2004310 (Migration)

[2020] AATA 1817

2004310 (Migration) [2020] AATA 1817 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004310

MEMBER:K. Chapman

DATE:12 March 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 12 March 2020 at 7:52pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – convicted criminal charges – applicant failed to uphold visa conditions – extensive non-compliance with Australia’s migration laws – desire to remain in Australia permanently – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – vague and unconvincing evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, 050.618; Schedule 8, Conditions 8101, 8207, 8401, 8506, 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 under s.73 of the Migration Act 1958 (‘the Act’).

2. The applicant, [named], applied for the visa on 27 February 2020. 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. The applicant is a citizen of Mongolia. He has a Protection visa application awaiting determination concerning claims to fear harm on the basis of his former work as [an Occupation 1] in Mongolia.

3. The Tribunal notes that the applicant provided to the Department material in support of his visa application including, but not limited to, written submissions, a personal statement, Statutory Declaration of Mr [A] dated 18 February 2020, Statutory Declaration of Mr [B] dated 19 February 2020, residential tenancy regarding Mr [B], bank statements pertaining to Mr [B] and Mr [A], statement from Mr [C] of the VIDC Catholic Pastoral Care Group dated 20 February 2020, statement of Sister [D] dated 20 February 2020, statement from Pastor [E] dated 23 February 2020, his medical records from [Medical Service 1] and an acknowledgement of a donation to charity. The Tribunal has duly considered all material submitted by the applicant to the Department in relation to his application for the Subclass 050 visa.

4. The primary decision to refuse to grant the visa was made on 4 March 2020 on the basis that the applicant did not satisfy cl.050.223, as the delegate was unconvinced he would abide by conditions imposed on the visa, in particular 8101 (No Work), 8401 (Report as Directed), 8506 (Notify Change of Address) and 8564 (Not Engage in Criminal Conduct).

5. On 4 March 2020, the applicant applied to the Tribunal for review of the visa refusal decision. He subsequently provided a copy of the delegate’s primary decision to the Tribunal. The applicant also submitted material to the Tribunal including, but not limited to, a translated statement from his mother, [dated] 9 March 2020 and a bank statement of hers dated 10 March 2020. All documentary material submitted by the applicant to the Tribunal has been duly considered.

6. The applicant appeared before the Tribunal by video link from the Tribunal’s Sydney premises on 11 March 2020 to give evidence and present arguments. He remained in immigration detention during the review hearing, having been conveyed from the Villawood Immigration Detention Centre (VIDC) to attend. The Tribunal also took oral evidence from Mr [B] who was present in Sydney. The second listed witness, Mr [A], failed to attend the Tribunal’s premises and the applicant was content to rely upon his submitted Statutory Declaration in lieu of oral evidence.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The applicant and his witness confirmed they understood the interpreter. The applicant also confirmed to the Tribunal that he was able to understand and follow the proceedings from his location in Sydney. Further, the applicant confirmed that he felt well and was ready to participate in the hearing. The applicant’s representative attended the review hearing in Sydney and was permitted to make oral submissions. Several adjournments were granted during the hearing by the Tribunal, primarily to enable the applicant to consult with his representative.

8. The Tribunal granted permission for post-hearing material to be submitted. On 12 March 2020, a written submission from the applicant’s representative was received. It has been duly considered by the Tribunal.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant satisfies the requirements of cl.050.223, and if so whether he satisfies the remaining requirements to be granted the Subclass 050 visa.

    Whether the applicant will abide by conditions - cl.050.223

11. Clause 050.223 requires that the Tribunal is satisfied at the time of its decision, that if a Bridging Visa E is granted to the applicant, he will abide by any conditions imposed upon 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 the 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. As is relevant to this case, cl.050.613A and cl.050.618 provide that Condition 8101 (The holder must not engage in work in Australia) is a mandatory visa condition and certain other visa conditions may also be imposed. Having considered the global circumstances pertaining to this review, the Tribunal considers that the following discretionary conditions should be imposed:

    ·     8207 (The holder must not engage in any studies or training in Australia);

    ·     8401 (The holder must report at a time or times, and at a place, specified by the Minister for the purpose);

    ·     8506 (The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address); and

    ·     8564 (The holder must not engage in criminal conduct).

15. As reflected in the delegate’s visa refusal decision, a copy of which was provided to the Tribunal by the applicant’s representative, the applicant first arrived in Australia [in] April 2017 as the primary holder of a Student [visa]. On 28 March 2018 he was granted a further [student] visa, as a secondary applicant, on the basis of his purported relationship with his then wife (now ex-wife), Ms [F].

16. According to the delegate’s visa refusal decision, the applicant had his Student visa cancelled on 3 December 2018 due to pending criminal charges and then was unlawfully in the Australian community without a valid visa until he was detained [in] January 2019, having been located by New South Wales Police in relation to the serving of an Apprehended Violence Order (AVO) with respect to his ex-wife, Ms [F]. Further, the delegate’s decision indicates that the applicant has a current AVO with respect to his former de-facto partner, Ms [G]. The applicant currently does not hold a valid visa for Australia and remains in immigration detention at the time of this decision.

17. During the review hearing, the Tribunal canvassed with the applicant the particulars of conditions 8101, 8207, 8401, 8506 and 8564. The applicant informed the Tribunal that he had been in immigration detention for more than one year and is regretful for his past actions. He advised that he had learned a lot in detention and tried hard to improve himself. In his view, the delegate did not believe he would abide by the visa conditions due to his past conduct.  

18. The Tribunal canvassed with the applicant his relationship status. He is now single, having previously been married and also in a de-facto relationship. The applicant married Ms [F] in Mongolia prior to them coming to Australia. They arrived in Australia [in] April 2017. He described their relationship as ‘messy’ and ‘on and off’. The applicant advised that he is separated from her and anticipates the Court to finalise their application for divorce in due course (he refers to her as his ex-wife). When the Tribunal enquired regarding the particulars of their separation after arrival in Australia, the applicant provided somewhat vague and circular oral evidence regarding its timing. He variously advised that they resided together in Australia for around one year, but also that it may only have been for a few months. In due course, the applicant settled upon ‘within one year’ of arrival in Australia as the duration of his relationship with his then wife. The applicant has two children with his former wife, they reside in Mongolia with his in-laws. The applicant’s parents apparently provide financial support to these children. He indicated he provided some financial support to them around one year ago. When asked by the Tribunal to clarify the nature of his support, he advised he obtained these funds from his own parents in Mongolia.

19. The Tribunal canvassed with the applicant his employment history in Australia. He last worked in Australia in [a specified] industry during 2018. He told the Tribunal that he had permission to work at that time. He denied ever working in Australia without permission. The applicant explained that he only ever worked 20 hours per week as he first held a Student visa, then later he was a dependant on his then wife’s Student visa. The applicant’s second Student visa was cancelled and he advised that he never worked after its cancellation. The applicant confirmed the aforementioned information. He stated that his visa was cancelled on 3 December 2018 but he could not access timely information regarding this as his mobile phone was lost. The applicant specifically informed the Tribunal that he was unemployed from the time of his visa cancellation until he was detained in January 2019.

20. The Tribunal sought to clarify with the applicant whether or not he worked in Australia after the cancellation of his second Student visa. He replied that he ‘can’t really remember the exact times’, his best recollection was that he did not work although he ‘can’t really recall.’ The Tribunal canvassed this topic further and the applicant indicated after his visa was cancelled he was unemployed, lost his mobile phone and was in a difficult time and ‘out of the loop’ regarding relevant information. The Tribunal observed the applicant to deliver his oral evidence regarding his cessation of work in Australia in a vague manner.

21. The applicant informed the Tribunal that he presented himself to the NSW Police after they came to his residence following an argument he had with his then wife. On his account, he was not at home when the Police attended as he was at the shops with his new partner. He also explained that he was partying with his friends during the festive season. His partner’s sister informed him later that the Police were in attendance at their residence and so, according to the applicant, he voluntarily presented at the Police Station, where he was told that his visa had been cancelled and he was detained. In sum, the applicant contended that he did not know about his visa cancellation until his interaction with the NSW Police in January 2019.

22. The Tribunal referred to the passage in the delegate’s decision that described the applicant as an unlawful non-citizen since [December] 2018 until he was located by the NSW Police in relation to being served with his first AVO. The Tribunal asked the applicant why it would prefer his account to the aforementioned information. The applicant responded that he ‘wasn’t really aware’ that his visa was cancelled until he went to the Police Station because during that time it was the holiday season, he had lost his mobile phone and he was on a break. The Tribunal observed the applicant to provide his oral evidence concerning this topic in a vague fashion.

23. The Tribunal canvassed the applicant’s other romantic relationships with him. The applicant advised that he commenced a de-facto relationship in Australia with Ms [G]. He knew this lady previously in Mongolia. When asked by the Tribunal to clarify when he commenced a romantic relationship with Ms [G], the applicant responded with vague and circular oral evidence. He could not recall the exact time of the relationship commencement, although at one point he opined that it commenced ‘maybe two months’ after his arrival in Australia. The applicant denied cohabitating with Ms [G] during 2017 and advised this commenced in 2018. He could not remember when in 2018 cohabitation commenced and provided vague evidence concerning this topic. The applicant confirmed that during 2018 he was asked to leave home by his former wife and he then moved in with Ms [G]. He cohabitated with Ms [G] from that unspecified time until he was detained in January 2019. They have no biological children [together]. The applicant confirmed that this relationship has now ceased as Ms [G] has returned to her ex-husband. Her last message to the applicant was around one month prior to the review hearing. The applicant has had no contact with Ms [G] since that time on his account.

24. The Tribunal enquired regarding the applicant’s history of study in Australia. He arrived in Australia in 2017 as the primary holder of a Student visa. The applicant commenced [study] at a private vocational college but did not complete these studies. When asked by the Tribunal as to the reason for non-completion, the applicant advised that he had serious back pain at that time and could not attend. During this time his then wife obtained a Student visa and he became a dependent upon that visa (his second Student visa that was subsequently cancelled). When asked by the Tribunal to clarify the cause of the back pain, the applicant provided a vague response indicating he is unsure of it and that the pain ‘comes and goes’. When asked by the Tribunal if he had been treated for back pain whilst in detention at VIDC, the applicant confirmed when detained he still had the pain but it was ‘not bad’ so he didn’t mention it to the medical staff and it got better. The Tribunal notes that there is no entry in the [Medical Service 1] notes, which he submitted in support of his visa application, regarding any back complaint.

25. The Tribunal canvassed with the applicant the particulars of his relationship with his then wife at the time he was granted a second Student visa as her dependent. The applicant confirmed that he obtained this visa in March 2018. When asked by the Tribunal if he was living with his then wife at that time, the applicant informed the Tribunal that he was but that the relationship was fragile. When the Tribunal sought further particulars, the applicant advised variously that at that time they remained in the relationship together, they were ‘like broken up’, and ‘she said he should leave.’ The applicant doggedly maintained in oral evidence that he was the dependent of his then wife in March 2018 when he was granted his second Student visa. When asked by the Tribunal what his then wife was studying at that time, the applicant provided vague evidence in response indicating he can’t really remember and ‘he thinks’ she was studying English at a College.

26. When asked by the Tribunal if he was in the relationship with Ms [G] at the time he was granted his second Student visa on the basis of being the dependent of his former wife, the applicant informed the Tribunal that his then wife knew of this relationship and said he ‘should go’. He added that after that, he separated with his then wife and cohabitated with Ms [G]. When asked by the Tribunal if he ever lived with Ms [G] whilst holding his second Student visa, the applicant confirmed that he did so. When asked by the Tribunal if he ever advised the Department of his change of circumstances at this time, the applicant advised that Ms [G] took him to Centrelink, where she was in receipt of benefits, to enquire about this but both of their English language skills were poor and as they could not understand they left the office. When asked by the Tribunal if they sought the assistance of an interpreter at Centrelink, the applicant advised that they did not. He informed the Tribunal that he watched his partner attempt to speak to the staff using what he perceived to be poor English. The applicant confirmed that Ms [G] was in receipt of benefits then and that he was reliant upon her for the interaction with Centrelink.

27. The Tribunal raised with the applicant that given Ms [G] was in receipt of benefits, it might have difficulty accepting she was unable to avail herself of assistance at Centrelink to make herself understood, such as requesting an interpreter, if she had wanted to do so. The applicant responded that he was just following Ms [G]’s direction and relied upon her because he had no English language skills. According to the applicant, Ms [G] never spoke to him about an interpreter but advised him it was not possible to make the necessary immigration notification at Centrelink. He then thought that this ‘was not going to work.’ The Tribunal observed the applicant to provide his oral evidence regarding the Centrelink visit in a vague and unconvincing fashion.

28. The applicant confirmed to the Tribunal that he has applied for a Protection visa. The Tribunal notes that documentary material submitted by him confirms this to be the case. The applicant told the Tribunal that his Protection visa application has not yet been decided. When asked by the Tribunal why he seeks a Bridging Visa E, the applicant responded that whilst in detention he has learned a lot and now understands how important freedom is having spent more than one year in there. He looks back upon all the things he has done with much regret and wants to be a different person on the outside.

29. The Tribunal canvassed with the applicant his circumstances in relation to criminal law matters. He confirmed, following consultation with his representative, that he has no criminal charges pending before an Australian Court. He also confirmed that he has been convicted of criminal offences in Australia. When asked by the Tribunal to outline them, the applicant responded that he is ‘unsure’. He provided a vague account of not being sent to prison and could not provide further clear particulars to the Tribunal when asked. The Tribunal enquired as to the status of the following criminal charges, and two AVO’s, referred to in the delegate’s visa refusal decision, granting an adjournment for the applicant to consult with his representative concerning them:

    i.Breach of Bail x 2;

    ii.Trespass x 2;

    iii.Low range PCA x 2 ;

    iv.Negligent Driving x 1;

    v.Malicious damage x 1;

    vi.Shop Lifting x 1;

    vii.Common Assault (domestic) x 2;

    viii.AVO with respect to his former wife (Ms [F]) which ceased [in] January 2019; and

    ix.AVO with respect to his former de-facto partner (Ms [G]) which is apparently still current.

1. Following the adjournment, it was submitted that the applicant was convicted of the driving offences, which resulted in a total period of Licence suspension for eight months. He was convicted of the malicious damage charge and fined. The applicant was also convicted of the shoplifting offence and fined between $100 and $200. He was convicted of one trespass charge. It was confirmed the applicant was convicted of the first common assault charge, but he is unsure of the outcome of the second. He received a good behaviour bond with community service with respect to the aforementioned. No convictions were recorded for the breach of bail charges as he was in detention at this time. The applicant confirmed that two AVO’s were served upon him. The first regarding his former wife has expired, the second regarding Ms [G] is still current having a two year imposition period from the date of the Order.

2. The Tribunal canvassed further with the applicant the status of any sentences he received regarding his proven criminal conduct, noting the reference in the delegate’s visa refusal decision to him receiving a Court imposed fine of $10,000. The applicant informed the Tribunal that he estimates that is the total value of all fines imposed by Australian Courts upon him. He confirmed that these fines had not yet been paid. The applicant also advised the Tribunal that other debts referred to in the delegate’s decision, with respect to family and friends, had already been paid by his mother.

3. The Tribunal raised with the applicant that his agreed proven criminal conduct and AVO’s might tend to suggest that Condition 8564 (Must not engage in criminal behaviour) should be imposed, but even if it were he would not abide by it, inviting his comment. He replied that since being in detention at the VIDC he became aware of his past conduct. The applicant explained that whilst in detention his parents sent $[amount] to Ms [G], as he did not have access to a bank account, to demonstrate his means of support. On his account, Ms [G] absconded with those funds and he rung her numerous times on the telephone, which resulted in an amendment being made to the AVO upon him with respect to her (the representative later clarified that this AVO now reflects the stipulations as in effect prior to the time of his detention). The Tribunal also notes that this matter is referred to in documentary material submitted by the applicant.

4. The Tribunal raised with the applicant that in the delegate’s visa refusal decision, reference is made to his Student Visa being cancelled on 3 December 2018 because he was charged with several criminal offences, that he then became an Unlawful Non-Citizen and he was detained [in] January 2019 when he was located by NSW Police who served an Apprehended Violence Order (AVO) on him. The Tribunal advised that this information might tend to suggest that Conditions 8401 (Report as Directed) and 8506 (Notify Change of Address) should be imposed but even if they were he would not abide by them, inviting his comment.

5. The applicant responded that he is apologetic for his past conduct. He outlined that at that time he didn’t have great English language skills, didn’t understand things, didn’t take things seriously or pay attention to them. He was wrong in a lot of things. The applicant advised that since being in the VIDC he is embarrassed, learned a lot and realised his errors. He stated that he will obey all laws and conditions imposed by lawful authority.

6. The Tribunal raised with the applicant that in the delegate’s visa refusal decision, reference is made to him advising in his ‘Located Person Interview’ [in] January 2019 that he had debt, borrowed [money from friends and relatives] and was given a $10,000 fine by the Court. Additionally, the delegate’s decision indicates he was working in the community whilst an Unlawful Non-Citizen. Further, the applicant provided Statutory Declarations from two friends, Mr [B] and Mr [A], which indicate they will support him, however Mr [B] has limited work rights himself and has a variable income from [working], and Mr [A] has a variable income derived from [working in various roles] with his wife, noting she is a primary Student visa holder. The Tribunal advised that the aforementioned information might tend to suggest that he would not abide by Condition 8101 (No Work), inviting his comment.

7. The applicant responded that he will abide by the No Work condition if imposed as he has the financial support of his two friends and his parents. He recounted the prior transfer of $[amount] to Ms [G] by his parents and indicated they can provide further support. The applicant added that his financial and accommodation needs will be met by the aforementioned sources. 

8. The Tribunal canvassed with the applicant the particulars of submitted bank documents in support of his visa application indicating savings by Mr [A] of $[amount] and Mr [B] of $[amount] respectively, asking if he knew the source of these funds. The applicant replied that he did not. The Tribunal raised that given this, it might not be able to be satisfied as to the source of these funds and accordingly this might cause it to doubt that he would abide by Condition 8101 (No Work), inviting his comment. The applicant replied that these two gentlemen were his friends since childhood. They are worried about him and ready to help. They have offered their savings, accommodation and food. Further, his parents will assist him.

9. The Tribunal canvassed with the applicant the particulars of a submitted letter and bank document from his mother. Her savings are indicated to be equivalent to $[amount] in Australian currency. The Tribunal raised with the applicant that given the debts he has in Australia, it might cause doubt that he will abide by Condition 8101 (No Work) even with the support of his parents and friends, particularly when considered in combination with the appearance that he has worked as an Unlawful Non-Citizen, inviting his comment. The applicant clarified that all debts to family and friends have been repaid by his mother (noting an apparent currency conversion error by the delegate regarding a purported $5,000 debt). He confirmed the Court debts of $10,000 remain outstanding. The applicant informed the Tribunal that as a former [Occupation 1] in Mongolia he regrets what he has done in the past. He asked for the chance to prove himself, maintaining he would abide by the No Work condition as he had changed whilst in detention at the VIDC.

10. The Tribunal canvassed with the applicant whether he intended to study in Australia if he is granted a Bridging Visa E. He informed the Tribunal that he will not study if a No Study condition is imposed. He added that in the VIDC he has been developing himself by reading and learning English, which he wishes to continue if released from detention.

11. The Tribunal raised with the applicant that the evidence before it regarding the timing of his separation from his then wife (Ms [F]) might tend to suggest that he accepted the grant of his second Student visa on the untruthful basis that he was still in a relationship with her and that he would not comply with visa conditions if granted a Bridging Visa E. The applicant was invited to comment and offered his apologies for the situation. He stated that he didn’t want to make another mistake and didn’t really understand visa conditions before. The applicant added that he can’t change the situation now that he is separated from his wife and his former de-facto partner has returned to her husband. He indicated that he will obey all laws.

12. The Tribunal raised with the applicant that his immigration history in Australia might tend to suggest that he would not abide by visa conditions if he is granted a Bridging Visa E, inviting his comment. The applicant replied that he would consider a visa grant a big opportunity and he would not make a mistake again. He indicated he has learned a lot, doesn’t want to disappoint his parents who are worried about him, he wants to concentrate on his future and will take it very seriously.

13. The Tribunal also took oral evidence from Mr [B] who attended the Tribunal’s Sydney premises. It may be summarised as follows. He agreed his Statutory Declaration, submitted by the applicant to the Department, contained true and correct information. He is happy to help the applicant with accommodation, food and support. The Tribunal referred to his Statutory Declaration which indicates his wife is in Mongolia, he has limited work rights in Australia and he has a variable income from [working]. The Tribunal asked him how, in these circumstances, he can financially support the applicant? Mr [B] explained that in addition to working [on] Friday and Saturday evenings, he saves money from his involvement in a [business]. According to him, he purchases [items] from auctions then others transport them to relatives in Mongolia and he derives income from this activity. He maintained that he only works twenty hours per week in accordance with the work limitation applied to his current visa. Mr [B] confirmed he has $[amount] saved as indicated in his submitted bank statement. He advised that he saved these funds over around one year from income derived from the [business]. The Tribunal has considered Mr [B]’s oral evidence carefully. The applicant thanked his friend for this evidence.

14. The Tribunal invited the applicant to provide any further evidence, including with respect to submitted documentation such as his medical records and supporting statements. He advised that he was a bit nervous during the hearing and apologised if he was unclear at times. The applicant indicated he had been in detention for more than one year and had changed a lot. He was depressed for the first three months in the VIDC, then decided to change. He attends Church weekly, had donated to the homeless and wants to be a different person. He regrets his criminal matters and wants to do the best he can in the community. Prior to the conclusion of the review hearing the applicant confirmed he had no further evidence to provide.

15. The representative made oral submissions which may be summarised as follows. The AVO currently in force with respect to the applicant is the version prior to him entering detention. The applicant did not knowingly work unlawfully and it is not conceded he worked without permission to do so. The applicant presented himself to the NSW Police voluntarily. The breakdown of the applicant’s relationships and his drinking of alcohol saw him negligent regarding visa conditions but indicate he did not breach any condition voluntarily. The representative rejects the delegate’s assertion that the applicant has a strong intention to reside in Australia. He has stopped drinking since being in the VIDC and has completed counselling and programs such as SMART to improve himself. The applicant regularly attends Church. He is remorseful and takes responsibility for his actions. He does not need to work as his friends and parents can support him as indicated by the submitted bank records.

16. The representative requested further time for post-hearing submissions to address the concerns raised by the Tribunal during the hearing. These were received on 12 March 2020. The contentions made therein may be summarised as follows. It is contended that the delegate ‘selectively reviewed the evidence leading them to draw some unfounded and irrational conclusions’. The representative takes issue with the limited regard apparently made by the delegate to documentary material such as medical reports, financial records and supporting statements. The applicant denies working unlawfully in Australia at any time and he voluntarily presented himself to NSW Police being unaware of his Student visa cancellation until that time. It is denied he will breach the No Work condition as he has sufficient financial resources. It is denied that the applicant has ‘a strong desire to remain in Australia’ as recorded by the delegate.

17. It is further contended that the applicant will not breach Conditions 8207, 8401, 8506 or 8564. The applicant is not interested in further formal study. He will report to authority when required as he respects authority when sober and he voluntarily reported to NSW Police in January 2019. His breach of bail charges relate to when he was in VIDC, he previously did not understand conditions and had language difficulties, he has learned much in VIDC and he has not displayed a history of intentionally avoiding reporting obligations. Whilst failing to update the Department of his address previously, the resolution of his problem with alcohol, cessation of turbulent relationships, subsequent counselling and support in the community lessen the risk of this in the future.

18. It is contended the applicant will not engage in criminal conduct given his prior offending was influenced by alcohol abuse and problematic relationships. His medical records from [Medical Service 1] indicate that alcohol was a factor in past misconduct and his abstinence now, combined with participation in programs such as SMART, see him as a ‘low’ risk to others and himself. Further his support in the community lessens his risk of drinking and reoffending. In sum, it is contended that the applicant has changed whilst being held in detention at the VIDC.

19. It is further contended that the applicant did not intentionally seek to deceive the Department regarding his relationship status with his former wife in relation to his obtaining the second Student visa. Rather, it is contended that this relationship had difficulties which made its status uncertain and he was dealing with personal issues at the time which point to the applicant having no intention to deceive the Department. The representative contends that the applicant’s problematic relationships have ceased, he abstains from alcohol, he has support in the community (including Church), has changed since being detained. In short, the representative contends that the applicant’s current circumstances differ from those at the time of his detention to such degree that he will not breach any visa conditions if he is granted a Bridging Visa E. The Tribunal has carefully considered all oral and documentary evidence, and submissions, in support of the applicant.

    Analysis  

20. In assessing whether the applicant will comply with Conditions 8101, 8207, 8401, 8506 and 8564 on the Bridging Visa E, the Tribunal has considered his likely conduct and in doing so his past immigration history, 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 he had shown any contrition for his unlawful conduct. The Tribunal has also considered the applicant’s contentions raised in oral and documentary evidence, submissions made by his representative and the entire circumstances (both singularly and cumulatively) pertaining to this review.

21. The Tribunal considers that the applicant’s likely conduct if granted a Bridging Visa E will be to breach Conditions 8401, 8506 and 8564 for the following reasons. His past immigration history reflects arrival in Australia during 2017 as the primary holder of a Student visa for the purpose of undertaking [studies], that he failed to complete. In March 2018, the applicant transitioned to a second Student visa as a secondary applicant on the basis of being dependent upon his then wife, Ms [F]. The applicant was subsequently charged with serious offences in NSW, including those relating to domestic violence involving two women (Ms [F] and Ms [G]). On the basis of the aforementioned, the applicant’s second Student visa was cancelled on 3 December 2018 and he was an unlawful non-citizen until being detained [in] January 2019.

22. The Tribunal developed serious concerns with the credibility of the applicant during the delivery of portions of his oral evidence during the review hearing. For example, his explanation of a purported back complaint that prevented his completion of [study] was extremely vague and is unsupported by medical evidence (indeed the submitted [Medical Service 1] medical records point to him having no physical injuries of such nature prior to his immigration detention). The vagary of his evidence regarding the chronology of his relationship in Australia with Ms [F], and the commencement of cohabitation with Ms [G], casts doubt upon the veracity of his account that he was a genuine dependent of the former when granted his second Student visa. Further, it is apparent that even if the most favourable lens is applied to the applicant’s evidence regarding the chronology of his relationships, he held his second Student visa for a significant period on the basis of being dependent upon Ms [F] when in fact he was cohabitating with Ms [G] in a separate residence. The applicant’s account of his cessation of work in Australia was also vague and unconvincing.

23. The Tribunal had the benefit of observing the applicant provide his oral evidence through a clear video link, utilising the services of an efficient interpreter. He presented as an intelligent man who was lucid during the review hearing, notwithstanding that he expressed some nervousness.  Indeed, it is contended he is a former [Occupation 1] from Mongolia who respects authority when sober. The applicant’s vague oral evidence, as previously outlined, leads the Tribunal to form the view that he attempted to obfuscate concerning topics unfavourable to him. On balance, the Tribunal finds the applicant lacking in credibility and it does not accept his attempts to deflect attention from the problematic aspects of his immigration history in the manner he raised matters of mitigation. In making its assessment of the applicant’s credibility, the Tribunal is mindful that his English language skills were minimal prior to being detained (and remain somewhat limited now, noting he displayed some command of the English language at times during the hearing), that he drank alcohol heavily, that he was previously involved in turbulent personal relationships, and he has been treated for depression. Nevertheless, the Tribunal is satisfied that at the time of the review hearing he fully understood the questions put to him, felt well, understood the interpreter and was able to participate in the proceedings in a meaningful fashion. On balance, the Tribunal is satisfied that the applicant’s past immigration history is problematic and points to him being likely to contravene immigration requirements where he perceives it in his interest to do so.

24. The Tribunal finds that the applicant breached immigration law by knowingly participating in the visa application for his second Student visa, holding that visa, and not informing the Department of his change in circumstances, following separation from his then wife. Indeed, the applicant’s second Student visa was obtained and held on the false premise that he was the dependent of his then wife. The Tribunal considers these matters to be wilful, of gravity and indicative of the applicant being likely to breach visa conditions in the future if he perceives it to be in his own interest to do so.

25. The Tribunal notes that various mitigating circumstances have been submitted in relation to the applicant from the time of his arrival in Australia until his placement in immigration detention. These include his alcohol abuse, turbulent personal relationships, lack of English language skills, unfamiliarity with the process of engaging with the Department and subsequent treatment for depression. Whilst the Tribunal places some weight upon these matters in favour of the applicant, it is unconvinced that they justify the outlined breaches of immigration law. Nor do these matters detract from the wilfulness of such breaches. This is particularly so given the lack of credibility displayed by the applicant during the review hearing, at a time when it is contended his circumstances have changed and he is no longer afflicted with the aforementioned difficulties to the same degree. The Tribunal accepts that the applicant expressed contrition for any breaches he committed. Some weight is placed upon such expressions, however that weight is limited due to the matters identified where the applicant provided his oral evidence in an opaque fashion.

1. On balance, the Tribunal is prepared to accept that the applicant was unaware on 3 December 2018 that his second Student visa had been cancelled and that he was an unlawful non-citizen until being detained [in] January 2019. It follows that the Tribunal is also prepared to accept that he did not knowingly engage in employment without permission to do so. The aforementioned matters point to the applicant not breaching future visa conditions. However, the failure of the applicant to keep the Department advised of his residential address at that time exacerbated his problematic situation and limits the weight of these mitigating circumstances. Additionally, the Tribunal accepts that the applicant voluntarily presented to NSW Police [in] January 2019 and this points to him being likely to comply with future visa conditions. This matter weighs in favour of the applicant.

2. The Tribunal is prepared to accept, with some hesitancy, that the applicant will comply with Condition 8101 (No Work) if he is granted a Bridging Visa E. This is in light of the recent submission of bank records from the applicant’s mother and two friends as previously outlined. The hesitancy of the Tribunal in relation to the aforementioned arises as a result of the approximately $10,000 in Court fines owed by the applicant, the precarious nature of employment held by Mr [A] and Mr [B], and the vague oral evidence of the applicant concerning his cessation of employment prior to being detained. Nevertheless, on balance, the Tribunal accepts that the applicant has access to sufficient funds and accommodation in the community in order for him not to breach Condition 8101 for a reasonable period. Further, the Tribunal accepts that the applicant will not undertake formal study in Australia if granted a Bridging Visa E and therefore will not breach Condition 8207 if such visa is granted. The aforementioned matters pertaining to Conditions 8101 and 8207 are provided some weight by the Tribunal in favour of the applicant.

3. Regarding Condition 8401 (Report as Directed), the Tribunal is satisfied that the applicant’s likely conduct will be to breach that condition if he is granted a Bridging Visa E. Although the Tribunal accepts that the applicant voluntarily reported to NSW Police in January 2019 in relation to an AVO matter, and this is afforded some weight in his favour, on his own evidence he was unaware of his status as an unlawful non-citizen at that time. It follows that he could not have known he was presenting to the Police with the likely consequence of interaction with immigration officers, and possible immigration detention, at that time. Given that at the review hearing the applicant displayed the contemporary willingness to obfuscate in oral evidence when attempting to deflect attention from matters adverse to him, and that he has previously breached immigration law as outlined, the Tribunal is not satisfied that with regard to immigration matters the applicant will Report as Directed if he perceives this as contrary to his own interests. Further, the Tribunal does not accept that the applicant has acquired the desire to comply with immigration law, or respect for immigration officers, whilst spending time in immigration detention given the aforementioned.

4. Of note, the applicant has applied for a Protection visa. In the view of the Tribunal, that matter demonstrates his desire to remain in Australia on a permanent basis. Accordingly, the Tribunal does not accept the assertion made by the representative that there is no evidence suggestive of the applicant possessing a ‘strong desire to remain in Australia.’ Given his desire to remain in Australia permanently, the Tribunal forms the view that if the applicant is not granted a permanent visa he will disregard immigration reporting requirements. Therefore, following careful consideration, the Tribunal finds that the applicant’s likely conduct is to breach Condition 8401. For the sake of completeness, the Tribunal accepts that the applicant’s charges for breach of bail arose due to his being in immigration detention and no adverse inference is drawn in relation to them in connection with this review.  

5. Regarding Condition 8506 (Notify Change of Address), the Tribunal is satisfied that the applicant’s likely conduct will be to breach that condition if he is granted a Bridging Visa E. Whilst the Tribunal accepts that the applicant has offers of accommodation from Mr [A] and Mr [B], and that he would reside with one or other for a time if released from immigration detention, he has a demonstrated history of failing to update the Department of his address details as previously outlined. In light of the applicant’s desire to remain in Australia on a permanent basis, the Tribunal is not satisfied that the applicant will abide by Condition 8506 if he perceives this as contrary to his own interests. Noting the applicant’s desire to remain in Australia permanently, in combination with his contemporary willingness to obfuscate in oral evidence when attempting to deflect attention from matters adverse to him, the Tribunal forms the view that if he is not granted a permanent visa he will disregard immigration requirements pertaining to the notification of address requirements. Thus, the Tribunal finds that the applicant’s likely conduct is to breach Condition 8506.

6. Regarding Condition 8564 (Not engage in criminal conduct), the Tribunal is satisfied that the applicant’s likely conduct will be to breach that condition if he is granted a Bridging Visa E. It is contended by the applicant that he presents a low risk of reoffending given that he has ceased two turbulent relationships, has abstained from alcohol in detention (including participation in counselling and the SMART Program) and has support in the community (including from friends not involved in social circles where excessive drinking is present and also from Church members). Further, the applicant has expressed contrition for his past poor conduct and received treatment for depression. Some weight is afforded to the aforementioned matters in favour of the applicant.

7. The Tribunal has carefully considered the evidence of third parties submitted in support of the applicant. The Tribunal notes that the written statements in support from Mr [B], Mr [A], Mr [C] of the VIDC Catholic Pastoral Care Group, Sister [D] and Pastor [E], are positive with respect to the applicant’s character and also refer to him making a donation to charity. The aforementioned material is afforded some weight in favour of the applicant by the Tribunal. However, none of this written material refers to the respective author having a detailed knowledge of the applicant’s past offending. Only Mr [B]’s document makes reference to the applicant’s past drinking and his prior poor behaviour (although the latter topic receives only scant reference). Accordingly, the Tribunal affords these written statements in support only limited weight with respect to assessing whether the applicant is likely to breach Condition 8564 (and also 8401 and 8506). Mr [B] in his oral evidence confirmed the accuracy of his Statutory Declaration, but made no detailed reference to the applicant’s past offending or his risk of offending in the future. Accordingly, the Tribunal affords Mr [B]’s oral evidence only limited weight with respect to assessing whether the applicant is likely to breach Condition 8564 (and also 8401 and 8506).

8. It is contended that submitted medical reports from [Medical Service 1] indicate that the applicant is a low risk to himself and others and has worked on his alcohol issues which were a factor in his past offending. The Tribunal has very carefully considered these submitted medical records. The Tribunal accepts that there are several references to the applicant’s past drinking being problematic and him abstaining from alcohol whilst an immigration detainee. Further, reference is made to the applicant participating in counselling and completing alcohol rehabilitation (including the SMART Program). This is to the applicant’s credit and the Tribunal affords this material some weight in his favour.

9. The Tribunal notes that the [Medical Service 1] documents contain two reports from a Psychiatrist, dated 30 January 2019 and 3 July 2019. The Psychiatrist notes that the ‘risk to self’ regarding the applicant is low. No detailed assessment is presented by the Psychiatrist regarding a future risk of reoffending or a risk to others, particularly within a community setting. The Psychiatrist notes that the applicant suffers a probable major depressive disorder. It is apparent from the balance of the [Medical Service 1] records that the applicant took medication periodically for his mental health but over time it has improved. The Tribunal has paid regard to all of the submitted [Medical Service 1] records including those prepared by a General Practitioner, Nurses (including with Mental Health speciality) and Counsellors. In the view of the Tribunal, whilst there are several risk assessments indicating the applicant is a low risk to himself and others, these reports must be read in the context of a risk assessment conducted for immigration detention purposes. Whilst some weight is afforded to this material in favour of the applicant, the Tribunal places limited weight on the [Medical Service 1] records with respect to assessing whether the applicant is likely to breach Condition 8564 (and also 8401 and 8506) because there is no detailed analysis reflected in this material with regard to the potential risk posed by the applicant in a community setting.

10. The Tribunal accepts that the applicant has abstained from alcohol for more than one year and received treatment for depression whilst being an immigration detainee. It accepts that he has participated in counselling and programs (including SMART) with a view to correcting problems with alcohol. It is accepted that the applicant has ceased his two turbulent relationships, has support from his friends and also from other sources in the community including Church members. The aforementioned matters are afforded some weight by the Tribunal in favour of the applicant.

11. However, the applicant’s own evidence confirms that he was convicted of driving offences, which resulted in a total period of Licence suspension for eight months. He was convicted of the malicious damage charge and fined. The applicant was also convicted of the shoplifting offence and fined between $100 and $200. He was convicted of one trespass charge. He was convicted of one common assault charge, receiving a good behaviour bond with community service. Further, he has had two AVO’s placed upon him. One with respect to his former wife which has expired and another still current regarding his former de-facto partner, Ms [G]. By his own account the applicant has received a total of $10,000 in fines imposed by Courts, which remain unpaid. These are serious matters in the view of the Tribunal, even though no custodial sentences have been imposed upon the applicant. They display a disregard of Australian law and a propensity to place women at risk in a domestic context.

12. The Tribunal accepts that the above conduct arose in circumstances which included alcohol abuse, turbulent relationships, depression, limited command of the English language and limited community support. It is accepted that the applicant has expressed contrition for his past poor conduct. As previously noted, it is accepted by the Tribunal that the applicant has taken steps to combat his predilection for alcohol abuse and received treatment for depression. However, there is no persuasive medical evidence before the Tribunal that is suggestive of a detailed risk assessment having been performed by a qualified professional in relation to the applicant’s likelihood of reoffending in a community setting. On balance, the absence of such a detailed risk assessment, in combination with the applicant’s previously outlined contravention of immigration laws and his contemporary willingness to obfuscate in oral evidence when attempting to deflect attention from matters adverse to him, lead to the Tribunal not being satisfied that he will abide by Condition 8564 if granted a Bridging Visa E. Therefore, the Tribunal finds that the applicant’s likely conduct is to breach Condition 8564.

    Conclusion

13. The Tribunal accepts that the applicant would abide by Conditions 8101 (No Work) and 8207 (No Study). However, on balance, the Tribunal considers that the likely conduct of the applicant if granted a Bridging Visa E will be to breach Conditions 8401, 8506 and 8564. Given the gravity of the matters suggesting the applicant will breach the relevant visa conditions if he is released into the community, the Tribunal is not satisfied that the imposition of a security of any amount will see the applicant abide by the aforementioned visa conditions.

14. Therefore, on the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not satisfy the requirements of cl.050.223.

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

16. 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 he does not meet the requirements for the grant of that visa subclass.

    DECISION

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

    K. Chapman
    Member