1832173 (Migration)

[2018] AATA 5543

1832173 (Migration) [2018] AATA 5543 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832173

MEMBER:Nathan Goetz

DATE:8 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 08 November 2018 at 2:46pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prospect of complying with visa conditions imposed – no work requirement – living arrangement – family financial circumstances – no criminal conduct requirement – serious criminal history – 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).

   Background

2. [The applicant] arrived in Australia [in] January 2016 as a dependent on a [temporary] visa which had been granted to his wife on 14 January 2016. This visa ceased on 15 November 2017.

3. On 3 August 2017, the applicant lodged an application for a Regional Skilled Migration Scheme (RN-187) visa. He was granted a Bridging A (WA-010) visa associated with his application which was effective from 16 November 2017. This bridging visa was put in place while the application for the Regional Skilled Migration Scheme visa was being considered.

4. On 21 November 2017, the applicant was arrested and charged by New South Wales Police with offences and was remanded in custody that day.

5. It was said that the offences occurred on 6 October 2017. The offences were:

   ·    Aggravated indecency – victim under 16 and under the authority of the offender

   ·    Indecent assault – victim under 16 years of age

   ·    Indecent assault – victim under 16 years of age

6. On 31 January 2018, the applicant’s Bridging A visa was called under section 116(1)(e)(ii) of the Act and the applicant became an unlawful non-citizen.

7. On 14 February 2018 the applicant sought a review of the decision to cancel his Bridging A visa with the Tribunal.

8. On 2 May 2018, the applicant’s wife lodged an application for a protection (XB-886) visa.

9. On 26 June 2018, the applicant pleaded guilty at the Newcastle Local Court to the offence of aggravated indecency as described above. The other offences did not proceed and the Tribunal assumes that they were withdrawn as alternatives to the aggravated indecency charge. The matter was adjourned for sentence.

10. On 16 August 2018, the applicant appeared before a differently constituted Tribunal seeking a review of the decision to cancel his Bridging A visa.

11. On 20 August 2018, the applicant was sentenced to 18 months imprisonment with a non-parole period of 11 months. As the applicant had been in custody on remand for the charges, his pre-sentence detention meant that he was eligible for parole on 20 October 2018.

12. The applicant provided the Tribunal with the sentencing reasons of [the Magistrate]. The facts can be summarised as following:

13. The victim was a 14 year old girl who resided at a residential care facility. She had a history of cognitive and learning difficulties, as well as a disturbance in mood and behavioural regulation. Her skills in understanding and language were consistent with those of a much younger child. She has the vocabulary, narrative construction and reasoning ability of a child who between 8 and 10 years of age.

14. Sometimes to relieve staff shortages, the residential care facility sourced staff from a nursing agency. On 6 October 2017, the applicant commenced work at the facility under this arrangement. This was the first time he had worked at the care facility and he had never met the victim previously.

15. Around 9.30pm the victim received her usual medication and she was going to sleep. The applicant was instructed by another staff member to sit in the victim’s room with her while she fell asleep. This other staff member left approximately 30 minutes later.

16. Once the other staff member left, the applicant locked the victim’s bedroom door. As the victim was going to sleep, the applicant lay on the floor of the bedroom and masturbated himself for 15 to 20 minutes. He then walked over to the victim with his pants off, climbed into bed with the victim and got the victim to masturbate him for approximately 10 minutes. During this time, the applicant touched the victim’s vagina under her pyjama pants. After some time, the applicant stopped, put his pants back on and left the room. The following day, the victim told one of the workers at the care facility what happened and the matter was reported to police. A forensic examination of the victim’s jumper that she was wearing during the offending returned a positive possible presence of semen in three areas of the jumper, and DNA testing concluded the same profile as the applicant.

17. On 21 August 2018, the Tribunal affirmed the decision to cancel the applicant’s Bridging A visa.

18. On 20 October 2018, the applicant was included as a dependent on his wife’s protection visa application. As a result of this inclusion, an application for an associated Bridging E visa was generated.

19. Upon his release on parole on 20 October 2018, the applicant was detained under section 189(1) of the Act because he was an unlawful-non citizen. He was placed into immigration detention where he currently remains.

20. On 22 October 2018, the applicant’s Regional Sponsorship Migration Scheme employer nomination was refused and the applicant as nominee was notified.

21. On 30 October 2018, the applicant was interviewed by a delegate of the Minister regarding the Bridging E visa application.

22. On 31 October 2018, the delegate refused to grant the applicant the Bridging E visa, and on 1 November 2018 the applicant lodge an application for review of this decision with the Tribunal. It is this decision which is the subject of these written reasons.

23. 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).

24. On 7 November 2018, the applicant appeared before the Tribunal to give evidence and present arguments as to why he should be granted a Bridging E visa. The applicant’s wife and two children were present at the Tribunal but did not give evidence. They were excused from the hearing room while the criminal offending was discussed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant will abide by conditions - cl.050.223

25. 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.

26. 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].

27. 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 which has not yet been determined 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.

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

29. 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.

30. 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 found guilty of 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.

31. 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.

32. 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.

33. 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 found guilty and sentenced to a term of imprisonment for a criminal offence.

    Security

34. 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.

35. 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

36. At the hearing, the applicant discussed with the Tribunal his migration history, the circumstances of the criminal offending, his past employment and plans for future employment, his financial circumstances, his past and proposed residential living arrangements and his family situation.

    Family Support

37. The Tribunal accepts that the applicant is a married man with two young children. It is clear that he continues to be supported by his wife and that he maintains a relationship with his two young children. The Tribunal accepts that the applicant’s ties to his wife and children may act as an incentive for him to comply with the conditions of a Bridging E visa as it is clear that the applicant desires to be with his family and released from immigration detention.

    Accommodation

38. The Tribunal accepts that the applicant would have stable accommodation if he was released from immigration detention. The applicant told the Tribunal that if he were to be released from immigration detention, he would live with his wife and two daughters [in Suburb 1]. The rent for this townhouse is $280.00 per week. His wife and children moved into this address while the applicant was in custody. His wife and daughters had to move out of their previous address in [Suburb 2] where they paid $320.00 per week because his wife could not afford the rent on her own without her husband working.

39. The evidence before the Tribunal is that his wife and children experienced a period of homelessness where they slept in their car. His wife and daughter were then offered a bedroom at a home in [Suburb 3]. Around July 2018, his wife secured the accommodation in [Suburb 1] with some assistance towards a bond and initial rent from a refugee organisation. The applicant told the Tribunal that only his wife and children lived at this address, but a friend of his wife would come and mind the children when his wife needed to work.

40. There was some confusion between the applicant’s oral evidence to the Tribunal and an email he sent to the Tribunal on 5 November 2018. In the email, he wrote that his wife and the friend were renting the townhouse, but that this woman could return to live wither mother in [City 1] or continue to help them if the applicant commenced to live at the address. As the townhouse had only two bedrooms, it appeared to the Tribunal impossible for the applicant, his wife, and two children to sleep in one bedroom with the family friend sleeping in the other bedroom. The applicant stated that he meant that the family friend stays at the house and offers support to his wife, but the family friend is not renting the house and that he was incorrect in his email to the Tribunal to suggest that the family friend was renting the premises.

41. The Tribunal is unsure about what the truth regarding the living arrangements of the family friend, but accepts that the applicant would be able to reside at the proposed address if he was released from immigration detention. Given the availability of the accommodation, the fact that the applicant has attempted to regularise his migration status through bridging visa applications, and the lack of evidence to suggest the applicant failed to engage with the department about any changes in his residential address or migration issues generally, leave the Tribunal satisfied that the applicant would comply with conditions 8401 and 8506 as a condition of his Bridging E visa.

    Study and Training

42. The Tribunal is also satisfied that the applicant would not engage in any studies or training if he was released onto a Bridging E visa. The was no evidence before the Tribunal of the applicant engaging in any education activity during his time in Australia, and the Tribunal accepts that applicant’s evidence that he has no desire to do so.

43. Despite the above findings, for the following reasons the Tribunal has concluded that decision under review should be affirmed.

    Employment

44. Firstly, the Tribunal is not satisfied that the applicant would not work if he was granted a Bridging E visa in breach of condition 8101. The applicant told the Tribunal that he would not work if he was released, and indeed that his wife needed him not to work so she could work full time. At the present time, his wife was meeting all the family living expenses from her work at the same nursing agency to which the applicant was previously employed. The applicant submitted three of his wife’s payslips for the period of 24 September to 14 October 2018 to demonstrate her income. However, as noted by the Tribunal, his wife’s work is casual employment and is subject to change in hours. Consequently, her income is flexible. There is no guarantee of regular hours or a minimum number of hours of employment and it is foreseeable that her work could cease without notice, which would leave the family without any source of income and an inability to pay rent or meet any living expenses.

45. The applicant told the Tribunal that his wife was ‘going to get a permanent job’ but could not do so when he was charged and entered custody as she needed to look after their children. The applicant’s evidence was that his return to the family home would enable her to do so, as he would look after the children full time and this would allow her to work. The Tribunal does not accept that this is the case. No letter of offer of full time employment for the applicant’s wife was provided to the Tribunal, and it appears to the Tribunal that this full time employment is an aspiration if the applicant was to be granted a Bridging E visa. In the Tribunal’s view, the uncertain nature of the applicant’s wife’s employment would lead to the inevitable consequence of the applicant working to support his family. As noted by the applicant himself in his ‘Located Person Interview’ with Border Force officers on 20 October 2018, he told the officers could not support himself in Australia without working. He confirmed to the Border Force officers, and to the Tribunal, that the family have no savings.

46. When his response to the Border Force officers was put to the applicant under s.359AA of the Act, the applicant told the Tribunal he would not be able to support himself without working if he did not have his wife’s financial support. He also said that his plan at the time of his discussion with Border Force was for himself to return to work and for his wife to ‘have a rest’ from work as she had been raising the children and working without any support from him during his time in custody. He told the Tribunal that as it would be a condition of his Bridging E visa that he could not work, he would mind the children and his wife would be the one to work to meet the family living expenses through work. The Tribunal does not accept the applicant’s responses as truthful. If the applicant believed that that he could support himself in Australia without working, he would have answered yes because his wife would support him through her employment.  In the Tribunal’s view, the applicant’s response to the Border Force officers correctly stated his position that he could not support himself in Australia without working because both the applicant and his wife need to work to support themselves and their family. Further, the applicant was not able to satisfactorily explain to the Tribunal how it was necessary for both he and his wife to work to meet the family living expenses before he went into custody, but now it was not necessary for both he and his wife to work. Given this, the Tribunal is not satisfied that the applicant will not work in breach of that visa condition.

    Criminal Conduct

47. Most concerning to the Tribunal is the fact that the applicant has been sentenced for a very serious criminal offence. The Tribunal notes that the applicant has accepted responsibility for this offending by pleading guilty, expressed remorse to the Tribunal for the offending, and apart from this one instance of offending, was previously of good character. The applicant told the Tribunal that he would never engage in criminal offending again, that he had behaved himself in custody, that he was a changed person and that he felt very bad for what he did. The Tribunal noted that in his email to the Tribunal on 5 November 2018, the applicant stated that if granted the Bridging E visa he ‘make(s) an oath that he will not engage in criminal conduct of any kind’.

48. The Tribunal asked the applicant whether he had signed an ‘Australian Values Statement’ when he applied for his Regional Sponsorship Migration Scheme visa. He agreed that he did. The Tribunal put to the applicant that the Values Statement read, among other things, that the applicant would ‘respect the dignity of the individual’, ‘embrace respect’, ‘compassion for those in need’ and that the applicant would obey the laws of Australia. Given that the applicant had signed such a statement when he applied for that visa in August 2017, yet two months later committed the offending, the Tribunal suggested that it may have difficulty putting any weight on his promises to the Tribunal that he would not repeat his criminal conduct if he was released from immigration detention. The applicant repeated his claim that he would not commit offences if he was released from detention.

1. In the Tribunal’s view, the applicant’s criminal offending is very serious. As a consequence of his criminal offending, his Bridging A visa was cancelled. This offending involved a significant breach of trust by a person who was required to care for a vulnerable individual. It opportunistic, repugnant and strikes at the very notion of what is expected in a civilised society. The fact that the applicant committed what can only be described as heinous sexual offending while on a Bridging A visa demonstrates to the Tribunal that the applicant is willing to disregard Australia’s migration laws to satisfy his own sexual gratification and there is nothing before the Tribunal to satisfy itself that the applicant’s attitude has changed. The Tribunal is not satisfied that the applicant, if presented with the opportunity to offend in a similar manner again, would not do so. The Tribunal is not satisfied that the applicant would comply with condition 8564 if he was granted the visa and released from immigration detention.

   CONCLUSION

2. 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.

3. 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

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

   Nathan Goetz
   Member