2015603 (Migration)

[2020] AATA 6068

2015603 (Migration) [2020] AATA 6068 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015603

MEMBER:Mr S Norman

DATE:4 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 November 2020 at 4:00pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – abide by conditions of visa – review of refusal of application for protection visa in progress – criminal convictions, imprisonment and immigration detention – mandatory and discretionary conditions – likely not to abide by ‘no work’ and ‘must not engage in criminal behaviour’ conditions – no savings or financial support – denial of offences and failure to accept responsibility – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 73

Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 050.223

CASE

Applicant VAAN of 2001 v MIMA (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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 14 October 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 19 October 2020 on the basis that the delegate was not satisfied the applicant met cl.050.223. The applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

   Substantive visa application

6. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

7. The evidence before the Tribunal included that the applicant lodged a Protection Visa (XA 866) application, which had been refused by the Department on 18 September 2017. The applicant had then sought merits review of the delegate’s decision (lodged on 6 October 2017), and the review had not yet been finalised by the Administrative Appeals Tribunal.

8. Accordingly, the applicant meets cl.050.212(3).

9. The Tribunal has decided to resolve this case based on the below discussion.

   Whether the applicant will abide by conditions - cl.050.223

10. 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.

11. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied 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].

    Evidence before the Tribunal  

12. The evidence before the Tribunal included that the applicant was convicted and sentenced to eight months imprisonment for the offences of Common Law Assault and False Imprisonment (Common Law). These convictions arose from an incident that occurred on 13 January 2020. The offences arose in the context of a family violence incident, and the victim was the applicant’s wife (the victim).  

13. The delegate noted the ‘Summary of Offences’ (the ‘Summary’) describe protracted and deliberate violence. The Summary stated (words to the effect) the applicant had forcefully pushed the victim into his car; and the victim had then fallen into the foot well of the rear seat. The applicant had then held the victim down by placing his foot on her face and he had continued to do so for around fifteen minutes. In the meantime, the applicant had called another person to come and drive his vehicle. The applicant had therefore continued to hold down the victim by keeping his foot on her head or face, in order to prevent her from escaping. Later, the victim was locked inside a room and the applicant had taken her phone away. The victim was subsequently released (the following morning), after she was woken up when the applicant had thrown a phone and milk bottle at her.  

14. When put to the applicant at hearing, he accepted this was the evidence upon which he was convicted.

    The mandatory condition to be attached to any bridging visa granted:

15. The mandatory conditions that would be imposed on a Bridging visa that may be granted to the applicant would include:

    8101 - No work

16. In their decision, the delegate noted that when interviewing the applicant on 15 October 2020, he stated he was unsure how much money was in his bank accounts. The applicant said he operated a business, along with his cousin, where they [did a job task]. He had been recorded as also saying his cousin had access to his bank accounts and the cousin forced the applicant out of the business. Therefore, the applicant did not have access to his own bank accounts. The applicant also advised that he had to rely on Legal Aid to represent him during the aforementioned criminal proceedings because he did not have sufficient funds to pay for another lawyer. After considering this evidence, this was part of the reason that satisfied the delegate the applicant would not comply with Condition 8101 (No work); as the evidence did not indicate the applicant had savings or support from the community, that he might rely on if released on a Bridging visa.

17. Next, when the delegate had asked the applicant how he would support himself if released into the community, the applicant said he may ‘possibly rent [his] business to someone’, but that he would need to consult his accountant. The delegate considered this to be ‘speculation’ on the part of the applicant; and that it indicated the applicant did not have a clear strategy on how to support himself in the community.

18. Accordingly, in the absence of community support, savings or any other material source of income, the delegate was not satisfied the applicant would abide by Condition 8101 (No Work).  Based on the evidence before them, the delegate was satisfied the applicant’s need to work to support himself would motivate him to breach Condition 8101.

19. When discussed at hearing, the [Age] year old applicant said that he and his wife had five children, that four lived with his mother in Malaysia, and that the [Number] month infant child lived with him and his wife in Australia. The applicant said he had travelled to Australia on a three-month Tourist visa (in mid-2017) and subsequently applied for a Protection visa. Both the applicant’s wife and infant child are included as members of his family unit for the purposes of his ongoing Protection visa application.  

20. The applicant then explained that he and a friend had started a business (the [job task] business), that they were the director’s of the company that controlled the business, but that shortly after the applicant was placed into criminal detention, the cousin told the applicant that he (the applicant) was no longer part of the business. The cousin then blocked the applicant’s access to all the business bank accounts (which was why the applicant applied for Legal Aid for the criminal proceedings as he had little if any money). The cousin had also ‘frozen out’ the applicant’s friend from the business around the same time.

21. At hearing, when then asked how he proposed to support himself in the community if released, the applicant said his wife found out that he could not work if granted a BVE, and that she had commenced work around two months prior to the Tribunal hearing. The applicant also said that he understood his wife may have arranged for support within the Malaysia community or elsewhere, in Australia (though no corroborative evidence had been lodged).

22. Perhaps more importantly, the applicant said that if released and not allowed to work, he would perhaps engage in recovering debts that remained owed to his business in Australia, and he believed that the combination of monies from all of the above options, would allow him to remain in the community, and re-engage with his family.

23. However, the Tribunal is satisfied that re-engaging with his business, in order to recover debts that remained owing to his business in Australia, is in fact work – and which work would constitute a breach of the no work condition that would be attached to a BVE he might be granted.

24. Accordingly, the Tribunal is not satisfied the applicant would abide by Condition 8101 (No Work).

    The discretionary conditions that should be attached to any bridging visa granted:

25. Clause 050.223 prescribes that in addition to any mandatory conditions, certain conditions may be imposed. As did the delegate, the Tribunal is satisfied the discretionary conditions that should be imposed on the applicant’s Bridging visa if granted, should include:

    ·     8207 – No Study

    ·     8401 _ Report As Directed

    ·     8506 – Notify of New Address

    ·     8564 – Must Not Engage in Criminal Behaviour

    Condition 8564: Must not engage in Criminal Behaviour:

26. As noted above, the applicant was convicted and sentenced to eight months imprisonment for the offences of Common Law Assault and False Imprisonment (Common Law); and that these offences arose from a domestic violence incident between the applicant and his wife.

27. In their interview, the delegate recorded the applicant as claiming he was wrongfully accused and convicted and that the charges against him were fabricated. The applicant had claimed he only had ‘an argument’ with his wife through phone messages. He also had said his wife now feels guilty about the matter. The delegate also recorded the applicant as claiming the relationship with his wife is ongoing, and he had ‘full custody rights of his child’.

28. The delegate then said the applicant’s ‘total disregard of Australian laws, community values and lack of acknowledgement and remorse about his behaviour leads (the delegate) to believe that the applicant may reoffend. This would not only put the victim at risk, but also that such family violence that may occur in the presence of the infant child would further put the child at risk’. The delegate then said the applicant’s failure to accept responsibility for his actions and his complete denial of any offence, cast a serious doubt on his willingness to (continue to) abide by Australian Laws.

29. Accordingly, and given the evidence (including what the delegate referred to as the ‘dismissive’ manner in which the applicant referred to his behaviour), the delegate was not satisfied the applicant would abide by Condition 8564 (Must Not Engage in Criminal Behaviour).

30. The country information stated:

    3.124 Despite the enhanced legal protections available to victims, NGOs report that violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem.[1]

    [1] DFAT COUNTRY INFORMATION REPORT MALAYSIA, 13 December 2019.

31. At hearing, the Tribunal noted the country information does not mean that all persons in Malaysia are guilty of or even capable of, domestic violence. However, that it may suggest that domestic violence was to some extent, tolerated in Malaysian society.

32. The Tribunal also noted the applicant’s claim that his wife now felt guilty. The applicant said his wife had also contacted the authorities in order for the applicant to be released from criminal detention. The Tribunal noted that though it had no evidence of this being material to this case, it may not be uncommon for victims of domestic violence to return to the perpetrator of such harm.[2] 

    [2] BATTERED WOMAN SYNDROME AND INTIMATE PARTNER VIOLENCE, MEDICAL NEWS TODAY, 3 DECEMBER 2018, , ACCESSED 4 NOVEMBER 2020.

33. The applicant also advised the Tribunal that he believed the person who was attempting to ‘bring him down’ was the aforementioned cousin, and it was the cousin who may have motivated the wife to report the domestic violence incident to the police.

34. Be that as it may, when the domestic violence incident was discussed at hearing, the applicant said at that time, he and his wife had an argument, that his wife had then attempted to jump out of their (possibly) moving car; that the applicant had (presumably) stopped the car and attempted to prevent his wife from escaping (possibly in order to prevent her from injuring herself). The applicant then said that he had never come to the adverse attention of the police previously and had never previously harmed his wife.

35. The Tribunal noted (words to the effect) this appeared to indicate he was innocent of any wrong-doing, but that it was not entitled to look behind the judgment of the criminal court. Further, that irrespective of the claimed details, the court was sufficiently satisfied that he should be both convicted of the two offences, and sentenced to eight months imprisonment.

36. Respectfully, the Tribunal agrees with the delegate. That is the applicant’s failure to accept responsibility for his actions and his denial of any offence, cast a serious doubt on his willingness to (continue to) abide by Australian laws. As found by the delegate, the Tribunal accepts the applicant appears to have a lack of regard for Australian laws, community values and lack of acknowledgement and remorse for his behaviour.

37. As also found by the delegate, the Tribunal accepts the applicant may reoffend. This would not only put his wife at risk, it would also put at risk his (now) [Number]-month old infant child, who even if not struck, could be present when such violence may occur.

38. Accordingly, and given the above findings, the Tribunal is not satisfied the applicant would abide by Condition 8564 (Must Not Engage in Criminal Behaviour).

    Consideration of a security:

39. If the Tribunal is satisfied the applicant will abide by the conditions if security 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.

40. In their decision, the delegate said this clause did not apply to the applicant as an authorised officer had not required a security be lodged.

41. Though not discussed at hearing, given the matters set out above, including that the Tribunal is satisfied the applicant is a risk of re-offending, and given the applicant’s apparent intention to pursue work, the Tribunal was not satisfied the applicant would abide by conditions imposed on a Bridging visa if granted; even if a reasonable security could be paid. Therefore, the applicant does not meet cl.050.223.

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

43. Though not referred to at hearing, the Tribunal also understands that priority will be given to his ongoing Protection visa application, while he remains in immigration detention.

44. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. However, the applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

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

    Mr S Norman
    Member