2018022 (Migration)

[2020] AATA 6046

2018022 (Migration) [2020] AATA 6046 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2018022

MEMBER:Nathan Goetz

DATE:22 December 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 22 December 2020 at 4:21pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the conditions that would be imposed – applicant charged with criminal offense – released from criminal custody into detention – applicant’s request to depart independently – COVID-19 restrictions on planned flights – demonstrated ability to comply with bail conditions – not engaging in criminal conduct – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 73, 116
Migration Regulations 1994, Schedule 2, cl 050.223, 050.617; Schedule 8 Condition 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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. [In] March 2018 the applicant arrived in Australia holding a temporary working holiday visa which permitted him to remain in Australia until [a day in] March 2019. On [a day in] June 2018 the applicant departed Australia and returned to Australia [in] September 2018.

3. Upon the applicant’s return to Australia on [a day in] September 2018 the applicant was arrested by the Australian Federal Police in relation to sexual assault charges.

4. [In] December 2018 the applicant’s temporary working holiday visa was cancelled under s.116(1)(e)(ii) of the Act. He became an unlawful non-citizen.

5. [In] March 2019 the applicant was granted a criminal justice stay visa which allowed the applicant to remain in the community while the charges against him were finalised.

6. [In] August 2019 the applicant was convicted of ‘Sexual intercourse without consent – SI’ and sentenced to 2 years and 3 months imprisonment with a non-parole period of 13 months. The sentence expired [in] August 2020.

7. [Earlier in] August 2020 the applicant’s criminal justice stay visa was cancelled due to the operation of the Act because the applicant had completed his sentence of imprisonment. The applicant was released from criminal custody on [a day in] August 2929 and detained by the Australian Border Force under s.189(1) of the Act, because he was an unlawful non-citizen. He was placed into an immigration detention centre where he remains to date.

8. On 23 October 2020 the applicant applied for a bridging visa. On 27 October 2020 the delegate refused to grant the bridging visa. On 29 October 2020 the applicant applied to the Tribunal for a review of the refusal decision. On 5 November 2020 the Tribunal affirmed the decision to refuse the bridging visa: AAT [case number].

9. On 11 December 2020 the applicant applied for a bridging visa. On 16 December 2020 the delegate refused to grant the bridging visa. When the applicant applied for the most recent bridging visa, it 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).

10. The delegate refused to grant the bridging visa because the delegate was not satisfied that the applicant would abide by any conditions that would be imposed on the bridging visa. Therefore, the applicant did not satisfy cl.050.223.

11. On 16 December 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant consented in writing to hold the Tribunal hearing at a date earlier than the required two working day notice period. It is this decision that is the subject of this decision record.

12. On 22 December 2020 the applicant appeared by audio-visual link from an immigration detention centre to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. According to the bridging visa application form, the applicant identifies as [an age]-year-old Irish citizen. He told the Tribunal hearing that he was born in Dublin, Ireland but has lived in [Country 1] and [Country 2]. He told the Tribunal that his mother and father are citizens of [Country 2] and currently reside there. His mother had travelled to Australia on several occasions while he has been in Australia.

14. The applicant seeks the bridging visa because he is making arrangements to depart Australia. He intends to depart Australia on [a day in] December 2020. His intended destination is [Country 2]. He plans to board [Flight 1] from Australia to [Country 1]. From [Country 1] to [Country 2] he will travel on [Flight 2]. He wrote that he holds these tickets and that his [Country 2] and Irish passports are held by the Australian Border Force. By the time the applicant had been refused the bridging visa by the delegate on 16 December and appeared at the Tribunal for a review of the refusal decision, the date for the flight had passed. The applicant provided a new booking to board [Flight 1] from Australia to [Country 1] [later in] December 2020 and from [Country 1] to [Country 2]. The applicant told the Tribunal that it was his intention to board this flight. He also produced a hotel booking to cover the period from his presumed release on a bridging visa this day until the day of his planned departure.

15. He declared in his bridging visa application form that he had been convicted of an offence and that he had been the subject of an arrest warrant. He wrote that on [a day in] September 2018 he flew into [Airport 1] and was arrested and taken into criminal custody. Several days later he was escorted onto a flight to Sydney and was charged with sexual assault without consent at [a named] Police Station. He wrote that he was held in criminal custody for approximately three weeks before he was released on bail, that the grant of bail had several conditions, and that he adhered to those conditions. He was sentenced [in] August 2019 and had entered an early plea of guilty. He noted that when he was released from criminal custody, he was sent to immigration detention centre awaiting deportation back to Ireland. The COVID-19 pandemic slowed his removal from the country, and he is attempting to return to his family sooner by applying for a bridging visa.

16. The Tribunal advised the applicant that it had the Agreed Statement of Facts upon which he was sentenced by the [named court] and that the Tribunal had read the statement. The Tribunal notes that the applicant was sentenced to sexual intercourse without consent contrary to s.61 of the Crimes Act 1990 and that there was also a ‘offence to be taken into account’ being another charge of sexual intercourse without consent contrary to s.61 of the Crimes Act 1900. The Tribunal understands that this allowed the sentencing judge to impose one sentence on a single charge, but sentence on the basis that there were two separate lots of offending. According to the Agreed Statement of Facts:

17. The victim in the matter was [Ms A] who was [age] years old at the time of the offence. The applicant was [age] years old at the time of the offence.

18. The victim and the offender were known to each other having both attending university together at [a college], Dublin, Ireland. The applicant also knew the victim’s boyfriend of 6 years, [Mr A].

19. Since leaving University, the applicant and the victim rarely saw each other but continue to talk via [messaging].

20. [In] February 2018 the victim arrived in Sydney on a working visa.

21. It as planned for the applicant to visit the victim between Friday 8 June 2018 and Tuesday 12 June 2018 and it was agreed and arranged that he would sleep on the sofa bed in the living room.

22. On 8 June 2018 the victim flew into Sydney Airport and at 4.15pm met the victim at her work. The victim hugged the applicant when she saw him, as it had been a long time since they were last face to face.

23. The applicant ad the victim went back to her apartment where they were joined by a friend of the victim, [Friend A]. [Friend A] had been planning to spend from Friday to Sunday at the victim’s apartment. This was a usual occurrence and she always slept in the same bed as the victim.

24. The three had dinner and drinks together before heading out to [Venue 1] to meet some of the victim’s other friends.

25. After [Venue 1], the group returned to the victim’s apartment and sat around the living room in various spots, including the sofa bed that had been prepared for the applicant. The victim had some food and approximately one more bottle of wine but was conscious of having to be up early for work the next morning and did not want to drink too much.

26. On [a day in] June 2018 at around 2:30am the victim had her final alcoholic drink.

27. Around 3:00am the victim changed into her pyjamas. The victim’s pyjamas consisted of [pyjamas detail].

28. At around 3:30am with some of the group still there and on the sofa bed the victim told the applicant that she wanted to go to bed. The majority of the group were still awake and were sitting on the sofa bed that had been prepared for the applicant.

    Applicant: “Yeah, I’m wrecked too.”

    Victim: “Yeah, you can sleep in my room if you want.”

29. The victim then went to her room and went straight to bed. The applicant entered the room shortly after, followed by [Friend A]. The applicant got onto the left side of the bed closest to the wall and [Friend A] was in the middle.

30. After a short period of time the rest of the group yelled to the three to come back out and join them. [Friend A] got up and went out, but the victim was too tired and went to sleep. She was still turned away from the applicant with her legs curled in a foetal position.

31. The victim awoke to a sensation of something inside both her anus and her vagina at the same time. Although she was facing the same position her legs were in a different position now: her right knee and leg were up further, closer to her torso and her left leg was straighter with her knee slightly bent.

32. The victim realised fingers were insider her. She could feel three fingers in her vagina and one in her anus.

33. The applicant was repeatedly and roughly pushing his fingers in and out of the victim’s vagina and anus. Her hair was in a ponytail and she could feel his breath on the back of her neck.

34. It took a moment for the victim to wake and realise what was happening to her. She fully tensed, shifted her body and physically pushed his arm away from her and said “[Name], stop!”

35. The victim did not move after this and she was in shock. She was afraid to turn around and see the applicant but heard him utter “What?” followed by “Sorry.” She then felt the bed move as the applicant laid back down and turned around and moved away from her so they were separated in the bed.

36. The victim continued to lie in shock and did not move. After a period of time she saw the applicant get up and leave the room.

37. The victim then realised the covers had been pulled down and she could see her bare legs.

38. The victim found her pyjama pants at the bottom of the bed. They had been completely pulled off her right leg but were still slightly on her left leg at the cuff. Both of her socks had been taken off. She was still wearing her underwear bit it was pulled to the side. She pulled her pyjama pants and the covers back up. The applicant then re-entered the room.

39. The victim asked the applicant why her pyjama pants were off to which he casually replied “I don’t know” before getting back into the bed, getting under the covers, turning to the wall and away from the victim, and going to sleep.

40. The victim continued to sit in shock. She waited for the rest of the group to leave so she could talk to [Friend A] alone.

41. Eventually, [Friend A] returned to the bedroom, taking a position on the floor and sat up looking at her phone. At this point the victim told [Friend A] that she had something to tell her and led her outside the room away from the applicant as she was too scared to tell [Friend A] in front of the applicant.

42. In the doorway to the bathroom the victim told [Friend A]: “I woke up and (the applicant) had his hands in my pants, he took off my pyjama bottoms.”

43. The victim was in tears and panicked. Eventually she and [Friend A] decided to kick him out. She entered the bedroom again with [Friend A] standing by as support and forcibly woke the applicant up.

    Victim: “You need to leave.”

    Applicant: “What, why?”

    Victim: I woke up and you had your hands down my pants.”

    Applicant (sobbing): “I’m sorry, I’m sorry.”

    Victim (repeatedly): “You need to leave.”

    [Friend A]: “Right, get out!”

44. The applicant, crying, packed his things while the victim stayed in her bedroom.

45. After the applicant had left, the victim sat in the bed with [Friend A] and said “[Name], he actually did finger me.” [Friend A] talked and comforted the victim and the victim revealed she was worried about how long it had happened for before she woke up.

46. At about 7:46am the victim called her boyfriend [Mr A] and told him what had happened.

47. At 8:09am the victim was alone in her apartment and checked her phone. She saw a [social media] message from [name], the applicant’s sister. It read:

    “Hi [Ms A], I’m [the applicant’s] sister [name]. He just called me in floods of tears and told me what happened last night and what he did or tried to do. I just want to say that I’ve been in the exact same situation two years ago, by my [a relative]. I’m not really sure where this is going, but I just wanted to send you a message and as if you are okay?

    “Also, I completely forgot to say that I’m honestly so sorry something like that would happen. As I said before I’ve been through and I know everyone is different and for though things different, but when I say I know how I feel, I genuinely mean it.”

48. At around 10:44am the applicant sent the victim a message via [social media] messenger. It read: “I know that the last thing you want to do is see me right now. I feel sick. Words can’t explain how sorry I am, and they will never be enough to repair what I have done. I have your credit card, so I can put it in the box outside your building.”

49. The victim blocked the applicant and deleted all conversations on [messaging] and other social media.

50. At approximately 8:01am the Case Management from file notes from [an agency] indicated the applicant called their hotline and made admissions that he had perpetrated a sexual assault last night. A counsellor then referred the applicant to a counselling service called ‘[Agency 1].’

51. At approximately 8:11am the applicant made a voice call to [number] which is the hotline for [Agency 1]. The applicant was very upset and remorseful in that call and said the following:

    “I was supposed to be sitting on the sofa, but she was being kind and said ‘Here, sleep in my bed...Just to sleep’ I don’t know how pissed she was, but I was pretty, I, I , I don’t get, I don’t even think I was that pissed…I’, I, I’m , my sister was raped as well, by my [a relative], it fucked my family. I thought I’d never turn into that. I thought I’d never go down to that road and now, I’ve done that. I’ve done it to a person, I’ve ruined her life. I don’t know if I just… If I just used my hands.”

52. The applicant also stated he had called his sister and “that was heartbreaking…cause she’s been through the same thing…she was a victim…I’d never thought I’d do that and then I had to tell her I’d done what someone had done to her…”

53. The [Agency 1] counsellor repeatedly told the applicant he made a bad decision because he was intoxicated, despite the applicant’s earlier comment that he “didn’t even think he was that pissed.”

54. At approximately 12:30pm the applicant made a voice call to [another number] which is the hotline for a counselling service known as [name]. In that call he made admissions to the following:

    “I was drink last night and I was with my friend I was visiting… and, ah, I sexually abused her…I’m just lost. I’m just so lost…and I feel awful…I feel so horrible…I full accept what I’ve done…I just, ah, can’t believe I’ve done it…to such a lovely person…”

55. On Sunday 10 June 2018 the victim checked the mailbox of her apartment building and found her credit card wrapped in a handwritten note. The note read:

    “To [Ms A],

56. I don’t know that anything I wrote won’t be enough to repair the damage I have done. An apology can’t justify what I did, nothing can. I understand if you never want to talk speak to me or see me again as I don’t deserve those things. I do deserve to feel the shame and guilt that I feel and for the rest of my life I will regret the choices I made this night. If this letter comes across as me expecting you to feel sorry for me. I don’t mean it. I don’t expect you to feel anything for me, as what I did was disgusting.

    I am sorry that I broke the trust you had for me. I’m sorry that whenever you will think of Sydney, you will think of what I did. I’m sorry that I have destroyed the friendship that we formed. You are one of the most generous and selfless people I have ever met, and it makes me sick knowing that I took advantage of that. If there is anything I can do, please let me know. However, I think I have already done enough.

    [Name].”

57. Analysis of the letter was able to identify fingerprints matching the applicant.

58. Later that day the victim received a phone call from a mutual friend of the applicant, [Friend B]. The victim disclosed to [Friend B] what the applicant had done via text message. In the messages, [Friend B] said the applicant had already left Australia and was flying to [Country 1] where his family lived.

59. The applicant left Australia via Sydney Airport on [that day in] June 2018 at [time] flying to [Country 1] on [Flight 3].

60. On Tuesday 12 June 2018 after work the victim attended [a named] Police Station and reported the incident.

61. Police then went back to the victim’s apartment and seized clothing and bedding as exhibits for testing.

62. DNA testing identified DNA collected from the victim’s pyjama pants as matching the applicant’s profile.

63. [In] September 2018 police in Sydney were made aware that the applicant’s passport had been used to check into a flight leaving from [Country 1] due to land [at Airport 1] on [the next day in] September 2018.

64. On [that day in] September 2018 at [Airport 1], the Australian Border Force having previously been alerted identified the applicant arriving through customs. Australian Border Force approached the applicant and detained him.

65. When questioned by the Australian Border Force about pages in his diary relating to the victim, he told them that he had her he was in love with her and kissed her, but she rejected his advances. The applicant claimed he then returned to a hostel, gathered his things and flew out of Australia. The Australian Border Force then handed the applicant over to [that state’s] Police.

66. One of the items found on the applicant was an exercise book with a black cover that the applicant had been using as a diary. Entries included:

67. A page entitled “Who made me do what?” with a line of text reading ‘I made myself destroy my relationship with [Ms A].”

68. A page entitled “Secrets of my life?” with a line of text reading “I [crossed out]__________[Ms A].” The words ‘sexually assaulted’ can be made out.

69. [Later in] September 2018 the applicant was extradited to New South Wales.

70. The applicant was offered the opportunity to take part in an electronically recorded interview which he agreed to but did not want to comment on most questions posed to him.

71. The Tribunal notes the letter dated [in] October 2020 from [a named officer] of NSW Police who was the officer in charge of the prosecution of the applicant. This letter had been provided by the informant at the request of the applicant. The Tribunal notes that the informant’s view was that the applicant is not a person he would consider posing undue risk to the community, noted that there was no evidence the applicant had ever breached any bail conditions which included reporting, surrendering passports, and maintaining residential and contact restrictions. The letter notes the applicant was cooperative.

1. The applicant told the Tribunal that his sentence finishes in October 2021 and that he was released on parole, but had no conditions attached to that. The Tribunal found this curious, as it understood that there were mandatory conditions attached to a parole order, including that a person cannot depart Australia[1]. The Tribunal said to the applicant that this may mean he could not depart Australia until he completed his sentence, unless this mandatory condition was removed. The Tribunal encouraged the applicant to speak with the Parole Authority about this.

   [1] Parole Authority of NSW: >

   The Tribunal asked the applicant why he had committed the offending. He said that he had been drinking but could not explain his actions, other than misjudging the situation. The applicant noted that he pleaded guilty to the offending, was remorseful, had no other criminal history, had been complaint with his bail conditions, and had made use of his time by attending the [a specified] programme, and had attended the medical centre in immigration detention for which he provided documentary evidence. The evidence from the medical centre notes the applicant suffers anxiety. The applicant asserts that he has made good use of his time in criminal custody and detention.

2. The applicant had provided a number of support letters, including letters from [specified writers on specified dates]. All of these letters speak highly of the applicant and speak of someone whose character is inconsistent with what he has done. The letter from [another agency] details the support provided to date and the author’s willingness to take the applicant to the airport. The applicant told the Tribunal that the payments to that organisation, which he described as a not for profit group, was in recognition and thanks for the support provided. The applicant also attempted to obtain records from his imprisonment which he said would demonstrate that he was a compliant prisoner. It was for this reason he submitted to the Tribunal a document titled ‘Right to Information (GIPA) Form Application.’ He wanted the Tribunal to know that he attempted to get this information but noted none of this had been provided yet.

3. In terms of his proposed departure from Australia, the applicant told the Tribunal that he had not advised the person who he identified as a ‘removal officer’ that he had booked his flight on [a day in] December 2020. The applicant said that he wanted to have a bridging visa so he could go to the airport by himself. He told the Tribunal that the Australian Border Force had told him that he cannot go to the airport by himself, and it was for this reason that he sought a bridging visa. The Tribunal asked the applicant whether there was any reason that the Australian Border Force could not accompany him from immigration detention to the airport to depart Australia. The Tribunal noted that people often depart Australia from immigration detention centres, and not on bridging visas. The applicant said that there would be no issue with this, but it was his understanding that he would not be able to depart on a flight without being accompanied by an Australian Border Force official because he was considered ‘a risk’ by airlines. The applicant provided an Australian bank account that he has access to in the name of his mother that shows he has adequate funds to pay for his travel and proposed accommodation, which he also showed had already been booked.

4. The applicant was questioned about the basis of his belief about not being able to depart Australia unless he was on a bridging visa, and it appeared to the Tribunal that the applicant was not attempting to be dishonest, but really has limited understanding of the logistics of what is involved in his removal from Australia from an immigration detention centre. With this context, it is understandable that the applicant wants to be on a bridging visa as it would appear to be the easiest way for him to depart Australia. The Tribunal urged the applicant to provide his flight details to his removal officer as a matter of priority.

5. The applicant mentioned the situation with COVID-19 and that this may delay his planned flight. As the Tribunal discussed with the applicant, whether the planned flight was delayed or cancelled was irrelevant to whether the Tribunal was satisfied that the applicant would comply with the conditions attached to the proposed bridging visa.

   FINDINGS AND REASONS

6. The Tribunal has considered all the evidence outline in the above decision, including what the applicant told the Tribunal at the Tribunal hearing.

7. The issue being considered by the Tribunal is whether the applicant will abide by the conditions which would be imposed on the bridging visa.

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

   Whether the applicant will abide by conditions - cl.050.223

9. 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.

10. 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].

11. 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.

12. In this case, cl.050.617 applies because this is the clause which applies when no other clause applies. This clause allows several conditions to be imposed on a bridging visa. The conditions to be imposed are discretionary. Clause 050.618 also applies because it allows the condition in that clause to attach to the visa in addition to any other conditions imposed by any other clause.

13. As discussed with the applicant, the Tribunal considers that the following conditions should be imposed on the bridging visa.

    8101           The holder must not engage in work in Australia

    8207           The holder must not engage in any studies or training in Australia.

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

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

    8512           The holder must leave Australia by the date specified by the Minister for the purpose.

    8564           The holder must not engage in criminal conduct.

14. The Tribunal is satisfied that the applicant will not work if he is granted a bridging visa because he has demonstrated financial capacity to meet his living expenses pending departure from Australia. The Tribunal is satisfied that there is financial support that is ongoing from the applicant’s parents in [Country 2] and that he would be able to access this support in the event that he remained in Australia for a long period of time on a bridging visa pending departure, noting that there is no guarantee that the applicant will be able to depart Australia on [the specified date in] December 2020 due to the COVID-19 pandemic.

15. The Tribunal is satisfied that the applicant will not engage in any studies or training if he is granted a bridging visa. There is no evidence to suggest that study is the applicant’s intention and he has not studied in Australia previously.

16. The Tribunal is satisfied that the applicant will report at times a place as directed. The applicant has completed with bail conditions previously, and there is no allegation that he has ever ignored any requests by the Department to do anything. Although it might be arguable that there is an expectation that the applicant does not commit criminal offending while he was in Australia on his working holiday visa, the Tribunal accepts that no such condition was imposed. The Tribunal is also satisfied that the applicant would continue to live at the address he specified in his bridging visa application because the applicant has demonstrated an ability to comply with bail conditions in the past and there is no evidence of him failing to comply with any directions of the Department.

17. The Tribunal is also satisfied that the applicant genuinely wants to depart Australia. He has booked flights at least three times (noting he booked a flight in early November 2020 evidence of which was submitted in his first bridging visa application) in an attempt to leave Australia. His parents are not in Australia and he has no other reason to remain here. The Tribunal is satisfied that if the applicant is provided a date by the Department that he will leave Australia if able to do so (noting the rather fluid nature of international travel at the moment due to the COVID-19 pandemic).

18. For the above reasons, the Tribunal is satisfied that the applicant will abide by conditions 8101, 8207, 8401, 8505 and 8512.

19. However, the Tribunal cannot overlook the troubling fact that the applicant committed a very serious offence in Australia. The Tribunal accepts that the victim would have been shaken by what was done to her and that the offending involved a gross breach of trust. It may be that the victim never recovers and will remain guarded for her personal safety for the rest of her life.

20. The Tribunal is satisfied that the applicant is genuinely remorseful for his conduct. His plea of guilty, his genuine remorse as outlined in the Agreed Facts and oral evidence about his remorse given to the Tribunal, together with his lack of prior criminal offending, compliance with bail conditions, support from his family and friends abroad as well in Australia, and his willingness to make good use of his time in custody and detention by undertaking programmes and addressing his anxiety, all point to the fact that the applicant is probably a low or negligible risk of reoffending. Indeed, it may have been on that basis that the applicant was granted bail pending the finalisation of the criminal case against him, as it would have been inevitable that he would have been imprisoned for what he did, given his admissions and the circumstances of the offending. However, as the Tribunal explained to the applicant at the Tribunal hearing, the Tribunal is not concerned about the question of ‘risk’ which would have been considered as part of the decision whether to grant the applicant bail. The Tribunal’s task is separate and to that end, is perhaps a much easier task than that of a decision-maker deciding whether to grant the applicant bail. The Tribunal needs to be satisfied that the applicant will abide by conditions on the bridging visa. If the answer is yes, then the bridging visa is to be granted. If the answer is no, then the bridging visa is to be refused.

21. The Tribunal needs to be satisfied that the applicant will not engage in criminal conduct on the bridging visa. This is a very high bar. The Tribunal is not required to determine where there is an acceptable or unacceptable risk of the applicant engaging in criminal conduct. Nor is the Tribunal’s task to consider whether it is more likely that the applicant will depart Australia more efficiently on a bridging visa as opposed to being removed from Australia while he is in immigration detention. Nor is the Tribunal’s task to consider whether the applicant will be able to depart Australia given the current COVID-19 pandemic. The Tribunal reminds itself that it needs to be confined to the issue of whether the applicant will comply with the conditions to which the bridging visa would be subject.

22. When the Tribunal considers all the evidence it has, it concludes that it cannot reach the state of satisfaction required to say with confidence that the applicant will abide by the condition to not engage in criminal conduct. Given the offending, there is clearly a risk (albeit probably a low or negligible risk) that the applicant will engage in criminal conduct of a similar nature. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted.

23. As the Tribunal is not satisfied that the applicant will abide by all conditions that would be imposed on the bridging visa, the issue of security does not arise.

24. Therefore, the applicant does not meet cl.050.223.

    CONCLUSION

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

26. 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 does not meet the requirements for the grant of that visa.

    DECISION

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

    Nathan Goetz
    Member