1925028 (Migration)

1925028 (Migration) [2019] AATA 4223 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1925028
MEMBER:Susan Trotter
DATE:17 September 2019
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 17 September 2019 at 4:21pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – extensive criminal record – fines/penalties and a six month jail sentence – claimed to be a changed person – very short period of changed circumstances – medical conditions – memory loss – capacity to participate in the hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 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 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant is a [age]-year-old citizen of Lebanon and applied for the visa on 30 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).
The decision to refuse to grant the visa was made on 3 September 2019 (and notified to the applicant on 4 September 2019) on the basis that cl.050.223 of Schedule 2 to the Regulations was not met as required because the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the visa. In particular, the delegate was not satisfied that the applicant would, as required, abide by a condition imposed that would be imposed upon the visa, namely condition 8564 which requires that a visa holder must not engage in criminal conduct.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 6 September 2019 and provided a copy of the delegate’s decision to the Tribunal upon making the application.
The applicant appeared before the Tribunal on 13 September 2019 by video conference, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Mr A], who attended the hearing by telephone.
The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 050 visa are set out in Part 050 of Schedule 2 to the Regulations and include that an applicant must meet any one or more of the alternative criteria in cl.050.212(2)–(9) at the time of the visa application and at the time of decision.
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.
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].
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.
It follows that the issues to be determined by the Tribunal include as follows:
(a) What conditions should be imposed on the visa (including any mandatory conditions)? And,
(b) Will the applicant abide by those conditions without a security? And, if not,
(c) Will the applicant abide by those conditions if a security were taken?
Issue 1 - What conditions should be imposed on the visa (including any mandatory conditions)?
The Department considered the following conditions ought to be imposed on any Bridging Visa E were it to be granted:
·8101 (Mandatory) the holder must not engage in work in Australia
·8207 The holder must not engage in any studies or training while in Australia
·8401 Remain in contact with the Department as directed, reporting at a time and place specified by the Minister
·8506 The holder must notify Immigration at least 2 days in advance of any change in the holder’s address
·8564 Must not engage in criminal conduct
The Tribunal considers it appropriate to impose the same conditions were it to be satisfied that the visa applicant would abide by his Bridging visa conditions.
Issue 2 - Will the applicant abide by those conditions without a security?
and
Issue 3 - Will the applicant abide by those conditions if a security were taken?
As already noted, in making an assessment about whether the visa applicant will abide by the above visa conditions, the Tribunal is required to have regard to the likely conduct of the applicant with considerations relevant to that assessment including 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.
At the hearing the Tribunal raised with the applicant that it was required to be satisfied that he would abide by the visa conditions which would be imposed and questioned him about his circumstances and how he would abide with any conditions. In particular the Tribunal raised with the applicant that its concern, similar to the delegate’s, was whether the applicant would comply with condition 8564 which would require that the applicant not engage in criminal conduct.
A statement of the applicant dated 26 August 2019, attached to his visa application, stated as follows (unedited):
1.My name is [name] and I am [age] years old. I am currently in [immigration detention]. I am making an application for a Bridging visa in order to be released from immigration detention, and reunited with my partner, [Mr A], in Melbourne, Victoria.
2.I have made an application to the Federal Circuit Court (FCC) for review of the Administrative Appeals Tribunal's (AAT) decision to affirm the decision of the Department dated [in] March 2019 to refuse my application for a Protection visa. I attach a stamped copy of my FCC Application filed on 8 August 2019.
3.In 2017, I was [shot] while working at [location]. I have also previously been attacked and beaten severely, including around my head. These experiences have left me with trauma and make it difficult for me to remember things. My ability recall events, or understand questions and ideas is very limited. I think I have suffered a brain injury because of my past traumatic experiences.
4.Because I have problems with memory and trauma, my partner [Mr A] assists me. My relationship with [Mr A] is beautiful. We started our relationship about half a year ago. [Mr A] helps me mentally and emotionally. He assists me with daily life, my paperwork and everything. He helps me and supports me mentally with everything.
5.It is very difficult not being with him. I feel lost I really need to be with him because when I am with him I feel safe and complete.
Previous Bridging visa
6.I cannot remember when my previous Bridging visa expired. I did not know it was expired. I was going through a mentally difficult time and I did not know that the AAT had made a decision in my case. I did not know about the hearing at the AAT. I did not intend to miss the hearing or to let my visa expire.
7.Around this time I was unwell. I have little recollection of this period of time, however I did not know that my visa had expired. I do know that around this time, I was hospitalised in [Suburb 1], however I am unsure of what medical problems were Identified. I was hospitalised because I was found unconscious in [Suburb 1]. My partner [Mr A] says it is because of a brain seizure but I actually don't know why I was taken to hospital.
8.Because of the health problems 1 was experiencing, and also my anxiety and mental health problems, especially my trauma, I did not realise my Bridging visa has expired.
Criminal history
9.I have previously been imprisoned for a period of 6 months. My last Bridging visa was issued following my release from prison.
10.I entered [Prison 1] in early August 2018, and was released from [Prison 2] on 2 March 2019. I attach a copy of my criminal history records.
11.I currently am charged with one count of ignoring direction from police. This relates to an incident at which I was not present I am unclear about why this has happened. This case is ongoing and I will ask that tills charge be withdrawn.
Support in the community
12.I have not worked since I was shot in 2017 because after this I was not able to work. After I was shot I was being treated. [Mr A] has supported me financially and emotionally for our whole relationship. At the time I was detained, I was living with [Mr A] in his apartment in Melbourne. If I was released from detention, I would return to live with [Mr A] and he would continue to financially and emotionally support me, as he has been doing.
The criminal history records attached to the applicant’s statement included various counts in relation to the following charges between 2013 and 2018, with convictions entered and various sentences and fines imposed, including an aggregate six months’ imprisonment:
·Reckless conduct endanger serious injury
·Fail to render assistance after accident
·Contravene family violence intervention order
·Fail to answer bail
·Unlawful assault
·Fail to stop vehicle after an accident
·Use unregistered motor vehicle
·Highway drive without rear “L” plate displayed
·Possess Methyl amphetamine
·Fail to stop vehicle on police direction
·Learner driver drive veh WO exper driver
·Fail to stop vehicle on police direction
·Learner driver drive veh WO exper driver
·Possess Methyl amphetamine
·Possess Methyl amphetamine
·Poss/Use/Carry Proh weapon WO exemt/appr
·Possess Methyl amphetamine
·Poss/Use/Carry Proh weapon WO exemt/appr
·Intentionally damage property
·Possess Methyl amphetamine
·Escape from custody from police member
·Commit indictable offence whilst on bail
·Theft of a motor vehicle
·State false name when requested
·Learner driver drive veh WO exper driver
·Drive without “L” plates displayed
·Possess a drug of dependence
·Drive whilst authorisation suspended
·Learner driver drive veh WO exper driver
·Drive without “L” plates displayed
·Use unregistered motor vehicle – highway
·Affix NR Plate/Reg Label likely mistaken
·Drive Veh-Number Plate Not Affixed as Req
·Use Unregistered Motor Vehicle – Highway
·Possess Methyl amphetamine
·Poss Cartridge Ammunition W/O Lic/Permit
·Traffic Drug of Dependence
·Retention of Stolen Goods
·Possess Explosive substance W/O Excuse
·Deal property suspected proceed of crime
·Possess a drug od dependence
·Poss Imitation firearm WO Exempt/Approvl
·Poss Proh Weapon W/O Exemption/Approval
·Fail to store A/B Longarm correctly
·Carry Unregistered General Category Hgun
·Possess Methyl amphetamine
A statement of the applicant’s partner dated 27 August 2019, attached to the visa application, stated as follows (unedited):
1.My name is [Mr A]. I make this statement in support of my partner, [the applicant]’s application for a Bridging visa.
2.[The applicant] and I have been in a relationship for approximately half a year. We met through a mutual friend. We had been living together almost for this length of time as he moved in with me approximately 2 weeks after we met.
3.[The applicant] suffers from trauma and memory loss. He is reliant on me for a lot of his day to day needs. I cook and clean and I am more responsible for the daily chores of our household. [The applicant] lacks self-confidence and worries about contacting people in relation to essential day to day needs. I manage his medical appointments, and assist him with his migration matter. I assist him to gather documents and to make sure he is looked after.
4.At approximately the end of March 2019, [the applicant] was found unconscious in [Suburb 1] by police and admitted to [Suburb 1] Hospital. I understand that [the applicant] had a brain seizure and that he has a brain injury, however this is yet to be confirmed as I have not been able to obtain [the applicant]’s medical records. I am making a request for his medical records.
5.It is around this time that I understand the Administrative Appeals Tribunal (AAT) made a decision in [the applicant]’s Protection visa matter. [The applicant] and I were not aware of this. We were also not aware that this Bridging visa had expired. [The applicant] was experiencing significant difficulties with his health around this time, and this is why neither he nor I realised his case had been listed for hearing with the AAT, or that, later, his case had been decided and his Bridging visa expired.
6.If [the applicant] is released from immigration detention on to a Bridging visa. I confirm that he will return to live with me in my apartment in Melbourne. I will continue to house [the applicant], and provide him with financial and emotional assistance as I have done throughout our relationship. I will assist [the applicant] to manage his migration matter and will be able to provide him the support he requires.
7.I am employed on a full time basis as an airline steward. I attach my contract of employment as evidence of my ongoing employment and my ability to financial support [the applicant].
The Tribunal discussed with the applicant at hearing its concern that it may not be able to be satisfied that the applicant would not engage in criminal conduct. In this regard, the Tribunal noted from the criminal record the applicant had provided to the Tribunal, and it was not in dispute, that there have been a number of criminal convictions recorded against the applicant in relation to criminal conduct over the past several years, from at least late 2013 to 2018, with a number of convictions and fines/penalties and a six month jail sentence imposed (see Paragraph 19 of these Reasons). The Tribunal indicated that that might be a matter of concern, that based on the applicant’s past behaviour and criminal conduct, the Tribunal might not be able to be satisfied that the applicant would comply with the condition that would be imposed if the visa were granted that he not engage in criminal conduct. The Tribunal invited the applicant to respond to the concern expressed by the Tribunal.
The applicant’s evidence to the Tribunal included as follows:
(a) All his life since 2013 he has been a confused person and he has always been on his own. He was never settled. However, recently when he met his partner, [Mr A], he has stopped doing everything he was doing. He finds himself not being confused any more. He is happy and he is settled. There is a person that looks after him. He loves him. Since he met him everything has changed. He has become a person that is not confused anymore. He was suffering a lot and was alone but since he met his partner, he fixed everything. He is very happy with him. He has not committed an offence since 2018. He has not committed an offence since he met his partner. He met [Mr A] in late march 2019.
(b) The last offence he was charged with was failure to stop on police direction. That was in 2018. He has not had any charges since then.
(c) The Tribunal read out those charges from the applicant’s criminal record noted as having been before the court on 9 January 2019, that is ‘Reckless conduct endanger serious injury, Fail to render assistance after accident, Contravene family violence intervention order, Fail to answer bail, Unlawful assault, Fail to stop vehicle after an accident’ and suggested to the applicant that it seemed that the most recent charges against him were more than just failing to follow police direction.
(d) The applicant stated that he is not able to remember exact dates.
(e) He was released from jail on 1 or 2 March 2019 and he has not committed any offences since that time. He served 6 months in jail prior to his release in March 2019. He met [Mr A] after being released from jail. He is 100% sure he is a changed person. He stated that he will comply with the conditions and will not commit any crimes.
(f)    After being released from jail, he lived in [Suburb 2] with a friend and then after that he met [Mr A]. He moved in with [Mr A] a short time later, probably some time after March 2019. He continued to live with [Mr A] until the incident with the police. The police were called by the neighbours. He and [Mr A] had had a small argument and he had been knocking on the door. He thought he was asleep. He was SMSing [Mr A]. He thought he was asleep but he wasn’t – he was just upset with him. When queried as to why he was knocking on the door if he lived there and presumably had keys, the applicant stated he did have keys but they had had a little argument and his friend who was with him said to just leave [Mr A] for a little while. However, it was not like [Mr A] did not want him in the house. He was just giving him some time because he was upset. However, when he was not there, the neighbours later rang the police and came out and spoke to [Mr A]. They asked [Mr A] whether he wanted to report him (the applicant). [Mr A] said ‘No’ and that he did not want to make a police statement and that he did not want him (the applicant) to be charged and that they had just had a little argument. The police asked [Mr A] to call him (the applicant) and [Mr A] called him and he then spoke to the police and gave the police the address where he was and the police asked him to come to the police station, which he did. At the police station it was all good. He was not charged or handcuffed or anything. They told him there was a CCO (Community Corrections Order) that he needed to attend. He had forgotten about that appointment. He went to the appointment and then the police afterwards told him that his bridging visa had expired. He did not know what they meant. He did not realise that. He was then taken into immigration detention on the second day. He spent the night at the police station and was then taken to immigration detention.
(g) Up until that time, he had been residing with [Mr A] but he has, since the day after going to the police station, been in detention.
(h) He was really shocked as he was not told that his bridging visa had expired.
(i)    He admits that he has committed the offences in the past but he does not have a licence to drive anymore and he will not be driving and he is not lost anymore. He is not confused. He does not believe that he will commit any further offences.
(j)    The police applied for an intervention order between him and [Mr A] but [Mr A] was not happy about it. When he asked the police why they would do that, they said it was because of his past. That is why he is struggling at the moment – he should not be judged on his past. For the first time, he has learned from his past. He has had a break. He is not doing drugs anymore. If [Mr A] does not have any concerns, the Tribunal should not have any concerns and he should be allowed to live with [Mr A].
(k)   The Tribunal discussed with the applicant that it would not look just at what has happened in the past as to what might occur in the future, however, that because of the extensive criminal record, over many years and the number of charges, it would still be a significant matter to take into account in assessing whether the Tribunal could be satisfied that the applicant would not engage in criminal conduct if the visa was granted.
(l)    The Tribunal asked the applicant if there was still a current intervention order against him. The applicant said he can live with [Mr A] – it does not stop that. The Tribunal suggested that if such an intervention order had been made, it would normally be made for a certain period of time and might not necessarily stop a respondent from living with someone, but would rather require them to be of good order or the like.

[Mr A]’s evidence to the Tribunal included as follows:
(a) He met the applicant in mid-March 2019. They lived together basically from the beginning of their relationship, about two weeks after they met, from late March 2019 up until when the applicant was detained on 1 July 2019, so they were living together for three months.
(b) As regards the family violence intervention order, the police were called out by their neighbours about an argument. They automatically put out a family violence notice because they noticed a vase broken in their home but the broken vase was totally unrelated to the argument. He went to court three days later to have it withdrawn because he did not make any statement and he did not want the AVO. He thought it was withdrawn. However, the police informed him that they must issue an AVO if they believe there has been a form of family violence and they did because of the broken vase and the loud voices. All the conditions have been removed and the prosecutor lawyer agreed to remove all the conditions and there is a mention next month. They could reside together and it is back for a mention next month. He never wanted the AVO at all.
(c) If a bridging visa is granted, there will definitely be no criminal activity by the applicant. He has definitely changed his ways. He has changed his lifestyle and the environment he now lives in is just like a normal everyday family. He ([Mr A]) has a very supportive family who are also supportive of the applicant. The applicant does not have anything to do with the previous people he used to associate with and he realises the importance of staying away and getting on track. He has come a long way. His mental health has improved dramatically.
(d) The Tribunal discussed with [Mr A] that even given those matters, given the applicant has an extensive criminal weight going back several years, the Tribunal might put significant weight on that as against the short period of time of three months that the applicant has lived with [Mr A] and changed his ways. [Mr A] responded that he has dealings with people that the applicant associated with before and the applicant has definitely had a hard process in coming to accept himself but the right guidance from himself ([Mr A]) has brought out and helped him deal with his issues, including because of his cultural background. He is dealing with his mental health issues and he is no longer on substances and he has changed a lot. His ([Mr A]’s) family is quite happy to put a bond in place. The “immigration lady” mentioned there was a possibility of the applicant appearing every week to the Department and maybe there being a security bond in relation to a bridging visa. The lady doing his bridging visa application only mentioned a bond of $10,000, he thinks between $5,000 and $10,000 but the lady never called to confirm that.
(e) The applicant definitely has no association anymore with criminal activity and he is now surrounded by good and law abiding people that influence him and have given him the courage to come out as gay and deal with his issues which is a huge achievement for him, given he has been disowned by his own family because of it. He is changing. He admits his faults and is man enough to admit them and make changes to be a better person.
The Tribunal then questioned the applicant about his immigration history in Australia and asked about the visas he had held whilst in Australia. When queried as to whether he had always held a visa whilst in Australia or whether there had been times that his presence in Australia had been unlawful, that is not as a holder of any visa, the applicant stated that he has never been unlawful, that he has always been on a bridging visa.
The Tribunal put some information to the applicant pursuant to s.359AA of the Act. The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked him some questions and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if he wished to respond to or comment on the information. The Tribunal advised the applicant that he was entitled to seek additional time to respond to or comment on the information and if he wished to do so, he should let the Tribunal know.
The Tribunal stated that it had information before it that the applicant had first arrived in Australia as the holder of a visitor visa, had departed Australia, and returned, on three occasions, had held a number of visas while in Australia but had also had periods of time in Australia, totalling over three years during which he was not the holder of any visa authorising his presence in Australia, consistent with the applicant’s evidence to the Tribunal that when he was detained by the police, he had not realised his bridging visa had ceased. The Tribunal noted that the information before it included that the applicant was granted a bridging visa in May 2012 which ceased in October 2012 and it was during the course of that bridging visa that he departed Australia in May 2012 and returned a few weeks later but that after expiry of that visa in October 2012, the applicant was in Australia for over a year while not the holder of any visa, until December 2013 when he was granted a bridging visa. Further, the information before the Tribunal is that a subsequent bridging visa granted in August 2014 expired in February 2015 and from February 2015 to February 2017; the applicant was not the holder of any visa. Further, the information is that the applicant did not have a bridging visa after 3 May 2019 and he was therefore not the holder of a visa in Australia from 3 May 2019 until he was detained on 1 July 2019.
The Tribunal indicated that why that information is relevant is that one of the things that the Tribunal has to regard is the applicant’s past history in Australia. The Tribunal noted it would have to consider the extent to which that information might be relevant to an assessment of whether the applicant would engage in criminal conduct if the bridging visa is granted, but it might be relevant to the Tribunal’s entire consideration of the matter and depending upon what conclusions the Tribunal reached as to its relevance to whether the applicant would engage in criminal conduct if the visa was granted, it may be the reason or part of the reason, subject to the applicant’s comment or response, that the Tribunal affirms the decision to refuse to grant the visa.
The Tribunal asked the applicant if he understood the information set out and why the information was relevant. The applicant indicated that he understood.
The applicant indicated he wished to comment on or respond to the information there and then. The applicant stated that he did not remember being unlawful for two or three years. He was in detention for some time in 2017. He does not remember being unlawful for that period of time as he has always been on a bridging visa. The applicant stated that he was in a detention centre from February 2015 to February 2017. When queried about the other period, the applicant said he had always had a bridging visa and when he departed Australia, he returned on a visa and in 2013, it was the first time ever that he had committed a crime in Australia. He said the times the Tribunal had mentioned he must have either been in detention or on remand. The applicant stated that did not know that his most recent bridging visa was expired. He was having a very hard time with his old lawyers and he was suffering from loss of memory. He was trying to contact his lawyers and he was stressed and confused. He does not ever remember being called and being told that he did not have a bridging visa anymore. He has always been on visas otherwise he would have been detained. He has been in detention for 20 months previously. He has only been sentenced one time in his life – for six months.
Oral submissions to the Tribunal included as follows:
(a) There is a current intervention order against the applicant but the current status of that order is unknown other than that there is a mention at court in relation to that next month.
(b) The applicant and [Mr A] have presented in a comprehensive way the changes in the applicant’s circumstances and it comes down to whether his personal circumstances have changed and whether the Tribunal accepts the applicant’s personal changes.
(c) It cannot be underestimated the effect of the applicant’s current changed lifestyle upon the risk he will offend in the future. It was at least alluded to that the applicant has now accepted himself and by that he means that he is now open about his sexuality and that his sexuality is something he has struggled with for a very long time.
(d) It is very important to look at the applicant’s criminal behaviour and his unlawful period in the context of what was going on in his life at that time and that it is clear that almost all of his criminal record involved substance abuse. Further, it is also clear that his relationship history has been with two women and the applicant was struggling to come to terms with his sexuality and substance abuse. It has also been noted that the applicant possibly has an acquired brain injury, although access to those medical records have not yet been obtained. Further, there has been a diagnosis of post-traumatic stress disorder and that should be taken into consideration and compared with his changed circumstances. He has finally come to terms with his sexuality and is openly gay and living in a gay relationship, is no longer suffering from substance abuse and he has someone in his life that he is living with, and who is offering substantial support, emotionally and financially, and is prepared to continue that support and to assist the applicant to comply with all conditions of the bridging visa and [Mr A] will play a crucial role in assisting the applicant get the medical treatment he requires and to obtain psychological support as well. Further, [Mr A]’s family is willing to put up a security bond which is quite telling of their faith in someone else’s behaviour and their ability to abide by visa conditions.
(e) Circumstances have changed from the time the Department handed down its decision because the only remaining criminal charge was dismissed by the court on Wednesday[1].
(f) Both the applicant and [Mr A] have explained the circumstances relating to the family violence safety notice and it is pertinent that [Mr A] did not seek or pursue the notice. Although it is not 100% clear whether the notice is still on foot, it is also telling that it would only be preventing the applicant from committing family violence but does not prevent the applicant from continuing to live with [Mr A].
(g) The decision of the Department alludes to outstanding arrest warrants against the applicant but there is no evidence of what that relates to but that given that the applicant has now been released from prison, it would be unusual that there were outstanding arrest warrants.
(h) There may be some more documents that are obtained. In that regard the Tribunal noted that it would take into account any relevant documents received prior to its decision being made.
[1] The Tribunal notes that it received an email from the applicant’s representative on 17 September 2019 attaching a letter form [legal representatives] confirming withdrawal of the charge of failing to stop a vehicle on police request and the charge was struck out by the court.
The Tribunal indicated that its continuing concerns are that notwithstanding all those matters and the changed circumstances, the criminal record of the applicant is extensive and over a number of years as against a very short period of changed circumstances.
The applicant stated that he has been disowned from his own family but at the same time he is still happy that he has found himself and he is 100% sure that he will not commit crime anymore.
Conclusion
The Tribunal also had regard to an email received from the applicant’s representative after hearing (and attached documents) showing that there is currently an Interim Intervention Order dated 4 July 2019 against the applicant but the party protected, [Mr A], opposed the order and has requested that it be withdrawn, with a further mention of the matter listed for 1 October 2019 and the order likely to be dismissed at that hearing.
The Tribunal has had careful regard to documents, oral evidence and submissions relied upon by the applicant.
It seems that the applicant has had some periods of time in Australia during which he has not been the holder of a valid visa. Some of these periods of time may have been during periods of detention or remand; however the Tribunal does not have conclusive evidence before it in that regard. Whatever the position in that regard, while periods of unlawfulness in Australia might inform considerations as to imposition of conditions 8401 and 8506 and whether those conditions would be complied with, the Tribunal does not consider periods in Australia not as the holder of a valid visa of relevance to the separate assessment of whether the applicant would comply with the condition to not engage in criminal conduct if the visa was granted.
Turning to assessment of whether that condition would be complied with, the Tribunal accepts that the applicant’s circumstances have changed since March 2019 in that he has now accepted his sexuality and is in a supportive relationship with [Mr A]. However, as discussed with the applicant at hearing, the Tribunal places significant weight on the applicant’s past criminal convictions in circumstances where the Tribunal considers past actions a strong indicator of possible future actions, particularly given the applicant’s very significant criminal records. While the Tribunal accepts that it appears that a number of things have now changed for the applicant, including in relation to support to address issues that have previously impacted upon him, the Tribunal considers the relevant short period of time in 2019 in which it is submitted the applicant has demonstrated changed behaviour is outweighed by a lengthy and extensive past criminal record in Australia in assessing the applicant’s likely future conduct. While there is a suggestion that the applicant may have an acquired brain injury and is obtaining medical assistance for mental health issues, there was no evidence corroborating, or expanding upon, those matters at the hearing, or provided prior to the Tribunal’s decision, which as discussed with the applicant and his representative at hearing has been required to be finalised in a confined timeframe.
Having had regard to all of these matters, the Tribunal is unable to be satisfied that the applicant would not engage in criminal conduct if released into the community and is therefore not satisfied that the applicant would abide by condition 8564.
As the Tribunal must be satisfied that all conditions which would be imposed upon the visa would be abided by the applicant for cl.050.223 to be met, and as the Tribunal has found that the applicant would not abide by condition 8564, cl.050.223 is not met. It is therefore unnecessary for the Tribunal to also consider whether the applicant would abide by the other identified conditions.
The Tribunal has concluded that it is unable to be satisfied that the applicant will abide by the conditions which would be imposed on the visa. The Tribunal also considered if the conditions would be complied with if security were taken.
The Tribunal discussed with the applicant that if it formed the view that it was not satisfied that the applicant would not engage in criminal conduct, it might also form that view notwithstanding the payment of any bond. However, given the applicant’s past actions as already canvassed, and the Tribunal’s concern that past actions are a significant indicator of possible future actions, notwithstanding other evidence supporting a change in behaviour or an incentive to not engage in criminal conduct, any such changed circumstances have been over a very short period only when contrasted against the many years over which the applicant holds a criminal record. The Tribunal has considered these matters carefully but is also unable to be satisfied that the applicant would abide by condition 8564 even if a security were taken.
CONCLUSION
The Tribunal is required to be satisfied that all conditions which would be imposed on the visa would be complied with by the applicant. Given that the Tribunal is not satisfied that the applicant will comply with condition 8564 which would be imposed on the visa, the applicant does not meet cl.050.223 and it is not necessary to consider any of the further conditions that would be imposed. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
OTHER MATTERS
The Tribunal observes that there was evidence before it that the applicant is impacted by memory loss. There is also evidence before the Tribunal that the applicant is impacted by medical conditions which might suggest an impact upon the applicant’s capacity to participate in the hearing. However, there is no medical evidence before the Tribunal as to the impact of those conditions. At times the applicant was not able to remember exact dates or circumstances, however, as discussed with the applicant at hearing, the Tribunal would not expect an exact recall of details and placed no adverse weight on any such inconsistencies or inability to remember dates or times. The applicant was responsive and engaged in questioning with the Tribunal and the Tribunal formed the view that he had capacity to fully participate in the hearing. Notably, there were no submissions made by his representative to the contrary.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Susan Trotter
Member

[2019] AATA 4223

17 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction