1924627 (Migration)

[2019] AATA 5217

1924627 (Migration) [2019] AATA 5217 (10 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1924627

MEMBER:  Denis Dragovic

DATE: 10 September 2019

PLACE OF DECISION:  Melbourne

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.050.223 of Schedule 2 to the Regulations

Statement made on 10 September 2019 at 5:13pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – strong community ties – applicant has not had any encounters with the law – applicant will abide by conditions imposed on a bridging visa – applicant is a witness of truth – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, 050.618; Schedule 8, Visa Conditions 8101, 8401, 8506, 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 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 29 August 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 is criterion 050.223.

3. The decision to refuse to grant the visa was made on 2 September 2019 on the basis that the delegate was not convinced that the applicant would abide by the conditions (cl. 050.223). The applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s wife; [Ms B], a social [worker]; [Mr C], [Ms A]’s son; [Ms D], Aboriginal Elder; [Ms E], [Ms A]’s sister; [Ms A]’s cousin; [Ms F], [Ms A]’s friend; and [Mr G], [Ms E]’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Whether the applicant will abide by conditions - cl.050.223

1. 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.

2. 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].

3. If the Tribunal is satisfied that the applicant will abide by the conditions 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.

4. Regarding the conditions, in this case, cl.050.613A applies because the applicant is a person who has applied for a Protection visa and who is not in a class of persons specified by the Minister for the purposes of cl.050.613A(1)(b).  Cl.050.613A(2) prescribes that condition 8101 (‘no work’) must be applied, unless condition 8116 is imposed (the latter condition provides that the ‘holder must not work in Australia other than engaging in an activity specified by a legislative instrument made by the Minister for this clause’ but the Tribunal notes that this condition must not be imposed unless the applicant is in a class of persons specified by the Minister by legislative instrument for the purposes of subclause 050.613A(3). There is no evidence that the applicant is in a specified class of persons and thus condition 8116 cannot be imposed).  However, condition 8101 must be imposed.

5. Cl.050.613A(2) further prescribes that, in addition to any mandatory conditions, certain conditions may be imposed, including conditions 8201 (‘must not engage in any training or studies in Australia for more than 3 months’), 8207 (‘must not engage in any training or studies in Australia’), 8401 (‘must report at specified time and place’), 8505 (‘must continue to live a specified address’), 8506 (‘must notify of change of address at least 2 working days in advance’), 8507 (‘must pay or make arrangements to pay costs of the holder’s detention’), 8508 (‘must make valid visa application in time specified’), 8510 (‘must show passport, or make satisfactory arrangements to obtain one, in specified time’), 8511 ((‘must show ticket for travel to country other than Australia, or make satisfactory arrangements to obtain one, in specified time’), 8512 (‘must leave Australia by specified date’) and/or 8548 (‘must not engage in any studies or training in Australia for more than 4 months’).  In addition, cl.050.618 provides that condition 8564 (‘must not engage in criminal conduct’) may be imposed in addition to any other condition imposed by another provision of Division 050.6.

6. In addition to mandatory condition 8101 (‘no work’), the Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   8401      (report at specified time and place)

   The holder must report:

   (a)         at a time or times; and

   (b)         at a place;

   specified by the Minister for the purpose.

   8506      (notify change of address)

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

   8564      (no criminal activity)

   The holder must not engage in criminal conduct.

Consideration of claims and evidence

1. The applicant claimed to have travelled to Australia because his [Relative 1] had cancer. While in Australia he met and married his wife. His [Relative 1] lived in [Town 1] while his wife lived in [City 1]. He claimed that he met his wife at a shopping mall in [City 1]. The applicant stated that they were married [in] September 2013, though he couldn’t remember when he met his wife. As soon as they married he moved into his wife’s home and had lived there through to the moment he was taken by the police for being unlawful and subsequently detained in immigration detention.

2. The applicant claims that as a husband he had a fatherly role doing chores that ranged from cleaning up outside the house, cutting the grass and in general looking after the house. As a step father he said that he ensured that the kids abided by the rules of the house and if they didn’t he had the right to explain their obligations. He told the Tribunal that he pictured himself as a father when he did this.

3. The applicant said that his wife has several illnesses including high blood pressure, diabetes and heart issues. Submissions by the representative clarify that they are Type 2 diabetes, arthritis and obstructive sleep apnoea. The applicant said that his every day routine is to provide his wife with the tablets that she needs including make some food for her to accompany the medicine. He also tests her blood sugar level.

4. The applicant said that since his marriage he has not spent time away from his wife. He said that he has never been violent to her. His description of the [July] 2019 incident that led to the police being called by his wife to their home and subsequently his detention was that they had a bit of an argument ‘over nothing’ and that it subsequently deteriorated. He admits to raising his voice but he said that he never threw anything at her.

5. I put to him under s.359AA that the police application to the court for an intervention order had a different description of the circumstances. I summarised the below extract from that document:

   The [applicant] has become agitated and approached the [wife] with a chair outside the house. The [wife] has got into her vehicle, when the [applicant] has thrown the camp chair at her, hitting the vehicle causing minor damage to the bonnet. The [applicant] has then thrown a couple of beer cans at the vehicle, not causing any further damage to the vehicle. Police then attended the residence and removed the [applicant] from the house and detained him for the purpose of a family violence safety notice.

6. He responded that he didn’t throw the chair. He said that he just moved it. He admitted that he threw a bottle but only after she left to her aunt’s house and not with the intent of hitting a car. He was surprised that the police turned up the next morning. He said that they picked him up at 7am the next morning while his wife was at a cousin’s house.

7. The applicant said that if he were to be granted a bridging visa he would return to live with his wife and that he would be supported through her income. He said that they could live off of the money that she would receive and sometimes her aunt’s children would bring shopping to the house and sometimes other relatives would drop by with food.

8. The applicant was apologetic about being unlawful in the country. He said that it was always on both of their minds. They were trying to regularise his stay but he relied upon a lawyer that wasn’t helpful. He emphasized that it was not that they didn’t want to regularise his stay but that they couldn’t afford to. Nevertheless, he admits it was wrong.

9. I asked if he had any other friends or relatives outside the [City 1]/[Town 1] area to which he said that he does and that they live in Queensland, though, he doesn’t know where and he doesn’t have any contact or phone conversations with them.

10. I asked the applicant what he would do if the protection visa he had applied for was not granted. He had nothing to say. He didn’t know other than that he was thinking about that.

11. He claimed that he had no prior engagement with the law.

12. I took evidence from several witnesses over the phone.

13. The applicant’s wife, [Ms A]: The witness said that the applicant, her husband, helps with her medication, her sleep apnoea machine, any injections she requires and housework. She described her relationship with him as very close. She explained that her children’s father had passed away and that she now has one granddaughter in her care. She said that the applicant would take her to day care and also look after her when [Ms A] would go to the hospital. The granddaughter is [age] years old and has been in their care for two years. Since the applicant’s detention her son has moved into the house and provides support to his mother. She said that her son’s children all know the applicant as a grandfather. She said that her husband has never previously had any problems with the law. Regarding his ability to sustain himself while on a bridging visa without work rights, the witness said that he hasn’t worked in the past and that they survived on the pension and welfare. They share everything together including money. Regarding the incident that involved the police, she said that his friend was planning to stay with them that evening before catching a [train]. She said that he had not hit her but he had thrown a chair, though, not at her. She claims that he was showing off to his friend. She said that his actions did not frighten her.

14. The applicant’s step-son, [Mr C]: The witness gave evidence that he had recently moved from [Town 2] to provide support to his mother while the applicant was in detention. The witness told the Tribunal that the applicant does everything for his family spending a lot of time with the family. He said that his youngest daughter who is staying with the applicant’s wife is really close and connected to the applicant who is like a father to her. The witness said that the applicant treats the children as his own grandchildren. The witness was present on the night of the incident which led to the police being called. He said that he didn’t see the applicant throw anything. He added that his mother loves the applicant, that the grandchildren really want him home and that he has become a part of the family.

15. [Ms B], social worker: The witness said that she had known the family for the past six years. Her support includes helping with [Ms A]’s health related issues. She has met the applicant on several occasions. She described his involvement in the family as doing a lot around the house. She said that the applicant’s wife would be absolutely lost without him and that she loves him and relies upon him. Every time the witness has met the applicant he has been friendly and helpful. She believes that he is rooted in the community and helps others by, for example, mowing lawns.

16. [Ms D] – Aboriginal Elder: The witness said that she had known [Ms A] since they both became elders. She has known the applicant since he married [Ms A]. The witness said that he is very helpful in the community and helps whenever she needs help. She sees him as a part of the community. She said that he has never had any problems with the law.

17. Other witnesses provided evidence including [Ms E], [Ms A]’s sister; [Ms A]’s cousin; [Ms F], [Ms A]’s friend; and [Mr G], [Ms E]’s son. Their evidence aligned with what was provided by the other witnesses namely that the applicant is rooted within the community, plays an important role in the family and has not had any prior engagement with the authorities.

Assessment of whether the applicant will abide by visa conditions

1. I have considered the applicant’s circumstances and evidence in the context of whether he would abide by conditions imposed by the state authorities. I note that he has been unlawful for eight years which is a particularly significant breach of migration laws. The applicant explained this as being a combination of a lack of awareness, limited financial means and deceptive practices by a migration agent/lawyer. I accept that over a period of eight years it was any one of those or a combination of those which prevented him from seeking resolution on his migration status. Subsequent to his detention and having been afforded the pro bono services of his representatives I am satisfied that he understands the gravity of the situation and has shown contrition for his unlawful conduct. As such I place some weight on his past immigration history.

2. While the applicant’s evidence appears to be in contradiction to the police report and that of some witnesses I note that by his own account the applicant was drunk and as such place less weight on the his testimony in regards to what happened during the incident which led to his detention. Instead, I accept the narrative as provided by the applicant’s wife and the police. The inconsistencies between these two are not material when taking into consideration the broader issues as discussed further below. Other than this aspect of his evidence I find that the applicant is a witness of truth.

3. I find that the applicant is someone whose ties to his community in [City 1] are strong and that in turn he has been welcomed into the community as one of their own. He has an important role to play in his family, as a husband, carer of his sick wife and step-father to a young child. According to the evidence provided by the witnesses at the hearing he takes these responsibilities very seriously. For this reason I find that the applicant is someone who is responsible and values the trust that others place in him. For these reasons I give substantial weight to the applicant’s commitment to not breach his conditions.

Condition 8101 (‘No work’)

1. Based upon the evidence provided by several witnesses and the applicant and his wife I am satisfied that the applicant has not relied upon employment to survive while living in [City 1]. I note that his wife pays rent and gives him money to purchase food. She receives income from a pension and welfare as she described to the Tribunal. Other witnesses gave evidence that they believed the couple were able to manage and that the community provides support to each other when needed. Considering that the applicant has not had a need in the past to work, has not worked and his wife and the community provide support I am satisfied that the applicant will not breach the ‘no work’ condition.

Condition 8401 and 8406 (‘must report at specified time and place’ and ‘notify change of address’)

1. While I acknowledge the delegate’s concerns about the applicant’s willingness to report and notify the Department of any changes based upon his history of being unlawful for eight years I note the following countervailing factors. The applicant has no other friends or relatives in Australia that he could go to for support and with whom he could remain away from the knowledge of the authorities. He is integrated into the [City 1] community according to the witnesses who provided evidence. He is an integral part of the family both as a husband to [Ms A] and a step-father/grandfather to a young girl. He participates in extended family events and volunteers in the community. These are all powerful forces that will motivate him to remain in [City 1]. Leaving [City 1], a small community in which it would be hard to avoid detection would risk him losing all that appears to be important to him. Considering that the applicant now has pro bono legal support to guide him through the legal processes to resolve his visa status and recognising the extent of his ties to the [City 1] community I am convinced that he will not breach conditions 8401 and 8406.

Condition 8564 (‘must not engage in criminal conduct’)

1. Based upon the evidence including the police application for an intervention order and the oral evidence provided by the applicant and his wife the only engagement the applicant has had with the police was a heated exchange with his wife. What is in dispute is whether he threw a chair and beer cans at his wife’s car while she was sitting in it. The delegate took the view that because the applicant did not categorise his actions as ‘domestic violence’ but rather as an ‘argument’ it meant that he showed no remorse and in turn that there is a possibility of the actions recurring.

2. While not making light of these issues, the Tribunal gives weight to the fact that the applicant does not have a criminal record. He has not been charged or convicted of any criminal offence in Australia throughout his stay in this country on the evidence before the Tribunal. The incident that involved the police did not lead to any charges. A Family Violence Safety Notice was issued but it did not lead to an intervention order.

3. According to the evidence provided by several witnesses the applicant has not had any engagement with the law in the past. This aligns with the fact that he has remained unlawful for eight years. Had he come onto the radar of the police earlier he would have faced the same outcome as he is facing now. As such I accept that the applicant has not had any encounters with the law.

1. I note that there has not been any indication of previous domestic disputes involving the applicant. While it is important that the applicant and other Australians recognise the different forms of violence that can constitute domestic violence, not necessarily being limited to physical violence, I give little weight to the fact that the applicant, an uneducated man who speaks limited English, did not agree with the terminology used to describe his actions. For all of the above reason I am convinced that the applicant will not breach condition 8564 by being engaged in criminal conduct.

2. 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.

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

DECISION

1. 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.050.223 of Schedule 2 to the Regulations

Denis Dragovic
Senior Member