2105972 (Migration)

[2021] AATA 2628

2105972 (Migration) [2021] AATA 2628 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105972

MEMBER:Peter Vlahos

DATE:17 May 2021

PLACE OF DECISION:  Melbourne

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

This Statement was made on 17 May 2021 at 7.00AM

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – criminal conviction – applicant failed to uphold visa conditions – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.222, 050.223

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725

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 29 April 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 and 051.211.

3. The decision to refuse to grant the visa was made on 4 May 2021. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the [applicant] satisfies the conditions to be granted a Bridging E (Class WE) visa.

   Background of the Applicant

6. [The applicant] is a national of Sri Lanka. He told the Tribunal that he has family members currently living in Sri Lanka. He arrived in Australia by boat in 2012 escaping as he described the many problems he had experienced in Sri Lanka because of the civil war and political instability. As a result of his experiences in his country, the applicant had made an application for Protection visa; that visa had been rejected and was the subject of an appeal to the Federal Circuit Court. However, the applicant was not able to provide the Tribunal with a definite date of hearing.

7. 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.

8. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant does not meet cl.050.212.

   Acceptable arrangements to depart Australia

9. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

10. The applicant informed the Tribunal that he had no arrangements had been made by him to depart Australia for the reason that he had his case for Protection listed for review by the Federal Circuit Court. The Tribunal was told, that the applicant had lodged with that Court’s registry his appeal papers on 24 March 2021 and was awaiting the hearing of the matter. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl.050.212(2).

    Substantive visa application

11. 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.

12. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

13. The applicant from the evidence that he had provided both to the Department in his interviews with their offices and in his evidence before the Tribunal had made it clear that he had no substantive visa application awaiting determination or consideration by the Department. What had occurred was that his Protection visa application had been refused and that refusal was now the subject of judicial review by the Federal Circuit Court and as to date, no hearing date had been announced. Accordingly, the applicant does not meet cl.050.212(3).

    Judicial review

    Judicial review – onshore substantive visa refusal

14. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

15. The applicant in his evidence, told the Tribunal that following the refusal of his Protection visa by the Department and the end of the merits review process, he had requested judicial review by Federal Circuit Court of his matter on 24 March 2021. The Tribunal was told that the applicant (through his legal representatives) had submitted all documents for the review if his matter to the Registrar of the Federal Circuit Court and was now awaiting for that court to provide him with a hearing date. According to the applicant’s evidence to the Tribunal, he has not received any definite date of hearing.

16. Therefore, the Tribunal finds that the requirements of subclause 050.212(3A) of Schedule 2 of the Regulations is met.

    The requirement to be interviewed by an authorised officer - cl.050.222

17. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).

18. The Tribunal was privy to the Department’s file in this matter and noted that the applicant had been extensively interviewed by an officer of the Department on 30 April 2021. From the records perused and read by the Tribunal, the Tribunal observed that the applicant was interviewed-i-depth and openly about his present circumstances, issues faced (depression) , issues with the police regarding his drink driving convictions and his future intentions. It is noted that the applicant cooperated with the Department at this interview. Also, these matters were confirmed as ‘correct’ by the applicant at the hearing.

19. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

20. 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.

21. 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].

22. It is noted from the Department’s record of interview and it subsequent decision that its main concerns about the applicant were whether he would abide by certain conditions, if he was granted thew Bridging visa E. The Department specifically attached its attention and concern to three conditions: 8506 Notify of New Address, 8566 Not Breach Behaviour and 8564 Must not engage in Criminal Conduct.

23. The Tribunal asked the applicant – if the Bridging visa was granted where and with whom would he reside with? The applicant’s response through the interpreter was to inform the Tribunal that he would live with a friend he called ‘[name]’ [applicant’s pronouncement of the friend’s name as interpreted by the Interpreter]. The applicant went on to tell the Tribunal that his friend resided in [Suburb 1], NSW and that he would be living with him and that his friend would be totally responsible for all of his daily and personal needs. The applicant also informed the Tribunal that this friend was employed at a ‘company which manufactured [products].’ No other details were provided.  The applicant also told the Tribunal that his friend had been his friend for 7 to 8 years.

24. From the transcript of the applicant’s interview with the Department, the Tribunal noted that this friend does not make a mention – others do. One individual also identified as a ‘friend’ resided in Brisbane and another, in Sydney but neither were mentioned by the applicant at the hearing as possible alternatives for him to reside with whereas they did feature as such alternatives when he discussed the matter with the Department officer. Indeed, from the applicant’s evidence as provided to the Tribunal, the Tribunal is inclined to conclude that the applicant may well have friends with good intentions in mind for him but the Tribunal is not satisfied due to fluctuation or inconsistencies with the information provided by the applicant himself about his friends – that he has the intention to reside at the address he claims he will, or that he would advise the Department of his movements.

25. Again, with regards condition 8566 Not Breach Behaviour, the Department’s records indicate that on 2 April 2014 the applicant willingly signed a document called ‘Code of Behaviour’. That ‘code’ contained a list of expectations about how the applicant would behave at all times whilst residing in the Australian community. One noted that the following occurred:

    §On [date] July 2014, the applicant was charged with

    Driving with a breath alcohol concentration of more than 0.07 but less that 0.10. The applicant was issued with an infringement notice of $463.00 and suspended from driving for 6 months.

    §On [date] October 2015, the applicant was charged with

    Driving a motor vehicle while more than the prescribed concentration of alcohol was present in his breath, being 0.05 grams per 210 litres of exhaled air (alleged reading of 0.174)

    One count of ‘Did within 3 months after driving a motor vehicle furnish more than the prescribed alcohol concentration of 0.05 grams per 210 litres or exhaled air

    One count of driving a motor vehicle on a highway during a period of disqualification from obtaining an authorisation to drive a motor vehicle

    §On [date] March 2016 the applicant was charged with

    Driving whilst P.C.A of .05% or above

    The charges were dismissed – compliance with a bond undertaking.

    §On [date] July 2016, the applicant was verbally counselled in relation to his criminal conduct. The applicant was reminded about complying with the conditions of your visa and the behavioural expectation whilst the applicant resided in the community. The applicant stated that he would not do anything wrong again.

    §On [date] March 2017, the Victorian Police arrested and charged the applicant with driving whilst PCA 0.05% or above.

    §On [date] March 2018, Victoria Police arrested the applicant [for specified reason]. The applicant was then placed in detention.

26. The Tribunal addressed these incidents to the applicant for his explanation. The applicant told the Tribunal truthfully that having had his Protection visa refused and facing a possible deportation ‘back to Sri Lanka’ he just ‘could not cope’ with ‘all of this around him’ and he went ‘too far.’ However, all of this, he told the Tribunal was now behind him and he had gained a better understanding on how to deal with ‘issues’ in his life, after receiving counselling from the [counsellors]. The applicant told the Tribunal that these ‘counselling sessions’ are still continuing currently and assist me greatly. The Tribunal received no reports from [counsellors] for it to consider but the applicant told the Tribunal he would organise for the latest counsellor’s report to be provided to the Tribunal.

27. Again, the Tribunal can understand the feelings of the applicant. He has lived an uncertain future since his arrival in Australia in 2012. Its is indeed a long time for one to await his future and this could as it has lead to a deep sense of despair, foreboding and worthlessness but having said this, all problems that one faces require a calm and resolute resolution that only application and time bring – not the type of behaviour that the applicant has committed – especially, after having given “undertakings” to live “peacefully” within the Australian community. The Tribunal understands that the time of detention might have forced the applicant to reconsider his future properly and to regret his past actions but the Tribunal is hesitant to complete be satisfied that what had occurred in the past would not again, at some point be repeated. The Tribunal was provided with no evidence official or otherwise that the applicant acknowledged he had a ‘problem with alcohol’ and that he had taken a course of re-education about how to responsibly handle alcohol – and this is a concern for the Tribunal especially, when he caught repeated under the influence of alcohol and driving while he was disqualified.

28. The last point above, leads the Tribunal to consider whether the applicant would abide with condition 8564: Must not engage in criminal conduct. As the Tribunal noted in paragraph [25] of this decision, the offending has been considerable and for a great period of time – despite tolerance from the authorities, sanctions and personal undertaking provided by the applicant himself. Indeed, the applicant was genuine when he told the Tribunal that what happened in the past was something he regretted and the Tribunal believes this to be the case but there is no assurance that can be provided to protect the wider community of any repeat of such actions – when triggered by some personal regret, thought or disappointment felt by the applicant. His history of non-compliance is consistent and indeed creates the apprehension in the Tribunal’s mind of what he might do ‘if’ something triggers this behaviour.

29. Detention is not an alternative for an asylum seeker but in this instance, it has provided the applicant with a stable environment around him and with much required counselling from experts as far as it concerns his psychological well-being. There is no guarantee that this will be repeated outside. What is needed in this case, is that the applicant’s matter be processed by the Federal Circuit Court sooner than later and the Department must try its human best to make this happen for this individual.

30. 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.

31. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

32. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

    CONSIDERATION BY THE TRIBUNAL OF A CERTIFICATE ISSUED BY THE DEPARTMENT PURSUANT TO section 376A of the Act

33. The Tribunal notes that on 10 May 21, the Tribunal received information from the Department of Immigration and Border Protection.

34. The Department provided a certificate issued under s.375A of the Act.

35. That certificate indicates that certain information was provided to the Department concerning the applicant.

36. In the certificate, the Delegate certified that the disclosure of this material would be contrary to the public interest because it would disclose methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. It could disclose or enable a person to ascertain the existence or identity of, a confidential source of information. 

37. The certificate is signed by the delegate of the Minister for Home Affairs [name deleted].

38. It related to processes and inner workings of the administration of the Department and had no information which would otherwise influence the Tribunal’s decision making  as far as it concerned the applicant’s issues as he had presented them to the Tribunal in his application for review. 

39. Accordingly, the Tribunal finds that the certificate is valid but that the information to which the certificate applies is not relevant to the applicant’s review because the information is not relevant to the visa under consideration.

40. 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.

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

42. 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

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

   Peter Vlahos
   Member