2012857 (Migration)

[2020] AATA 4681

2012857 (Migration) [2020] AATA 4681 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012857

MEMBER:Wan Shum

DATE:28 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.221 of Schedule 2 to the Regulations; and

·cl.050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8207, 8401, 8506, and 8564 will be imposed if the visa is granted; and

·to require a security of $20,000 for compliance with the conditions.

Statement made on 28 August 2020 at 3:00pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant will abide by conditions imposed on visa – applicant convicted of criminal offences – periods of unlawful residence – willingness to provide a security bond – may engage in criminal conduct – engaging in rehabilitation program – risk that the applicant may remain in Australia – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 73, 189, 351, 501K
Migration Regulations 1994, Schedule 2, cl 050.212, 050.221, 050.223, 050.224

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 applied for the visa on 12 August 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.

3. The decision to refuse to grant the visa was made on 14 August 2020 on the basis that the delegate was not satisfied that the applicant would comply with conditions imposed on the visa. The delegate also considered whether a security bond would act as an incentive for the applicant to abide by visa conditions. However, while the delegate found that “no amount of security will act as an incentive for [the applicant] to abide by the above mentioned visa conditions if one could be provided”, the delegate then went on to find that cl.050.224 does not apply because an authorised officer has not required that a security be lodged. The Tribunal considers that this is in effect a decision regarding whether a security should be requested.

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 21 August 2020 by videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages where needed.

6. The issue in this case is whether the applicant will abide by conditions imposed on the visa. In addition, clause 050.224 states that 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.

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

   Immigration history

8. The applicant first arrived in Australia [in] October 2009 as the holder of a [temporary] Visa and departed Australia [in] January 2010.

9. He was granted an offshore Provisional Partner Visa (Subclass UF 309) on 10 June 2011 and entered Australia [later in] June 2011.

10. On 5 October 2010, he lodged an onshore Partner Visa (Subclass BC 100) application. On 2 January 2013, he was granted an associated Bridging Visa A (BVA) and subsequently on same day that Partner Visa application was refused.

11. The applicant sought merits review of the decision to refuse the Partner Visa application at the then Migration Review Tribunal (MRT) on 16 January 2013 and then on 5 March 2014 the MRT affirmed the delegate’s decision to refuse the Partner Visa application.

12. [In] March 2014, the applicant lodged an application for Judicial Review at the Federal Court in relation to that decision.

13. The associated BVA ceased naturally on 11 April 2014 and he became an unlawful non-citizen. The applicant indicated at the hearing that he did not know about that this at the time. A BVA as granted [in] July 2014 based on the ongoing Judicial Review application before the Federal Court. The granting of a subsquent BVA suggests to the Tribunal that he was not unlawful or that he had applied for the Bridging visa whilst lawful. That matter was finalised [in] November 2015 in the Minister’s favour.

14. [In] December 2015, he appealed that matter to the Full Federal Court which was subsequently finalised [in] March 2016 in the Minister’s favour.

15. The applicant lodged appealed that decision [in] April 2016 to the High Court and this matter was dismissed [in] August 2016.

16. [In] September 2016 the applicant lodged a request for Ministerial Intervention (MI) under section 351 of the Act. The request was finalised [in] October 2016 as ‘not referred’. [In] September 2016 the BVA that was granted to him in association with his ongoing Judicial Review proceedings ceased and he became unlawful in the community for the second time.

17. The applicant lodged a Protection Visa (PV) application on 14 November 2016 and was granted an associated Bridging Visa C (BVC) on 23 November 2016. Then on 19 December 2016 he requested to withdraw the PV application.

18. On 9 January 2017, the BVC was cancelled as he had been convicted with criminal offences whilst in Australia. As a result of the cancellation he became unlawful for the third time. The cancellation of the BVC was set aside by the Tribunal (differently constituted).

19. The applicant was convicted and sentenced [in] November 2017 to [a period of] imprisonment for charges of “assault with act of indecency-T2” commencing from [later in] November 2014 with a non-parole period [specified].

20. On [a day in] September 2019, upon release from [a named] Correctional Centre after serving [a period] in prison, he was located by Australian Border Force (ABF) officers and was subsequently detained pursuant to section 189 of the Act and transferred to [a named] Detention Centre, where he currently remains.

21. The applicant lodged a second Protection Visa (Subclass XA 886) application on 11 September 2019. The application was refused on 14 October 2019 and on the same day he sought merits review of the Department’s refusal decision at the AAT. The Tribunal (differently constituted) made a decision to affirm the delegate’s decision on 18 May 2020.

22. [in] June 2020, the applicant lodged an application for Judicial Review at the Federal Court to review the decision to refuse to grant the Protection visa. This matter is currently ongoing before the courts.

23. Since being detained, the applicant has had three Bridging Visa E (BVE) applications refused and has sought review of the refusal decisions to the Tribunal. The applications were affirmed on the first two occasions while the last refusal decision was finalised as “no jurisdiction” as review timeframes had not been met.

24. The Detention Review Officer was notified about the lodgement of the application that is the subject of this review on 12 August 2020, as required under Item 1305(3)(c) of the Migration Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

25. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The information before the Tribunal is that the judicial review application filed [in] June 2020 is still ongoing. 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.

    Whether the applicant will abide by conditions - cl.050.223

26. 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.

27. 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].

    [Note, the following paragraph is to be inserted if there is NO associated security decision made pursuant to s.269 of the Act under review. Please delete if there is an associated security decision under review:

28. 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.]

29. In this case, cl.050.612A applies because the applicant meets cl.050.212(3A)(b)(i). This clause prescribes that, in addition to the mandatory condition of 8101 (No Work), certain conditions may be imposed. The Tribunal adopts the conditions that the delegate considered should be imposed in the circumstances of this case:

    8207 (No study)

    8401 (Report As Directed)

    8506 (Notify New Address)

    8564 (Must Not Engage in Criminal Conduct).

30. The Tribunal took evidence from the applicant regarding his financial circumstances. The applicant spoke about being in good financial standing with the bank such that they agreed to refinance his investment property. He currently owes $200,000 to the bank with the monthly mortgage payments of around $1,400 being covered by the weekly rental income of $620. The Tribunal requested evidence of the lease with the tenants and was provided with letters from the real estate agent and the tenants which seem to indicate that there is no lease term. According to the letters, the tenants have leased the property since September 2015. The tenants have indicated that they wish to remain there and the real estate agent refers to the tenants operating a successful business from that site. The Tribunal has undertaken basic searches on the internet and located the business which appears to be operating. Having regard also to the rental ledger provided, the Tribunal is prepared to accept that the tenants intend on operating their business there for the foreseeable future. It appears that the lease can be terminated at any time by the applicant. The applicant did not indicate any intention to do so and had said that if he was released, he would not work as [an occupation]. While no recent evidence was provided of the amount owing on his property for this review, the Tribunal notes evidence given in previous matters reflects that the rental income is greater than the monthly mortgage repayments made. Given the applicant is in receipt of weekly rental income from his property, the Tribunal has formed the view that the applicant would not seek to use the property again to operate a business himself.

31. However, it also notes that the applicant has a number of debts, of which there is an amount of $95,091.79 owing to [a legal agency]. He claims that the terms of the agreement were that he does not need to repay this loan until he dies, sells or refinances the property. A copy of the agreement was provided after the hearing, and the Tribunal accepts that the applicant is not required to pay back the money until he sells or refinances the property. The amount owing is subject to interest however.

32. The applicant told the Tribunal that he has a personal loan with [a named] Bank. Following the hearing he provided an email which confirms that the balance of the loan is $10,305.93 and he re-pays $300 each month.

33. The applicant claimed that his sister, brother-in-law and friend, [Friend A], are willing to provide financial support and/or accommodation. The applicant also mentioned that he is in a relationship with [Ms B], and that they talk regularly by phone but he has not had visitors for a few months now due to COVID19. The Tribunal acknowledges that he is currently not allowed visitors and other evidence presented of regular SERCO reports supports his claim that he did have visitors up until the lockdown and continues to communicate with those outside the [named] Detention Centre by phone.

34. The Tribunal requested up-to-date information from the main support persons. Following the hearing, another letter was provided from the applicant’s sister, in which she attached a recent bank statement showing that she has around $55,000 in her bank account. A statement and statutory declaration was provided from [Friend A] referring to his willingness to provide financial support to the applicant, specifically $200-300 per week for expenses, and was also willing to provide a security of $20,000. The Tribunal considers that the regular income and availability of support from close family and friends lessens the need to work. It also accepts that the applicant’s sister will provide a room in her home for the applicant to stay without charging him rent such that he does not need to work to pay for accommodation.

35. In terms of the conditions to notify of address and report as directed, the Tribunal accepts the applicant’s claim that he will do so. It notes that he has a number of similar obligations under the terms of his parole; although the parole term is to end in a few months [in] November 2020.

36. In terms of the condition not to study, the applicant said he does not need to study and the Tribunal does not consider that there is any evidence which would suggest that he would seek to study if this condition was imposed.

37. Finally, the Tribunal will consider whether he will breach the condition that he not engage in criminal conduct (condition 8546).

38. Clearly, the most relevant piece of evidence which gives rise to a concern is the applicant’s conviction of sexual assault (x10) for which he was sentenced to [a period of] imprisonment in 2017.

39. As set out above, the applicant was released early on parole but was immediately detained in [named] Detention Centre. The applicant provided a copy of the decision made on 8 April 2020 by the Tribunal (differently constituted) in which the member was not satisfied that the applicant would comply with condition 8564, and referred to concerns that the applicant had not engaged in rehabilitation engagement for deniers of sexual offences. Since that decision, the evidence provided is that the applicant has engaged in ten sessions of psychological therapy with [Psychologist A], Clinical and Forensic Psychologist. The information before the Tribunal is that [Psychologist A] first interviewed the applicant on 1 November 2019, which was initiated and arranged by his solicitor and paid for privately. Aside from a brief phone call on 11 November 2019, the date of the first report, it does not appear that there were any sessions following the report and 11 April 2020 when he commenced the course of ten sessions. The treatment approach adopted by [Psychologist A] was said to have been developed for “people who plead not guilty to sexual offences and is described in Chapter 8 of Marshall, W.L., Marshall, L.E., Serran, G. A., & O’Brien, M.D. (2011), Rehabilitating sexual offenders: A strength-based approach. American Psychological Association.” The Tribunal has been presented with a copy of the treatment progress report dated 26 May 2020 and evidence of homework sessions which include reading material and video links. [Psychologist A] opines that the applicant is “at low risk of reoffending for the following reasons: fear of losing his opportunity of a fresh start living in the community; fear for his physical safety if he were deported to Lebanon; good participation in sex-offender treatment. His risk of reoffending could be further decreased with continuing psychological treatment in the community”. He recommends that the applicant continue consultations with him once a fortnight for 6 months and then once a month for a further 6 months. The applicant expressed his willingness to do so. The Tribunal notes that the applicant’s evidence is that he has been paying for these sessions himself out of his own income, and that he would continue to do so. The Tribunal further notes that, contrary to the finding of the previous Tribunal that he wilfully did not participate in relevant programs designed for sexual offenders, his evidence was that he had requested to be put on a rehabilitation program whilst in gaol, but that he was ineligible for the program due to a low LSI-R score. An LSI-R score, according to a Bulletin issued by the NSW Corrective Services, is a “Level of Supervision Inventory – Revised” score, designed to identify the offenders’ risks and needs with regards to recidivism.[1] Studies have shown that the lower the score, the lower the risk of recidivism. A copy of his case plan dated 25 July 2018 from when he was in gaol reflects that he was considered “not eligible for EQUIPS due to low LSI-R score”. It further states that “[the applicant] has expressed a desire to complete any avail SOTP he can” which the Tribunal understands refers to Sex Offender Treatment Programs. This is consistent with his claims at the hearing and it accepts his claim in this regard. It appears however that he chose not to undertake any private sessions until his Bridging Visa E and protection visa applications were refused.

    [1] (accessed 27 August 2020).

40. The applicant told the Tribunal he was preparing to lodge an appeal against the convictions. The Tribunal queried the timing of this given that he had effectively discharged the sentence, with only a short period of parole left. The applicant gave a number of reasons including that he had not been in a position to do so earlier but said that his sister can help him with it now and also said he was waiting to be outside. The applicant had referred to there being strong evidence supporting his case but that he was forced not to use it by the barrister at the time, and he did not trust that barrister. He then said that he had been told not to discuss the details of any appeal by his current lawyers. The only concern to the Tribunal about this is whether he denies that the conduct was criminal in nature, in terms of whether he would engage in such conduct again which would be in breach of condition 8564. Some of what he said to the Tribunal in regard to this appeared contradictory, as on one hand he acknowledged that he was found guilty by law and said that he accepts this conviction and feels sorry to the ladies. But then he added that he has a right to appeal and said that sometimes there may be an error and referred to what the Tribunal understands was Cardinal Pell’s sentences which were overturned by the High Court earlier this year. The appeal had not yet been filed, but the Tribunal understands that it is only in respect of the final conviction as clarified by his representative. She submitted that they were preparing an appeal against the final conviction which was alleged to have occurred while the applicant was on bail. The delay was related to financial situation in prison during this time and that he had been allocated a barrister [by his legal agency].

1. The applicant then talked about some incidents in detention where a complaint was made against him of sexual assault. He disputed this and explained that he was a victim and the incident had not been properly handled by management. The applicant said he stopped eating because of this incident which arose as one of the operation managers, [Officer A], had filed a report of sexual assault after the applicant had kissed him on the forehead to say thank you. The applicant played a recording from his phone in which a male and female voice can be heard discussing the claim of sexual assault. He claimed that the discussion indicates that management agree that the incident with the operations manager was not a sexual assault. The Tribunal places no weight on this recording as evidence of such a conclusion but notes that the incident is referred to in progress notes from [his health service] for a Mental Health Consultation [in] July 2020. In those notes it refers to the applicant stating to the operations manager, [Officer A], who attended the clinic while they were waiting for an ambulance for the applicant, “you know I was kissing him saying thank you and you put it as a sexual assault, you never question me” to which it is recorded that [Officer A] stated “I know your intention was to say thank you but in the western culture it’s a sexual assault to kiss someone”. The Tribunal thus accepts the applicant’s recollection of the event that led to the sexual assault complaint. While the Tribunal is not making a determination as to whether the incident amounts to sexual assault, it appears to be somewhat different in nature to the assaults for which he was found guilty by the Courts and imprisoned. The Tribunal further accepts based on the paperwork provided from the applicant that he is generally considered polite and engages appropriately with detention centre staff based on copies of numerous ‘Individual Management Plan Reviews’ prepared by SERCO. It notes that there are a few incidents involving staff members but none that reflect that his conduct would be considered criminal in nature. The Tribunal does not consider the incidents with staff and, in particular the incident that had been reported as sexual assault, lead to a conclusion that the applicant would engage in criminal conduct if the bridging visa was granted.

2. In making its assessment as to whether the applicant may engage in criminal conduct if the Bridging Visa is granted, the Tribunal has also taken into account the applicant’s psychological assessment report dated 30 April 2020 by [Agency 1] provided. It appears to have taken place shortly after the negative decision of the Tribunal (differently constituted) referred to above in regard to his second Bridging Visa E application, but prior to the outcome of the review of the refusal of the protection visa. The writer does not comment on the applicant’s likelihood of reoffending but refers to the applicant’s expressed desire to engage in suitable therapy for sexual offenders. The Tribunal is prepared to accept the opinion of the psychologist that this would likely occur. The Tribunal further accepts that the applicant is distressed about his indefinite detention, although does not consider this to be directly relevant to whether he will abide by the conditions of the bridging visa if granted.

3. The Tribunal asked the applicant what he would do if he was not able to work or study. The applicant’s response was that he would spend time with his mother and try and make up for wasted time (being the time he was imprisoned and in detention). He also said he would spend time with [Ms B] and his nephew and nieces. He would see his psychologist, report to parole and Immigration. The applicant pleaded for a second chance.

4. The Tribunal spoke to [Sister A], the applicant’s sister, and [Friend A], a friend, separately on 27 August 2020. Both parties had provided updated statements of support for the review. [Sister A] confirmed that the applicant would live with her and she did not expect him to pay for living expenses or food. She confirmed that she was aware of his convictions and that they had discussed whether to appeal the convictions. She said that she could assist with the cost for the appeal, but they were assessing the likelihood of success. In terms of other debts, [Sister A] said she would assist him with his debt owing from the Immigration matters and that Immigration had told her over the phone that it would not need to be paid until after his prison term. The Tribunal noted that this was over a year ago, but [Sister A] advised that they had not heard anything further regarding the amount owing. When asked if she was currently working, [Sister A] said that she is [an occupation] and has casual work and added that her husband has a [business] which is the main source of income for the family. She confirmed that the statement was for her own bank account and that she has a joint account with her husband as well. [Friend A] explained that he had known the applicant for over 25 years, being a distant relative of his wife’s. The Tribunal referred to his statement in which he had indicated that he was prepared to give the applicant $250-300 per week for living expenses, which he confirmed and said that it was without expecting repayment of those amounts. [Friend A] also confirmed that he was prepared to offer a $20,000 security to ensure the applicant’s compliance with the conditions. He said that he runs his own business [and] that the bank account is a savings account for investment purposes, where the balance is usually around $300,000. The Tribunal had earlier enquired with the representative about a large deposit from [a named person], and [Friend A] claimed that it was for a car that he sold to him. He confirmed that he was aware of the details of the assaults for which the applicant was convicted and that he would be responsible for the applicant in the community.

5. In considering the likely conduct of the applicant, the Tribunal has also given consideration to 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 terms of the applicant’s immigration history. The Tribunal notes that there were two periods of unlawfulness, which the applicant claimed he was unaware of. The Tribunal notes that the first time his BVA ceased in April 2014, he was subsequently granted another BVA which suggests that he was not unlawful when the application for that bridging visa was made. According to the information before the Tribunal, he had filed an application to the Federal Court before the BVA ceased. The Tribunal does not consider that he deliberately became unlawful at that point. The second period of unlawfulness was for a longer period which commenced prior to lodging a protection visa application. Around this time, the applicant had been in and out of gaol following the sexual assault charges. Having regard to this, the Tribunal accepts that there were mitigating circumstances and overall does not consider that his immigration history suggests that he would not abide by the conditions of his visa if granted. It notes however that he has made numerous attempts to remain in Australia and has continued to do this by appealing the most recent substantive visa refusal. There is thus a risk that he would not depart Australia if unsuccessful.

6. The main point of difference since the previous Tribunal decision was made to refuse the applicant a Bridging Visa E is that the applicant has engaged in a rehabilitation program for sexual offenders. He has participated in 10 sessions prior to the hearing for this review. This suggests to the Tribunal a commitment to continue the sessions if outside in the community and is consistent with the [Agency 1] psychiatrist’s view. The Tribunal also considers that the financial and emotional support from close family and friends, one of whom has expressed willingness to provide a security, will further ensure compliance. Having regard to his criminal history and his immigration history, the Tribunal considers a security of $20,000 would be appropriate. While there are factors which are of concern to the Tribunal, on balance, the Tribunal has formed the view that the applicant would comply with visa condition 8564 and the other conditions that may be imposed on his visa if a security of $20,000 is requested.

7. In conclusion, on the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if a security is taken. Therefore, the applicant meets cl.050.223. Clause 050.224 will need to reviewed and reconsidered having regard to the above.

8. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. It notes however that there is a possibility he would not be granted a BVE despite these findings because of the criminal sentence. 

   DECISION

9. 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.050.221 of Schedule 2 to the Regulations; and

   ·cl.050.223 of Schedule 2 to the Regulations.

10. The Tribunal also directs the primary decision maker meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·to indicate to the applicant that conditions 8207, 8401, 8506 and 8564 will be imposed if the visa is granted; and

    ·to require a security of $20,000 for compliance with the conditions.

    Wan Shum
    Member