1900181 (Migration)

[2019] AATA 318

1900181 (Migration) [2019] AATA 318 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900181

MEMBER:Sean Baker

DATE:14 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 January 2019 at 5:09pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed on the visa – risk to the community – assaults and property damage charges – period in rehabilitiation – mental health issues –  support mechanisms in the community – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 73, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223, 050.614, Schedule 8, Conditons 8401, 8506 , 8564, 8566

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. The applicant is [an age] year old man from Sri Lanka. His wife and children live in Sri Lanka. The applicant has been in Australia for six years.

2. 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).

3. The applicant applied for the visa on 28 December 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.

4. The decision to refuse to grant the visa was made on 2 January 2019 on the basis that the delegate considered that the applicant would not abide by conditions imposed on the visa .The applicant appeared before the Tribunal on 10 January 2019 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.

5. The issue in this case is whether the applicant will abide by condition imposed on the visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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 applicant meetscl.050.212.

8. 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. In this case the applicant has sought refusal of his Safe Haven Enterprise visa on 13 December 2018 and those proceedings are ongoing. Accordingly, the applicant meets cl.050.212(3A).

   Whether the applicant will abide by conditions - cl.050.223

9. 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.

10. 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].

11. 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.

12. In this case, cl.050.614 applies because the applicant has applied for a protection visa and has sought judicial review of the decision to refuse that visa. 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:

13. 8401    The holder must report:

14. (a)       at a time or times; and

15. (b)       at a place;

16. specified by the Minister for the purpose.

17. 8506    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

18. 8564    No criminal conduct.

19. 8566    Comply with code of behaviour is a mandatory condition on the visa because the applicant signed a code of behaviour on 12 May 2014.

    Information put under s.359AA

20. I put to the applicant under s.359AA information in the decision record. As I noted to the applicant, he already knew about all of the information because it had been discussed with him by the delegate.

21. The first set of information I put to him was about his behaviour in 2014 – 2016. I noted that, according to the delegate’s decision, he had signed a code of behaviour in relation to his conduct in the community on 12 May 2014. There had been numerous incidents based around excessive alcohol consumption, more than 20 hospital admissions, and 141 presentations to hospital emergency department since 2014. He had admitted himself as an inpatient to a drug and alcohol treatment facility and was asked to sign conditions on appropriate behaviour. Shortly after being admitted he allegedly made inappropriate advances towards another patient. He was reminded of conditions and asked to again sign the conditions of appropriate behaviour. Three days later he allegedly sexually assaulted another patient. On 28 May 2015 the applicant was counselled by Department staff about this behaviour and told that if he continued to behave inappropriately in breach of the code of behaviour that his bridging visa may be cancelled. The delegate’s decision also reports that in November 2016 he approached his community service provider ‘[Welfare Centre 1]’ in an intoxicated state, attempted suicide and made multiple threats to staff.

22. The applicant indicated he understood the information as put to him. I explained that this information was relevant because it may indicate that he had breached the code of behaviour in the past and may have engaged in criminal conduct including alleged sexual assault and anti-social behaviour. This may indicate that he would engage in this behaviour in the future, thereby breaching condition 8564 and the mandatory condition 8566. I explained the consequence being that subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision under review. He indicated that he understood the relevance and consequence of the information.

23. The second set of information was about his more recent behaviour. According to the delegate’s decision, on 2 May 2018 the applicant was living in  [Social Housing 1]. He threatened a staff member with a piece of broken plate. The police were called to de-escalate the situation. The staff of [Social Housing 1] asked the applicant to leave given the threat they said the applicant posed. The applicant contacted his temporary guardian who persuaded the staff to allow the applicant to stay. The following evening the applicant went to the [housing] extremely intoxicated, attacked and punched another resident, his roommate, caused damage to the door and wall by punching them, assaulted the [manager] and urinated throughout the facility. The applicant was arrested by police, medically cleared by [an ambulance] to be in police custody and he was taken to the police station and charged with unlawful assault, assault with a weapon and wilfully damage property. Because of this the applicant was evicted from [Social Housing 1] as he posed a risk to staff and residents. This was done despite [Social Housing 1], police and his community service provider aware that this would render him homeless but because of his behaviour were unable to allow him to remain. On 5 May and again on 6 May he was admitted to hospital due to being intoxicated. It was reported that he was wandering the streets at this time. On 8 May 2018 it was reported that he made indiscriminate threats of harm against the wider Australian community stating that he would 'hurt the public with a knife'. An interpreter was used to assist with this conversation and confirmed that the applicant made this threat repeatedly. After this the applicant went to ‘[Welfare Centre 1]’ heavily intoxicated and in possession of a backpack. Staff called police in fear for their safety and the office was locked. The applicant left and said to his caseworker that he was headed to [a shopping centre]. He was then arrested for being drunk in public. Department officers went to the Police Station and cancelled his bridging visa on the basis that they believed the applicant’s presence 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. The applicant was then detained.

24. The applicant indicated he understood the information as I had put it to him. I explained that this information was relevant because it may indicate that he had breached the code of behaviour more recently, and engaged in progressively more serious criminal conduct including leading to the cancellation of his previous bridging visa on the basis that he was a risk to the community; may indicate he had engaged in criminal conduct including alleged assaults and threats and anti-social and anti-community behaviour. It may also indicate that he had engaged in continuing and escalating dangerous behaviour. This may indicate that he would engage in this behaviour in the future, thereby breaching condition 8564 and the mandatory condition 8566.  I explained the consequence being that subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision under review. He indicated that he understood the relevance and consequence of the information.

25. I informed the applicant that he could choose to respond at the hearing or ask for more time to respond. After an adjournment the applicant opted to respond at the hearing. He said that he admitted his mistakes but most of the time he had mental issues and was not aware of those things. He said that after he got arrested he realised those things. It was his mistake but mostly happened because of his mental issues and he asked to be given one more chance.  In relation to the second set of information he said that three doctors had given him certificate letters that he had mental issues. He said they had provided these to the Court. He said two doctors had told him he had an issue with his brain, because of injuries from being beaten by the Sri Lankan army during the war. I asked if he had those letters to give me as I did not appear to have them. He provided me with a copy of a court book but pointed only to the name of a Doctor and said he had told the Court. I asked if the Doctors had told him what the issue was. He said two Doctors had told him he was in a mental state and they organised a Guardian and asked him to look after himself properly. I noted that it appeared from the decision record that he had had a Guardian in 2015 and asked whether he had a Guardian now. He said he did not, and if he got out he could get a Guardian but not now. He said also that at [Social Housing 1] they mostly have mentally ill people so the applicant was confused about whether he was mentally ill or not and then his roommate asked him to drink wine with him so he had wine and then he could not remember what happened. He said that the case manager at [Social Housing 1] had joked that the applicant would end up mentally unwell.

26. I discussed with the applicant his having checked himself into a drug and alcohol rehabilitation centre in 2015. He said he didn’t remember. I asked if he remembered checking himself in and he said he thought he stayed there for 15 days, he didn’t drink in this time and then they let him go. I asked what the name of this place was and he said he didn’t know but he thought it was in the city. I asked if he remembered saying or doing sexually inappropriate things to two women there and he said he didn’t remember because he didn’t have good English. He said for a certain period he was mental, now he was getting back to normal. Now he knew he did those things without his knowledge. I noted that he has said before that he had not been drinking when he was at this facility, so why did he not remember what happened with the two women. He said he had a mental problem, he had mental issues during those times and he did not remember what happened. He said he had mental issues then but now he doesn’t have mental issues and he has his family in Sri Lanka and he won’t be drinking and needs to be a good man for them. He felt sorry for what had happened in the past. He said his wife had gotten cancer, he thought in 2015, she had been under treatment for about 5-6 years.

27. I asked the applicant what his plans were if he was released from detention. He said that he would live with his uncle or his friend [Mr A] and they would provide him with financial assistance and support. He said that his uncle lived in [Australian City 1] and his friend [Mr A] lived in [Australian City 2]. I asked why [Mr A] had not provided this assistance before. He said that before he had lived with his uncle in [City 1] and then moved to [City 2] and lived in [Suburb 1], then he contacted [Mr A] and his friend said he could help him. The applicant said when he went to [Social Housing 1] he forgot [Mr A] and other people, and after that they said why did he go [there], they could have helped him. He said that his uncle in [City 1] has organised a room for the applicant. He said this was because his lawyer had called his uncle in [City 1] and organised a room.

28. I asked about the letter from the lawyer and the attached letter from [Rehabilitation Centre 1] which he had provided to the Department. The letter from his lawyer said that the applicant had access to support services and friends and I asked the applicant to tell me about this. The applicant said his lawyer had organised some place, some counselling places to look after the applicant and keep him in good behaviour, and had asked the applicant to do volunteer works for his mistakes. I asked about the letter from [Rehabilitation Centre 1] and asked if the applicant had connected with them. He said he had and that if he got released from detention they would look after him. I asked if he had had the assessment referred to in the letter from [Rehabilitation Centre 1] which the writer said could be done in immigration detention. The applicant said he had not. I also noted that the letter indicated that their residential or non-residential programs were said to require a good level of English. The applicant said that he could understand what other people said, he could manage this.  

29. I asked if he had undertaken alcohol and drug treatment plans in the past. Initially he said he had not. I reminded him of the information I had earlier put to him and he said yes, they kept him for 15 days. I asked if he had done any other programs like this and he said he had not, after this he saw two Doctors who said he was mental and he didn’t think he went to any other programs, although he had gone to [Welfare Centre 2] in [Suburb 1], but we clarified that this was for trauma counselling.

30. I asked why the applicant had not gone to stay with his uncle rather than staying at [Social Housing 1]. He said he stayed with his uncle for one year but then people who came on his boat asked him to move from [City 1] to [City 2] so he did.

31. I asked the applicant about the letter from his Church Minister in Sri Lanka which appeared to address only what it was claimed had happened to the applicant in Sri Lanka. He confirmed that this had been submitted in relation to his protection application and was not specifically relevant to the bridging visa consideration.

32. I raised with the applicant my concern that he had done a drug and alcohol program before and it did not seem to have helped his behaviour and he appeared to have continued drinking and his anti-social behaviour. I asked why [Rehabilitation Centre 1] would change his behaviour. He said that at that time he had not realised what the rules were, now he realised and in the future he will follow the rules. I noted that I might think that his past behaviour was a stronger predictor of his behaviour in the future than when he said he would do. The applicant said that he had done mistakes after his mental issues and he promised to his wife and children and had made his New Year resolution that he did not want to drink and in future he did not want to do any mistakes. He said that if he made mistakes in the future he would accept whatever punishment I would provide, he would not appeal or argue in the future.

33. I raised my concern that when he had been forced to leave [Social Housing 1] he had not gone and lived with [Mr A] or his uncle, he appeared to have lived on the streets, which indicated a lack of support. He said he didn’t have their numbers at the time, he only had a small phone and after that he went to the computer and found their details. I noted that I was also worried that even if he was living with one of them he would get into a situation where he behaved as he had in the past and once more would not have somewhere to live. He said he didn’t think this would happen, his uncle or [Mr A] would look after him – he and [Mr A] had come on the same boat. I asked why then they had not been looking after him for the four years or so he appeared to have been having difficulty with alcohol, accommodation and his behaviour. He said as he had not contacted them as he often changed his telephone number, they might have thought he was ok. He said after he was arrested he contacted them, and they said they were ready to help him.

34. I raised my concern that I was not sure that even with the support of his uncle and [Mr A] that he would be able to curb his behaviour which appeared to have escalated prior to his arrest and detention. He said that he had strongly decided he was not going to do any mistakes in future, and the people around him worried.

35. I attempted twice in the hearing to contact the applicant’s uncle and [Mr A] but was unable to reach either of them. The applicant was provided with time to provide support letters from them to the Tribunal and did so.

36. I asked the applicant how he would engage with [Rehabilitation Centre 1] if he was living with his uncle in [City 1]. He said if he was released he could go to [Mr A]. I noted that his response caused me concern as he appeared to have not made concrete plans about when he would live with, which rehabilitation services he would engage with and how he would not drink and modify his behaviour. He said this was because he didn’t know whether they would release him in [City 1] or [City 2] – if it was [City 2] he would stay with [Mr A]. If it was [City 1] he would stay with his uncle and change the service to [City 1]. He said the lawyer asked him to do [Rehabilitation Centre 1] and the lawyer said ‘if you do it you can change it in the future’ and that is why he had agreed. He said he promised in the future he would not do any mistakes as his family were depending on him.

1. I gave the applicant until 13 January 2019 to submit documents. He submitted a number of documents on 13 January and 14 January.

2. The applicant provided letters signed by [Mr A] and his uncle which stated that they would take care of accommodation and living expenses and moral support and companionship and would engage with the Department to ensure the applicant’s compliance with conditions and that they took full responsibility for the applicant complying. The applicant also submitted two letters of support from [Ms B] who had been visiting him in detention and attested to his good character, and from [Father C] of the Catholic Archdiocese of [City 2] who has been the applicant’s priest whilst in detention.

3. Having carefully considered the evidence before me, I have decided that I cannot be satisfied that the applicant will abide by conditions.

4. Firstly, I find that the applicant had capacity to provide evidence and present argument at the hearing. He responded appropriately to questions and was able to clarify anything he did not understand. He was allowed to provide evidence after the hearing and has done so. I find that the applicant was able to engage and take part in the hearing and had capacity to do so.

5. The information on the Department file, and which I put to the applicant under s.359AA, sets out a history of the applicant drinking heavily and engaging in anti-social and violent behaviour which on the information before me appears to have escalated from isolated incidents to a pattern of dangerous behaviour in May 2018 of violence against persons, anti-social behaviour, and threats against persons and the general community. In engaging in this behaviour, I find that the applicant, as I put to him, had breached the code of behaviour he had signed in 2014, a breach of condition 8566 which would be mandatorily imposed on a bridging visa if granted to the applicant. I find also that his behaviour, including alleged sexual assault, being charged with unlawful assault, assault with a weapon and wilfully damage property, and threats to harm individuals and the community at large is or could be considered to be criminal conduct which therefore may have been in breach of condition 8564. This past behaviour which includes breaches of immigration laws (breach of conditions on past visas) as well as conduct which could be considered criminal is highly relevant to any consideration of the applicant’s likely conduct if he is released on a bridging visa having these conditions. His behaviour in the past has been significant and as above appears to have escalated over time.

6. I accept that the applicant’s abuse of alcohol, his past possible trauma, his wife’s cancer are all significant contributing factors to his behaviour. However, I am not satisfied that he has engaged, or will engage, with services to mitigate these factors. I was concerned by the lack of insight and contrition shown by the applicant – this may be partly explained by his lack of awareness or even memory of some incidents, but he was also unable, I consider, to understand the significance of the actions he has taken or is alleged to have taken in the past.  

7. I have considered his evidence that he does not wish to drink or act as he has in the past, and I accept that he gives this evidence in good faith, but I can place very little weight on this – the applicant has been repeatedly warned that his behaviour will have negative consequences yet he has been unable to moderate his behaviour – indeed, the evidence appears to indicate that his behaviour was becoming progressively worse – to others and to himself – prior to his arrest in May 2018.

8. I have had regard to the letter from his lawyer, the letter from [Rehabilitation Centre 1], the letters of support from his uncle and [Mr A] and the character letters from [Ms B] and [Father C], but they do not provide the basis to find that the applicant will abide by conditions. The applicant was unable to tell me very much about the supports in place which the letter from the lawyer refers to. The letter from [Rehabilitation Centre 1] does not indicate they have offered the applicant a program place, but only that they would be willing to assess him for placement, and the applicant said that this had not been done. Whilst I accept that the applicant’s uncle and his friend [Mr A] have offered him support, there are several difficulties with this – both the applicant’s uncle and it appears from the letter, [Mr A], live in [State 2]. If the applicant was to be accommodated with them there is no indication that any drug and alcohol or other support programs have been arranged for the applicant in [State 2], but only [Rehabilitation Centre 1 in State 1] . The letters from [Ms B] and [Father C] are less helpful than they could be because from the letters it appears that the applicant has not disclosed his interactions with the police, his criminal conduct and his anti-social behaviour to either of them. This is completely understandable – the applicant may be embarrassed or otherwise unwilling to disclose these matters, but it does mean that these character references are not helpful in deciding whether the applicant would once again engage in such conduct if released from detention.

9. I have thought carefully about what I think would be the applicant’s likely conduct. If he was released on this bridging visa, I have no confidence that he would in fact live with his uncle or [Mr A] – the applicant has lived in [State 1] for a number of years now and I am not sure that he would leave that familiarity to travel to [State 2]. Even if he does, there is no indication before me that he or anyone on his behalf have arranged alcohol or drug counselling services or other support mechanisms for him. therefore, if he remains in [State 1], as I think more likely, he does not appear to have anywhere presently to live. I note that [Rehabilitation Centre 1] provides residential courses, but I am not convinced that the applicant would be assessed by them as able to attend such a course for reasons of, amongst other things, his possible lower level of English, despite his assurances that he is able to get by. I find that he would then be in a very vulnerable state where he would be highly likely to abuse alcohol again. I find that he would then engage in serious and significant anti-social behaviour and criminal conduct as he has in the past whilst intoxicated. I find that he would be likely, indeed, highly likely, to breach conditions 8566 and 8564. Further, given that I find he would very likely be homeless or itinerant, it would be very difficult for him, I find, to meet the other conditions of regular reporting and keeping the Department updated of changes of address.

10. If the applicant were to go to [State 2], I accept that he may have access to accommodation and support from [Mr A] and his uncle, although I am concerned that the applicant claimed at the hearing that [Mr A] was residing in [State 1]. I find however that without the applicant being in a drug and alcohol counselling service and other support services, he is likely, even if he had the support of his uncle and [Mr A], to once again abuse alcohol and engage in serious and significant anti-social behaviour and criminal conduct as he has in the past whilst intoxicated, and would then be in breach of conditions 8566 and 8564.

11. I have real sympathy for the plight of the applicant. I acknowledge that he genuinely wishes to change his behaviour. However, at this time, he does not have the support mechanisms in place in the community, either in [State 1] or [State 2], which would allow him to do so. I consider that at this stage, the applicant would pose a considerable risk to himself and the community if he were to be released, and would breach his visa conditions.

12. On the evidence currently before me, I am therefore not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

    Conclusions

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

14. 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

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

    Sean Baker
    Member