thinking of harming members of the public with a knife. The applicant said he did not recall what happened exactly. There was an incident at the mental health accommodation service, but he had been drinking. He said that normally, he got along with the staff there. Then he went to [a public place in Suburb 1], and he was arrested there and taken into immigration detention. He was also charged with criminal offences. The Tribunal told the applicant that it had serious concerns about these incidents and expressed concern about how it could be confident that the applicant would not return to drinking and/or exhibit such behaviour again if released from detention. It asked him if he had undertaken any counselling or alcohol-management related treatment to date. The applicant said that he promised that he would never do anything like this again because of the hurt it had caused to his family. He further stated that he felt very isolated in the detention centre because there were no other Tamil speakers in there, and he was sometimes afraid that he would die alone in his sleep due to his health problems. The applicant told the Tribunal that if he were released from detention, he would be provided with accommodation by his friends, all of whom were now working. They had a spare room he could use and would look after him. The applicant said that this was partly because his wife had requested them to do so, and partly because they are his friends. He said that he could also ask his paternal uncle for some financial support. The Tribunal noted that it might be 12 to 18 months before his judicial review application was finalised, and queried whether the applicant’s friends and/or relatives could afford to support him for so long, given he would not have permission to work. The applicant said that they have told him that they can.
The Tribunal raised with the applicant the fact that he had told the delegate that he needed to work to pay back a debt in Sri Lanka equivalent to about AUD $12,000. The applicant said that this was incorrect; he told the delegate that he paid the equivalent of AUD $12,000 in Sri Lanka to come to Australia, but that amount was paid in full at the time he left. He does not owe that sum, or any other amount, to anyone in Australia or Sri Lanka. The applicant confirmed that he did casual [work] in Australia while he still had permission to work.
The Tribunal acknowledged that the applicant had been abstinent from alcohol since being in immigration detention but reiterated its concern that if he were released, and then subject to the same pressures or circumstances as before, he might relapse, and that this might result in a repetition of the criminal and/or anti-social behaviour in which he had previously engaged. The applicant said that his children had pleaded with him to stop drinking and threatened to kill themselves if he continued to do so. He said that he did go to [Welfare Centre 1] before for some counselling with a Tamil counsellor and that he had rung again to see if he could attend counselling if released. He noted that before his current detention, he was able to stop drinking on his own for a period, but this changed when he was living with other mentally ill people as those conditions were bad for him. However, he would not be in that situation if released now as he would be living with his friends. He had also been told by his GP that he had to stop drinking or he could die. The applicant said that it was hard to arrange any treatment in detention but he had been speaking regularly with a Tamil pastor, who supported him to change his behaviour.
The Tribunal asked the applicant about the reference in the delegate’s decision to the applicant having been charged with shop stealing and failing to make bail. The applicant said that he acknowledged that he had made a mistake by stealing an item from a shop but that it was a one-off incident and would not happen again. He said that he did not know why he did it, since he could have afforded the item in question, he returned it to the shop before he left the store and did not protest or deny that he had done it. He was warned and sent home. The applicant said that he did not remember anything about the bail incidents. He was never notified that he had to report somewhere and did not really know what these charges were about.
In relation to the 2018 incidents, the applicant said that the knife he had with him was just one he normally used to carry for cutting up fruit. He honestly did not remember threatening anyone with it, especially the staff at the lodge because he was on good terms with them and went there to use the computer. In response to the Tribunal’s query, the applicant said that he had not been to court over these incidents. The Tribunal noted that the Department’s records indicated that there was to be a hearing [in] August 2018. The applicant said that his lawyer, [Mr A], from [a community legal centre], had told him that the police had dropped all charges against the applicant and that he could therefore apply for a bridging visa E. The Tribunal encouraged the applicant to get written confirmation, if possible, from [Mr A] of this. The applicant said that [Mr A] was no longer acting for him and he was not sure whether he would be able to get [Mr A] to contact the Tribunal. He gave the Tribunal [Mr A]’s contact number, and said that [Mr A] had told him that someone from [State 1] Legal Aid would contact him but so far, no one had. The applicant reiterated that the [Suburb 1] Police had told [Mr A] that they were not pursuing any charges against the applicant. The Tribunal indicated that it would urgently seek clarification of this issue and would contact the applicant if it found that the charges had not been dropped, to get his comments pursuant to s.359A before making its decision.
The Tribunal noted that the delegate did not impose a security bond on the applicant, and appeared to take the view that no amount of money lodged with the Department would convince him that the applicant would abide by the conditions imposed on any bridging visa E granted to him. The Tribunal asked the applicant if he were in a position to lodge a security bond, and if so, how much. The applicant responded that he might be able to do so if he could speak to his friends and uncle in person, but he did not think he could do so from detention. It was not something he could do over the telephone. He said he did not know what kind of sum he might be able to get.
The applicant said that it was very difficult for him being in detention and he strongly felt that his mental and physical wellbeing would be improved if he were released back into the community. The Tribunal noted that while he had experienced considerable hardship, it remained concerned about his ability to abide by the proposed visa conditions if granted a bridging visa, and whether he was generally a risk to the Australian community.
Following the hearing, the Tribunal issued a summons to [State 1] Police to obtain clarification of whether the applicant currently faced pending criminal charges. Acting on the Presiding Member’s directions, a Tribunal Officer also rang [Mr A] of [a community legal centre], who advised on 10 September 2018 that while he no longer acted for the applicant, he understood from having spoken with the [Suburb 1] Police that there were no criminal charges facing the applicant. Late on 10 September 2018, the Tribunal received an email from Australian Border Force indicating that their last contact with the [State 1] Police indicated that there were no charges currently pending against the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The grounds for seeking the visa - cl.050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
In this case, the applicant is seeking to meet cl.050.212(3A). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the Tribunal finds that the applicant meets cl.050.212.
Judicial review, merits review, s.137K revocation
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

The Department’s records indicate that the applicant sought judicial review of a decision made by the IAA on 21 May 2018 to affirm a decision made by a delegate of the Minister on 23 February 2018 to refuse to grant the applicant a Class XE subclass 790 SHEV visa. The Tribunal is satisfied that this is a substantive visa of a type that can be granted while the Australia. It is further satisfied that the judicial review proceedings have not been completed as at the date of the Tribunal’s decision.
Whether the applicant continues to satisfy the time of application criteria - cl.050.221
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. As noted above, the Tribunal is satisfied that the judicial review proceedings lodged by the applicant remain on foot as at the time of the Tribunal’s decision. Accordingly, 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
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. The applicable provision in the circumstances of this case is cl.050.612A.
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].
If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].
In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].
This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:
·8101 (mandatory) – must not engage in work in Australia;
·8303 (discretionary) – must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community;
·8401 (discretionary) – must report at time(s) and place specified by the Minister;
·8506 (discretionary) – must notify Immigration at least 2 working days in advance of any change in address; and
·8564 (discretionary) – must not engage in criminal conduct.
Immigration history to date
The following is drawn from the delegate’s decision record of 31 August 2018, a copy of which was provided by the applicant with his review application, and the applicant’s evidence at hearing:
·the applicant first arrived on [Island 1] as an IMA [in] September 2012;
·he applied for Ministerial intervention pursuant to s.195A on 25 January 2013 and was granted a Class UJ subclass 449 Humanitarian Stay visa on 13 February 2013 and a bridging visa E on the same date, on connection with his s.195A Ministerial request;
·he applicant lodged a Class XA Protection Visa on 7 September 2013 but this was found to be invalid due to the bar imposed by s.91K of the Act;
·on 14 August 2014, the applicant applied to the Minister pursuant to s.46A to have the bar lifted and the bar was lifted on 27 August 2014;
·the applicant was granted a subclass 050 Bridging visa on 4 September 2014;
·on 8 May 2015, the applicant was the subject of a Code of Behaviour assessment and on 28 May 2015, he was counselled in relation to several incidents which were seen to be in breach of the Code of Behaviour;
·the applicant was granted a further bridging visa E on 12 September 2015. A further application to the Minister pursuant to s.46A was made on 25 September 2015 and the bar was lifted on 29 September 2015;
·the applicant was invited on 30 November 2015 to lodge a SHEV visa and did so on 12 May 2017, having been granted further bridging visa Es on 12 December 2015, 10 March 2016, 19 May 2016, 16 September 2016, 15 December 2016 and 29 March 2017;
·on 8 June 2017, he was granted a further bridging visa on the basis that he had lodged the SHEV application on 12 May 2017;
·the Department refused to grant the applicant a SHEV visa on 23 February 2018 and the applicant lodged an application for review of that decision with the IAA on 26 March 2018;
·[in] May 2018, the applicant’s bridging visa was cancelled pursuant to s.116(1)(e)(i) of the Act (risk to health and safety or good order of the Australian community) and he was detained and s.189(1) and transferred to the [City 2 Dentention Centre];
·on 21 May 2018, the IAA affirmed the Department’s decision to refuse to grant the applicant a SHEV visa;
·on 25 June 2018, the applicant sought judicial review of the IAA decision;
·on 29 August 2018, the applicant made the current application for a bridging visa E and a Detention Review Officer was informed of this;
·the delegate refused to grant the applicant a bridging visa E on 31 August 2018; and
·on 3 September 2018, the applicant lodged an application for review of that refusal with the Tribunal.
At the hearing, the applicant confirmed that his application for judicial review is yet to be determined. He said that he has been advised by the Court that he will have a hearing sometime in November 2018. He believes he will be represented by [State 1] Legal Aid but is yet to have this confirmed in writing.
Condition 8101 – Must Not Engage in Work in Australia
The applicant accepted that this condition would be imposed on any bridging visa granted to him and maintained that he would not have to work to be able to support himself. He stated that his friends, with whom he was previously sharing accommodation prior to being detained, would provide him with a room and support him financially so that he would not have to work. He also thought that he might be able to receive financial assistance from his paternal uncle in [City 1]. At hearing, the applicant clarified a number of points where he differed from the delegate on the issue of his financial circumstances. First, he indicated that when he had previously worked [casually], he had had permission to do so on his bridging visa. He denied ever having worked without permission. Secondly, the applicant stated that the delegate’s finding that he owed the equivalent of approximately AUD $12,000 in Sri Lanka (and by implication, would need to work to repay this) was incorrect. He asserted that the delegate misunderstood him at interview, and that what he had told the delegate was that it had cost him the equivalent of approximately AUD $12,000 to come by boat from Sri Lanka to [Island 1] in 2012, and that he had paid that sum up front at that time. The applicant stated that he did not still owe this, or any other amount, to anyone.
The Tribunal found the applicant to be a generally credible witness and therefore is prepared to accept that the applicant has not previously worked without permission and therefore has no propensity (as such) to do so in breach of his visa conditions. It is also prepared to accept that the applicant does not owe the equivalent of AUD $12,000 to people-smugglers in Sri Lanka. The Tribunal accepts that if this is the case, then the applicant’s incentive to work in breach of condition 8101 is reduced. However, the Tribunal retains concerns about the applicant’s ability to support himself without working if released from detention. It appears that any Centrelink benefits which he previously received have been cut off, and it is unclear to the Tribunal whether or not the applicant would be entitled to any such payments if released now. Moreover, while the Tribunal acknowledges that the applicant believes he would have the support of his friends who would provide him with accommodation and food free of charge, the Tribunal notes that the applicant was uncertain for how long they might be able to do this and appeared not to have given this matter much thought (the Tribunal considered this relevant as it estimates that the applicant’s judicial review application might, on present processing times, take over 12 months to be resolved). The Tribunal was not provided with the details of any of these friends, their residential and employment circumstances, or any written evidence of their willingness to assist the applicant financially.
Accordingly, the Tribunal remains concerned about the applicant’s ability to comply with condition 8101 if released from detention. It is not satisfied on the evidence presently before it that the applicant would comply with condition 8101.
Condition 8303 – Must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community
The main issue for concern in relation to the applicant’s ability and willingness to comply with this condition is the part of the delegate’s decision recording that the applicant engaged in anti-social and/or criminal behaviour in May 2015 and May 2018; specifically:
·that the applicant was subject to a Code of Behaviour Assessment on 8 May 2015 and counselled about ‘incidents’ in relation to this on 28 May 2015;
·that [in] May 2018, the applicant brandished a knife at care staff of [Social Housing Centre 1] and used threatening language, resulting in the police intervening;
·that [in] May 2018, the applicant attacked and punched a roommate at the [housing centre], caused damage to a door and floor and assaulted the [centre’s] manager while he (the applicant) was intoxicated and had also urinated throughout the facility. This resulted in him being evicted for posing a risk to staff and residents;
·that [in] May 2018, the applicant allegedly disclosed that he was at [Suburb 1] Shopping Plaza with a knife and had thoughts of harming members of the public. On the same date, the applicant attended the [Welfare Centre 2] service highly intoxicated and acted aggressively towards the staff while believed to possess a knife. He was refused entry and the police were called but did not arrive until after the applicant had left of his own accord; and
·that his bridging visa was subsequently cancelled [in] May 2018 and he was placed in immigration detention.
The delegate also referred to some earlier charges against the applicant which involved shop stealing and 2 counts of failing to answer for bail, for which it is stated that the applicant received a good behaviour bond of 12 months. Unfortunately, the date of these incidents is not recorded and the applicant, although acknowledging that he stole an item from a shop on one occasion, was not able to tell the Tribunal when this was and could not shed any light of the 2 charges of failing to answer bail.
Similarly, the delegate did not outline the details of the 2015 Code of Behaviour Assessment or the related counselling, and the applicant told the Tribunal he was unable to remember what this related to.
The Tribunal has given relatively little weight to the events outlined in paragraphs 36 and 37, partly because of the lack of detail available to it, and partly because the applicant was frank about the shop stealing incident, which appears to have been a one-off inexplicable event and not connected to an ongoing need to support himself by stealing. The Tribunal gives weight to the fact that he was not convicted in relation to this but was given a good behaviour bond.
Therefore, the Tribunal finds that these incidents alone do not prevent it from being satisfied that the applicant would comply with condition 8303.
In response to the Tribunal raising the more serious issues of May 2018 with the applicant at the hearing, he did not deny that these events occurred but maintained that he had no memory of them until told about them by others due to his excessive drinking during this period, but that he was confident that he would not repeat them as he had now stopped drinking. He stated that he started drinking due to the stress of learning of his wife’s [medical condition] and his own [medical emergency] that his drinking worsened while he was resident in [Social Housing Centre 1], and that he had now stopped drinking to protect his health but more importantly, because his wife and children in Sri Lanka had asked him to do so.
The Tribunal accepts that it appears likely that the incidents outlined above arose due to the applicant’s high levels of alcohol consumption during the relevant periods, as both the applicant and the delegate noted that these incidents occurred when the applicant was highly intoxicated, and that he did not generally engage in aggressive behaviour otherwise. The Tribunal further acknowledges that, through his current circumstances, the applicant has been abstinent from alcohol since [May] 2018, a period of some 4 months as at the time of the Tribunal’s decision. While the Tribunal accepts that this is a positive development for the applicant, it retains significant concerns about the possibility of the applicant relapsing into heavy drinking if released from detention (where he currently has no ability to procure alcohol), and thus being likely to again engage in anti-social and/or criminal behaviour.
In relation specifically to criminal conduct (as opposed to anti-social behaviour falling short of criminal conduct), the Tribunal notes that it is unclear whether the criminal charge(s) relating to the incidents of [May] 2018 laid by [State 1] Police at [Suburb 1] have been withdrawn or not. Despite an urgent request to both the Department and [State 1] Police by the Tribunal, the Tribunal did receive clarification from [State 1] Police prior to the expiry of the time period in which it had to make a decision on the review. However, the Department response of 10 September 2018 indicates that the most recent communications they had with [State 1] Police were that there were no pending charges. The Tribunal was able to contact a former legal representative of the applicant, [Mr A], who confirmed by telephone call with a Tribunal officer on 10 September 2018 that he had been advised by the [Suburb 1] Police that any criminal charges against the applicant had been dropped.
While the matter is not free from doubt, the Tribunal therefore proceeds on the basis that the applicant is not currently facing criminal charges in relation to these matters. However, that is not the end of the matter. The incidents themselves still occurred, even if they are no longer the subject of pending criminal charges.
The Tribunal considers these incidents to be extremely concerning. While it accepts the applicant’s explanation that the knife referred to was a fruit knife he habitually carried for food preparation purposes, and not a weapon acquired solely for the purposes of threatening anyone, the fact is that the applicant is recorded to have threatened people with it, to have been aggressive to fellow residents and staff of [Social Housing Centre 1] and to staff of [Welfare Centre 2] and to have urinated in the former facility. He was also recorded in an interview during this period as saying that he had contemplated harming members of the public at [Suburb 1] Shopping Plaza (although the Tribunal accepts that there is no evidence he took any steps to actually do this).
The applicant maintained that he did not remember anything about these incidents, that it was out of character for him and represented behaviour that occurred during a prolonged period of heavy alcohol use due to mental and physical stress; in particular, when he was resident at [Social Housing Centre 1] and not sharing accommodation with his Tamil speaking friends. He maintained that he had now stopped drinking (as he had been able to do on occasions in the past) and was resolved not to drink again, thereby minimising if not eradicating the chance of him engaging in similar behaviour towards others.
The Tribunal found aspects of the applicant’s evidence about these incidents to be somewhat disingenuous, and it is doubtful that he has no memory at all of these incidents. However, the Tribunal accepts that the applicant was drinking heavily during this period due to a combination of stressful factors, as he gave detailed evidence of this in the hearing, and there is medical evidence in the IAA decision he provided to the Tribunal at the hearing that indicates that the applicant has been diagnosed with substance (alcohol) addiction issues and has somewhat limited insight into these, apparently resulting in the appointment of a guardian at one point.
At hearing, the applicant appeared sincere and resolved in his determination not to relapse into heavy alcohol consumption if released from detention. However, the Tribunal is concerned that, on the evidence before it, there is a lack of structured support for him to address his mental health and/or alcohol issues. While the Tribunal accepts that this would not be easy for him to organise from detention, without some concrete evidence of support for him, the Tribunal is not satisfied that the applicant would not be at real risk of relapse if released from detention back into a situation where he has no means to support himself for an indefinite period while his Court case is resolved. The Tribunal is further concerned that if the applicant relapses into heavy alcohol use, he would be likely to engage in the same kind of behaviour as the incidents of May 2018.
Accordingly, at this time, the Tribunal is not satisfied that the applicant would be able to abide by condition 8303.
Condition 8401 – Must report at time(s) and place specified by Minister
The Tribunal notes that the delegate made no mention of the applicant’s failure to do so in the past, and it appears from the Department’s records, as provided to the Tribunal, that the applicant had been in regular contact with the Department in relation to his various visa applications since coming to Australia in 2012. At hearing, the applicant said that he had had a Departmental case officer with whom he usually dealt and indicated that he accepted that he would be required to report regularly.
Given the above, the Tribunal is satisfied that the applicant would abide by condition 8401.
Condition 8506 – must notify Immigration at least 2 working days in advance of any change of address

For the reasons just set out, the Tribunal concludes that the applicant has not deliberately sought to evade contact with the Department in the past, and it is therefore satisfied that he would comply with condition 8506 if released from detention.
Condition 8564 – Must not engage in criminal conduct
Much of what the Tribunal considers relevant to weigh up in relation to this condition is set out above in the Tribunal’s discussion of whether it is satisfied that the applicant would comply with condition 8303. However, in relation specifically to criminal conduct (as opposed to anti-social behaviour falling short of criminal conduct), the Tribunal notes that it is not entirely clear whether the criminal charge(s) relating to the incidents of [May] 2018 laid by [State 1] Police at [Suburb 1] have been withdrawn or not. However, the Department and the applicant’s former legal representative have both been advised that the charges have been dropped by the police.
While the matter is not free from doubt, the Tribunal proceeds on the basis that the applicant is not currently facing criminal charges in relation to these matters. This counts significantly in his favour in relation to the Tribunal’s assessment of his willingness to abide by this condition, but it does not ameliorate the Tribunal’s concerns. As also discussed above in the context of the applicant’s ability and/or willingness to abide by condition 8303, the Tribunal is concerned that the applicant (despite his sincerity at hearing) is ill-equipped to deal with similar conditions to those that prevailed when the 2018 incidents took place. In particular, the Tribunal is concerned that if the applicant relapses into heavy alcohol use, he would be at real risk of engaging in criminal conduct, such as threats, assault and/or property damage. While acknowledging the applicant’s sincere resolve (as expressed at hearing) to remain abstinent, the Tribunal has little positive evidence before it to satisfy it that the applicant would in fact be able to do so. The IAA decision quoted above indicates that the applicant has not to date demonstrated a high level of insight into his own mental health issues. He has not been able to provide the Tribunal with any evidence of participation in any kind of substance abuse or mental health program while in detention or concrete plans to do so if released. While acknowledging that there are practical difficulties for the applicant in being able to do this from detention, given his limited English and his incarceration, this lack of clear support networks for him if released is a significant concern to the Tribunal. While the applicant states that he would have the emotional and financial support of his friends, and that this would improve his mental and physical health much more than continuing to remain in detention, the Tribunal (as already noted) has not been provided with any written evidence by these friends as to what level of support they could provide to the applicant, and over what time frame.
In the absence of such reassurance and/or concrete plan, the Tribunal is not satisfied that the applicant would not be at real risk of relapse and consequently, of anti-social and criminal behaviour. It follows that the Tribunal is not satisfied that he would be able to comply with condition 8564, although it accepts that he is sincere in his belief that he would be able to do so.
Security
The delegate found that no request for the imposition of a security had been made. On review, it is a matter for the Tribunal to determine whether the applicant would only comply with visa conditions if given a financial incentive to do so.
The applicant told the Tribunal that he felt that his friends and/or his uncle might be able to combine funds to lodge a security on his behalf, but was unable to quantify any amount.
The Tribunal has concerns about the availability of any such funds, given the lack of documentary evidence provided in relation to anyone who could do so, together with the applicant’s evidence that he did not think he could secure any money while he was still in detention in any case. However, assuming that a bond of some amount (say $5,000 to $10,000) could be lodged, this does not allay the Tribunal’s concerns about the applicant’s compliance with the above visa conditions. While $5,000 to $10,000 is not an insignificant sum, especially to people in the relatively modest position of the applicant and his family, as described by the applicant, the Tribunal finds that the applicant’s past history of disregard for Australian criminal laws and community standards and his mental health and alcohol related issues, all indicate that $5,000 to $10,000 would not ensure his compliance with his visa conditions, especially if his judicial review application is unsuccessful. The Tribunal is not satisfied that the applicant would be able to comply with the conditions it would impose, even if a security were imposed.
As the Tribunal is not satisfied that the applicant would abide by the conditions attached to a bridging visa, even if there was a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21] – [22]; Liu v Minister for Immigration and Citizenship [2008] FMCA 725 at [33].
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.
For these reasons, the applicant 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. 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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Alison Mercer
Member

[2018] AATA 4838

11 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction