2103224 (Migration)

[2021] AATA 1799

2103224 (Migration) [2021] AATA 1799 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103224

MEMBER:C. Packer

DATE:23 March 2021

PLACE OF DECISION:  Melbourne

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

·cl.050.211 of Schedule 2 to the Regulations; and

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

·cl.050.223 of Schedule 2 to the Regulations.

Statement made on 23 March 2021 at 4:30pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – pending judicial review proceedings – abide by conditions imposed – Condition 8101 not mandatory – reporting requirements – genuine and suitable offer of accommodation – no criminal conduct requirement – criminal history – Apprehended Violence Order (AVO) – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.221, 050.223, 050.614; Schedule 8, Conditions 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 applied for the visa on 9 March 2021. 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 11 March 2021 on the basis that the delegate was not satisfied that the visa applicant will comply with the conditions imposed on the visa if the visa was granted.

4. The applicant appeared by video before the Tribunal on 19 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his de facto partner.

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

   Migration history

6. The applicant’s migration history includes the following:

   The visa applicant first arrived in Australia [in] February 2010 as the holder of a [Student Visa] which permitted him to remain in Australia until 15 March 2015.

   He departed Australia [in] September 2012 and last arrived in Australia [in] October 2012 holding the same Student Visa.

   On 30 December 2013 his Student Visa was cancelled under section 116(1)(b) of the Act as he was found to have breached visa condition 8202 which required him to be enrolled in a registered course. He did not seek review of this decision and as a result of the visa cancellation, he became an unlawful non-citizen (UNC).

   From 31 January 2014 he was granted three consecutive Bridging Visa E’s (BVE) (WE-050) and on 21 February 2014 he lodged a Combined Partner Visa (UK820/BS-801) application. On 25 February 2014 he was granted an associated BVE. On 30 April 2015 his partner visa was refused, and he sought review at the Administrative Appeals Tribunal (AAT). On 30 September 2015 the AAT affirmed the department’s refusal decision and on 29 October 2015 he became an UNC.

   On 30 October 2015 he lodged a section 351 Ministerial Intervention request and from that date onwards, he was granted a series of consecutive BVEs to maintain a lawful status
   whilst awaiting the outcome. On 28 March 2017 his Ministerial Intervention request was finalised as not considered.

   On 20 April 2017 he lodged a Protection Visa (PV) (XA-866) application and on the same day was granted an Associated Bridging Visa A (BVA) (WA-010).

   On 12 December 2017 his PV application was refused and on 02 January 2018 he sought review at the AAT. (On 16 December 2020 the AAT (differently constituted) affirmed the PV refusal.)

   On 2 October 2018 he was remanded into criminal custody and charged with “DV common assault & DV assault occasioning actual bodily harm”.

   On 21 January 2020 his BVA was cancelled under section 116(1)(e)(ii) of the Act as the delegate was satisfied that his presence in Australia may be a risk to an individual in the Australian community. As a result of the visa cancellation, he again became an UNC.

   On 11 February 2020 he sought review at the AAT in relation to his BVA cancellation and on 9 June 2020 the AAT affirmed the cancellation decision.

   [In] August 2020 he was found not guilty of “Common assault (DV)-t2, assault occasioning actual bodily harm (DV)-t2, act with intent to influence witness-t1, stalk/intimidate intend fear physical etc harm (domestic)-t2, aggravated sexual assault- deprive liberty (DV)-si” and immediately released from criminal custody [in] August 2020.

   Upon his release, he was located by Australian Border Force officers and detained pursuant to section 189(1) of the Act. He is currently being accommodated at [an Immigration Detention Centre].

   On 27 October 2020 he lodged an application for a Bridging Visa E (BVE). On 30 October 2020 the delegate refused his BVE application. On 3 November 2020 the AAT (differently constituted) affirmed the refusal decision.

   On 16 December 2020 the AAT (differently constituted) affirmed the PV refusal.

   [In] January 2021 he was found not guilty of “Agg sex assault- inflict ABH on victim- SI”.

   [In] February 2021 he lodged an application for Judicial Review (JR) at the Federal
   Circuit Court in relation to the refusal of his Protection Visa application. This judicial review
   is pending an outcome.

   On 5 March 2021 you lodged an application for a Bridging Visa E (BVE) on Form 1008 by
   email. The Detention Review Officer was notified about the lodgement of this application on
   9 March 2021, as required under Item 1305(3)(c) of the Migration Regulations.

   On 11 March 2021 the delegate refused his BVE application. It is this BVE application that is currently under review.

7. At hearing the Tribunal discussed relevant parts of the applicant’s migration history with him.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the time of decision, cl.050.221 requires that the applicant must continue to meet cl.050.211 and one of the subclauses of cl 050.212.

9. The applicant provided information from the Federal Court of Australia/Federal Circuit Court of Australia dated [February] 2021 that shows his application has been accepted for filing and  is listed for a directions hearing [in] April 2021. The Tribunal finds that the applicant satisfies cl.050.212(3A): the visa application was valid, and the grant of the substantive visa was refused, and the applicant applied for judicial review and those proceedings have not been completed. The Tribunal is satisfied the applicant continues to meet cl.050.211.

   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 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].

12. 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.

13. In this case as the applicant is a BVE applicant who meets cl 050.212(3A) on the basis of seeking judicial review of a protection visa refusal he falls within the terms of both cl.050.613A and cl.050.614.

14. Clause 050.614 was amended on 6 October 2014 by Migration Amendment (Bridging Visas) Regulation 2014 (SLI 2014 No. 144) to its current form, introducing condition 8116 (no work unless specified in an Instrument) as an alternative to condition 8101 (no work). For a brief period in 2009, from 1 July to 14 September, cl.050.613A and cl.050.614 would have had the same note ‘whether or not the applicant is an applicant to which any other clause in this Division applies’ but the amendment on 14 September 2009 removed it from cl.050.614. The Department’s Policy sets out that if the person is seeking judicial review on the basis of a protection refusal then the visa conditions are to be imposed in accordance with 050.614 (Policy – Migration Act – Compliance and Case Resolution – Program Visas – Bridging E visas - BVE conditions - Judicial review).

15. The Tribunal notes that Departmental systems show the applicant’s last Bridging visa – a BVA – granted on 20 April 2017 and cancelled on 21 January 2020 did not have condition 8101 attached.

16. In sum, the Tribunal considers that this case falls within the terms of cl.050.614 and so condition 8101 is not mandatory.

17. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8401 - The holder must report

    (a)at a time or times; and

    (b)at a place;

    specified by the Minister for the purpose. (Discretionary)

    8506 – The holder must notify immigration at least 2 working days in advance of any change     in the holder’s address. (Discretionary)

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

18. The Tribunal notes that these are the same conditions applied by the delegate in their decision dated 11 March 2021.

19. First, the Tribunal is satisfied that the offer of accommodation by a friend [Ms RW] is genuine and satisfactory.

20. At the hearing the applicant discussed his friendship with her. She had provided a support letter dated 17 October 2020 that offered accommodation support. He stated she is a [Occupation 1] and was probably on duty at the time of the hearing. He said she is married, her children have grown up, and she lives in a big house. At the hearing the Tribunal phoned her without success, and so the Tribunal asked the applicant to provide an updated letter of support from her that contained more detail. He subsequently produced her letter dated 20 March 2021 (mistakenly says 2020) that states she supports his application; she is an “aunt through Church”; and she is “happy to provide accommodation and financial support until his Visa status is decided or he finds stability”. She would provide the accommodation and assist with basic necessities such as food and clothing, at her residence.

21. At hearing the applicant confirmed he and his de facto considered themselves to be in an ongoing de facto marital relationship. He stated they communicate by Facetime every evening. At hearing the Tribunal also spoke to the applicant’s de facto and she too offered accommodation and other support. She discussed how “I really want him out of detention”, she missed the applicant and was looking forward to having him with her and how they could seek to get continued access to their daughter and in the future seek to establish a stable home for the family. However, she described living in a motel room with her infirm mother, albeit the room is described as large and has a double bed, a single bed and a bunk. Whilst she said he would be able to reside there and the mother agreed that he could stay and they would “make it work”, and the Tribunal considered her offer was genuinely made, the Tribunal is not satisfied the living arrangement would be suitable beyond just a short period.  

22. The de facto partner stated she would look for more suitable accommodation such as a two-bedroom place. However, she gave no timeline for this and indeed, she and her mother have limited funds as they rely on disability pensions and housing support.

23. Second, the Tribunal accepted the applicant’s evidence that he would be scrupulous in abiding by the Department’s directions and the law. The applicant stated he was well aware he could not make any more mistakes if released into the community and that any breach of conditions would jeopardise his future in Australia. The Tribunal is satisfied he would abide by condition 8401 and condition 8506.

24. Third, the Tribunal carefully considered the applicant’s criminal history and whether he would engage in criminal conduct if released into the community. In Tribunal decision 2002595 that member referred to information on the applicant’s criminal record contained in a bail report prepared by NSW Police in November 2018. In addition to a number of traffic offences it stated the applicant was convicted of using a carriage service to menace/harass/offend in September 2013, fined $500, required to do 150 hours community service and placed under the supervision of the NSW probation service. In 2013 and 2014 he faced charges in relation to contravention of an AVO and assault. Most of these appear to have been annulled or dismissed, but one resulted in a sentence of 100 hours community service. Then in January 2017 he was charged with aggravated sexual assault, granted conditional bail, that was to be valid until 9 September 2019. On 2 October 2018 he was charged with further offences, and he was refused bail in relation to these charges.

25. Ultimately, the criminal charges were found not to be proven beyond reasonable doubt. On 5 August 2020 he was found not guilty of “Common assault (DV)-t2, assault occasioning actual bodily harm (DV)-t2, act with intent to influence witness-t1, stalk/intimidate intend fear physical etc harm (domestic)-t2, aggravated sexual assault- deprive liberty (DV)-si” and immediately released from criminal custody on 6 August 2020. On 25 January 2021 he was found not guilty of “Agg sex assault- inflict ABH on victim- SI”.

26. Concerning the traffic violations, at hearing he agreed he had gained traffic violations but explained this was years ago when he was unused to driving in Australia, and he had paid all the fines. After the hearing he provided a letter dated 4 March 2021 from NSW Revenue that shows they had agreed to write-off two overdue fines. He confirmed he no longer owned a vehicle. In sum, the Tribunal is satisfied the applicant would not engage in traffic offences in the reasonably foreseeable future.

27. At hearing the applicant discussed how in the past he had problems with his mother-in-law. He stated these were cultural issues and these had led to a verbal fight with her and he had also texted her with foul language. He stated the conviction for using a carriage service to menace/harass/offend in September 2013, and in 2013 and 2014 the charges in relation to contravention of an AVO and assault (one resulted in a sentence of 100 hours community service) had all related to the mother-in-law and not his de facto partner. He stated that he and the mother-in-law had long since worked out their differences and she now fully supported him returning to live with his de facto. He discussed how his de facto partner cares for the mother-in-law who had a fall and has hip problems, and they both receive pensions and housing support. He also provided the mother-in-law’s letter of 17 February 2021 that stated she was “happy to provide him full support financially and accommodation as long as needed, should he be released from the detention center”. At hearing the de facto partner stated that if they lived together they would all get along with each other, and her mother wants the applicant around because the mother has a terminal illness and will not always be there for her daughter (the de facto partner). The Tribunal considered the evidence of the applicant and de facto partner concerning the peaceful relationship between the applicant and mother-in-law after 2014 to be convincing.

28. The Tribunal next discussed concerns that the two recent criminal matters involving two women appeared to show a pattern of behaviour against women. In January 2017 he had been charged with aggravated sexual assault, granted conditional bail, but on 2 October 2018 he was charged with further offences and bail was revoked. The applicant explained that: at the time he and his de facto partner had separated for several months; during this time, he formed a casual relationship; then his de facto returned and the casual relationship soured. Events at this time lead to his incarceration and an AVO was made in his absence. He stated he has no relationship with the woman involved at all; he has not seen her outside of Court since October 2018; he does not wish or expect to see her ever again and they have no communication. He discussed the second matter and said it arose from a one time encounter four years ago; he had not seen her outside of Court for four years. An interim AVO had been issued in August 2017 and [a named law firm] was assisting him to get the AVO revoked; the Court appearance on 11 March 2021 had been to get it revoked but the judge had not yet made a decision.

29. The charges had been serious criminal charges against women. All charges have now been considered and finalised in Court and the applicant acquitted of all charges. The applicant submitted that he had been remanded and imprisoned [from] October 2018 [to] August 2020 on charges for which he had been found not guilty; and this had led to his BVA cancellation. The Tribunal acknowledges that the AVOs that remain against him arose from the charges in 2017 and 2018.

30. The Tribunal acknowledges that it is for the Courts to decide whether the cases against the applicant are proven beyond reasonable doubt. The Tribunal notes that the BVA was cancelled under the cancellation power that does not require that an applicant has been convicted of an offence: for the relevant ground to be make out the decision maker must be satisfied the applicant’s presence is or may be a risk to an individual or individual in Australia. And in this case, the Tribunal must consider whether the applicant would abide by condition 8564 ‘The holder must not engage in criminal conduct’.

31. The applicant provided additional information and evidence concerning his intended conduct if released into the community. At hearing he and the de facto partner stated they were in a de facto relationship and looking to live together in the future and emotionally support each other. He described his and the de facto partner’s poor mental states after the death of a second child. In respect of his daughter he provided documents that show through Legal Aid NSW he is seeking to resume his visits with the daughter. He spoke of his realisation that he had to maintain good behaviour and comply with the Department’s requests and directions for the sake of his attempts to reconnect with his daughter.

32. The applicant has now completed many courses of personal improvement including: Single Parenting 101; Positive Parenting Techniques; Pursuing Happiness: Successful Strategies; Stress Management and The Art of Breathing; Anger Management; Anxiety Therapy 101. He provided information about his registered [business]. He is undergoing brief psychological treatment from STARTTS as shown by a Summary of Psychological Treatment dated 24 February 2021 and an email from a Psychologist on 22 March 2021. The Tribunal has given weight to the applicant’s actions in rehabilitation and personal improvement whilst he has been incarcerated.

1. In sum, having considered all of the circumstances of the applicant and his family, and all of the evidence cumulatively, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

2. 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.050.211 of Schedule 2 to the Regulations; and

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

   ·cl.050.223 of Schedule 2 to the Regulations.

   C. Packer
   Member