1908312 (Migration)

[2019] AATA 3958

1908312 (Migration) [2019] AATA 3958 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908312

MEMBER:Justine Clarke

DATE:17 April 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 17 April 2019 at 4:52pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – abide by conditions – previous breaches – seriousness of his threats to the Australian public – no evidence of support mechanisms – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 8 cls 050.211(2), 050.212(3A), 050.221, 050.222, 050.223, 050.614, 050.618, 050.619, Condition 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. 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, [Applicant], is [age] years of age and a national of Sri Lanka.  

3. On 2 April 2019, the applicant applied for the visa. At that time, Class WE contained two subclasses: Subclasses 050 and 051. 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). The primary criteria include cl.050.223.

4. On 4 April 2019, a delegate of the Minister made the decision to refuse to grant the visa on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be placed on the visa if it was granted. On this basis, cl.050.223 was not met.

5. On 11 April 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was unrepresented in this review. The Tribunal also received oral evidence from [Mr A] by telephone from [a state]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. There is no controversy that, at the time of application, the applicant met the requirements of cl.050.211 as an unlawful non-citizen and a person who was not an eligible non-citizen of the kind referred to in cl.050.211(2). With regard to cl.050.212, there is no controversy, either, that the applicant met the requirements of cl.050.212(3A). Subclause 050.212(3A) is met because, on 13 December 2018, the applicant applied for judicial review of a decision to refuse the grant of a Safe Haven Enterprise substantive visa (XE 790) and the judicial proceedings have not been completed.

8. In view of the information and evidence before it, the Tribunal is satisfied that the applicant meets the criteria in cl.050.211 and cl.050.212 and that, at the time of this decision, he continues to meet those criteria and thus he meets cl.050.221. The Tribunal is also satisfied that cl.050.222 is met.

9. The issue in this case is whether, if the visa is granted, the Tribunal is satisfied that the applicant will abide by the conditions that will be placed on the visa. That is, the issue is whether, at the time of decision, the applicant meets cl.050.223.

10. At the hearing, the Tribunal explained to the applicant that the issue in the case was whether, should he be granted a Bridging E visa, he would abide by any conditions imposed upon him. The Tribunal discussed, with the applicant, his immigration history in very broad terms. The Tribunal also invited the applicant to provide oral evidence which he thought was relevant to this review.

11. The Tribunal notes that the primary decision refers to the applicant having had, at one point, a temporary guardian from the Office of the Public Advocate. The Office of the Public Advocate safeguards the rights and interests of people with disability.

12. The Tribunal does not have clear information about any disability that the applicant may be experiencing. At the hearing, the applicant gave oral evidence that, due to his heavy use of alcohol, he had almost become ‘a mental patient’. He told the Tribunal that two doctors have given certificates stating that he had ‘mental issues’.

13. Notwithstanding, the Tribunal finds that the applicant had capacity to provide evidence and present argument at the hearing. The Tribunal has formed this view because the Tribunal observed that, at the hearing, the applicant responded appropriately to questions, including clarifying points that he did not understand.

    Applicant’s immigration history

14. The Tribunal notes that the primary decision outlines the applicant’s immigration history in detail. However, the applicant did not provide a copy of the primary decision to the Tribunal. In the circumstances, the Tribunal drew some key events from the applicant’s immigration history as outlined in the primary decision and asked the applicant to confirm whether those details were correct. When so asked, the applicant agreed with the following summary.

15. [In] September 2012, the applicant arrived in Australia without a visa. The applicant told the Tribunal that he had first arrived [at a detention centre] not Christmas Island as is stated in the primary decision.

16. On 12 May 2014, the applicant signed a code of behaviour. The code of behaviour is still in effect. The applicant told the Tribunal that, prior to signing the code of behaviour, it had not been explained properly to him.   

17. The applicant was granted a number of Bridging E visas until 8 June 2017.

18. On 8 May 2018, the applicant’s Bridging E visa was cancelled pursuant to s.116(1)(e)(i) of the Act due to the risk to the health and safety or good order of the community.

19. On 13 December 2018, he applied for judicial review of the decision to refuse to grant him a Safe Haven Enterprise substantive visa.

20. On 2 April 2019, he applied for the Bridging E visa the subject of this review. On 3 April 2019, he was interviewed by the delegate. On 4 April 2019, the delegate refused to grant him the Bridging E visa on the basis that the delegate was not satisfied that the applicant will abide by the conditions that will be placed on the visa.

    Whether the applicant will abide by conditions - cl.050.223

21. Clause 050.223 requires that, at the time of decision, the Tribunal is satisfied 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.

22. 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.

23. 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].

24. 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.

25. In this case, cl.050.614 applies. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. For present purposes, it is apt to note that these include conditions 8401 and 8506.

26. Further, cl.050.618 provides that, in addition to any other condition imposed by another provision of Division 050.6, condition 8564 may be imposed.

27. The primary decision states that there are no mandatory conditions in the current case. This statement appears to have been made in error as cl.050.619 provides:

    In addition to any other condition imposed by another provision of this Division, if the person to whom the visa would be granted has signed a code of behaviour that is in effect for the visa, condition 8566 must be imposed. 

28. The Tribunal considers that condition 8566 should be imposed in the circumstances of this case. In addition, the Tribunal concurs with the conditions selected by the delegate. In the circumstances, the following conditions should be imposed in this case:

    ·8401 – The holder must report (a) at a time and (b) at a place specified by the Minister for the purpose.

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

    ·8564 – The holder must not engage in criminal conduct.

    ·8566 – If the person to whom the visa is granted has signed a code of behaviour that is in effect for the visa, the holder must not breach the code.

29. The Tribunal has considered the likelihood that the applicant would abide by these conditions if the Bridging E visa is granted.

    Condition 8401: The holder must report (a) at a time and (b) at a place specified by the Minister for that purpose and Condition 8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address

30. The Tribunal discussed both of these conditions with the applicant. The applicant told the Tribunal that he would comply with both conditions.

31. With respect to reporting to the Department, the applicant gave oral evidence that he had always done this in the past. He said that every three months he had received, by email, a notification to respond and he said that he had responded appropriately.

32. With respect to keeping the Department informed prior to any change in address, the applicant said that he believed that he had done this as he had always kept his case manager informed and he believed that his case manager had then informed the Department.

33. The Tribunal notes that the primary decision does not contain specific findings or reasons that the applicant would not comply with these two conditions.

34. There is no evidence before the Tribunal, such as a prior history of not complying with any reporting conditions, to suggest that the applicant will not report as directed or update his address as required. Accordingly, the Tribunal is satisfied that the applicant will comply with conditions 8401 and 8506.

    Condition 8564: The holder must not engage in criminal conduct

35. The Tribunal discussed this condition with the applicant and the applicant told the Tribunal that he would comply with this condition. He said that he would never commit any criminal activities.

36. The Tribunal asked the applicant whether he had any criminal convictions overseas. The applicant gave oral evidence that he had worked as a government officer in the Road Development Authority in Sri Lanka and so he did not have any criminal convictions overseas.

37. The Tribunal also asked the applicant whether he had been charged with any crimes in Australia. He responded that, to his knowledge, he had not.

38. The Tribunal asked the applicant whether one of his previous Bridging E visas had been cancelled and he responded that it had. The Tribunal then asked the applicant if he could outline the circumstances that had led to the cancellation of that Bridging E visa.

39. The applicant told the Tribunal that he had been living at [Location 1], which he described as a half-way home for mental health patients. He said that he had been placed there because he was homeless. He said that his roommate had offered him wine and that he had taken it. He described himself as being ‘a bit tipsy’ when he went to eat his dinner in the common dining area. He said that a plate was broken by accident. He said that he had stated that the plate was broken and it was his understanding that, because he was ‘tipsy’ and speaking Tamil, others thought that he would use the broken plate against them.  He said that due to this incident he was evicted from [Location 1] that night. He said that he took his bag to a police station for safe-keeping and that he then left. He said that he did not know what he did at that time because he was drunk and really hurt by the events. He said that he went to his case manager’s office and said that it appeared that he had shouted and said that he would take revenge. He said that he had not known at the time that he had behaved badly. He said that later, when the incident had been relayed to him, he had felt bad as he had not meant to do it. He acknowledged that his case manager had tried to help him. He said that he regretted his actions and that he realised now that it was all due to alcohol. He said that he had become a slave to alcohol and that this caused a change in his behaviour. He said that he was a reformed person now who wanted a chance to show that.    

40. At the hearing, the Tribunal noted that the primary decision stated that the applicant had not been evicted on the night of the incident with the broken plate. The Tribunal referred in broad terms to the events of [May] 2018 detailed in the primary decision and asked the applicant to comment. The applicant said that he could not recall the events but stated that he had pushed his roommate (because the roommate had told him to get out) and had hit at the door, but he said that there was no damage. When asked about the assault of the manager of the property and urinating throughout the property, the applicant said that the manager of the property was a woman and he denied hitting her. He said that he had wanted to go to the toilet but that they would not let him and he said that he had not wanted to soil himself. The Tribunal referred to the part of the primary decision where it is stated that the applicant was charged later with [details deleted]. In response, the applicant said that he does not recall having wilfully damaged anything. He said that he thought that they must be referring to the broken plate. He said that he had not assaulted anyone with the plate. Notwithstanding, he stated that he agreed that ‘all those things had happened’ and he stated that he wanted to assure the Tribunal that such acts would not happen again. He said that he did not seek to justify his past bad behaviour. He said that during a particular time, he had lost himself.  

41. The Tribunal considers that the applicant’s account of the events is not as fulsome as the information detailed in the primary decision. However, when the Tribunal directed the applicant to provide evidence in respect of other specific matters, he did so. He gave oral evidence that when he had gone to [City 1] he had threatened people there and he stated that when he went to [City 1] he had been drunk. He said that he had not been aware of what he was doing. He said that his mental health had been exacerbated by his stay at [Location 1].

42. The Tribunal considers that the applicant’s account is somewhat disjointed and that, despite telling the Tribunal that he did not seek to justify his past behaviour, the applicant sought to present evidence which put the best possible light on the events.

43. Notwithstanding, the applicant’s guilt or otherwise is not an issue that the Tribunal must determine. Rather, the question that the Tribunal must address is: what is the likelihood that the applicant would offend if he is released into the community? In the Tribunal’s view, the answer to the question turns on whether the applicant would be alcohol-free or alcohol-reliant.

44. The applicant told the Tribunal that he is not drinking alcohol at the moment and that that was going to be his life decision. He said that he had assured his family that he will never touch alcohol again and that they had told him that if he does indulge that they would all commit suicide. The Tribunal considers that this later statement seems unlikely and reflects poorly on the applicant’s credibility.

45. The Tribunal asked the applicant whether he was taking part in any treatment to address his alcoholic tendency. The applicant told the Tribunal that initially he had been given a tablet which he thinks was to help curb the tendency. He said that no one had ever explained to him whether that pill was to curb the addiction but he said that he had not craved alcohol since taking it. His evidence was unclear about whether, at present, he was taking medication to address his alcoholic tendency.

46. The Tribunal also asked the applicant whether he had taken part in any counselling service in the detention centre to address his alcoholic tendency. He gave oral evidence that he speaks to a psychologist in the centre who gives him advice, including about ways and means to address his alcoholic tendency. He said that this doctor had remarked to the applicant that he had observed a positive change in him.     

47. The applicant also gave oral evidence about the ways in which he understands that Foundation House would be able to assist to him, should he be released into the community. He also told the Tribunal that his determination to reform himself would be further assisted by going to church regularly.

48. The applicant’s desire to abstain from drinking alcohol for the rest of his life appears to be genuine. The Tribunal would like to believe him. However, the Tribunal considers that it does not have sufficient documentary evidence before it to be satisfied that, if he were released from detention, the applicant would not relapse into excessive consumption of alcohol. The Tribunal does not have any evidence from the applicant’s psychologist in the detention centre to corroborate the applicant’s claims that the psychologist has been providing him with alcohol counselling and has observed a positive change in the applicant.   

49. Further, the Tribunal is not satisfied that, if he is released from immigration detention into the community, the applicant will have sufficient support mechanisms in place to address his alcoholic tendency. For example, when the Tribunal asked [Mr A] whether he and the applicant had had any discussions about any structured support service that the applicant could access for his alcoholic tendency, [Mr A] gave oral evidence that he was of the opinion that the applicant would be able to abide by [Mr A]’s advice and given that [Mr A] does not drink alcohol, he was sure that the applicant would not drink alcohol when living with him. This answer suggests to the Tribunal that [Mr A] may not be aware of the extent of the applicant’s alcoholic tendency. Similarly, [Mr A’s] statement of 25 March 2019 that the applicant ‘has never been a violent person’ suggests to the Tribunal that [Mr A] may not be aware of the applicant’s behaviour under the influence of alcohol that led to the cancellation of his previous Bridging E visa. 

50. In light of all the evidence before the Tribunal, the Tribunal is not satisfied that, if he is granted the visa, the applicant will have sufficient measures in place to support him in his decision to abstain from alcohol and, accordingly, the Tribunal is not satisfied that he will abide by the ‘must not engage in criminal conduct’ condition.

    Condition 8566: If the person to whom the visa is granted has signed a code of behaviour that is in effect for the visa, the holder must not breach the code

1. As noted earlier, the applicant gave oral evidence that he has signed a code of behaviour and he acknowledged that it is still in effect. He reiterated his claim that, prior to signing the code, it had not been properly explained to him. He told the Tribunal that he and a number of other people were released from detention after signing and that he had thought that he was free. He said that he had been unaware that his release was conditional upon compliance with the code of behaviour. He said that he was aware now of his need to comply with the code of behaviour and he undertook to comply with it in the future.

2. The Tribunal asked the applicant if he could outline some of the things that he understands he is to do or not do in order to comply with the code of behaviour. He told the Tribunal that he understands that he is not to threaten anyone and is to live in peace with other members of the community.

3. He acknowledged that he had not complied with the code of behaviour in the past. He said that this was because he had been ignorant of the expected behaviour. He said that if he had known then what was expected of him, he would not have erred. 

4. The Tribunal acknowledges that the applicant appeared contrite for his past breaches of the code of behaviour. The Tribunal has also considered whether there were any mitigating circumstances justifying the applicant’s breaches. The Tribunal considers it improbable that the applicant would have been asked to sign the code of behaviour and that the Department would not have taken active steps to explain the contents of the code. Overall, having considered all the considerations outlined in paragraph 23 above, the Tribunal considers that the applicant’s previous breaches of the code of behaviour, and thereby of immigration law more generally, and the seriousness of his threats to harm members of the Australian public and to engage in inappropriate conduct weighs against the applicant’s claim that he will comply in the future with the code of behaviour. Therefore, the Tribunal is not satisfied that the applicant will comply with condition 8566. 

   CONCLUSION

5. The applicant’s consistent oral evidence at the hearing was that he was willing to accept and comply with all conditions associated with the Bridging E visa in order to be granted freedom from detention. However, the Tribunal is not satisfied that, if he were granted a Bridging E visa, he would abide by all of the above visa conditions. The Tribunal has reached this conclusion in large part because the applicant’s past behaviour while under the influence of alcohol was sufficiently serious that a previous Bridging E visa was cancelled pursuant to s.116(1)(e)(i) because of the risk to the health and safety or good order of the community and there is insufficient documentary evidence to satisfy the Tribunal that, if he was released into the community, the applicant’s addiction to alcohol could be sufficiently managed to safeguard against the likelihood of possible future offending. 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.

   Justine Clarke
   Member