1936590 (Migration)

[2020] AATA 969

1936590 (Migration) [2020] AATA 969 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1936590

MEMBER:Sean Baker

DATE:9 January 2020

PLACE OF DECISION:  Melbourne

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.050.223 of Schedule 2 to the Regulations.

Statement made on 09 January 2020 at 10:57pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with visa conditions – charges of engaging in violent criminal conduct – previous breaches of immigration laws – past convictions and pending criminal charges – marriage and family responsibilities – guarantee of employment – strong social support network – decision under review remitted      

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.212, 050.223, 050.617; Schedule 8

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 378 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 23 December 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.050.223.

3. The decision to refuse to grant the visa was made on 30 December 2019 on the basis that the applicant would not abide by conditions imposed on the visa.  The applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A], his former employer, [Mr B], and case worker [Ms C]. The applicant was also supported by his mother and sister.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant will abide by conditions imposed on the visa.

6. 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.

7. In this case, the applicant is seeking to meet cl.050.212(4).The applicant does not claim to meet any of the other alternative criteria in cl.050.212.For the reasons below, the applicant meetscl.050.212.

8. 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)  (ba)  (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.

9. In this case, the applicant had his [visa] cancelled on 5 December 2019. He lodged a valid application for merits review of that cancellation decision with the AAT and is awaiting the outcome of that review.

10. Accordingly, the applicant meets cl.050.212(4)(b).

    Whether the applicant will abide by conditions - cl.050.223

11. 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.

12. 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].

13. 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.

14. In this case, cl.050.617 applies because the applicant is seeking review of the cancellation of a visa This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8401    The holder must report:

    (a)       at a time or times; and

    (b)       at a place;

    specified by the Minister for the purpose.

    8505    The holder must continue to live at the address specified by the applicant before the grant of the visa.

    8506    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564    No criminal conduct.

15. The applicant provided:

    ·a letter of support from [Agency 1] manager [Mr B];

    ·his offer of employment with [Agency 1];

    ·a letter from [Program 1] project case manager [Ms C] and a referral for the applicant to a mental health care program;

    ·a letter from the applicant dated 12 December 2019;

    ·letter from the [named court] program case manager [Ms D] and two progress reports from the [court] program dated June 2019 and July 2019;

    ·a letter of support from the [Islamic organisation] coordinator, [named];

    ·a certificate of marriage between the applicant and his wife dated [in] July 2019;

    ·a letter from a medical clinic confirming that the applicant wife is pregnant with the due date of [date] with an obstetric ultrasound attached, and a further letter noting that the applicant’s wife has a high risk pregnancy with the potential for a planned or emergency caesarean;

    ·a birth certificate for the applicant’s wife evidencing that she was born in Australia;

    ·transaction listings for the applicant’s bank account evidencing payments to his landlord, payment from his employer, and transfers to his wife;

    ·a copy of the applicant’s application for review of his Visa cancellation;

    ·a copy of the decision record

16. The reason for the cancellation of the applicant’s [Visa], and the refusal of this bridging Visa relate to his extensive criminal history. The Department decision sets out this history in detail. However, I note that in relation to the more recent convictions the history appears to double count the number of convictions where the entry relates to a variation to the penalty imposed. The delegate in particular was concerned that the applicant appeared to have offended most recently in July 2019.

17. The delegate noted that the applicant had a significant criminal history spanning many years. The delegate gave some weight to the applicant’s claims that he had changed but could not discount the seriousness and repetitive nature of the applicant’s criminal offending. The delegate noted that the applicant had previously been issued with a warning by the Department due to his criminal behaviour, yet had continued to engage in such behaviour. The delegate also noted that the applicant had contravened a community correction order and received convictions for offences as recently as 2019. The delegate reasoned that given the repetitive nature of his offending for over 10 years, the fact he also had a history of failing to abide by community correction orders and entering bail, the delegate could not be satisfied that the applicant would abide by conditions 8401 – report as directed, or 8564 – must not engage in criminal conduct. The delegate was therefore not satisfied that the applicant met clause 050.223.

    The hearing

18. At the hearing I took evidence from the applicant. He explained that he had come to [New Zealand] from [Country 1] at the age of [age] in 1994. He first came to Australia in September 2001 and lived at his sister’s house. He said he had first been charged with criminal offences in 2007 which had stemmed from shoplifting and drinking alcohol. He was put into juvenile detention and when he was released he started drinking a lot. He said he had a lot of anger at this time. He said that he kept going to jail and he realised that every time he told himself he would not go back but he kept on ending up there. In 2009 he decided to return to New Zealand and change his life, but without support networks there he fell into drinking. He returned to Australia in 2014. He lived in [one city] for a while, was imprisoned there, and when he was released decided that he needed to return to Melbourne where his family lived. He moved in with his [sister], who lived in [suburb]. She was an ice user and the applicant began using ice. His life deteriorated and he was jailed in Melbourne. He met his wife in 2016 and she became interested in Islam and converted. She stopped contacting him because she wanted him to change and he would not. When he was jailed she began writing letters to him, urging him to become active in his faith and pray. He started to pray in jail and found it very beneficial and he felt a sense of peace and remorse for the acts he had done against others, his family, and himself. She started to visit him and saw the change he had mad in himself. He proposed to her because he knew that they could both support each other. He wanted to be a better person in the community and once he started working for [Agency 1] he realised that there was a way to help the community, to continue in the right path, and to financially support himself and his partner and he was really enjoying it once they gave him the opportunity. He said that his whole mindset has changed, he is less angry and he likes helping the community. He has never had a job before and it feels good to make an honest living and to know that his work is proud of him and his wife is proud of him.

19. The applicant clarified that he was most recently in prison from late January 2019 until [May] 2019. The offences for which he was found guilty in July 2019 related to actions taken by him in late 2018. He confirmed that he had no outstanding criminal charges and had committed no further offences since he was imprisoned. He had started work with [Agency 1] in August 2019 but had engaged with [the Islamic organisation] slightly earlier, in June 2019.

20. I took evidence from [Ms A]. She said that she had recently moved house. Her whole family were in [another state] and she was [pregnant] so moving on her own had been hard. She had moved further from friends and from the applicant’s family and felt isolated living there. She said that if she did not have God she would have been a complete mess. She said they had been married for almost nine months. They had met three years ago. He was the first Muslim she had met and he gave her insight and from that God helped her to see something. She stopped contact with him for a time and moved away from all bad influences, practiced her faith and went back to Uni. She prayed for the applicant and when she found out he was in jail in January 2019 she wrote letters of encouragement to him and told him to get clean and practice Islam. When he began to pray she started to visit him, she could see he had a light in his face and looked healthy and he had committed to five daily prayers. After some time they decided to get married so their relationship would be blessed. They married [in] May 2019 and moved in. The applicant started seeking work and she could see he was really motivated. He was dedicated to being a supportive husband to her. When they had the interview with [Agency 1] she felt it was the right position for him. She spoke of how proud she was of him, since being released he had been on a good path the whole time, he had been an amazing husband, hard worker, a good member of the community and had worshipped at the [named] mosque. She said that he was excited for the birth of their child. She missed him as he had been her biggest emotional support during the pregnancy. Luckily after he was detained she had been placed in transitional housing – she would not have been able to afford the rent at their former house. She said their new house was in a lovely location but far from the hospital and his family. She needed him to help her with shopping, chores and emotional support. She noted that she had [a condition] and this meant she might need to have an emergency caesarean next month. She was presently meant to limit her physical activity. She did not want to be a single mother and had not planned the pregnancy to be like this but then his visa had been cancelled. She feared being in the house with the baby after the caesarean with no support.

21. She spoke of the importance of giving people chances – he had had chances in the past but had never had the supports to enable him to change and develop. Now he had. She said he was the most loving and supportive person she could ask for. He had been accepted into counselling sessions and she believed this would help enormously as he had a lot of trauma from his childhood. She said that he had done so much good in such a short period of time, it would be really a good chance for him. She said that she had finished her first year of [her course] with very good marks but had deferred first semester next year. She said the applicant was very supportive of her going to Uni.

22. I spoke with the applicant’s former employer, [Mr B]. He explained that he had started working at juvenile detention in 2008 and [Agency 1] was founded then. He started working with [Agency 1] in 2009 and has worked there ever since. He was [in a role] for 3-4 years and now manager. They work with people coming out of the prison system and teach them a trade and employability skills. They offer them employment but also support in all aspects. They got onto the applicant through the [Islamic organisation]. They had worked with almost 400 people in [their programs] and the applicant was in the top few workers [Mr B] has worked with – the applicant never missed a day, was always punctually there at start time of 7am, and his team leaders were always very happy with his work. They found it quite hard to get consistency and a lot of people did not last but the applicant did, every single day. [Mr B] underlined that they had a need for the applicant; they missed him as a reliable and good worker as much as he missed them.

23. [Mr B] noted that they would definitely re-employ the applicant if he was released, and had been looking to transition him into full time employment. He said the applicant engaged with staff and customers really well, the applicant really was in the top few people [Mr B] had worked with. It was also noted that the applicant travelled to work by public transport, leaving home very early, but was still unfailingly on time. It was further noted that the applicant had been [involved with Agency 1’s] advertising campaign with [a sponsor] because [Agency 1] had so much faith in the applicant.

24. I took evidence from [Ms C], the applicant’s case worker with [Program 1]. She explained that she provided wraparound support to the [Agency 1] employees, with face to face catch-ups and calls if there were issues. She had engaged with the applicant over the phone at least four times a week and face to face once a week. Over the time they had had not issues with the applicant, which is highly unusual for this cohort.

25. She spoke of the protective factors that in her opinion made him a very low risk of re-offending, including the intensive case management support which they were able to provide, coupled with pro-social support from his family unit, and she noted that his mother and sister were at the hearing for support. He had the pro social support of his brother and most importantly his wife, these people were a stabilising influence in his life as well as his engagement with his faith. The birth of his [child] and the need to provide emotional and financial support to [the family] will also act as an incentive to not re-offend.

26. She spoke of his criminogenic behaviour and noted that this had been driven by his need to self-medicate with alcohol and other drugs due to childhood trauma, PTSD and depression, which had been manifested in panic attacks, depressive symptoms and suicidal ideation. He had had no treatment through the youth justice system. He had been approved for treatment [in] December 2019 in an intensive community mental health program with access to psychologists, drug and alcohol and peer support workers. This was more intensive than a mental health care plan and provides holistic wrap around support and will be really important to maintain changes he has implemented. She noted that he had not entered this program immediately as the content can be triggering, and it can lead to a relapse, hence he wanted to wait until December to access program as now felt confident that he would be able to go into triggering content to go down. On release he will be able to engage, it is ongoing with no set limit.

27. She believes that due to his outstanding engagement with [specified programs], he will comply with conditions. She noted that  all support workers say he has been proactive, prosocial, there is no reason to believe that would change with the BVE, particularly with incentive of his soon to be born [child].

    Consideration

28. I have carefully considered the evidence provided at the hearing as well as the written material before me. I found the applicant, and all of the witnesses, to be highly credible.

29. As for the delegate, the question here is essentially whether the applicant’s changes of behaviour in the immediate future outweigh the risks from his longer term behaviours prior to 2019.

30. I accept, on the evidence of [Ms C] and the written referral, that the applicant suffers symptoms of PTSD and depression, and that this is largely attributable to the trauma he suffered [in] [Country 1]. I also accept that the applicant has been provided little or no counselling in relation to this trauma. I accept that the applicant drank and took drugs in part to deal with these symptoms.

31. I find that the applicant had a pattern of offending that stretches back for many years. I accept on his evidence and the evidence of his wife, that on being imprisoned in 2019, he decided to change and took concrete steps to do so including re-engaging with his faith.

1. I accept that on being released in May 2019, the applicant did not engage in old behaviours, married his wife, and searched for work. I accept on his evidence and that of [Mr B] that his employment with [Agency 1] has been outstanding, that he has been punctual and an excellent employee. I accept and place great weight on the statements from [Mr B] that they would re-employ him on release and transition him to permanent work. I accept that since their marriage the applicant has supported, and been supported by, his wife. I accept that he has been supported by his [sister], mother and brothers. I have had regard to the letter from [the coordinator] of the [Islamic organisation] and find that the applicant has had the support of this organisation and of his faith community more generally. I have had regard to the letters from [Ms D] as well as her reports to the court which indicate that the applicant has fully engaged with their programs. I have had regard to the evidence of [Ms C] that the applicant has a range of protective factors, and will have significant and ongoing support as well as a mental health plan. I place great weight on her assessment that he poses a very low risk of re-offending. I have had regard and place great weight on the evidence of [Ms A]. I found her, as all the witnesses, to be an impressive witness and I accept her evidence. She has clearly had a positive and lasting influence on the applicant.

2. The evidence of the witnesses, as well as the written reports, indicates that the applicant has made a remarkable change since being released. Importantly, I found the applicant an impressive and truthful witness, who was able to explain clearly his internal motivations and the process which has led to a measurable change in his behaviour. His wife, [Mr B] and [Ms C] further added to the considerable evidence from the written material before me to indicate that the applicant has engaged in real change in his behaviour since his release from prison. I consider that this period, some six or seven months, is of sufficient duration that there are very good prospects that this changed behaviour can continue into the future.

3. Having carefully listened to the applicant and his witnesses, I am of the view that if the applicant is released, he will abide by the condition I consider it appropriate to impose on the visa. I spoke with the applicant about his ability to report to the Department as directed, and he and [Ms A] were clear that he would do so. The applicant has demonstrated a commitment to punctuality and not missing a day with his employment and this gives me further comfort that he will be able to comply. I would ask that the Department, on imposing a reporting commitment, make this at a time which would not conflict with the applicant’s family duties or his employment.

4. [Ms A] was clear that the applicant would live with her and their child in the transitional housing, and I accept her evidence. The applicant has demonstrated stability in his employment and living arrangements recently and I accept that he will reside here and if there is a change I accept he will inform the department.

5. As above, I have found that the applicant has made real changes to his behaviour since being released. He has done so through his own hard work, the support of his wife, his family, and the support of the [Islamic organisation] and [Mr B] and [Ms C] and others at [their agency]. All of this support will be in place if he is released and they will continue to support him. He will have employment and a place to live with his wife and soon to be born [child]. He will have access to mental health supports. I am satisfied that there is a very low risk of the applicant engaging again in criminal conduct if he is released, given the protective factors outlined above. No situation can provide an absolute guarantee that a person will not re-offend, but taking into account the testimony and presentation of the applicant, and the evidence of the witnesses, and in particular the assessment of [Ms C], I consider that the risk of the applicant re-offending is very low and sufficiently low that I am satisfied he will abide by the condition not to engage in criminal conduct.

6. 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.

7. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

8. 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.050.223 of Schedule 2 to the Regulations.

   Sean Baker
   Member