1933796 (Migration)

[2019] AATA 6730

1933796 (Migration) [2019] AATA 6730 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933796

MEMBER:Luke Hardy

DATE:6 December 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 06 December 2019 at 2:02pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – intention to apply for merits review – abide by conditions imposed – no work requirement – substantial financial pressure – support from relatives overseas – reporting and notification requirements – similarity with bail conditions – no criminal conduct requirement – pending criminal charges – intention to plead not guilty – potential deficiency in case against applicant – different considerations to those of the bail court – risk to safety of Australian community or individual – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 116
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8, Conditions 8101, 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 (BE) under s.73 of the Migration Act 1958 (the Act).

2. The applicant, an Iraqi national, first arrived in Australia as an Unauthorised Boat Arrival [in] August 2012. He was granted a Temporary Humanitarian Stay visa on 5 December 2012 and an associates BVE on the same day. The applicant later became eligible to lodge an application for a Safe Haven Enterprise visa (SHEV). He was granted several BVEs before lodging a SHEV application on 19 October 2015. He was granted a SHEV on 20 November 2017 valid to 21 November 2022.

3. The applicant was arrested by NSW police [in] June 2019 and charged with eight criminal offences all related to sexual assault of a minor. He was granted bail [in] September 2019 and released from custody. One of the conditions of his bail, evidently, was to report three times a week to a specified NSW Police station. He evidently adhered to this condition, but was located during one visit, on 25 November 2019 by Australian Border Force officers, his having been issued with a Notice of Intention to Consider Cancellation (NOICC) of his SHEV on 15 October 2019 and the Minister having cancelled his SHEV on 15 November 2019.

4. The applicant was detained at [an] Immigration Detention centre [in] November 2019 and lodged a BVE application citing an intention to lodge an application for review by the Minister or his delegate of the 15 November 2019 visa cancellation.

5. 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.050.212(4)(b) and (c): the applicant has applied or will apply for merits review of a decision to cancel a visa; and

   ·cl.050.223 (Abide by Conditions), with, in this case, the discretionary condition 8101 (No Work), 8207 (No Study), 8401 (Report As Directed), 8506 (Must Notify A Change Of Address), 8564 (Must Not Engage In Criminal Conduct) and 8566 (Must Not Breach Code of Behaviour).

6. The decision to refuse to grant the visa  was made by an authorised officer on 27 November 2019 on the basis that the applicant did not satisfy cl.050.223 or 051.211 of the Regulations.

7. The delegate considered evidence from the applicant to the effect that he had not been able to find work since the time he was charged by the NSW Police, and to the effect that he needed income to help pay related legal bills. The delegate heard that the applicant was residing with a fried and receiving a Centrelink benefit of $650.00 per week. The delegate also heard that the applicant is married and that his wife, evidently living at a different location, was having to support their [children] on approximately $1,000.00 a week in Centrelink benefits. It is common knowledge that Centrelink benefits are usually attached to requirements to look for paid employment. In any event, the delegate took the view that the Applicant could not subsist on $650.00 per week as well as contribute even in instalments to legal bills that he said were already as high as $50,000.00. The applicant told the delegate that a relative abroad would send him US$2,000.00 (approximately A$3,000.00) per month.

8. The delegate considered evidence from the applicant to the effect that he had, in his view, been wrongly accused and intended to plead not guilty in an upcoming committal hearing. The delegate apparently gave weight to the fact that the criminal matter was as yet unresolved and assessed the potential risk the applicant would or might be to the Australian community or a segment of the Australian community, having regard to s.116(1)(e) of the Migration Act, apparently as a guide to assessing risk rather than purporting to cite it strictly as the criterion in condition 8564.

9. Specifically, the Minister’s delegate was not satisfied that the applicant would abide by condition 8101 (No Work) or 8564 (Must Note Engage in Criminal Conduct). The delegate also expressed serious concerns about the applicant being or having the potential to be in breach of condition 8566 (Must Not Breach Code of Behaviour), presumably referring to undertakings to adhere by conditions of the SHEV and/or past BVEs.

10. The applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

11. The applicant was not represented in relation to the review.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The main issue in this case is whether the applicant meets time of application and time of decision criteria, c.050.223 in particular.

    Immigration status of the applicant - cl.050.211

14. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

15. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

16. I find that the applicant was an unlawful non-citizen at the time of application. Accordingly, the applicant meets cl.050.211(1).

17. I find on the evidence that the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). Accordingly, he meets cl.050.211(2).

18. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa - cl.050.212

19. 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.

20. In this case, the applicant is seeking to meet cl.050.212(4). He does not claim to meet any of the other alternative criteria in cl.050.212.

21. For the reasons below, the applicant meets cl.050.212.

22. Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b) or (ba) or (bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

23. In this case, the applicant gave notice to the Department that he will lodge an application for merits review of his SHEV cancellation by 11 December 2019. Accordingly, the applicant meets cl.050.212(4)(c).

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

24. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

25. The Tribunal finds that the applicant’s status has not changed since the time of application. The applicant also confirmed at the 5 December 2019 Tribunal hearing that he will lodge an application for merits review of his SHEV cancellation by 11 December 2019, mentioning that he has engaged a migration agent to assist him in that process.

26. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

    The requirement to be interviewed by an authorised officer - cl.050.222

27. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging visa E, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging visa E, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

28. The Tribunal finds that the applicant does not fall within any of the exceptions in cl.050.222(2), (3), (4).

29. The Tribunal finds that the applicant was interviewed by an authorised officer whose position number in the Home Affairs Department is [number]. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

30. 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.

31. 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].

32. 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.

33. In this case, cl.050. 611B applies because the applicant is an unlawful non-citizen to whom subclause 050.222(3) applies. This clause prescribes that, in addition to any mandatory conditions, certain other conditions may be imposed. In the circumstances of this case, the delegate or authorised officer referred to none of the imposed conditions as being mandatory, and imposed condition 8101, rather, as a discretionary condition.

34. The Tribunal considers that the following conditions should be imposed:

    ·8101 (No Work)

    ·8401 (Report As Directed)

    ·8506 (Notify A Change of Address)

    ·8564 (Must Not Engage in Criminal Conduct)

35. The Tribunal notes that the delegate identified condition 8207 (No Study) as a discretionary condition. However, the delegate ultimately made no clear findings in relation to abiding by this condition, so there is no condition 8207 finding to review here. Meanwhile, there is nothing before the Tribunal to suggest that the applicant has any interest in studying in Australia. There appears to be no reason for the Tribunal to impose condition 8207 in this case.

36. The delegate appears to have made a somewhat unclear finding with regard to condition 8566 (Must Not Breach Code of Behaviour). This condition applies to codes to which BVE applicants subscribe as a condition of being granted those visas. Whereas I note that the applicant has obtained BVEs in the past, none of those were in operation at the tie of this application. Therefore it appears to the Tribunal that cannot logically be said that he continues to be subject to, let alone in breach of, or unable at the time of this decision, to meet any of the conditions of those long-expired visas. All things considered, the Tribunal does not consider that condition 8566 should be imposed.

    Findings in relation to condition 8101

    8101     (NO WORK)

    The holder must not engage in work in Australia.

    The applicant told the Tribunal that he had not worked since being remanded in the criminal matter referred to earlier. However, he also confirmed that he has substantial bills to pay: up to A$50,000.00 so far. He did say that his solicitor has told him that he can pay in instalments, but he has not even appeared yet in court. Costs, therefore, are likely to mount.

37. I asked the applicant for more detail about the apparent undertaking to send him what would amount to around A$3,000.00 per month for his subsistence. In response, he said he had not initially been aware that he would not be able to work, but when made aware of this told the delegate that some relatives in Iraq would be able to send him US$2,000.00 a month for subsistence and to help pay his lawyer.

38. The Tribunal asked the applicant if he could provide any evidence of capacity on the part of relatives to pay this money over whatever period the review of his SHEV cancellation and any potential judicial review in the matter might take. In response, he said that having been in detention only two weeks he has not even had time to ask any of his relatives if they can send him the money he described. He said, however, that he had had some preliminary discussions with them about the idea of sending money back before he was detained in [immigration detention]. On this evidence, the Tribunal cannot rely on the applicant being able to receive any money from abroad let alone over a long period.

39. According to his evidence, the applicant is under arguably substantial financial pressure. Meanwhile, as things presently stand, he is charged with serious breaches of the law and cannot support himself, not even on $650.00 per week. Whereas he spoke candidly at the Tribunal hearing about a number of sensitive issues, and whereas the Tribunal has taken this into account, the Tribunal is of the view that he may well be tempted to acquire income by some means in order just to survive.

40. On the evidence overall, the Tribunal is not satisfied that the applicant will abide by condition 8101.

    Findings in relation to condition 8401 

    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.

41. The applicant was already complying with arguably strict reporting conditions set by the bail judge in his criminal matter. The Tribunal has no reason to be concerned that he would behave differently in respect of a BVA carrying condition 8401.

42. On the evidence before me, the Tribunal is satisfied that the applicant will abide by condition 8401.

    Findings in relation to condition 8506

    8506     (MUST NOTIFY A CHANGE OF ADDRESS)

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

43. The Tribunal has no reason on evidence before it to be concerned that the applicant would not comply with this condition, as it understands he was meeting a similar condition as a bail condition. Accordingly, the Tribunal is satisfied that the applicant will abide by condition 8506.

    Findings in relation to condition 8564

    8506     (MUST NOT ENGAGE IN CRIMINAL ACTIVITY)

44. Speaking to this condition, the applicant said what should have been a $10,000.00 bail bond was reduced by the bail judge to $5,000.00 because in the opinion of that judge there appeared to be deficiencies in the case against him. He asked the tribunal to consider this, and it has done so.

45. The applicant also asked the Tribunal to consider the fact that he has never committed an offence prior to those with which he was, in his view wrongly, charged in June 2019. The tribunal has also considered this.

46. In particular, the applicant drew the Tribunal’s attention to the fact that the bail judge granted him bail on a number of conditions all of which he was meeting at the time he was detained by the Department.

47. The Tribunal put to the applicant for comment the position that the Migration Act and regulations appear to impose a much higher test on non-citizens and, in particular, unlawful non-citizens, than does the justice system in NSW in matters relating release from detention or remand, explicitly differentiating SHEV holders, by virtue of s.116(1)(e) of the Act from “the Australian community or [segments] of the Australian community”. In response, the applicant said that he has always followed the law and that the charges he currently faces are false.

48. The Tribunal put to the applicant that the bail judge might have assessed the risk he posed to the community and, applying the conditions imposed at the bail hearing, considered it to me small, whereas in matters involving persons charged with serious offences, the Migration Act and Regulations appear to allow no room for any risk at all: s.116(1)(e) of the Act, for example, empowers to Minister to cancel a visa if “the presence of its holder in Australia is or may be, or would or might be, a risk to … the health, safety or good order of the Australian community or a segment of the Australian community; or … the health or safety of an individual or individuals”. Whereas s.116(1)(e) is the basis for a different process, being that which saw the applicant stripped of his visa and subsequently detained, the Tribunal has regard to it as a relevant consideration in its determination as to whether any part of that process should be reversed, i.e., in making a decision to allow the applicant to re-enter the Australian community.

49. At present it is too early to say. Meanwhile, the applicant has said he intends to plead “not guilty”, as is his right, and, although as a citizen within the jurisdiction of NSW law, the presiding Member of the Tribunal in this case recognises his right to be considered innocent until proved guilty, the Tribunal, must here apply its mind to the Migration Act and Regulations.

1. The risk of the applicant engaging in criminal conduct may be small, given his stated desire to clear his name, but on the evidence before the Tribunal at the time of this decision it is still a risk, given the evidence of the eight charges he currently faces.

2. Therefore, on the evidence before It as at the time of this decision, the Tribunal is not satisfied abide by condition 8564.

   In passing, the Tribunal asked the applicant if being in detention was having any detrimental effect on his ability to conduct matters for his defence of the charges he faces and he said very clearly that it does not.

3. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions 8101 or 8564 imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

   Security – cl.050.224:

   If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.

4. This clause does not apply to the applicant in this matter because an authorised officer has not required that a security be lodged. The applicant also told me that no offer to lodge a security has been made.

   Subclass 051 (Bridging (Protection Visa Applicant)) visa

5. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. However, 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

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

   Luke Hardy
   Member