2111563 (Migration)

[2021] AATA 3880

2111563 (Migration) [2021] AATA 3880 (11 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2111563

MEMBER:Alan McMurran

DATE:11 September 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 11 September 2021 at 1:24pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by visa conditions – character test – criminal conviction – limited financial assistance – offer of support – applicant seeking ongoing residence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 73, 116, 501
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.223, 050.613; Schedule 8 Division 050.6; r 2.43

CASES

Applicant VAAN of 2001 v MIMA (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 Home Affairs on 31 August 2021, to refuse to grant the applicant a Bridging E (Class WE) visa (BVE) under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 August 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 1994 (Cth) (the Regulations).

3. Relevantly to this matter, the primary criteria include cl 050.223. That clause provides that the Minister is satisfied that if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed upon it.   

   Tribunal hearing

4. The applicant appeared before the Tribunal sitting in Sydney on 9 September 2021, by video conference[1] from [a named] Detention Centre, to give evidence and present arguments. There was an internet outage towards the end of the hearing, which then continued by telephone after a short interval, and without objection.

   [1] MS Teams

5. The Tribunal hearing was conducted with the assistance of an interpreter by telephone, in the Punjabi and English languages. On commencement of the hearing, the applicant indicated he preferred to give his evidence in English and avail himself of the interpreter as required. At the end of the hearing, no issues were raised about interpretation or understanding by the applicant, and the applicant confirmed that he had understood the process.

6. The Tribunal inquired whether the applicant was ready to proceed or required further time to provide additional information. The applicant indicated he wanted the hearing to proceed and had provided all his information.

7. The Tribunal confirmed it had received his most recent written submission received 6 September 2021. The Tribunal informed the applicant that it was concerned only with the issues of compliance with any visa conditions which might apply and was not reviewing either the previous cancellation decision or the applicant’s continuing Protection visa application.

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

   Background

9. The applicant is [an age] year-old citizen of the Republic of India, who first came to Australia as a student [in] July 2014. The applicant subsequently obtained further student visas issued by the Department on 29 April 2016, and 15 November 2017.

10. The applicant’s latest student visa was cancelled by the Department on 2 June 2020 on character grounds, following a criminal conviction recorded against the applicant at [Court 1] in Sydney [in] February 2020. The applicant sought review of that cancellation decision in the Tribunal[2], unsuccessfully, and which review affirmed the Department’s cancellation decision on 23 July 2020. The applicant did not appeal that Tribunal decision.

    [2] T case [file number]

11. The applicant has no other substantive visa and is an unlawful non-citizen.

12. According to Department records, the applicant was detained on 16 June 2020, firstly at [one named detention centre], and since July 2020, at [another detention centre], awaiting the outcome of an appeal to the Federal Court, in respect of a refusal of a Protection visa application, lodged by him [in] August 2020.

13. The applicant has informed the Tribunal that there is a Federal Court listing date [in] October 2021 for his appeal, which follows a Federal Circuit Court decision made [in] February 2021 refusing the Protection visa, and in respect of which court appeal, the applicant is being assisted by a lawyer.

14. Available information about the applicant’s visa history reveals that the applicant applied for a BVE previously, in June and August and November 2020, and again in June 2021. Tribunal information shows that two applications were subsequently affirmed on review by the Tribunal on 7 September 2020, and 13 July 2021.

    Department decision

15. The decision to refuse to grant this Bridging visa application was made on 31 August 2021, following a telephone interview conducted 30 August 2021 by a Department officer.

16. The Department officer considered the items outlined in the “Character test” as defined in s.501(6)(a) of the Act, and was not satisfied that the applicant will abide by a visa condition, were it imposed, that he must not engage in criminal conduct[3].

    [3] Condition 8564

17. The decision referred to matters discussed at the telephone interview with the officer concerning the applicant’s criminal conviction, and which appeared to be the focus of the officer’s concerns.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. At the time of application and at the time of decision, the applicant must continue to satisfy the criteria in cl. 050.211(1) which provides at 050.211(1)(a) as one criterion, that the applicant is an unlawful non-citizen. The applicant meets this criterion.

19. The applicant must also meet the applicable alternative requirements specified in subclauses 050.212 (2)-(9), and which include that the applicant has made a valid application in Australia for a substantive visa, which has not been finally determined (cl.050.212(3)(a)); and where the applicant has applied for judicial review of a decision in relation to a substantive visa (cl.050.212(40(a)). The applicant meets both these criteria at the time of decision.

    Issue for Decision - Whether the applicant will abide by conditions – [r.050.6 and cl. 050.223].

20. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a BVE is granted to the applicant, the applicant will abide by conditions (if any) imposed on it. This is the issue for determination upon review.

21. The conditions that may be imposed on a Subclass 050 visa are provided for in cl.050.613 of Schedule 2 to the Regulations. The provision sets out the various conditions to which the visa may be subject.

22. When considering the application of 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 relevantly the likely conduct of the applicant.

23. 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].

24. 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.

25. In this instance, the available Department records do not disclose any breaches of immigration laws, before the cancellation of the applicant’s student visa under s.116(1)(g).That decision followed the applicant’s conviction on a criminal charge and for not having complied with a law of NSW, which breach is within the definition of a “prescribed purpose” under r.2.43(1)(oa), and which may lead (and did lead on this occasion) to the cancellation decision.

26. No security has been sought, as it was not considered by the Department that the imposition of security would prevent the applicant from breaching a condition to be imposed, that the applicant does not engage in criminal behaviour.

27. Clause 050.223 provides that certain conditions may be imposed as provided for in Division 050.6 and set out in Schedule 8 to the Regulations, and where that is the case, the applicant will then abide by the conditions (if any) attached.

28. In this case, cl 050.223 applies, because the authorised Department officer considered the condition, that the applicant does not engage in criminal behaviour (8564), should be attached to any further visa grant, and the applicant would be compelled to abide by it.

    What visa conditions should apply?

29. The aim of imposing conditions is to promote engagement with the Department and to assist in achieving an immigration outcome, ensuring that the conditions imposed are relevant to the visa period for the BVE visa being granted.[4] This is not a case where no conditions would be imposed, were the visa granted.

    [4] Department Policy – PAM 3

30. The Department officer considered that the following conditions should be imposed in the circumstances of this case, in addition to a mandatory condition, 8101 – no work:

    8207 – no study

    8401 – report as directed

    8506 – notify new address

    8564 – must not engage in criminal conduct

31. The Tribunal accepts that the specified conditions are appropriate and those which should be applied in this instance. The Tribunal refers below in these reasons for its findings in respect of likely compliance with these conditions.

    Available Evidence and Applicant’s Submissions on compliance considerations

32. The Tribunal has had regard to the applicant’s written submissions to the Tribunal most recently provided by him by email on 6 September 2020 addressing his anticipated compliance, as discussed below. The Tribunal also has the applicant’s earlier submissions and attached documents provided by email on 1 September 2021.

33. The available information includes the Department file[5], the Tribunal file, and the oral evidence from the hearing. The Tribunal has considered the totality of the available material , including Department Policy, the Department decision on this application, and the applicant’s answers provided at hearing to questions from the Tribunal, and the evidence from the applicant’s treating psychologist and the letters and statements  of support from friends and family.

    [5] [File number]

34. The applicant has supplied a considerable amount of information including an email on 1 September 2021, which included:

    ·A copy of the Department refusal letter dated 31 August 2021

    ·Detailed written submission of 13 pages styled “Additional Information”

    ·Letter of support made 20 August 2021 from [Friend A] (friend from [Suburb 1], Sydney)

    ·Federal Court Notice of Appeal dated [in] March 2021 in case [number]

    ·Hearing Notice listing hearing in Federal Court [in] October 2021 for a half day

    ·Notarised statement made 21 August 2021 from parents, [named]

    ·Applicant’s [Bank 1] bank statement AS AT 21 August 2021, with balance of $2,596.85

    ·Report from Sydney-based psychologist, [Psychologist A], dated 11 July 2021

    ·Character reference “[notation in] 2019” from [Community Organisation 1]  (undated)

    ·Prosecutor Fact Sheet dated [in] November 2019 relating to criminal charges against the applicant in Sydney in 2019

    ·Certificate of completion of course on [title] dated [in] July 2021; including Stress Management, Behaviour Management, Anxiety Therapy and Anger Management

    ·Indian Police Clearance Verification

    ·[Medical] summary and health assessments during detention for period from June 2020 to June 2021

    ·Letters / statements of support from [Friend B] (undated) – friend from village; [Mr A] - [from Suburb 2] Sikh Temple; and [name] – applicant’s younger brother (from [Country 1])

35. At hearing, the applicant offered that a telephone call could be made to the applicant’s parents, brother, and to [Friend A] (hereafter referred to as [Friend A]) if the Tribunal required, and all of whom had provided written statements. The Tribunal telephoned [Friend A] during the hearing. The witness confirmed that he knew the applicant as they both came from the same small village in northern India and had grown up together. He said he had come to Australia in 2009 and became an Australian citizen approximately four years ago. He said he is married with [an age]-year-old child.

36. [Friend A] said he was not related to the applicant other than through friendship. He said he lives with his wife and [age]-year-old child in a rented two bedroom unit in Sydney. He said he works as [an occupation 1] for a [company], [doing specified duties]. He said he has had the job for more than one year and earns a salary of approximately $1400-$1500 per week. He said he spends $330 a week on rent and the balance on living expenses. He said his wife does not work.

37. [Friend A] said that he knew about the applicant’s criminal proceedings and the background concerning the [specific offence]. He understood the applicant’s denials [concerning the offence], which [Friend A] accepts. He said he believes the applicant will comply with any condition and that he is happy to accommodate him and support him. He said that if the applicant asked him for money, he would provide it, whether it was $100 or $1000 or whatever amount, he would find it to give to him.

38. He was asked if he thought it was appropriate the applicant should reside with him and his wife and child [given the applicant’s specific offence]. He said he had no concerns about the applicant, and he ([Friend A]) could decide if the applicant should live with him. The Tribunal asked if he had made any enquiries about whether the applicant would be able to live with him. He said he had formed his own view, that the applicant was a “good fellow”, whom he had known for a very long time, that he had not contacted police or any other authority, and in any event, would support the applicant wherever he has to live.

    The applicant’s oral evidence

39. The Tribunal asked questions about the applicant’s family. He confirmed his father still works as a farmer on and near the village in Northern India. He said he has several plots of 2 to 3 acres where he grows [specified crops], and earns approximately AUD $24,000 per annum. He said his mother does not work and is a homemaker.

40. The applicant said he has a younger brother living and working in [Country 1] where he has been for approximately 2 ½ years employed in “[a specified field]”. He said his brother regularly sends money home to his father in India. When asked why this is so, the applicant said it helps his brother if his father saves the money, so he does not spend it in [Country 1], and also enables his father to use those savings if he needs to do so. He said his father regularly sends him money in Australia. He said his father has also sent money to his younger brother from time to time. He said through assistance from his father and his brother, money is able to be sent from India to Australia to assist him when required.

41. He said he had never sent any money himself home to India. He said his father had paid for his Australian tuition fees and assisted him with other expenses such as accommodation.

42. The applicant said he also has a married [sibling] living in India, approximately 40 km from the family’s village. He said he last saw [that sibling at their] wedding in India in November 2018. He said he speaks with his parents from detention “every three or four days”.

43. The applicant said he has no other relatives in Australia, other than [Friend A], whom he referred to as his “cousin”. [Friend A] said in his evidence, however, that he and the applicant were childhood friends from the same village, but otherwise not related.

44. The applicant said he had come to Australia [in] March 2014 to continue his education, and he had obtained several Diplomas before commencing a [specified] degree at [a named college] in Sydney in 2018. He said that course was for approximately 3½ years. He said his studies had been interrupted by his criminal court proceedings from late 2018, until he was sentenced in February 2020. He said during this time, he had found it difficult to apply himself, even though enrolled for full-time study, and his attendance suffered. He said he had failed a number of subjects and was not sure whether eventually he would be able to complete the course or even re-enrol without making a fresh application. He said his cousin in India had also passed away and which event affected him mentally.

45. The applicant was asked about his accommodation and living arrangements since arriving in Australia. The applicant said he had a connection with [Friend A] and stayed with him at [Suburb 1] in Sydney. He said they found other friends from the village, who also joined them in a tenancy in a house at [Suburb 1], where they all lived as students. At one stage, there were six of them in a four bedroom house sharing the rent. He said his share was approximately $90 per week.

46. He said in about 2017, [Friend A] married, and his wife came to Australia, and [Friend A] moved out into separate accommodation. The applicant said he remained in the property with his two other friends and [Friend C], who was not from the village but was also a student. One of the friends was [Friend D], who along with the applicant and [Friend C], was arrested in November 2018 in relation to [their specified offences]. [Friend D] subsequently committed suicide, and the applicant and [Friend C] were eventually convicted and sentenced in February 2020 after pleading guilty.

47. The applicant was asked about his work experience while a student and living with his friends at [Suburb 1]. He said approximately three months after arriving in Australia he commenced work at a [business 1], introduced by [Friend A], and which he continued for approximately two years until mid-2016. He said he regularly worked 20 hours per week in accordance with his student visa condition. He said he regularly earned between $500 and $600 per week for his part-time work. He said money was paid directly into his account ([Bank 2]) which he no longer operates. He maintained that tax was paid by his employer.

48. The Tribunal asked if he had ever lodged a tax return in respect to his earnings. He said this was done by his employer, and that he had received some rebates from the Australian Taxation Office. He said he could provide records if called upon to do so. He said he had also done work [in other occupations and roles], each job for approximately a six month period. He said he was on average paid about the same amount per week as he had received [at the business 1]. He said he did the work because he wanted to broaden his experience. This also included more recent experience of working [in specified roles]. He said he had a valid driver’s licence in order to do so.

49. The applicant was asked how he would support himself if he was unable to work in the community. He asserted several times, that it was his father who would send him money, along with funds provided by his brother.

1. He also said [Friend A] would assist him by giving him cash if he needed some. He thought he would be able to live with [Friend A], who had bought a large house “six months ago”, with a separate room for the applicant, but if that was not possible, [Friend A] would support him to find other accommodation. He said he had not been to [Friend A’s] house but thought it would be large enough to provide his accommodation and he asserts that his conviction for [his specific offence] would not prevent him from living there with [Friend A], his wife and [age]-year-old child. He said [Friend A] has retained all his personal possessions. The applicant did not offer any information about where else he could live or with whom he might live, other than with [Friend A’s] family, as it appears his strongest connection in Sydney is with [Friend A].

2. When the Tribunal telephoned [Friend A] about the applicant’s accommodation, [Friend A] said he in fact is renting a two-bedroom unit where he lives with his wife and child in [Suburb 1], not a house. He maintained however that he would still be able to accommodate the applicant and would support him. He said in his statement he would provide a security bond to the Department of $20,000 or more if required.

3. The applicant said he would like to resume studies but understands he would not be able to do so on the Bridging visa. When asked what he would do, he said he wants to improve himself and put the [specified offences] behind him, but he did not adequately explain what he would be doing on a daily basis while on the Bridging visa and living with [Friend A’s] family. He said he had used the opportunity to work previously as a means of “keeping my mind off the court case”.

4. The Tribunal informed the applicant of the conditions which would attach to the visa. The Tribunal asked the applicant what he thought about complying with condition 8564, that he not engage in criminal conduct.

5. The applicant repeated several times his denials that he had ever intended to [commit the offence]. He said he now understood what that [offence means]. He said [the offence was] unintentionally and through his association with a group he had not intended to join. The applicant seemed intent on convincing the Tribunal he was not actually guilty of an offence and was then asked why he had pleaded guilty. He said this was in response to legal advice he had received before the criminal conviction, that “nobody will believe you” and that [his participation was limited], whereas [Friend C] had [participated extensively].

6. The Tribunal asked why he simply had not [acted to avoid this offence]. The applicant said he did not know how to do it, had been unable to [avoid] it successfully, and until his arrest had not seen it as significant as he was not interested in any of it which he found “disgusting” and was not [actively participating]. He realised only after his arrest that [his involvement] was a criminal offence.

7. The Tribunal asked whether he thought it was significant and he agreed he thought [his involvement] was [dangerous], and that he now appreciated why it was such a serious matter. [Details deleted.] He asserts he will never engage in such behaviour, will not allow it to happen again, and asserts he is ashamed and remorseful about his conviction. He told the Tribunal he thought the conviction was appropriate, but felt it was unfair that he had received a similar outcome to [Friend C], who [participated extensively], and that he was now in detention while [Friend C] was free in the community.

8. He was asked about not being able to work and stated as indicated above, that it is his father, his brother, and [Friend A] who will be able to support him and meet his living costs. He was asked about savings when he was earning $500-$600 per week while his father and brother were assisting him to meet his education expenses. He said he spent the money on himself and daily living expenses and did not save. He said recently his father sent him $2000 which is most of the money showing in his current [Bank 1] account, a copy of which bank statement he produced for the Tribunal. The applicant said he understands he will not be able to work but is comfortable he has few expenses and will be able to live on a very small amount, even after paying rent, were he to live on his own.

9. The applicant said he had “made a mistake” by not informing the Department about a prior change of address, saying this was inadvertent and not deliberate. He said that he had otherwise always complied with visa conditions. He said he would do so in the future.

10. The Tribunal asked the applicant how he might be affected by not having a Bridging visa and remaining in detention, and his diagnosed medical condition of anxiety and severe depression. The applicant said he had sought private treatment from a psychologist while awaiting his sentencing in 2019. He said he had regularly attended the psychologist who had provided a report, and who he had consulted with as recently as 2 months’ ago. He said the psychologist, [Psychologist A], who had been treating him, was paid for by his father. He said the focus of the treatment was his criminal proceedings and his mental state concerning the [offences], and his desire to overcome his anxiety and depression, shame, and remorse.

11. The Tribunal asked why he had not been regularly attending counselling available to him in detention. The Tribunal noted that according to the Department’s health records provided by the applicant, between February and July 2021, the applicant had attended only 1 (weekly) session available to him with the available psychologist and psychiatrist. Similarly, in the period from July 2020, the applicant had failed to attend the majority of available sessions. The notes recorded that the applicant had said he only would attend when he had “something to say”.

12. The applicant responded that he was often tired, and in 2020 had been occupied preparing his Protection visa application and assisting his lawyer and did not always feel motivated to attend counselling. He confirmed he spent most of his time watching movies and television while in detention. He accepted the diagnosis of anxiety and severe depression from [Psychologist A], and that also he was helped by medication as confirmed in his medical records.

13. The Tribunal asked if the applicant was aware what would happen with his Protection visa. He said he has been informed it may take several months for a decision, or even longer. He said he is determined to pursue the appeal and if it fails, “I will go all the way, to the High Court”.

14. The Tribunal infers from the applicant’s comment about his appeal and his intentions, that he is determined to remain in Australia. The Tribunal asked what the applicant would do if he returned to India. The applicant stated that he cannot return to India. The applicant said that prior to his criminal conviction, he had intended to complete his studies and return to India to start his own business. He said he had been intending to return to live with his parents. But that has changed now, since his criminal conviction, and returning to India is not an option for him.

15. The applicant was asked if he had any religion and he said he was a practising Sikh and had regularly attended the temple at [Suburb 2] in Sydney. He said he had not spoken directly with the [Leader A] of [Community Organisation 1] who had provided a reference, as the structure of the temple within [Community Organisation 1]  requires that the [Leader A] delegate to [others] in the temple any work involving parishioners. He believes however the [Leader A] “knows him” well enough to provide the reference and attest to his behaviour.

16. On conclusion of the hearing, the Tribunal asked if the applicant had understood the process, which he confirmed, and was asked if he wished to add anything further. The applicant told the Tribunal he had said everything he wanted to say but wanted to add one thing. He said it disturbed him that [Friend C] was still free in the community while he (the applicant) remained in detention. He said that he felt it was unfair that his [limited participation] had been treated the same as [Friend C’s], who had [participated extensively], the only difference being that the applicant had received [number] community service hours, none of which have been served, while [Friend C] had received [a larger period].

17. The applicant said if he is released back into the community he will seek to “improve myself” and will “never do anything like that”, meaning [his specific offences]. He said [that] he intends not to [re-offend] in the future. [Details deleted.]

    Findings

18. The Tribunal listened carefully to the applicant’s evidence and has also had regard to the comments from [Friend A], the statement from the applicant’s parents, and from his brother.

19. The Tribunal makes the following findings:

    ·the applicant is a single man with no relatives in Australia and is an unlawful non-citizen

    ·the applicant has a lifelong friend, [Friend A], who would like to accommodate him and support him where possible while he is in Australia

    ·the applicant’s parents and his younger brother are also willing to support him

    ·the applicant has some generalised support within the Sikh community, based on his character, but not concerning accommodation or financial assistance

    ·the applicant intends to live with [Friend A] in Sydney, but otherwise does not have any clear plan to support and accommodate himself

    ·the applicant has virtually no means of financial self-support

    ·the financial support from relatives is limited, based on their modest savings and incomes

    ·according to the medical report from [Psychologist A], which the Tribunal accepts, the applicant has a medical diagnosis of anxiety and severe depression, but is not a [category of offender] and according to the practitioner, is not likely to re-offend

    ·health information available asserts the applicant is treated with medication for the anxiety and depression and is otherwise healthy

    ·the applicant has very limited skills and employment attributes

    ·the applicant has done a variety of casual work while studying but has yet to complete his intended studies

    ·the applicant has asserted his intention to remain in Australia and pursue available legal avenues as far as possible

    ·although the applicant has expressed remorse and shame for his behaviour, it is more self-focused than a genuine acknowledgement of wrongdoing and which the applicant does not accept was his fault

    ·the applicant feels aggrieved about his sentencing, compared with [Friend C], and believes he should not be in detention

    ·the applicant has a history of compliance and co-operation with the Department, save for a period when he failed to provide information of change of address

20. The Tribunal has considered the applicant’s immigration history, and from the evidence at hearing confirms the details concerning the applicant’s arrival in Australia, his attendance for various courses of study and his history prior to being taken into detention in June 2020.

21. Regarding his work history, the Tribunal is concerned that although regularly working 20 hours per week which he says averaged $500-$600, his previous information to the Tribunal in his application on 24 August 2020 provided bank statements showing receipt of regular weekly income of approximately $1000, all of which the applicant spent without saving. The Tribunal formed the view that in light of this inconsistency, the applicant was not entirely frank about his prior earnings or his spending.

22. The applicant has provided evidence about possible additional support from his parents and his younger brother, although that is based primarily on what the applicant has said and not on any documents evidencing regular funds transfers and payments to the applicant. He says such payments are made when he requests, but that assumes the money would be readily available if and when required.

23. Considering the very modest income from his father’s farming activity in India, the Tribunal finds this seems unlikely to be available and continue for what the applicant anticipates might be “many months” to come, and during the progress of his appeals. The continuing source and amount of funds available from the applicant’s younger brother is unknown, as is the ability of [Friend A] to support his friend financially on his own modest income, while supporting his wife and child in a two-bedroom unit.

24. The applicant’s evidence about [Friend A] being his “cousin” was not correct and although perhaps not deliberate or intended to mislead, is an example of the lack of attention to important detail and accuracy that the Tribunal would be entitled to expect in this application.

    Will the applicant abide by the conditions imposed?

25. There is no exhaustive list of what factors may or ought to be considered when considering the conditions to be imposed, and how they might be addressed. Similarly, the question of probability or likelihood as to compliance by an applicant will depend very much on the individual circumstances of the application and the overall impression and findings made, based as best as possible on objective material in evidence.

26. Factors may include visa history with the Department, any breaches of migration law or Australian laws generally, the applicant’s conduct since arrival in Australia (and perhaps before), any cancelled visa, detention, and its effect on the applicant, and risks to the community or a particular group, the circumstances of any other visa refusal(s), and the applicant’s community and family ties. As mentioned, the list is not intended to be exhaustive and may vary on an individual case basis but ought not be applied arbitrarily.

    Conditions applicable in this instance

    8101 – no work

27. The applicant came to Australia on a short-term visa to study, not to work. He was supported by his parents for that purpose. He does not have sufficient training or experience or any particular vocational skill. He does not have any employer or job in the community waiting for him. He says when he was detained, he had returned to a casual position at [the business 1].

28. Imposing this condition is to ensure that the applicant does not take up any form of paid work, pending the outcome of his substantive visa application for protection.

29. The Tribunal discussed with the applicant what support he will have if free in the community without work or an assured income. The Tribunal has noted the lack of assurance as to financial assistance from relatives and friends, and which is dependent entirely on happenstance and what the applicant may request at a particular moment. The Tribunal is satisfied that there will be a strong incentive for the applicant to again seek casual employment, and with the assistance of the local Indian community, including his long-standing friend and supporter, [Friend A]. The applicant will not be studying and will be at home during the visa period with nothing to do, and possibly impoverished due to lack of financial means if he were not to have some income from working. The Tribunal places little weight on the statements of support from the applicant’s parents, brother, and [Friend A], who are all themselves of limited means.

30. The Tribunal is not satisfied that the applicant will be able to live with [Friend A’s] family, given his conviction [for the specified offence].

31. The Tribunal finds that the applicant is overall, unlikely to abide by this condition.

    8207 – no study

32. The applicant has stated that he has no intention of enrolling in any further courses of study and has no particular vocation he is seeking to pursue through further studies. The applicant has doubts himself that he will be able to continue his previous [Degree] course, where he has failed some subjects and his attendance in his last year in 2019 was erratic. He says he may have to eventually re-enrol if he is able to do so and “start again”.

33. The Tribunal accepts that the applicant will not be able to study, and through default, is likely to abide by this condition.

    8401 – report as directed

34. Accepting the evidence from past history that the applicant has not attempted to hide from Police or the Department before, the Tribunal on balance accepts that with reporting conditions, the applicant would comply with this condition. At present, no reporting conditions are directed.

35. In the event the applicant is unsuccessful with his Protection visa application, there will be a strong incentive for the applicant to hide in the community if, as he asserts, he is determined that he will not return to India.

36. In those circumstances, there is a likelihood the applicant would no longer comply with any reporting conditions, where imposed.

    8506 – notify new address

37. The Tribunal has noted the applicant’s evidence of a previous non-compliance issue for failing to advise the Department of a change of address.

38. The Tribunal finds there is some risk the applicant will have an incentive to change address, particularly as he has no real plan other than to live with [Friend A’s] family in [Suburb 1]. If that proves impossible, there is a risk the applicant may relocate to an unknown address.

39. Further, as noted, the applicant has expressed his determination to remain in Australia and pursue his legal appeals as far as possible. He also intends to not have to return to India at all and is adamant he will not return.

40. The Tribunal finds there is a real risk the applicant may not continue to comply with this condition if it no longer meets his purpose, and therefore is likely not to continue to comply.

    8564 – must not engage in criminal conduct

41. The Tribunal finds that the applicant has been convicted of a serious offence [specified].

42. The Tribunal has listened closely to the applicant’s oral submission at the end of the hearing and is not satisfied the applicant is genuinely remorseful. Rather, he is upset at what he regards as an unfair sentence, continuing to maintain his innocence of any ill-intent, and notwithstanding his plea of guilty. He believes his current treatment being in detention is unfair.

43. The Tribunal infers from these comments, that the applicant does not fully appreciate the seriousness of the offending and his criminal conduct, and how [people] are affected by it, and despite his assertions that he in fact now does. The Tribunal does not accept those assertions from the applicant.

44. As a further example, the applicant in his written submission, which he confirmed at hearing, asked the Tribunal to change his visa cancellation decision to a “warning”. This was so, despite the fact the Tribunal had informed the applicant that this review was only considering the compliance issue with visa conditions, and not reviewing the cancellation decision already-made, or the merits of the Protection application still before the courts. Nonetheless, it is the applicant’s belief that he should have simply been given a warning for the cancellation of his visa, and that cancellation was too harsh an outcome in response to his criminal conviction.

45. The Tribunal infers from this that the applicant does not consider the Australian system of justice, represented both by the criminal conviction and sentencing, and the migration outcome, to be fair, and that he has been harshly treated.

    Security considered

46. There is no associated security decision under review. Nonetheless, the Tribunal has also considered whether it would be satisfied that the applicant would abide by the identified conditions if a security bond is requested.

47. [Friend A] has described the applicant as “a good fellow” and that he is just “waiting for him to come out” (of detention) and will help him. [Friend A] informed the Tribunal that he would put up security where requested, up to $20,000, or possibly more. There is no evidence that [Friend A], however, has the capacity to make such an offer.

1. The Tribunal is not satisfied that the applicant’s parents have the financial capacity on their very limited income, even with the assistance of the applicant’s brother, to meet any security request, or to reimburse [Friend A] up to an unknown amount.

2. The Tribunal is not satisfied that the provision of any amount of financial security as an incentive on the applicant’s behalf, would ensure compliance with the proposed visa conditions, and given the applicant’s stated determination not to return to India at all.

   Conclusion

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

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

101. 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

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

Alan McMurran
Member