1926217 (Migration) - [2019] AATA 6141

1926217 (Migration) [2019] AATA 6141 (19 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926217
MEMBER:Mireya Hyland
DATE:19 November 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 19 November 2019 at 5:08pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – criminal convictions – convicted of sexual offences – lack of rehabilitation – risk of re-offending – mental health in prison – disregard for victims – failure to seek counselling – offences escalated over time – crimes of convenience and opportunity – supportive relationships available – no history of non-compliance with immigration law – not satisfied he will abide by conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 050.211, 050.223, 050.618
CASES
Applicant VAAN of 2001 v MIMA (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, [the Applicant], a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.
[The Applicant] applied for the visa on 11 September 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). Relevant to this matter, the primary criteria include cl.050.223. The decision to refuse to grant the visa was made on 16 September 2019 on the basis that the delegate was not satisfied that [the Applicant] will abide by the conditions on the Bridging E visa and the imposition of a security, regardless of amount, will not secure compliance.
[The Applicant] appeared before the Tribunal on 26 September 2019. That hearing was adjourned to accommodate [the Applicant’s] request for additional time to respond to adverse information about his criminal convictions which were then put to him under s.359A of the Act. The hearing before the Tribunal resumed on 9 October 2019 for [the Applicant] to give evidence and present arguments. The Tribunal also received oral evidence from [the Applicant’s] cousin, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages, although [the Applicant] gave much of his evidence in English. [The Applicant] was represented in relation to the review after the Tribunal adjourned the hearing. The representative attended the resumed hearing.
The issue in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1926217 (Migration)

Details

AGLC: 1926217 (Migration) [2019] AATA 6141
Case: [2019] AATA 6141
Decision Date: 19 November 2019

CaseChat Overview and Summary

The applicant, who arrived in Australia in June 2011, sought review of a decision not to grant him a Bridging E (Class WE) visa. The applicant's initial partner visa application was refused in January 2013, leading to the grant of a Bridging A (Class WA) visa. Subsequent applications for a permanent partner visa, a protection visa, and ministerial intervention were unsuccessful or withdrawn. The applicant is currently the subject of a separate protection visa application review. The central dispute concerned whether the applicant would comply with Condition 8564, which prohibits engaging in criminal conduct.

The legal issues before the Tribunal were whether the applicant had demonstrated a lack of rehabilitation and a risk of re-offending, particularly in light of his criminal convictions. The Tribunal was required to consider the applicant's history of sexual offences, the escalation of these crimes, his failure to seek counselling, and his apparent disregard for victims. Furthermore, the Tribunal had to assess whether the applicant's available supportive relationships and his mother's need for care constituted sufficient grounds to mitigate the risks associated with granting him a bridging visa.

The Tribunal affirmed the decision not to grant the applicant a Bridging E visa, concluding that he had not satisfied the requirement that he would abide by the condition of not engaging in criminal conduct. The applicant's criminal history, which included serious sexual assaults and other offences, was found to be concerning, with the offences escalating over time and demonstrating a pattern of behaviour. Despite the availability of supportive relationships and his stated desire to care for his mother, the Tribunal found no evidence of rehabilitation or a commitment to desist from criminal activity. The Tribunal noted that the applicant had not sought counselling and that his offences were described as crimes of convenience and opportunity. Consequently, the Tribunal was not satisfied that the applicant would comply with the visa conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this case is whether [the Applicant] will comply with Condition 8564, that the holder must not engage in criminal conduct. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE [In] June 2011, [the Applicant] arrived in Australia as the holder of a Partner (Class UF) Subclass 309 visa. On 2 January 2013, his application for his permanent Partner (Class BC) Subclass 100 visa was refused and he was granted a Bridging (Class WA) Subclass 010 visa (BVA). The Subclass 100 visa was refused on the basis that [the Applicant’s] wife, [Ms B], had withdrawn her sponsorship because the relationship had ceased. [The Applicant] unsuccessfully sought both Tribunal and judicial review of the decision to refuse to grant him a permanent partner visa, and a request for ministerial intervention under s.351 of the Act was ‘not referred’. On 14 November 2016, [the Applicant] applied for a Protection (Class XA) Subclass 866 visa (protection visa) which he withdrew on 19 December 2016. On 11 September 2019, [the Applicant] lodged another protection visa application. On 11 September 2019, the Department of Home Affairs (DOHA) refused to grant [the Applicant] a protection visa and on 14 October 2019 he made an application for review of that decision. That matter is currently before the Tribunal, differently constituted. [The Applicant] is a hairdresser who ran a hair salon business out of [a location]. He owns this premises which is currently rented and managed by [Company 1]. [The Applicant] receives a net income from [Company 1] of around [amount] to [amount] per month, or between January and July 2019 [amount] after expenses. In 2013 [the Applicant] was charged with serious sexual assaults associated with his work at his hair salon, including assault with act of indecency, common assault, and sexual intercourse without consent. He received bail on a surety of [amount] and certain living and reporting conditions. While on bail he lived with his sister and brother-in-law, [Mr and Mrs C], at [Address 1]. The Tribunal notes that [the Applicant] has provided evidence that the bail was refunded indicating that he complied with those conditions. However, [the Applicant] was taken into custody in November 2014 after a further allegation of indecent assault at [Address 1]. He remained on remand during his four trials and [in] November 2017 was sentenced to an aggregate term of 6 years for 10 counts of ‘assault with act of indecency; take/detain person with intent to obtain advantage; and stalk/intimidate intend fear physical etc harm (personal)’ commencing [in] November 2014. [The Applicant] was released on parole in [date] after serving four years and nine months. He was then taken into immigration detention. [The Applicant] told the Tribunal that his mother, [Mrs D], arrived in Sydney from Lebanon about 12 months ago to see [the Applicant] while he was still incarcerated. [Mrs D], who suffered a [medical condition] in 2016 resulting in [medical issues]. Because her deteriorating health meant that she was unable to visit her son in jail or detention they have been unable to maintain their relationship. After the incidental discovery of [Medical Condition 1] during an MRI and CT [scan], [Mrs D] had [another medical procedure] performed [in] September 2019. Her [specialist] concluded that the [Medical Condition 1] is treatable and [in] October 2019 she underwent surgery. [The Applicant] has expressed a need to get his mother’s ‘blessing and forgiveness’. Also, he claims his mother, who is living with his sister, requires care after her surgery, but both [Mr and Mrs C] work full-time. He wants to be able to fill that gap and care for her.

Decision

Reasons for decision

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 does not meet the requirements for the grant of that visa.DECISION The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.Mireya HylandMember

Ratio Decidendi

Legal Principle Established

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