2103843 (Migration)

[2021] AATA 1742

2103843 (Migration) [2021] AATA 1742 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103843

MEMBER:Roslyn Smidt

DATE:8 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 8 April 2021 at 12:18 PM

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – reporting requirements – past periods of unlawful presence in Australia – no criminal conduct requirement – criminal convictions – domestic violence – contravene prohibition/ restriction in AVO – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.612A; 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 22 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 24 March 2021 on the basis that while the applicant met the relevant time of application criteria, the delegate was not satisfied that he would abide by conditions which would be imposed on the visa. The applicant appeared before the Tribunal on 7 April 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant continues to meet the relevant time of application criteria. The issue in this case is whether the applicant meets cl.050.223. Clause

   Whether the applicant will abide by conditions - cl.050.223

6. The issue in this case is whether the applicant meets cl.050.223. 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.

7. 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].

8. 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.

9. In this case, cl.050.612A applies because the applicant has an ongoing judicial review matter. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   ·     8401 - Must report as directed

   ·     8506 - The holder must notify Immigration at least 2 working days in advance of any change in the holder's address

   ·     8564- Must not engage in criminal conduct

   Background

10. The applicant arrived in Australia with his father by boat [in] February 2013. He was aged [age] at the time. He was detained under section 189 of the Act. On 11 February 2015 he was granted a Humanitarian Stay (Temporary) (class UJ) visa which was valid until 18 February 2015 at which time he was granted a Bridging Visa E which was valid until 11 February 2016. He was then granted further BVE which valid until 2 August 2016. Following that he became an unlawful non-citizen. On 7 September 2016 the Minister made a determination to life the section 46A which allowed the applicant to lodge a Temporary Protection Visa application. He lodged a TPV application on 16 August 2017 and was granted an associated BVE.

11. The applicant’s protection visa was refused by a delegate of the Minister in August 2019. This decision was upheld by the IAA in September 2019 and the associated BVE expired on 20 October 2019 after which the applicant remained in the community unlawfully until he was arrested in June 2020. It appears that his father returned to Lebanon to take care of other family members in about 2018 or 2019. Following that he again became an unlawful non-citizen.

12. [In] June 2020 the applicant was arrested and charged with five criminal offences. According to the delegate’s decision two of these charges were later withdrawn. In relation to the remaining charges, one count of “common assault” (DV) T2, “stalk/intimidate intend fear physical etc harm” and “destroy or damage property (DV)” he was sentenced to a 12 month Community Correction Order (CCO) due to expire [in] March 2022. The applicant was also served with an enforceable Apprehended Violence Order expiring [in] March 2023. The decision also states that the applicant was charged with “contravene prohibition/ restriction in AVO (domestic) [in] March 2020 and sentenced to a 12 month conditional release order without conviction expiring [in] March 2022.

13. Following his release from criminal detention the applicant was detained subject to section 189 of the Act. During interviews with Department offices he said that he could not and would not return to Lebanon. He applied for a BVE on 17 November 2020. It was refused by a delegate of the Minister on 18 February 2021. On 12 March 2021 he applied for Judicial Review at the Federal Circuit Court of the decision of refuse his TPV application. That matter remains ongoing.

14. According to the delegates’ decision, the applicant was asked about the times he was unlawful in Australia. He said that his father had taken care of these matters and that he had not been aware that he could not remain in Australia without a visa after his TPV was refused. He said that he had attempted to contact a lawyer, but he did not know what the lawyer had done. The delegate noted that the Department had contacted the applicant to discuss regularising his status, but he had failed to do anything. It also notes he had provided two recent residential address, neither of which was the address provide to the Department in July 2019.

15. The delegate also asked the applicant his understanding of the CCO and AVO imposed in March 2021. He said that the former meant he could not have any more problems with the police and that the AVO would not be an issue because his wife had returned to her home in Melbourne. With regard to the property damage, he said that the property had belonged to him.  In her decision the delegate noted that the applicant had stated in his BVE application that all of the charges against him had been dismissed, which was not correct.

16. At the hearing the applicant confirmed that he had read and understood the delegate’s decision relating to his BVE application.

17. The Tribunal observed that delegate had considered it appropriate to impose the conditions which would require him to report to the Department of Home Affairs as required and to notify the Department of any change in his address. The Tribunal advised him that it agreed with this view and observed that he had been an unlawful non-citizen on two occasions in the past and had also failed to advice the Department of changes to his address, which raised concerns about whether he would comply with these conditions in future.

18. The applicant said that his father had been responsible for all matters relating to his migration status and that following his departure he was alone in Australia and did not properly understand his situation or how to resolve it. The Tribunal observed that it appeared that the Department had contacted him to discuss regularising his status. It also observed that he would have received a letter advising him of his options following the refusal of his PVA application by the IAA. He confirmed that he had received the IAA decision and that he had been contacted but the Department but said that he had not fully understood the situation. He said that he could not return to Lebanon because the situation there was dangerous for everyone. He had some contact a lawyer, but he was unable obtain any real assistance. He said that he was aware of his past mistakes and promised that he would abide by these conditions if he was released from detention.

19. At the hearing the Tribunal noted that delegate had considered it appropriate to impose a condition which stated that he must not engage in criminal conduct and advised him that it agree with this. It observed that his recent conduct raised concerns about whether he would abide by this condition.

20. The applicant confirmed that the details relating to the charges resulting in the CCO and the AVO imposed [in] March 2021 were correct. He said that these charges related to an incident with his wife who had relocated from Melbourne to live with him and since returned. He described the offences as relatively minor. The Tribunal noted that he had stated in his BVE application that all of the charges had been dismissed, which was not correct. He said that he had pleaded guilty to the three offences of which he was convicted, but  the person who assisted him to complete the BVE application had misunderstood him. 

21. The Tribunal asked the applicant if he had previously been the subject of an AVO which had been breached as indicated in the delegate’s decision. He said that he had been the subject of an AVO while residing in Melbourne. He said that he had not been in a relationship with the woman involved. She had wished to pursue a relationship with him and had kept coming to his home and he had also been granted an AVO against her. He said that this AVO has expired and he was not aware of any breaches of that AVO. With regard to the current AVO the applicant  said that his wife had returned to Melbourne so there was no risk he would breach the AVO currently in place. He promised not to engage in any bad behaviour if he was released from detention.

    Findings and reasons

22. With regard to conditions 8401 and 8506, the Tribunal has considered the applicant's immigration history, his explanations for his past periods of unlawful presence in Australia and failure to remain in contact with the Department as required by his previous BVE and his promise to abide by these conditions in future.

23. The Tribunal acknowledges that the applicant was a minor when he first arrived in Australia and accepts that he relied on his father to take care of issues relating to his migration status and was unsure of his status prior to the lodgment of his TPV application. The Tribunal would not have been greatly concerned if this had been only time the applicant remained in the community as an unlawful non-citizen. However, this is not the case. Despite being advised of his rights and obligations at the time his IAA application was refused and having some contact with a lawyer who would no doubt had explained these rights and obligations to him, he ignored attempts by the Department to contact him and failed to leave the country or take any steps following to regularize his status.  It appears that he would have continued to do so if he had not been arrested in June 2020.

24. After considering all of the evidence, the Tribunal finds that the applicant knowingly disregarded Australian migration law in the recent past. In these circumstances and in light of his stated determination to remain in Australia, the Tribunal is not satisfied that he would abide by conditions 8401 or 8506 if a BVE with these conditions was granted.

25. With regard to condition 8564, as noted above the applicant has recently been convicted of several criminal offences involving domestic violence and is currently the subject of an enforceable AVO as a result of this.  The Tribunal has considered the applicant’s evidence that he pleaded guilty to the offences of which he was convicted and was determined to avoid similar problems in future. However, while the Tribunal accepts that applicant has some insight into his past behaviour and may genuine in his desire to avoid similar problems in future, it also notes he described the offences he committed as minor, which demonstrates a lack of a property understanding of the gravity of the charges and a lack of genuine remorse. It also  notes that, contrary to his evidence at the hearing, he breached an AVO which was in place prior to the one imposed in March 2021. This suggests a pattern of behaviour which the applicant refuses to properly acknowledge and causes the Tribunal to question the depth of his determination not to engage in similar behaviour in future.

26. After considering all of the evidence, the Tribunal is not satisfied that he would abide by conditions 8564 if a BVE with this condition was granted. Furthermore, while there is no suggestion that the applicant could

27. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

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

    DECISION

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

    Roslyn Smidt
    Member