1927605 (Migration)

[2019] AATA 6412

1927605 (Migration) [2019] AATA 6412 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927605

MEMBER:Tania Flood

DATE:11 October 2019

PLACE OF DECISION:  Sydney

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.050.212 of Schedule 2 to the Regulations; and

·cl.050.223 of Schedule 2 to the Regulations.

Statement made on 11 October 2019 at 11:13am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – on bail for criminal charges – family and community support, and access to mental health treatment – compliance with previous bridging visas – not aware at the time that last bridging visa expired – informed department of change of address after last bridging visa expired but before becoming aware – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 73

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.613, Schedule 8, conditions 8401, 8506, 8564, 8566

CASE
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

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 26 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). Relevantly to this matter, the primary criteria include cl.050.212 and cl.050.223.

3. The decision to refuse to grant the visa was made on 30 September 2019 on the basis that the applicant did not meet cl.050.223 because the delegate was not satisfied that the applicant would abide by conditions to be imposed on the visa.  

4. The applicant appeared before the Tribunal on 9 October 2019 to give evidence and present arguments. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Pre-hearing submission

6. On 8 October 2019 the applicant’s representative provided a submission to the Tribunal with the following attachments:

   -    Statement by the applicant dated [October] 2019

   -    Statement by the applicant’s wife dated [October] 2019

   -    Statement by the applicant’s [relative]-in-law dated [October] 2019

   -    Bail conditions and release certificate

   -    Transcript of Supreme Court Bail hearing on [date] September 2019

   -    Emails between the applicant and ‘[email protected]’ in march 2019

   -    Letter from STARTTS dated [October] 2019

7. The written submissions are summarised as follows:

8. The Tribunal can be satisfied that the applicant will comply with the conditions placed on a Bridging Visa E (BVE).  The evidence reflects that the applicant will have access to significant support if he is released into the community and will be subject to the bail conditions made by the Supreme Court.  In such circumstances the applicant will not engage in criminal conduct.  The applicant will also comply with conditions of reporting to the Department and notifying changes of his address.  He has lived in the community since December 2014 on Bridging Visa E’s and during this time he has reported to the Department and updated his address.  His most recent email to the Department updating his address was [in] March 2019.  Furthermore, his bail conditions require him to live at his [relative]-in-law’s address.  If a bond would satisfy the Tribunal of compliance the applicant is willing to provide a bond and will make all efforts to obtain the means to do so through his Afghan community.

   Oral evidence to the Tribunal

9. The applicant provided the Tribunal with background information in respect of his personal circumstances.  He testified that he married in Australia in 2017 and remains married.  He said his wife has an intellectual disability. They have a daughter who has been in the care of DHS since shortly after her birth.  He suffers from anxiety and depression.  Since being detained he has visited the health nurse and has had appointments with a psychiatrist and a counsellor.  He takes medication for anxiety and to help him sleep.  He also underwent psychological counselling in Melbourne where he previously lived.

10. The applicant testified that he was not aware that his last Bridging Visa had expired until just prior to his arrest.  He said he called the Department himself and was told it had expired.  Prior to this he said he made several attempts to find out his visa status through his case manager.  He said he also approached [Organisation 1] who told him the VIVO records showed his visa was current.   He added that he has striven to keep the Department informed of his whereabouts ever since his release into the community.

11. The applicant confirmed that he received an email from the IAA about his application for review but he could not understand what it meant.  He said at that point he no longer had a case manager or any legal representation.  He said he only fully came to understand the situation after he was detained.

12. The applicant informed the Tribunal that he and his wife moved to Sydney in around May 2019.  He said they moved in order that he could get some support from his Afghan community which is better represented in Sydney.  He said they struggled to find accommodation and were reduced to sleeping in the car.  They managed to obtain five nights assisted accommodation in a hotel and then later were helped to find a room in [Suburb 1] where they only stayed for one night due to him being arrested. 

13. The applicant said that his [relative]-in-law and [her/his] partner and children moved from Melbourne to Sydney after his arrest to support him and his wife.  He confirmed he will go to live with his [relative]-in-law if he is granted a Bridging Visa.  He said his wife is currently renting a room nearby but when that contract ends she will also move to live with her [relative].

14. The applicant was asked how well he understands the bail conditions imposed by the court.  He said he is required to live with his [relative]-in-law; to not leave the house between 8pm and 6am; to only leave the house outside those hours if accompanied by his [relative]-in-law, [her/his] partner or his wife; to seek medical treatment for his mental health problems and to report to the police.  He said he is willing to comply with these conditions.

15. The Tribunal pointed out that at the time those bail conditions were set there was an expectation that the criminal matters would be disposed of quickly but as his court appearance on [date] September 2019 was postponed it will be a further five months before any further deliberations.  The Tribunal noted that the bail conditions are very restrictive and asked how he will comply with them given the length of time before his next court appearance.  The applicant responded that he will follow the conditions which have been imposed.  He said that he has been in Australia for around six years and he has not been charged with any criminal offence.  He said he is fully aware that if he does not abide by the bail conditions he will be detained again.

16. The applicant was asked to explain the criminal charges against him.  He said he has been charged with intimidation of his neighbour and police officers.  He denies he threatened his neighbour claiming never to have seen him before as he had literally only just moved into the premises when the alleged incident occurred.  He admits to being highly upset and suffering physical pain when taken to the police station and to swearing at the police officers.  He said he feels ashamed about this and concedes his behaviour was incorrect. 

17. When asked if he has had any other encounters with the police in Australia he said that he was twice assaulted in Victoria and reported the matters to the police.  He said on the first occasion his wife informed him their room had been broken into and when he asked a neighbour about it he struck him.  On the second occasion he was punched by another neighbour after he informed the police that he was parking his vehicle illegally.  He said no charges have been brought against him by the Victorian police.  

18. When asked how the Tribunal can be certain he will not engage in any criminal conduct if granted a Bridging visa the applicant said that he has not committed any offences to date other than swearing at the police in NSW. 

19. The applicant testified that he has undertaken some work previously in Australia.  He said he worked for a short while in a [workplace] and for a few months as [an occupation].  He said he was granted work rights and that he has only ever worked legally in Australia.

20. When asked how he will support himself if released from detention he said that his wife receives a disability support pension of about $1000 per fortnight and his Afghan community in Sydney have offered him support as well. 

21. The Tribunal asked the applicant how he foresees living with his [relative]-in-law and [her/his] family.  He said that he has known his [relative]-in-law and [her/his] partner for several years and they enjoy a very close relationship.  His representative added that his [relative]-in-law’s willingness to move the family from Melbourne to Sydney is a significant show of support for the applicant.  She went on to state that if the arrangement were to fall through and the applicant were to move out then he would no longer be compliant with his bail conditions and would be detained unless the bail conditions were revised.  She submitted that the applicant has every incentive to comply with the condition and to employ all efforts to make the arrangement work.

    Post hearing submission

22. On 9 October 2019 the applicant’s representative made submissions regarding the applicability of condition 8101.

23. On 10 October 2019 the Tribunal was provided with a letter of reference from the President of [Organisation 2] and Clinical Records arising from a mental health consultation on 19 September 2019.

    FINDINGS AND REASONS

    Whether the applicant satisfies the criterion in cl.050.212

24. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212 (2)-(9).  The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

25. [In] September 2019 the applicant sought judicial review of an Immigration Assessment Authority decision dated [September] 2018.  This review has not been determined.  On this basis the Tribunal is satisfied that the applicant meets cl.050.212 (3A)(b)(i).

26. The issue in this case is therefore whether, if the visa is granted, the applicant will abide by the conditions that will be placed on the visa.

    Whether the applicant will abide by conditions - cl.050.223

27. 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.

28. 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].

29. 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.

30. In this case, cl.050.613 applies and prescribes that certain conditions may be imposed. The Tribunal notes the Delegate considered the following conditions ought to be imposed and having considered the submissions made in respect of the applicability of condition 8101 the Tribunal has formed a similar view:

    -    8401 (report at a time and place specified by the Minister)

    -    8506 (notify change of address)

    -    8564 (must not engage in criminal behaviour)

    -    8566 (must not breach code of behaviour)

    Conditions 8401 and 8506

31. According to the information contained in the Delegates decision, the applicant arrived in Australia [in] July 2013 as an unauthorised maritime arrival and was detained.  He was granted a Humanitarian Stay (Temporary) (classUJ) (subclass 449) visa [in] December 2014. He was also granted a Bridging visa and released into the community.  He was subsequently allowed to lodge either a Temporary Protection Visa or a Safe Haven Enterprise Visa application.  He was granted four further Bridging Visa E’s (BVE) before lodging a Safe Haven Enterprise Visa (class XE) (subclass 790) [in] April 2017. An associated BVE was granted to the applicant [in] May 2017.  [In] April 2018 the applicants XE790 application was refused and the subsequent review at the Immigration Assessment Authority was finalised as affirmed [in] September 2018.  The applicants BVE granted in association with his Safe Haven Enterprise Visa application ceased [in] October 2018.

32. The Departments records show that the applicant maintained contact with the Department, regularly updating his contact details, following his release from detention in 2014 until prior to his arrest [in] May 2019.  The Tribunal acknowledges that the applicant became an unlawful citizen [in] October 2018 and is cognisant of the gravity of this situation.  However, the information before the Tribunal indicates that he contacted the Department to advise a change of address on separate occasions after the cease date of his BVE.  While he concedes he received a decision from the IAA, albeit one he did not fully understand, he maintains that until shortly before his arrest he was unaware his Bridging visa had ceased.   The Tribunal has taken into consideration the fact the applicant has declared mental health issues and was unrepresented at that time.  The Tribunal also considers the applicant’s behaviour supports his assertion that he was unaware his BVE had ceased.  The Tribunal is of the view that if the applicant knew his BVE had ceased and was knowingly attempting to remain unlawfully in the community there is little likelihood he would have continued to update the Department about his whereabouts.  Based on his oral testimony and the evidence of the contact he maintained with the Department after the cease date of his Bridging visa, the Tribunal accepts the applicant was unaware his visa status had changed until shortly before his arrest [in] May 2019.

33. If the applicant is granted a BVE and released from detention the Tribunal is satisfied he will reside at his [relative]-in-law’s address in compliance with his bail conditions and that he will inform the Department accordingly.    Given this, and having regard to his past pattern of engagement with the Department, the Tribunal is satisfied that if the applicant is granted a BVE and is released from detention he will comply with conditions 8401 and 8506.

    Conditions 8564 and 8566

34. There is no evidence before the Tribunal to indicate the applicant was ever charged with a criminal offence in the state of Victoria.  In NSW he is facing charges of common assault; armed with intent to intimidate and attempts to intimidate police.  These charges were scheduled to be heard by the Local Court at [Suburb 2] on [date] September 2019 however the hearing was postponed until [date] March 2020 on the request of the police prosecutor to gather further evidence.  

35. As to the charge of intimidating police officers, the applicant accepts his guilt and expressed shame and remorse during the hearing for his behaviour. The letter from the [Organisation 2] indicates the applicant has expressed similar sentiments about his behaviour to the President of the [Organisation].  The applicant denies the remaining charges and the Tribunal accepts it is a matter for the court to decide this. 

36. In granting the applicant bail, the Supreme Court of NSW noted that the applicant currently has no criminal record and has until recently been living in the community for years without having been convicted of any offence and without committing violence.  Similarly, his evidence to the Tribunal is that he has never assaulted or attacked anybody in the past; rather he has been the victim of two assaults in Victoria and as he maintains, wrongly accused of intent to intimidate his neighbour in NSW.

37. The applicant has spent several months in custody in connection with these charges and a further month in immigration detention.  He is aware that any criminal behaviour on his part or deviation from his bail conditions could lead to further incarceration and separation from his wife and her family from whom he gains emotional support.  Nothing in his oral evidence indicated to the Tribunal that he would wilfully engage in criminal conduct if he is granted a BVE and released from detention.   Nor do the circumstances into which he will be released if granted a BVE, present concerns for the Tribunal about the likelihood of him engaging in criminal conduct. 

38. The Tribunal was unable to speak to the applicant’s [relative]-in-law as [s/he] could not attend the hearing for personal reasons and was not contactable by phone during the hearing.  However, included in the documentation submitted to the Tribunal [in] October 2019 is a written statement from the applicant’s [relative]-in-law.  This statement confirms that [s/he] and [her/his] family moved from Melbourne to Sydney to provide support to her [relative] and the applicant; that [s/he] is supportive of her [relative]’s marriage to the applicant; that [s/he] has never witnessed the applicant being aggressive or violent in the years [s/he] has known him.  Further, [s/he] states that [s/he] has given [her/his] support for the applicant’s bail; is aware of the conditions of his bail and happy to help him to keep those conditions.  [She/He] undertakes to support the applicant financially, noting that [her/his] partner is in full-time employment.   The Tribunal notes [s/he] made similar undertakings to the Supreme Court as part of the bail application.

39. It is submitted, and the Tribunal is prepared to accept on the evidence before it, that if the applicant is released from detention on a BVE his living arrangements will be vastly more supportive than those he found himself in on arrival to Sydney.  He will have accommodation in the home of his [relative]-in-law, financial and emotional support from his wife, his in-laws and his Afghan community and the ability to seek mental health treatment in the community.  Indeed, the Tribunal is of the view that easy access to mental health services will also lower any risk there may be of the applicant finding himself in a vulnerable situation where criminal conduct may arise.

1. For the above reasons the Tribunal is satisfied that the applicant has every incentive to, and will comply with his bail conditions and the behavioural conditions imposed on his BVE if it is granted.  The Tribunal is satisfied he will not engage in criminal conduct and will comply with the code of behaviour.  Accordingly, the Tribunal is satisfied he will comply with conditions 8564 and 8566.

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.

4. 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

5. 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.050.212 of Schedule 2 to the Regulations; and

   ·cl.050.223 of Schedule 2 to the Regulations.

   Tania Flood
   Member