1905549 (Migration)

[2019] AATA 1128

1905549 (Migration) [2019] AATA 1128 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905549

MEMBER:Bridget Cullen

DATE:19 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.211 of Schedule 2 to the Regulations.

·cl.050.212 of Schedule 2 to the Regulations

·cl.050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker to indicate to the applicant that conditions will be imposed if the visa is granted:

·8401 Must report at a time at a place specified by the Minister.

·8506 Notify Immigration 2 days in advance of any change of address.

·8564 Must not engage in criminal conduct.

Statement made on 19 March 2019 at 11:22am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prospect of complying with visa conditions imposed – no criminal conduct requirement – allegations of breaching a Protection Order – released on bail – minimally onerous conditions attached – always attended court when required to – steps taken to mitigate any possible future problems – enrolled in men’s behaviour change program – familial support – positive character evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.223; Schedule 8, Condition 8564

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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for the visa on 26 February 2019. 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, which requires the Minister to be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

3. The Subclass 050 visa is primarily for unlawful non-citizens detected or detained by the Department; or unlawful non-citizens in criminal detention; or persons who have made a substantive visa application and who hold or last held a Bridging E visa; or persons holding a Bridging D visa (Subclass 041). A Subclass 051 is specifically for persons who have been refused, or have bypassed immigration clearance and have sought a protection visa. In the present case, only Subclass 050 is relevant to the applicant's circumstances.

4. The decision to refuse to grant the visa was made on 7 March 2019 on the basis that the delegate had concerns, and was ultimately not satisfied, that the applicant would comply with condition 8564 – the holder must not engage in criminal conduct. The applicant has been charged with ten counts of Contravention of Domestic Violence Order, and six counts of Common Assault Domestic Violence.  All sixteen counts are progressing through the Brisbane Magistrates Court, with the matters next scheduled for hearing [in] June 2019.

5. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr A], and the applicant’s sister, [Ms B].

6. The applicant was represented in relation to the review by his registered migration agent, who is also a solicitor. The representative attended the Tribunal hearing. The applicant provided the Tribunal with a copy of the delegate's decision along with his application for review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant will abide by the conditions of his visa should one be granted.

9. Clause 050.211 is met if, at the time of application:

   (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

10. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

11. The applicant is a New Zealand passport holder, aged [age] years at the time of the Tribunal hearing. On 20 February 2019, the applicant’s Special Category (subclass 444) visa, which was granted on 4 January 2018, was cancelled.  The Tribunal is satisfied that at the time of his application, the applicant was an unlawful non-citizen. Accordingly, the applicant meets cl.050.211(1).

12. The applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl.050.211(2).

13. Therefore, the applicant meets cl.050.211.

14. 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.

15. In this case, the applicant is seeking to meet cl.050.212(4). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

    Judicial review, merits review, s.137K revocation

16. Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)[(b) or (ba) or (bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

17. Departmental records reflect that the applicant’s Special Category (subclass 444) visa was cancelled by the Department on 20 February 2019. The applicant commenced a review of the cancellation decision in the Tribunal on 26 February 2019, within the applicable time frame.  On this basis, the Tribunal finds that the applicant meets subclause 050.212(4)(b), as he has applied for merits review of a decision to cancel a visa. Accordingly, the applicant meets cl.050.212(4).

    Whether the applicant will abide by conditions - cl.050.223

18. 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.

19. 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].

20. The discretionary conditions that the delegate proposed to impose, if the applicant was granted the bridging visa are:

    Discretionary conditions:

    ·8401 - Must report at a time at a place specified by the Minister.

    ·8506 - Notify Immigration two days in advance of any change of address.

    ·8564 - Must not engage in criminal conduct.

21. The Tribunal considers the conditions that will be imposed if the bridging visa is granted to be reasonable in the applicant's circumstances. There are no mandatory conditions required in the applicant’s circumstances.

22. The delegate’s decision record reflects that the applicant has been travelling to Australia since 2013.  There is no information indicating that the applicant has, during the time interval between 2013 and the time of the applicant being charged in late 2018, ever come to the attention of the Department.  The Tribunal weighs this in favour of the applicant.

23. The applicant has provided the Tribunal with a copy of the Protection Order that was made by the Brisbane Magistrates Court on 7 August 2018.  The order was made following application by the Queensland Police, and entered into by consent, and without admissions.  The Order required the following:

    (1)The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

    (2)The respondent be of good behaviour towards the child and not commit associated domestic violence against the child and not expose the child to domestic violence.

    (3)The respondent is prohibited from following or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.

24. On 23 November 2018, the applicant was remanded for alleging breaching the Protection Order. There were 4 charges, all of which were for Contravention of Domestic Violence Order, relating to alleged conduct between 7 August 2018 and 23 November 2018.

25. On 27 November 2018, following application by the Queensland Police, the Brisbane Magistrates Court varied the Protection Order to prohibit all contact.  As he was on remand, the applicant says that he was unaware the Protection Order had been varied.

26. On 3 December 2018, the applicant was released on bail by a Queensland Magistrate. 

27. On 25 January of 2019, the applicant attended the Magistrates Court, at which time the Queensland Police added a further twelve charges. The additional charges relate to conduct alleged to have taken place in the same approximate interval of time as the earlier four charges. These charges were combined with the earlier four charges for hearing. In sum, the applicant is facing ten counts of Contravention of Domestic Violence Order pursuant to s.177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld) and six counts of Common Assault – Domestic Violence Offence in contravention of s.335 and s.47(4) of the Criminal Code 1899 (Qld).

28. On this same date, a different Magistrate enlarged the applicant’s bail. The applicant’s brother, [Mr A], paid the $1,000 security bond required. The additional conditions for bail, as reflected in the delegate’s decision record, are that the applicant has no contact with the aggrieved and continues to reside at the address listed on his Queensland driver’s licence. 

29. The Tribunal notes that, on each occasion the applicant has been required to appear in court, he has attended. The Tribunal weighs this in the applicant’s favour.

30. The information before the Tribunal indicates that it is alleged that the applicant contravened the Protection Order by “sending hundreds of harassing text messages”.  Additionally, it is alleged that the applicant attended the home of the aggrieved (his former partner), where there was a dispute, which culminated in the applicant throwing a telephone, and grabbing the aggrieved around the arms.  It is alleged that the aggrieved became frightened, tried to escape, and that the applicant grabbed her again, yelling, “I’ll never let you go, I will kill you then myself.”

31. The applicant is contesting all of the charges. It is not the role of the Tribunal to determine the applicant’s guilt or innocence in relation to the charges.

32. The applicant gave evidence to the Tribunal and candidly admitted that he contacted the aggrieved, despite being aware of the terms of the Protection Order, prior to being placed on remand.  The applicant told the Tribunal that he contacted the aggrieved after she contacted him first.  The applicant says he has not contacted the aggrieved since she last contacted him to advise that a Protection Order had been made (in November of 2018), and told him that he “needed to choose, either me or the law.”

33. There is no information before the Tribunal indicating that the applicant has contacted the aggrieved since late-November, early-December of 2018.

34. The applicant, his brother, and his sister, all gave evidence to the Tribunal about the steps they had taken, as a family, to try and mitigate any possible future problems whilst the charges are being resolved.  The applicant has given his former phone to his siblings for safe keeping, and deleted his previous Facebook profile.  The delegate’s visa cancellation decision record reflects a view that the delegate thought that these steps indicated concern by applicant’s family that the applicant might contact the aggrieved.  This Tribunal does not view this particular evidence in the same way as the delegate.

35. The Tribunal considers that the steps taken are objectively sensible, display an intention to comply with the terms of the Protection Order, and are consistent with the instructions received from the applicant’s solicitor to preserve the evidence pending hearing. The applicant’s brother and sister gave evidence that whilst the applicant was incarcerated, they noticed, with some surprise, that the applicant appeared to be active on his Facebook account.  They assert that the aggrieved had the applicant’s login details, and was using them to gain access to his account whilst he was incarcerated.  They are concerned to maintain the integrity of this evidence, and as such, collectively agree that it is desirable for the applicant to not use the phone on which this information is stored. 

36. The Tribunal questioned the applicant extensively about his registration for [a men's behaviour change program] that he commenced on his release.  The programme is 16-weeks in duration and teaches men to take accountability for their actions, and how to behave better in a relationship.  The applicant told the Tribunal that he enrolled in the course of his own volition, and that it was not a condition of bail.  The applicant explained that the course also focussed on how to have a healthy relationship, and he recognised that his previous relationship was toxic.  This apparent insight by the applicant is, in the Tribunal’s view, an indicator that he wants to move on from what was, without attributing blame to either party, a dysfunctional relationship. This also weighs in favour of suggesting that the applicant will not engage in any criminal conduct whilst holding a bridging visa.

37. The applicant is a member of a close-knit, involved Christian family.  The applicant, his brother, and sister, are active worshippers, who attend church and hold “fellowship” in their own homes several times per week.  The applicant’s roommate, [Mr C], is his sister’s fiancé.  The family has gathered around the applicant to provide him with the support that he requires. The Tribunal considers that the applicant has a strong incentive not only to not disappoint his family, but also to not find himself in any further criminal difficulties given the consequences any conduct of this sort might have in relation to the review of the Department’s cancellation of his Special Category visa (Subclass TY444) visa.

38. The applicant has been made aware, by his roommate [Mr C], that the aggrieved has been seen shopping by [Mr C], at the local supermarket.  As a consequence, the applicant has taken steps to avoid attending the supermarket at the same times as she has been seen, changing his normal patterns in order to avoid contact.  He has strategized with his solicitor that if he accidentally ran into her, he would immediately leave, and contact his solicitor and the police to make them aware.

39. The Tribunal acknowledges that the applicant has provided positive character references from other members of his family, a former NZ Police Officer, a past girlfriend, and some community members.  As these persons were not available to give evidence to the Tribunal, the Tribunal places less weight on this information than it does on the oral evidence of the applicant’s bother, [Mr A], and sister, [Ms B].  [Mr A] and [Ms B] both gave evidence that was measured, and whilst supportive of the applicant, was not critical of the aggrieved.  Overall, their view appears to be that the relationship was not working, and that the applicant can now see this was the case.  They say that the applicant has no desire to contact the aggrieved.  They are supportive of the applicant’s desire to improve himself, and his relationship skills through participation in a course they say he is committed to.

40. There is no evidence before the Tribunal that that the applicant has engaged in any criminal conduct, save for that with which he is now charged.  The character evidence before the Tribunal is entirely favourable to the applicant.  The applicant has been employed by his current employer since 2014. He is surrounded by his brother, sister, and future brother-in-law, and has taken steps to avoid contact with the aggrieved. The applicant has instructed a solicitor and maintains his innocence in relation to the charges.  The information before the Tribunal indicates that the applicant has complied with his bail conditions, and attended all scheduled hearings in relation to the charges.  The Tribunal notes that two different Magistrates deemed the applicant a suitable candidate for bail, with minimally onerous conditions attached.

41. Given these circumstances the Tribunal is not satisfied that the applicant would engage in criminal conduct, not report as required and not advise of a change of address if directed. The Tribunal is therefore satisfied that the applicant would abide by the conditions of his visa.

42. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.

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

    DECISION

44. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    · cl.050.211 of Schedule 2 to the Regulations.

    · cl.050.212 of Schedule 2 to the Regulations

    ·cl.050.223 of Schedule 2 to the Regulations.

45. The Tribunal also directs the primary decision maker to indicate to the applicant that conditions will be imposed if the visa is granted:

    ·8401 - Must report at a time at a place specified by the Minister.

    ·8506 - Notify Immigration 2 days in advance of any change of address.

    ·8564 - Must not engage in criminal conduct.

    Bridget Cullen
    Member