1933380 (Migration)

[2019] AATA 6676

1933380 (Migration) [2019] AATA 6676 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933380

MEMBER:Nicholas McGowan

DATE:4 December 2019

PLACE OF DECISION:  Melbourne

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

Decision made 1:04pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – substantial criminal history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Condition 8564

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.

REVIEW

1. The visa applicant applied for the visa on 19 November 2019. This is a review of a decision made by a delegate of the Minister for Immigration on 21 November 2019 to refuse to grant the visa applicant a Bridging E (Class WE) Subclass 050 visa.

2. This Tribunal conducted a public hearing to provide an opportunity for the applicant to present argument and evidence. The applicant attended via video-link. This Tribunal also received evidence from the applicant’s current partner, and the applicant himself, in the form of pre-hearing written submissions.

3. The applicant advised this Tribunal his protection visa application remains under active consideration (that is, ‘not finally determined’). Given the applicant meets the relevant time of application and time of decision criteria for the application of the bridging visa, the question for this Tribunal is whether the applicant would abide by the discretionary conditions attached to the grant of any bridging visa should it be granted. In this case no mandatory conditions have been applied by the Department of Immigration.

4. In consideration of whether the applicant would abide by the discretionary conditions the Department of Immigration identified, this Tribunal discussed each one with the applicant and invited him to make comment, or present any argument or evidence in support of his claim he would abide by each. The discretionary conditions under consideration in this case are a condition of ‘no work, ‘no study’ ‘not to engage in criminal conduct’, ‘report as directed’ and ‘remain at a specified address’. The applicant claims he will abide by all.

5. This Tribunal advised the applicant it would need to reflect carefully when it considers his substantial criminal history insofar as his driving offences are related - and the extent to which he has now satisfied this Tribunal that his breaches of road law will cease upon the grant of a bridging visa. This was a critical consideration for this tribunal, because although the applicant claims he is now receiving counselling in regards to his use of alcohol, the evidence before this Tribunal is that he has engage in blatant and consistent illegal activity and disregard for road laws since at least 2013, moreover, the nature of these offences has been extremely serious, in this tribunal’s view because of the seeming disregard for repeated opportunities to reform (or merely, not offend). The applicant drove unlicensed, engaged in dangerous driving, provided a false name, failed to provide breath for breath analysis, breached a bail undertaking and has been disqualified from holding or obtaining a driver’s licence permanently. In these circumstances, and despite the applicant’s claim he will abide by the condition ‘not to engage in criminal conduct’, this Tribunal has not been satisfied the applicant will abide by this condition because of his consistently delinquent past behaviour, which includes an adverse finding at Court, as recently as October of this year. It follows the applicant has not satisfied this Tribunal he will abide by the discretionary condition (8564). Accordingly, further consideration of the remaining discretionary criteria is not necessary, as failure to abide by one condition, is fatal to the application under review.

   FINDINGS

6. Given the above, the applicant does not meet cl.050.223.

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

*  *  *  *  *