1831346 (Migration)

[2018] AATA 5539

1831346 (Migration) [2018] AATA 5539 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831346

MEMBER:Nathan Goetz

DATE:1 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2018 at 11:05am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prospect of complying with visa conditions imposed – no work requirement – family financial circumstances – meeting living expenses – wife’s employment prospects – no criminal conduct requirement – serious criminal charges – released on bail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, 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

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 (WE-050) visa under s.73 of the Migration Act 1958 (the Act).

2. The [visa applicant] came to Australia from Turkey on [a temporary] visa on 25 October 2015. This visa had been granted on 8 October 2015 and was to cease on 2 September 2017.

3. On 16 September 2016, the applicant lodged a Protection (XA-866) visa application with the department. No decision has yet been made by a delegate about this matter. Following the lodgement of the protection visa application, the applicant was granted a Bridging A (WA-010) visa on 23 September 2016.

4. On 27 August 2018, the applicant was charged by New South Wales Police with sexual intercourse without consent. He was granted bail by police with conditions to not work as a [Occupation 1] as well as a condition to not enter [Suburb 1] or surrounding areas. The applicant told the Tribunal that no other conditions bail conditions were imposed. The applicant was required to appear on bail at the Liverpool Local Court on 25 October 2018.

5. On 26 September 2018, the applicant’s Bridging A visa was cancelled by a delegate and the applicant became an unlawful non-citizen. The basis of that cancellation was that ‘the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community’ pursuant to s.116(1)(e) of the Act. On 1 October 2018, the applicant lodged a review of this decision with the Tribunal in case 1828705 and this review has not yet been decided.

6. Regarding the application which is before the Tribunal to be decided, the visa applicant applied for a Bridging E visa on 1 October 2018 while he was an unlawful non-citizen in an attempt to regularise his migration status (as he was an unlawful non-citizen due to his Bridging A visa being cancelled on 26 September 2018).

7. 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)

8. On 15 October 2018, the delegate refused to grant the Bridging E visa on the basis that the applicant did not meet the requirements in clause 050.223 in Schedule 2 of the Regulations. The delegate found that the applicant would not comply with conditions which would be imposed on the Bridging E visa if it was granted. The applicant was notified of this decision under cover letter dated 23 October 2018. The decision notes the following:

9. The police information indicates that the applicant met the alleged victim [in] August 2018 when the victim and her friends [boarded a vehicle operated by the applicant]. It is alleged that after dropping off the victim’s friends and upon arriving at the victim’s residence, the victim was asleep in the back seat of the [vehicle]. It is alleged that the applicant has driven the victim to a nearby car park where the offence for which he has been charged is alleged to have occurred. The police information indicates that the alleged victim was seventeen years of age and was in an intoxicated and vulnerable state and was drifting in and out of consciousness.

10. On 23 October 2018, the applicant was detained by police under s.189 of the Migration Act 1958 as an unlawful-non citizen and was given a copy of the decision record.

11. On 25 October 2018, the applicant attended the Liverpool Local Court on the criminal charge. The proceeding were adjourned to 20 December 2018 to allow the brief of evidence against the applicant to be served. The applicant told the Tribunal that he will be pleading not guilty to the charges. The applicant told the Tribunal that he was represented by a privately funded lawyer on 25 October 2018, but that he will now apply for a legal aid lawyer for future court appearances because he cannot afford private representation.

12. On 25 October 2018, the applicant lodged a review of the decision to refuse to grant him the Bridging E visa with the Tribunal. That is the matter which is being determined in this decision. The review applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments as to why he should be granted the Bridging E visa.

13. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant will abide by conditions - cl.050.223

14. 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.

15. 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].

16. In this case, cl.050.613A and cl.050.618 of the Regulations set out the conditions which may be attached to the grant of the Bridging E visa.  Cl.050.613A applies because the applicant has applied for a protection visa and there is no evidence that he ‘is not in a class of persons specified by the Minister in writing for the purpose of that paragraph’.  This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. Cl.050.618 is also able to apply. That clause allows condition 8564 to be imposed in addition to any other conditions imposed by another provision of cl.050.6 of the Regulations.

17. The Tribunal considers that the following condition should be imposed in the circumstances of this case:

18. 8101: The holder must not engage in work in Australia (‘No work requirement’). This is a mandatory condition which must be imposed on the visa.

19. 8207: The holder must not engage in any studies or training in Australia (‘No study requirement’). This is a discretionary condition which may be imposed on the visa. In the Tribunal’s view, this condition is necessary because the visa applicant has been charged with criminal offences involving a child, and if the visa applicant was to be released into the community and engage in any studies or training in Australia, this would potentially bring him into contact with children

20. 8401: The holder must report (a) at a time or times; and (b) at a place specified by the Minister for the purpose. (‘Reporting requirement’). This is a discretionary condition and may be imposed on the visa. In the Tribunal’s view, this condition is necessary because the department needs to maintain regular contact with the applicant if he is released into the community.

21. 8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address (‘Residential requirement’). This is a discretionary condition which may be imposed on the visa. In the Tribunal’s view, this condition is necessary because the department needs to be aware of the applicant’s living arrangements if he is released into the community.

22. 8564: The holder must not engage in criminal conduct (‘No criminal conduct requirement’). This is a discretionary condition which may be imposed on the visa. In the Tribunal’s view, this condition is necessary because the applicant has been charged with a criminal offence.

    Security

23. 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.

24. There is no evidence before the Tribunal that an associated security decision has been made by the delegate pursuant to s.269 of the Act and that this is also under review. The delegate found that the applicant would not abide by conditions and did not consider the security question.

    FINDINGS AND REASONS

25. The Tribunal discussed with the applicant the fact which gave rise to the cancellation of his Bridging A visa and the refusal of his Bridging E visa, as well as his family circumstances, living arrangements, his current employment and his financial circumstances. The applicant told the Tribunal that he would comply with the proposed conditions of a Bridging E visa. He also told the Tribunal that he wanted to be with his family and that his detention was akin to prison.

26. The Tribunal accepts that the applicant is married and has a [age] child. He lost his [job] when he was charged by the police. He has not worked since that time. Before he was charged and lost his job, the applicant looked after his child during the daytime while his wife was at work in her [specified] job (where she earned approximately $2000 per fortnight) while he worked in the evenings as [Occupation 1] (when his wife was at home). Although the Tribunal put to the applicant under s.359AA that the information regarding his wife’s pay was different to the information contained in his application for fee reduction (which he submitted to the Tribunal concerning his pending Bridging A visa cancellation review), the Tribunal accepts the applicant’s explanation that he filled in this documentation under the belief that the form asked for weekly (as opposed to fortnightly) income.

27. The Tribunal accepts that the applicant, his wife, and child have no other family support in Australia. The Tribunal also accepts the applicant’s evidence that his wife is no longer employed as at 25 October 2018 when he entered into detention and that she now cares for the child permanently. The Tribunal accepts the evidence of the applicant that there is no other means of financial support available to his family in Australia.

28. The Tribunal accepts the applicant’s evidence that he, together with his wife and child, have lived at [specified address] for approximately a year and that this residence is shared with a housemate from whom they sublet. They pay $300 per week while and the housemate makes up the other $160 per week for the total rent of $460 per week. There is no evidence before the Tribunal that the applicant has not advised the department of any changes to his residential arrangements. Although the Tribunal put to the applicant under s.359AA that the information about his rent was different to the information contained in his application for fee reduction (which he submitted to the Tribunal concerning his pending Bridging A visa cancellation review), the Tribunal accepts the applicant’s explanation that he filled in this documentation under the belief that the form asked for weekly (as opposed to fortnightly) expenses.

29. The Tribunal accepts the evidence of the applicant that during the period of his Bridging A visa, he did not engage in any study of training, and instead worked (as he was entitled to do) until he was charged by police, and that he has no plans to study or train.

30. The Tribunal also accepts that the visa applicant was engaged with the department regarding his migration status. He responded to the cancellation of his Bridging A visa promptly by seeking review of the decision with the Tribunal within 5 days of the visa being cancelled. He sought to regularise his migration status pending the resolution of his Bridging A visa cancellation by lodging an application for a Bridging E visa. He did this the same day as he sought review of the Bridging A visa cancellation.

31. Although the applicant was an unlawful non-citizen while his Bridging E visa application was being considered, it is clear that the department were not concerned by his unlawful status pending the determination of his Bridging E visa application. There is nothing on the file to suggest that the applicant was not actively engaging with the department or that he was actively evading the department. There were no attempts by the department to place the applicant in detention during the period his Bridging E visa application was being considered. Indeed, it was only once the Bridging E visa application was refused in a decision notified to the applicant on 23 October 2018 that any attempt to place the applicant in detention was made by authorities. The Tribunal accepts the applicant’s evidence that he was made aware of the decision to refuse his Bridging E visa application when police attended at his premises on 23 October 2018 and presented him with the decision.

32. Based on the above, the Tribunal is satisfied that the applicant would comply with condition 8207 (No Study), condition 8401 (Reporting requirement) and condition 8506 (residential requirement) if he was granted a Bridging E visa.

33. However, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The Tribunal is not satisfied that the applicant will not work in breach of condition 8101.

34. The applicant told the Tribunal that he has not worked since he was charged by the police on 27 August 2018. His family’s living expenses, such as rent, food and utility bills were met by his wife from her wages as a cleaner from that time until his detention on 23 October 2018. Since that time, his wife has not worked and the family has been fortunate that their housemate has not required their share of the rent to be paid. The applicant told the Tribunal that the housemate decided not to charge the family rent at the moment because his wife was no longer working because she had to look after their child, but that she planned to return to work if he was released from immigration detention because he would be able to look after the child.

35. The Tribunal does not accept that if the applicant was to be released on a Bridging E visa that he would not work. There are three reasons for this finding.

36. Firstly, as noted previously, the applicant has also applied to the Tribunal for a review of the decision to cancel his Bridging A visa and one of the reasons (as noted in the decision record to cancel the Bridging A visa) that he seeks that cancellation to be set aside by the Tribunal is that he ‘would lose his right to work in Australia and consequently would not be able to support his family’. This is in contrast to his evidence to the Tribunal for this application that he does not need to work, and would not work in breach of a condition, because his wife would be able to meet their living expenses from her wages once she returns to work. The Tribunal is not persuaded by the applicant’s oral evidence to the Tribunal that he does not need to work. In the Tribunal’s view, the applicant needs to work to support his family as outlined in his application for review of the cancellation of his Bridging A visa.

37. Secondly, the Tribunal is not satisfied that there the applicant’s wife would necessarily be able to return to work if the applicant was released from immigration detention. It is speculative to guess that this is the case without there being some corroborative evidence to support this claim. Consequently, the Tribunal finds itself in a position where the facts are that both the applicant and his wife are currently not working, and there appears to be no apparent means for the family to meet their living expenses.

38. Thirdly, the family’s financial circumstances are far from sound. As noted in the fee reduction application which had been submitted in relation to the application to review the Bridging A visa cancellation, the applicant disclosed the existence of four bank accounts as at 1 October 2018 with a combined total value of $272.65. In these circumstances, where the applicant would have been unemployed for approximately five weeks as at 1 October 2018, the Tribunal is concerned that that that the only funds available to the family is $272.65. The Tribunal notes that no bank statements were provided to demonstrate previous regular income from either the applicant or the applicant’s wife. Consequently, the Tribunal cannot be satisfied that the family will be able to meet their living expenses.

39. Accordingly, the Tribunal cannot be satisfied that the applicant will not work to provide his family with financial support and meet his family living expenses if he is released on a Bridging E visa. 

    The Tribunal is not satisfied that the applicant will not engage in criminal conduct in breach of condition 8564.

40. The applicant was been charged with a serious offence. The description of the offending contained in the delegate decision is frightening and strikes at the heart of a civilised society. That being said, the applicant is correct when he told the Tribunal that, despite being charged with the offence, he is pleading not guilty and his guilt has not been proven. The Tribunal accepts that whether the applicant is guilty or not guilty will be a matter to be determined by a jury. Coupled with the fact that the applicant was granted bail by police despite the serious nature of the charges, the applicant submitted that the Tribunal should be persuaded that he will not engage in criminal conduct if he was granted his Bridging E visa. There is some merit in this argument; however (and ultimately) the Tribunal is not persuaded that merely because the applicant is pleading not guilty, and that police have released the applicant on bail, the Tribunal can be satisfied that the applicant will not engage in criminal conduct.

41. The decision to release the applicant on bail would have involved the police considering the relevant provisions of the Bail Act 2013 (NSW). In this Act, the police are required to assess any ‘bail concerns’ before deciding to grant an accused person bail: s.17(1). Relevantly, a bail concern is defined as a concern that if the accused person was released on bail, the accused would (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims or the community, or (d) interfere with witnesses or evidence. That Act also requires that bail be refused to any person who is an ‘unacceptable risk’ of failing to appear at any proceedings for the offence, or committing a serious offence, or endangering the safety of victims or the community, or interfering with witnesses or evidence: s.19. The Tribunal accepts that the police have determined that the applicant is not an ‘unacceptable risk’ of doing any of those things which may give rise to a bail concern.

1. However, in contrast with bail proceedings, the Tribunal is not constrained by concepts of ‘unacceptable risk’ or ‘an acceptable risk’ when determining whether the applicant will engage in criminal conduct. In the Tribunal’s view, the serious nature of the offence, and the opportunistic nature of the alleged offending as outlined in the delegate decision, leave the Tribunal unsatisfied that the applicant would not engage in criminal conduct if he was released from immigration detention on a Bridging E visa.

2. The Tribunal does not accept that applicant’s submission that the department are penalising him by refusing to grant him the Bridging E visa, or that the department is finding him guilty without trial. As explained to the applicant at the hearing, there department, and indeed the Tribunal on review, is not forming a view about his guilt or innocence but is instead considering whether he would comply with conditions not to commit criminal offences. The fact remains that he has been charged with serious offences and it is this fact that the Tribunal has considered when making a finding about whether the applicant would engage in criminal conduct if he was released on a Bridging E visa.

   Other matters

3. The applicant told the Tribunal that he had been attacked while he was in detention on 25 October 2018 because he had been ‘wrongly reflected in the media’. A photograph was produced to the Tribunal which showed the applicant [sustained certain injuries]. He told the Tribunal that he reported this attack to the authorities but nothing had yet happened. This attack was unfortunate. However, as conceded by the applicant, it was not relevant to whether the applicant would abide by conditions imposed on a Bridging E visa.

   Would the applicant comply with conditions if a security is taken?

4. The Tribunal is not satisfied that the applicant will comply with conditions. In the Tribunal’s view, no security would act as an incentive for the applicant to comply with proposed conditions.

   CONCLUSION

5. 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.

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

7. 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

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

   Nathan Goetz
   Member