2107342 (Migration)

[2021] AATA 2633

2107342 (Migration) [2021] AATA 2633 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2107342

MEMBER:Steven Griffiths

DATE:17 June 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 17 June 2021 at 12:16pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – drug-related offences – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.611B, 050.618, 050.619; Schedule 8, Conditions 8101, 8207, 8401, 8505, 8506, 8564, 8566

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
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 1 June 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 that the applicant will abide by the conditions imposed.

3. The decision to refuse to grant the visa 4 June 2021 on the basis that the applicant had been charged [in] December 2020 for 2 drug related issues and [in] March 2021 for drug related, proceeds of crime and committing indictable offenses whilst on bail, had plead guilty and served [a period] in a correction facility.

4. The applicant was assisted by his registered migration agent, [name and business specified].

5. The applicant appeared before the Tribunal on 16 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's Wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, with the migration agent taking part.

6. The Tribunal resolved to allow the parties until 10.00am 17 June 2021 to provide documented evidence on the diagnosis of the mental health of the applicant. The Tribunal notes that a submission was received in the evening of the hearing day.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicant, the oral evidence from the hearing and information discussed in the hearing and a submission provided later in the day of the hearing.

   ISSUE

9. The issue in this case is if the applicant will comply with conditions set with a Bridging (Class WE) general (subclass 050) visa. 

   BACKGOUND OF THE EVIDENCE

10. [The applicant] was born in Vietnam in [year]. He arrived in Australia [in 2008] as a dependent on a Student Visa held by his then wife, with the visa ceasing 15/12/09. On 30/12/10 he was a dependant as part of a Protection Visa application of his then wife, with the application refused 3/3/11, which was reviewed by the RRT and affirmed on 14/2/12. He was granted a dependant Student Visa on 23/1/13, with the Visa ceasing on 15/3/14. He lodged a Student Visa application in his name on 26/2/14, which was refused on 8/8/14, then reviewed by the MRT, which determined [in 2016] that there was no jurisdiction.

11. On 25/2/16 he lodged a Partner 820 / 801 visa and was granted a Bridging Visa C, with the application refused on 26/8/16. The refusal was reviewed by MRT, who [in 2018] affirmed the decision to refuse. The Bridging Visa C ceased on 10/1/19 and he became an unlawful non-citizen on 11/1/19, then he lodged on that day a Bridging Visa E application requesting Ministerial Intervention and the grant of a visa. The Bridging Visa E ceased on 9/4/19 and from that time to 21/1/21 he was granted 12 Bridging Visa E’s while the Minister Intervention request was pending, which was finalised [in April 2021] as being Inappropriate to Consider.

    INFORMATION TO THE TRIBUNAL

12. Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:-

    Tribunal invitation for hearing 11/6/21

    Representative request for postponement of hearing

    Tribunal invitation for hearing 16/6/21

    Migration Agent submission, 15/6/21

    Federal Circuit Court of Australia, notice of filing and hearing, [in July 2021]

    Statutory Declaration, spouse of applicant, 9/6/21

    Statutory Declaration, friend of applicant, 14/6/21

    Report by lawyer supporting applicant in previous criminal case, 15/6/21

    Post hearing submission by migration agent, 16/6/21

    Post hearing submission of Ambulance Victoria account, dated [in August 2019], for transit of applicant to [Hospital 1]

    Immigration status of the applicant

13. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

14. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

15. The Tribunal determines from the evidence that the applicant is an unlawful non-citizen located in [a detention] Centre. 

16. Accordingly, the applicant meets cl.050.211(1).

17. The Tribunal determines from the evidence that the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17).

18. Accordingly, the applicant meets cl.050.211(2).

19. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa

20. 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.

21. 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.

22. In this case, the applicant is seeking to meet cl.050.212(3A) as he has a Federal Circuit Court hearing scheduled for [date in] July 2021. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.

23. Accordingly, the applicant meets cl.050.212.

    Whether the applicant continues to satisfy the time of application criteria

24. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

25. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

    Whether the applicant will abide by conditions - cl.050.223

26. 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.

27. 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].

28. 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.

29. 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].

30. 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].

31. The Tribunal notes the Statutory Declaration of the spouse of the applicant, dated 9 June 2021, at paragraph 9, where she details “I am happy to provide any form of bond or assurance to the Department”.

32. The Tribunal notes the submission of the migration agent, dated 15 June 2021, at page 4 where he notes, in relation to a security bond, that “should the Tribunal be so inclined, a bond not more than $ 10,000 would be sufficient to alleviate any concerns”.

33. In this case, cl.050.611B and cl.050.618 and cl.050.619 applies because of the police charges and conviction history of the applicant and offer by a friend of living at a particular address. These clauses prescribe that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal put to the applicant the following conditions as options it was considering if the decision of the Tribunal was to provide him with a Bridging Visa, with the applicant indicating that he would accept them:

    8101    (NO WORK)

    The holder must not engage in paid work

    8207    (NO STUDY)

    The holder must not undertake any study

    8401    (REPORT AT SPECIFIED TIME AND PLACE)

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

    8505    (CONTINUE TO LIVE AT ADDRESS)

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

    8506    (MUST NOTIFY ADDRESS)

    The holder must seek prior approval before moving to any other address

    8564    (NO CRIMINAL CONDUCT)

    The holder must not engage in criminal conduct.

    8566    (NOT BREACH BEHAVIOUR)

    The holder must enter into and not breach his behaviour agreement

34. The Tribunal accepts the documented and oral evidence of the applicant that he was charged by Police [in] December 2020 for two charges, being the trafficking of drug of dependence namely heroin and the possession of a drug of dependence namely heroin, and places weight on this.

35. The Tribunal accepts the oral evidence of the applicant that he was held in custody on these two charges for one day and then released on bail.

36. The Tribunal accepts the documented and oral evidence of the applicant that he was charged by Police [in] March 2021 for three charges, being the traffic of heroin, dealing with the proceeds of crime and commit indictable offense whilst on bail, and places weight on this.

37. The Tribunal accepts the oral evidence of the applicant that from the time of his release on bail from the [December] 2020 charges to the time of his arrest and charges [in] March 2021 he continued to be involved in drug related activities, and places weight on this.

38. The Tribunal accepts the documented and oral evidence of the applicant that he plead guilty to the drug related offenses and was sentenced to, and has served, [a period] in a correctional facility.

39. The Tribunal notes the applicant in his oral evidence to the Tribunal stated often that he did not realise the impact his drug related activities would have on he, his wife and child until he was required to be in a correctional facility and then immigration detention. 

40. The Tribunal put to the applicant that he has lived in Australia since February 2008 and asked how it was that he did not appreciate the criminal nature and seriousness of his drug related activities until he was required to be housed in a correction facility and then immigration detention, with the applicant continuing to state that the did not realise, while conducting his drug related activities, the impact of his actions.

41. The Tribunal notes the post hearing submission of the migration agent, being an invoice in the name of the applicant from Ambulance Victoria, dated [in August 2019], for transport to [Hospital 1], with the migration agent stating this was due to an overdose incident.

42. The Tribunal confirms that the information sought to be provided post the hearing was documented evidence of the diagnosis of the applicant for mental health issues, prior to his incarceration in a correctional facility, as stated by the applicant in oral evidence by the applicant to the Tribunal.

43. The Tribunal notes the applicant stated that he was not aware of any documented evidence, with his migration agent stating that it was hoped his previous legal representative in the criminal drug related case may have a document confirming the mental health diagnosis of the applicant, with the Tribunal resolving to give the parties until 10.00am the day following the hearing for such documented evidence of a mental health diagnosis to be sought.

44. The Tribunal notes the post hearing submission of the migration agent that the limited time available to seek documented evidence was the reason an Ambulance Victoria invoice being the only document available and this should be accepted, given its date of August 2019, as evidence the applicant was suffering from mental health ailments prior to his criminal activity.

45. The Tribunal determines that it does not accept the Ambulance Victoria invoice of August 2019 as evidence of the applicant being diagnosed by a medical professional of having mental health issues.

46. The Tribunal notes the oral evidence of the applicant and his spouse that the applicant has undertaken courses while in the correction facility and immigration detention that have assisted him in dealing with his withdrawal from drugs and mental health issues, and will undertake more if provided with a bridging visa and able to live in the community, and places weight on this.

47. The Tribunal notes the oral evidence of the applicant that his wife was aware of his involvement in drug related activities, and places weight on this. 

48. The Tribunal notes the oral evidence of the applicant that he conducted drug related activities while living at the home of his wife and the two children, and places weight on this.

49. The Tribunal notes the oral evidence of the applicant and his wife that the two children were taken from the home and put with a foster carer on [for a day in] May 2021 due to the drug related activities of the applicant conducted at the home of the children, and places weight on this.

50. The Tribunal accepts the documented evidence of the spouse of the applicant in which she details that she is “in the process of seeking that the children be returned to me given that [the applicant] is in detention” and “[the applicant] and I continue to have contact with the children as er the order the Court. I am hopeful that the situation will return to normal in the near future as we are all  devastated with what has occurred. The matter is currently due to return to Court [in] June 2021”.

51. The Tribunal notes the oral evidence of the applicant that she has been charged by Police for drug related activities [in] April 2021, with the migration agent stating that he does not believe that these charges will require the spouse of the applicant to appear before the courts.

52. The Tribunal notes the statutory declaration of the spouse of the applicant dated 9/6/21 and her oral evidence of her support for her husband, her belief that the applicant “will not commit further crimes if he is released” and “he is remorseful and in my view reformed and detoxified”, and places weight on this.

53. The Tribunal notes the documented and oral evidence of the spouse of the applicant that is supportive of him being released to the community, undertaking his necessary courses and being able to return to live with her and the children, and places weight on this.

54. The Tribunal notes the oral evidence of the applicant to a hearing of 3 June 2021 with the Delegate, on the issue of the bridging visa application being lodged, in which he stated that he “lodged an application so that I can be out and to take care for my wife who has a nervous breakdown and provide care for the children.”

55. The Tribunal notes the oral evidence of the applicant to the hearing confirming he had said that on 3 June 2021, while no documented or supporting evidence of the wife having suffered a nervous breakdown was provided to the Tribunal for consideration, and places weight on this example of no evidence existing to support a statement by the applicant.

56. The Tribunal notes the statement by the migration agent to the hearing, and his post hearing submission, that the applicant had a drug addiction which led to a period of selling drugs to fund his drug needs.

57. The Tribunal notes the oral evidence of the spouse of the applicant that with her husband being a drug addict this impacted on his ability to make rational decisions and it has only been his time in a correctional facility and immigration detention that has made him realise what he did.

58. The Tribunal notes that at no time during the oral evidence of the applicant while the Tribunal was seeking comments from the applicant on his realisation of the impact of drugs did the applicant refer to any person other than his wife and family, with the applicant not making any comments on the impact of his drug related activities on the people he sold drugs to or the community and society around him.

59. The Tribunal notes the oral and documented evidence that the [period] in a correction facility, and following period of approximately [number] days in immigration detention, has been a period that has provided the time for the applicant to overcome his drug addiction issues and will allow him the opportunity to prove that he is remorseful for his previous actions and that by eventually being able to return to his wife and children will allow him to become a good husband and father.

60. The Tribunal confirms that it stated to the applicant that he has previously held approximately 13 Bridging Visa E’s, with each of those  presumably having conditions in place, and noted its serious concern about the period between the December 2020 and March 2021 charges by Police in which the applicant continued to be involved in drug related activities when he knew that he was committing a crime each time as he had been charged and let out to the community on bail, for which conditions would have been in place and he was breaking those conditions, and places weight on this.

61. The Tribunal accepts the documented evidence of a statutory declaration by [Mr B], a friend of the applicant and his family, dated 14 June 2021 in which he confirms his awareness of the actions of the applicant and commits to providing him with accommodation, food and financial support if he is release from immigration detention, and places weight on this. 

1. The Tribunal notes the immigration history of the applicant, from his entry to Australia in February 2008 as a dependent to a student visa holder, and subsequent protection visa application, personal student visa application and then partner visa application, and the decisions to support or refuse made on these and details of issued raised about the evidence provided as part of these applications and review of refusal decisions.

2. The Tribunal provided the applicant with the opportunity to comment on his migration history, noting he chose not to make any comments.

3. The Tribunal notes the many expressions of remorse for his actions by the applicant and statement of living a better life for he, his wife and child, as his time in the correction facility and migrations detention has made him realise the impact of his actions related to drugs, and places weight on this.

4. The Tribunal determines that the applicant, by continuing to be involved in drug related activities from the period after the Police charges [in] December 2020, with conditions in place as part of his bail, has demonstrated that he does not, as recently as early March 2021, observe conditions put in place for him to live in the community, and places weight on this.

5. The Tribunal determines that it does not accept, following a review of the documented and oral evidence, that the applicant will abide by any imposed conditions applied to a Bridging Visa, whether or not a financial incentive by way of a bond or security is applied.     

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

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

8. 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

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

   Steven Griffiths
   Member