1914622 (Migration)

[2019] AATA 2125

1914622 (Migration) [2019] AATA 2125 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914622

MEMBER:Mary Sheargold

DATE:18 June 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 18 June 2019 at 1:09pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – compelling and compassionate circumstances – child’s medical condition and ongoing treatment – no discretion – no criminal conduct requirement – past criminal charges and convictions – driving on suspended license – two counts of recklessly causing serious injury – breach of family violence intervention orders – little contrition for prior offending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223

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 applied for the visa on 4 June 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.

3. The decision to refuse to grant the visa was made on 7 June 2019 on the basis that the delegate was not satisfied that if the visa was granted that the applicant would comply with the conditions imposed on the visa, specifically not to engage in criminal conduct, and no work.

4. The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A], and his mother, [Ms B].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Time of application criteria

7. Applicants for a Bridging Visa E must, at the time of application, satisfy cl.050.211 and cl.050.212.

8. At the time of application, [the applicant] was an unlawful non-citizen as required by cl.050.211(1)(a) and was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).

9. Accordingly, the Tribunal is satisfied that [the applicant] satisfies the requirements of cl.050.211.

10. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9).

11. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

12. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

13. On 13 September 2017, the applicant lodged a valid application for a [Medical Treatment] visa.  The application was refused by the Department on 24 April 2018, and on 11 May 2018, the applicant sought merits review with the Tribunal.  The Tribunal notes that this application has not yet been finally determined.  As a result, the Tribunal finds that at the time of application the applicant has made, or would have made, a valid application for a substantive visa that can be granted in Australia that has not been finally determined. Accordingly, the applicant meets cl.050.212(3).

    Time of decision criteria

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

14. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.  The Tribunal is satisfied that [the applicant] continues to satisfy the requirements of both clauses at the time of this decision as [the applicant] remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense, and his application for a substantive visa able to be granted in Australia (a [Medical Treatment] visa) remains undetermined.

15. Therefore, the Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

    The requirement to be interviewed by an authorised officer - cl.050.222

16. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

17. At the hearing, [the applicant] confirmed that he had been interviewed by an authorised officer of the Department on 6 June 2019. Accordingly, the applicant meets cl.050.222.

    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. If the Tribunal is satisfied that the applicant will abide by the conditions if a 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.  The Tribunal is satisfied that a security is not required to ensure that the applicant will abide by the conditions if the visa is granted.

21. Clause 050.6 prescribes that certain conditions may be imposed on a Subclass 050 Bridging (General) visa. Relevantly, cl.050.617 provides the list of conditions that may be imposed in the case of the applicant, who is eligible for this visa on the basis of satisfying cl.050.212(3) of Schedule 2 to the Regulations. The Tribunal also notes that in accordance with cl.050.618, condition 8564 may be imposed on the applicant’s visa. In the primary decision, the delegate indicated it would impose the conditions that the Tribunal now considers should potentially be imposed in the circumstances of the case, namely:

    ·8101: must not engage in work in Australia;

    ·8207: must not engage in any studies or training in Australia;

    ·8401: must report (a) at a time or times, and (b) at a place specified by the Minister for this purpose;

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

    ·8510: must present or apply for a passport; and

    ·8564: must not engage in criminal conduct.

    Evidence and submissions made by the applicant

22. Evidence and submissions were received from the applicant and his representative as follows:

    ·written submissions by the applicant’s representative, received by the Tribunal on 14 June 2019 prior to the hearing;

    ·a letter from the Melbourne-based treating doctor for the applicant’s son [Child C] dated 11 June 2019;

    ·copies of birth certificates for the applicant’s two Australian-born children;

    ·reports from DNA Solutions attesting to the applicant’s status as father of the applicant’s two Australian-born children;

    ·copies of Australian citizenship certificates for the applicant’s wife, [Ms A], and his mother, [Ms B];

    ·a copy of [Ms A]’s Australian passport;

    ·oral evidence at the hearing from the applicant, his wife [Ms A], and his mother [Ms B];

    ·written submissions by the applicant’s representative, received by the Tribunal on 14 June 2019 after the hearing;

    ·bank statements from the applicant’s younger brother, [Mr D]; and

    ·copies of medical records for the applicant’s son, [Child C], obtained by [Ms A], from [Hospital 1].

    The health of [Child C] and its impact on the application

23. The central basis on which the applicant claims he will abide by conditions imposed on a Subclass 050 Bridging (General) visa granted to him is that he is required to support the ongoing treatment and management of his son [Child C]’s [medical condition].  Therefore, the Tribunal has considered the nature of [Child C]’s condition and the treatment he receives in relation to it, and the role of the applicant in managing his son’s health.

24. Prior to the hearing, the Tribunal was provided with a Medical Support Letter from [Dr E] at [a named] Medical Centre in [Suburb 1].  That letter indicates that [Child C] suffers from [medical condition] and that he usually presents at this clinic with the applicant.  The letter states:

    “Today on checking [Child C]’s [sic] health he looks tired, not as active as when I saw him last time.  Mum states that he has been like that since the detention of his Dad. Also I can see that the whole family including the mum are passing through difficult time and it is very difficulty [sic] to interact and alleviate the saddness [sic].  It will be appreciated if any possible help is given to the family especially the uniting of the mum, children and their dad.”

25. The Tribunal notes that no evidence has been provided as to when [Dr E] last saw [Child C], and the Tribunal notes that the family now ordinarily resides in Adelaide.

26. At the hearing, the applicant, his representative, and his wife pleaded with the Tribunal to grant the applicant this visa in the interests of [Child C]’s health.  The Tribunal asked the applicant, his wife, and his representative if they had brought evidence substantiating their claims that [Child C] is admitted to hospital frequently in relation to treatment of his [medical condition]. 

27. The Tribunal notes that [Ms A] indicated that she had a body of evidence in relation to [Child C]’s treatment available to her in Melbourne though stated more documents were kept in Adelaide and that she could not access them quickly.  The applicant’s representative noted the difficulty the applicant’s family would face in seeking to obtain medical records from hospitals on short notice, but also noted she understood the urgency with which this matter is to be determined.

28. The Tribunal notes that after the hearing, the applicant provided evidence of 13 separate admissions for [Child C] to [Hospital 1] from 6 March 2016 to 15 April 2019.  The Tribunal notes that the applicant did not provide evidence in relation to his son’s medical history from either [Hospital 2] in [Suburb 2], or from any hospitals in Adelaide at which [Child C] has presented since the applicant’s family relocated to Adelaide in October 2018.  On 14 June 2019, in submissions made after the hearing, the applicant’s representative stated to the Tribunal that those hospitals had indicated it would take 4-6 weeks to provide documentation.

29. The Tribunal notes that despite being unable to provide records from [Hospital 2] at the date of this decision, the evidence provided from [Hospital 1] supports the family’s submissions in relation to [Child C]’s [medical condition] and the need for emergency medical intervention at frequent intervals.

30. At the hearing, the applicant’s representative made submissions that [Child C] needs the applicant to be at home with him, because the applicant is the only one who can administer medication to [Child C].  This was verified by the applicant’s wife, and the Tribunal notes a general agreement from the applicant’s family members who were in attendance at the Tribunal supporting the applicant at the hearing.  The Tribunal took this submission very seriously, and requested further evidence regarding [Child C]’s medical history, and this has been discussed above.

31. When questioned in relation to prior criminal conduct that the applicant had engaged in, he immediately related to the Tribunal the circumstances surrounding his recent charge and conviction for driving whilst his authorisation was suspended.  The applicant told the Tribunal that he had been driving the family vehicle on the day he was pulled over by the Highway Patrol at [Town 1] because he had needed to give his wife a break because she was exhausted, and they were both concerned about [Child C]’s health as he had been in hospital for treatment of his [medical condition] that day. 

32. The Tribunal asked the applicant why he and his wife had chosen to make such a significant drive on a day where his son was unwell with [medical condition], especially given his history of hospital admissions.  The applicant told the Tribunal that they had made a trip to Adelaide looking to purchase a house, and that they did not have anywhere to stay that day in Adelaide and so had decided to return home.  There is no evidence before the Tribunal substantiating the claim that the applicant’s son was unwell on that particular day.  However, the Tribunal finds the applicant’s evidence on this point to be genuine and credible.

33. At the hearing, the Tribunal questioned both the applicant and his wife as to whether they would return to Lebanon in the event that the applicant’s medical treatment visa was refused.  The applicant stated that if the law required him to return to Lebanon then he would.  The applicant’s wife initially stated that there was “no way” she would take her children to Lebanon because her son would likely die due to the inadequate medical treatment options available and pointed to media reports of children dying at the doors of Lebanese hospitals, but then conceded that if the applicant was required to return to Lebanon, she would have no choice but to go too.  At one point, the applicant’s wife suggested that if the Tribunal refused her husband’s application and forced the family to return to Lebanon, the Tribunal “would be killing” her son.

34. The family’s evidence coupled with the medical support letter from [Dr E] provide a compelling basis on which to argue the applicant would comply with the conditions of this Subclass 050 Bridging (General) visa if granted.  The applicant’s family claims that [Child C] is more settled in the presence of his father and only takes medication when his father administers it, and claims that both parents need to be in the presence of their children so that each child can be cared for when [Child C] is unwell; that the applicant’s daughter requires supervision when [Child C] is taken to see a doctor or is taken to hospital. 

35. The Tribunal has had an opportunity to consider the medical reports in relation to [Child C] provided by the applicant from [Hospital 1] and notes that there are inconsistencies between the evidence given by the applicant and his wife at the hearing, and the statements in the medical reports.  In at least two of these reports (those dated 20 February 2017 and 25 June 2018), there are statements that it is [Ms A] who routinely administers medication to [Child C], and in other reports, statements that [Ms A] reports that [Child C] always spits out [medication] when administered, and that there is a history of [Child C] spitting out [medication].  The Tribunal affords significant weight to the statements in the medical reports prepared by a range of doctors at [Hospital 1].

36. While the Tribunal notes there is a compelling basis for the applicant to comply with the conditions that would be imposed on this visa if granted, equally, there is a compelling basis to find that he would not: the applicant’s own evidence that he chose to knowingly breach the law to drive a vehicle while his authorisation to do so was suspended because he was so concerned for his son’s health leads the Tribunal to find it is likely he would engage in such conduct again if he believed it was necessary to assist his son in a medical emergency.

37. The Tribunal wishes to make clear that it does not make such a finding lightly, and expresses sympathy for the plight of [Child C] and his ongoing battles with [medical condition].  The applicant’s representative has pleaded with the Tribunal to take the compelling and compassionate circumstances surrounding [Child C]’s health into account in making its decision.  The Tribunal notes that it has no discretion to do, other than to consider those circumstances in the context of whether or not the applicant is likely to abide by the conditions imposed on his Subclass 050 Bridging (General) visa if granted.

    Condition 8564: must not engage in criminal conduct

38. In the primary decision, the delegate was not satisfied that the applicant would abide by condition 8564.  That decision record sets out the chronology of the applicant’s prior criminal charges and convictions, and each of these charges and convictions was discussed with the applicant at the hearing.

39. As set out above, on being questioned by the Tribunal in relation to his criminal history, the applicant readily gave details setting out the circumstances of his most recent conviction, recorded on 3 June 2019 (the date on which he was taken to immigration detention).  The applicant told the Tribunal of his misfortune at having been caught by the police within 5-10 minutes of commencing to drive the family’s motor vehicle, and recounted his concerns for both his wife’s and his son’s health at that time.  He stated it was his intention only to drive to the next rest stop, where they would wait while his wife slept, and that she would resume driving until they reached Melbourne.  The Tribunal accepts the applicant’s evidence in this respect.

40. The Tribunal notes that the applicant appeared to be more concerned by the short time in which he had been driving and been caught, rather than the fact he had been driving whilst his authorisation to do so was suspended.  He showed little contrition for his action, citing his son’s health as an imperative for him to take action and that he felt he had no other choice at that time.

1. The Tribunal then asked the applicant to explain the circumstances of the charges and conviction he received for two counts of recklessly causing serious injury in relation to an incident that occurred in 2009.  The applicant told the Tribunal that he had been the victim in this situation, and that he did not know the laws of Australia or that what he had done was wrong.  The applicant explained to the Tribunal that he had visited a local milk bar during the festival of Eid, and said he was approached by a man he had not seen for a long time.  The applicant stated that the man told him he had a problem with the applicant’s brother, that another person came with a knife in his pocket, that the knife fell to the ground, that the applicant picked it up, that the applicant was placed in a headlock by one man whilst being pushed by another, and so he used the knife to attempt to free himself.

2. The applicant claims he was the victim in this assault, and stated that the only injury sustained by the men was a cut to the hand.  He told the Tribunal he had attended the police station to report the crimes against him but that the police did not listen.  The Tribunal questioned the applicant as to why he had been charged with two counts of recklessly causing serious injury, and why he was subsequently convicted of those charges and sentenced to two years’ imprisonment.  The applicant stated that he did not understand the laws of Australia and that he had served his jail sentence.  The applicant’s representative stated that the non-parole period had been reduced to 12 months, which the Tribunal noted it was aware of from the primary decision record.

3. The Tribunal then questioned the applicant about the Family Violence Final Intervention Order taken out against him by his former de facto wife, [Ms F], [in] September 2010.  The applicant told the Tribunal he was the victim in this case also, because [Ms F] had been using him for money, and once he stopped providing her with money, she sought an intervention order against him.  The Tribunal told the applicant that she would have needed to have grounds for seeking and being granted the intervention order.  The applicant eventually relayed to the Tribunal that he had once slammed a door in her presence, and that that may have been the basis on which she claimed she feared violence.

4. The Tribunal asked the applicant about his breach of the order, and he told the Tribunal that he had gone to her house to talk to her, so she had called the police.  He stated that he had absolutely no idea that [Ms F] had taken out such an order against him, and that he had no idea that attending her house would cause him to breach such an order.

5. The Tribunal then asked [Ms A] to leave the hearing room, and asked the applicant to describe the circumstances surrounding the Family Violence Intervention Order taken out against him by [Ms A].  The applicant stated that this had happened because he and [Ms A] had been screaming at each other one day in relation to [Ms F] sending text messages and seeking to interfere in their relationship.  Again, the Tribunal told the applicant that an intervention order would not be issued on the basis of him and [Ms A] screaming at each other, and the applicant admitted that he had grabbed [Ms A] on her hand.

6. [Ms A] then re-entered the hearing room and the Tribunal questioned her regarding the intervention order.  [Ms A] also stated that [Ms F] had been interfering in their relationship, that they had been screaming, and that the applicant had grabbed her hand and as a result, she fell.  She admitted that she called the police, but stated that it was the police officers’ idea for her to seek an intervention order, and despite her protests that she did not wish to take out an order against the applicant, the police said she had to.

7. The Tribunal asked [Ms A] about the circumstances surrounding the applicant’s breach of that order and the charges of recklessly causing injury.  [Ms A] stated that the police had come to the house one day to check if the applicant was there, and found that he was.  She stated that she told the police she had wanted him to come home and that he was welcome, and that the police had told her that this was allowed but she needed to follow the relevant processes to have the order removed. She stated that the recklessly causing injury charges related to her having fallen, and because she was pregnant at the time, the police had required her to undergo an x-ray, and that the police blamed the applicant for her injury, but that he had not caused her to fall.

8. The applicant showed no contrition in relation to the actions he had taken leading to the intervention orders that had been taken out against him.  The applicant’s representative made submissions that the applicant has been doing a very good job since he was released from prison in 2014, and that he had shown his respect for the law by attending his court date in Horsham on 3 June 2019.

9. The Tribunal notes a general lack of credibility regarding the applicant’s evidence.  In addition to its concerns regarding his evidence on his criminal history, the Tribunal notes that the applicant was often evasive in his answers and gave inconsistent evidence regarding his work history.  The Tribunal notes that in the primary decision record, the applicant claimed not to have worked since 2012, which is consistent with the evidence he gave at the hearing.  However, the Tribunal notes the delegate’s finding that the applicant completed a Form 80 in his application for Ministerial intervention dated 1 February 2017 in which the applicant declared he had been working for [Company 1] from February 2009 to present.  At the hearing, the applicant gave evidence that he was a [Occupation 1] with his brother’s business [Company 1] after he had worked for a period in his family’s [business] immediately after arriving in Australia.

10. The Tribunal confirmed with the applicant his claim that he had not worked since 2012, and asked [Ms A] if it was true that her husband had not worked for a single day since they had been in a relationship.  [Ms A] confirmed that was correct.  The Tribunal then questioned the applicant as to why he had listed “[Occupation 1]” as his occupation on each of his Australian-born children’s birth certificates.  After a discussion between the applicant, his representative, and his family members in attendance at the Tribunal, the Tribunal was informed that the applicant’s sister-in-law had completed the birth certificate application forms on behalf of the applicant and his wife, and that she had asked the question, “what WAS your occupation?” not, “what IS your occupation?”.  The Tribunal finds this difficult to accept.  The representative further submitted that the applicant may have found it embarrassing to have his unemployment listed on his children’s birth certificates.  While the Tribunal appreciates this, the Tribunal notes that if the representative’s submission is to be relied upon, it is inconsistent with a finding that the applicant had misunderstood the question asked and believed that he was being asked about his previous occupation.

11. The Tribunal notes the applicant blamed his previous legal advisors for his unlawful non-citizen status, and claims he was fully reliant on his advisors who always assured him that he held a visa.  However, the Tribunal notes the applicant’s statements that he does not hold a Medicare card (as a reason for his inability to control his diabetes and high cholesterol, as these uncontrolled conditions are the basis of his claims for a medical treatment visa), and that he is not listed on the title to the house he recently purchased with his wife.  Those facts are consistent with the applicant being aware that he remains in Australia as an unlawful non-citizen.

12. The applicant’s representative made several submissions during the hearing that the applicant has difficulty recalling the details of events and dates, and that he engages in certain conduct, due to his uncontrolled diabetes and high cholesterol, and that he should not be held accountable for his actions on this basis.

13. The Tribunal is concerned that the applicant shows little contrition for his prior criminal offending, preferring to claim victimhood and seeking to justify his actions at each turn.  The applicant has shown the Tribunal that he has a general lack of respect for the seriousness of his prior offending and its impact on the community.  Given his criminal history and the willingness with which he has previously breached the law, the Tribunal is not satisfied that he would abide by the condition not to engage in criminal conduct.

14. 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.

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

16. 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

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

    Mary Sheargold
    Member