2111575 (Migration)

[2021] AATA 4267

2111575 (Migration) [2021] AATA 4267 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111575

MEMBER:Gabrielle Cullen

DATE:9 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 09 September 2021 at 3:42pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – application for bridging visa on departure grounds – cancellation of student visa affirmed on review – arrangements to depart – evidence of ticket and information about family in home country, including mother’s health, provided to tribunal – intention to comply with conditions of visa and imposition of security – must not engage in criminal behaviour – high degree of satisfaction required – visa, criminal and relationship history – breach of community-based order – offer of support from friend – divorce proceedings – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 116(1)(g), 269
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(2), 050.223, Schedule 8, condition 8564

CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of 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 (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 the basis that the applicant does not meet the requirements of cl.050.223 as the delegate was not satisfied he will comply with the conditions imposed on the visa. The delegate also found that she was not satisfied that the imposition of security would prevent the applicant from breaching a condition imposed, being condition 8564 - Must not engage in criminal behaviour.

4. The applicant appeared before the Tribunal on 7 September 2021 by telephone via MS teams to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. [Mr A] gave evidence as a witness.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background to the review

6. The applicant has provided to the Tribunal a copy of the delegate’s decision record.

7. As to the applicant’s immigration and visa history, the evidence, including that from the Department decision record and the applicant at hearing, indicates that the applicant first arrived in Australia [in] June 2018 as a dependent on his wife’s subclass 500 student visa. He holds an Indian passport issued [in] 2014 and valid to [2024]. His student visa was cancelled by the Department on 24 February 2020 under s.116(1)(g) as he was convicted of domestic violence offences. The Tribunal affirmed the decision of the Department on 16 June 2020 and the Federal Circuit Court dismissed the application for judicial review on 26 November 2020. The applicant gave evidence that he has been detained since 25 April 2020. He said while he has applied previously for a Bridging Visa E on a number of occasions he has withdrawn those applications.

8. On 26 August 2021 he applied for the WE 050 Bridging Visa E.

9. The evidence, including that from the Department record, indicates the applicant has the following criminal convictions including domestic violence related matters.

   ·[09]/2019 – [Magistrates Court 1] - Exceed 0.08g alcohol per 100ml of blood – Licence Disqualified: 9 months - Concurrent; FINE: $75

   ·[10]/2019 - [Magistrates Court 1] - Common Assault in Circumstances of Aggravation or Racial Aggravation – Conviction [SPENT] - COMMUNITY BASED ORDER (CBO): 10 Months -CONCURRENT FROM [OCT]-2019

   ·[10]/2019 - [Magistrates Court 1] - Threats to injure, endanger or harm any person - Conviction [SPENT] COMMUNITY BASED ORDER: 10 Months CONCURRENT FROM [OCT] 2019.

   ·[11]/2019 - [Magistrates Court 2] - Breach of Community Based Order of [OCT] 2019 - CBO to Continue

   ·[Magistrates Court 2] [11]/2019 Criminal Damage or Destruction of Property – FINE $500

10. The evidence indicates he has committed family violence against his partner which the applicant confirmed at hearing.

11. In the application for a BVE dated 26 August 2021 he indicated he is making arrangements to depart Australia and his proposed date of departure is 1 October 2021. He stated that he has one divorce matter pending in the Court and some stuff for sale so he will finish these matters and depart Australia as soon as possible. He noted that he is ready to depart Australia as soon as possible, that he has a divorce course date and wants to return to India to be with his parents and daughter as soon as possible. He noted his friend [Mr A] is ready to financially provide for him until he departs Australia. He noted in the application that he has been the subject of a domestic violence order and the violence occurred in August 2019.

12. With his application he provided evidence of a court date [in] September 2019 in front of the Registrar at the Law Courts in Melbourne regarding his divorce and he also provided a statutory declaration from [Mr A], who lives in [Suburb], Western Australia. [Mr A] declared on 23 August 2021 that he has been in Australia for 4 years and works as [an Occupation 1] full time. He submitted that he is happy to help the applicant when he is granted a bridging visa. He noted he will provide him with food, accommodation and for his basic facilities until he departs Australia.

13. On 31 August 2021 the delegate refused to grant the Bridging Visa E on the basis that the  applicant does not meet the requirements of cl.050.223 as the delegate was not satisfied he will comply with the conditions imposed on the visa. The delegate was not satisfied that a security would prevent the applicant from breaching a condition imposed, specifically condition 8564 – Must not engage in Criminal Conduct. The delegate noted the following

    As [the applicant] has been convicted to a Community Based Order for 10 months and has been convicted of breaching this order [in] 11/2019, I cannot be satisfied that [the applicant] will abide by Condition 8564 – Must not engage in criminal conduct were it to be imposed on this Bridging Visa E (WE050) and therefore refuse the application under 050.223.

14. The applicant applied for review of the delegate’s decision on 31 August 2021. On 2 September 2021 he provided the decision of the Department to the Tribunal.

15. On 6 September 2021 he made the following submissions:

    1. Background

    1) I [the applicant] born on [date], I arrived in Australia as a dependent visa with my wife’s student visa [in] June 2018. I did not departed Australia since that date; however, my wife travelled and lived overseas for a period of three and a half continuous months from 29 January 2019 until 19 May 2019. I did not travel with her.

    2) [In] October 2019, I was convicted on several domestic violence related incidents and sentenced to a Community Based Order for 10 months which is due to expire [in] August 2020. I was also convicted of a further offence being criminal damage and imposed a fine of $500 in addition to a Community Based Order.

    3) This matter came to the attention of the Department of Home Affairs and on 12 December 2019 the department notifying me that they were considering cancelling my visa. And I replied to that notification and request for comments on 7 January 2020.

    4) [In] October 2019, I admitted and pleaded guilty to domestic violence charges and indicated That I intended to mend my ways, I admitted that the incidents of the night in question were my fault but only because I was depressed and could not control myself.

    5) I states that I have quit alcohol and wants to improve my behaviour and relationship with my wife and family. I said that I am attending counselling and provided evidence that I have attended three sessions.

    6) On 26 August 2021, I applied my bridging visa on departure ground to the department of home affairs and it was refused on 31 august 2021.

    2. Grounds for Cancellation

    7) On 30/ 08 2021, my agent refused me to say that, no evidence of ticket.

    8) Delegate was not satisfied to see the charges on me and the length of sentence.

    9) Delegate refused to say that whether applicant will abide the condition whatever will be imposed especially the condition 8564 - must not engage in the criminal conduct.

    3. Assessment

    10) On 30 August 2021 in interview delegate refused me to say that I do not have the proof of ticket.

    11) So, here I would like to provide you the evidence that I have booked my ticket to return back to my home country on 24 November 2021. Ticket [Number].

    12) As I have been charged with multiple crimes and I plead guilty for that and received the sentenced, which was 10 months community correction order and I have completed my sentence.

    13) Delegate was not satisfied with the applicant that, will he comply with the conditions.

    14) So, here I would like to assure you that I will abide your all conditions whatever will be imposed on me like,

    · 8101- no work

    · 8207-no study

    · 8401-the holder must report

    (a) At a time or times:

    (b) At a place or in a manner: specified by the minister from time to time

    · 8564- must not engage in criminal activity

    15) I am ready to comply with your conditions no work or no study, because I applied bridging visa E to depart Australia not for work and study. As I would like to update you again that I have financially support from outside from my friend [Mr A], he is ready to keep me with him until I do not depart Australia and I have provided you the evidence that I will depart Australia. My mother’s health is not good and my daughter always cry to see me with her, so I want to go back soon for looking after my parents and my daughter.

    16) I am ready to notify my address to the department and ready to report time to time at a place or in a manner specified my minister until I depart Australia.

    17) I assure you that I will not commit any crime while being in the community, because I have learnt big lesson in my life to see my whole family shattered in front of my eyes and I want to go back to look after my daughter, I know that I have commit huge crime domestic violence due to over alcohol consumption and my wife is apart from me now and residing in Melbourne, if I will released I will live with my friend in Perth till the date I depart Australia.

    18) On 30 August 2021 delegate did not talk about the security bond that how much security bond should be imposed.

    4. Conclusion

    19) At the end I would like to say that I have provided the evidence of my ticket.

    20) I will follow all your conditions and I will not do any crime because I have quit drinking alcohol now and want to improve my future ahead in India.

    21) So, please try to grant me visa as soon as possible so I can go back to India and can start my future there with my parents and daughter.

16. The applicant provided an Electronic Itinerary – Booking [Number] from jettzy.com.au indicating he had booked a plane to depart Perth for India via [country] on 24 November 2021.

17. He also provided medical imagery and notes from December 2020 regarding [Ms B], his mother, indicating on 14 December 2020 she had [Medical condition 1] and evidence of tests conducted in April 2021.

    Hearing on 7 September 2021

18. At the hearing the Tribunal explained to the applicant the requirements of the law. It explained that the applicant is claiming to meet cl.050.212(2) and this requires the Tribunal to be satisfied that the applicant is making acceptable arrangements to depart Australia. It noted that the Tribunal needs to be satisfied the applicant’s intention is genuine in this regard. It also explained the conditions it considered should be imposed on Bridging Visa E and if it had concerns as to whether the applicant would comply with visa conditions it would consider the issue of whether a security bond would provide the applicant with an incentive to comply. It also explained that there may be circumstances in which no amount of security would satisfy the Tribunal that the applicant would comply with visa conditions.

19. The following is a summary of the Tribunal evidence.

20. The Tribunal asked the applicant about his immigration history including the visa he held in Australia before it was cancelled, being a subclass 500 visa. It asked him why it was cancelled and why and when he was detained.

21. The applicant indicated his Student Visa was cancelled on 24 February 2020, then the Tribunal affirmed the decision of the Department on 16 June 2020. He said he applied to the Federal Court but they dismissed the application and he confirmed that this was on 26 November 2020.

22. He said he had been in detention since 25 April 2020. When asked what led to his detention; he said the Department asked him to come to see them when his case was before the Tribunal and it was the period of Covid. He said as he did not have support they refused his application for a visa and he was taken into detention. He said they refused to grant him a Bridging Visa E. When asked if he appealed this decision he said he did not as his Tribunal application was ongoing. As to why he did not, he said at the time he did not know what was happening. He said he did apply for a Bridging Visa E on a couple of occasions but withdrew. As to why he has now applied in August 2021 after being in detention since April 2020; he said he has spoken to his daughter in India who wants him to return and she is distressed as she does not speak to her mother often. He said his mother is also suffering from health conditions. He said there are others who have been waiting in the detention centre for 2 to 3 years to depart and the Australian Broder Force say they cannot guarantee any arrangements or organise for them to depart so he wants to depart voluntarily.

23. The Tribunal queried why he needs to be released on a Bridging Visa E to depart and why the Australian Border Force or Department cannot organise this for him to depart from detention. He said he did speak to Border Force advising that he wanted to go back voluntarily and they told him they don’t have time or the ability to organise it at the moment and that’s why he has applied for the visa and organised it himself.

24. He said he has paid for the ticket in the itinerary submitted. He later said his family paid for the ticket.

25. As to the issues his mother is suffering as outlined in the reports from December 2020 and blood tests in April 2021, he said she has [Medical condition 1] which will need surgery so he needs to return to look after his daughter. The Tribunal asked why there are no reports of his mother requiring surgery and the reports are from December 2020. He said she was taking medication but the situation is now worse and she needs surgery.

26. The Tribunal queried why he had not referred to wishing to depart on account of his mother’s surgery and ill health in his application. He said when he was applying he did not know and was later advised this is important.

27. The Tribunal raised with him that it had concerns he was genuine in his intention to depart since he had arrived in June 2018 had not gone home and despite being in detention since April 2020 had not sought assistance from the Australian Border Force or Department to depart or previously sought a Bridging Visa E on departure grounds. The Tribunal queried why he would not have departed sooner particularly when his student visa was cancelled in February 2020 and the Federal Circuit Court upheld the Tribunal decision in November 2020. He said at the time he was trying to sort it out and he kept applying and withdrawing as they kept telling him he would be subject to 501 proceedings.

28. The Tribunal noted that he did not need a Bridging Visa E to depart and he could depart from detention and questioned why he had not done so sooner. He said he had spoken to the Australian Border Force and repeated that people have been waiting 2 to 3 years to depart. The Tribunal queried this and asked whether he had signed a form indicating to the Australian Border Force or Department that he wanted to voluntary depart and to gain assistance from them to depart. He said he has spoken to them and mentioned going back on a voluntary basis but after further questioning confirmed that he had not signed any form saying he wanted to voluntarily return or return to India. The Tribunal raised as of concern that despite saying he has many pressures and reasons on him to depart he has not signed the form for the Department or Border Force to commence or initiate plans for him to depart. He said because they will not give him a timeframe as to when he can go back and they are saying because of Covid they cannot organise it and that’s why he wants to be released and has organised his own ticket.

29. As to when his relationship with his wife ceased; he said 6 to 7 months ago and he has not seen her since and that there was a divorce hearing [in] September 2021. He said he was advised that he had not submitted all the required documents and another date was set for  [October] 2021 and that is another matter he wants to resolve before he departs. He said his wife was with him but now he has no one and there is no reason to stay and his mother cannot look after his daughter and that his absence is affecting his daughter mentally and he wants to return.

30. The Tribunal referred to the delegates decision and the conditions that may be imposed on the Visa. It outlined the conditions. He said he understood these conditions. He said he agreed to abide by the conditions.

31. The Tribunal in particular referred to Condition 8564 – Not Engage in Criminal Conduct and referred to his criminal record, as outlined above and in the Department decision, as of concern that he may breach this condition and particularly that he had in the past breached a community-based order. He said that the issues arose as a result of domestic violence to his wife, that he has separated from her and she is in Melbourne and he will be in Perth. He said he has not spoken to her for months and that at that time he was depressed and broken and he had a drinking habit. He said he has given up drinking. He said he wants to be released and will abide by the condition and not do anything to breach this condition.

32. The Tribunal referred to the breach of the community-based order and that this shows a disregard of the order or any condition imposed and that it is of concern to the Tribunal. He said it was a big mistake, at that time he was separated from his wife, he was on his own, often drunk but after that he had lived in the community for 5 to 6 months until his detention and not done anything.

33. As to what happened in November 2019 which the record indicates he was charged with criminal damage or destruction of property, he again said he was depressed and he didn’t know what happened but he was told by police that he had done something to someone’s car.

34. The Tribunal questioned how it can be satisfied that if he is granted a Bridging Visa E he won’t commit a crime in the future as he had in the past as outlined in his criminal record on a number of occasions and in different circumstances. He said much has changed and the main problem were the issues with the domestic violence, he has learned to live on his own and he has given up drinking and kept himself busy. He repeated that he had lived in the community afterwards from November 2019 to April 2020 and nothing had happened. He said he gave up drinking two years ago.

1. The Tribunal referred to Condition 8101 – No Work and questioned what resources he had to support himself if granted the visa and he said that his friend, [Mr A], is prepared to support him, he has a house and his family will help. He said his family had paid for the ticket to depart and they will support him as well. He said he does not have any money himself but there are a few friends outside of detention that owe him money.

2. The applicant said that he has known [Mr A] for 2 ½ years and they met in 2019 while they were both [Occupation 2]. The Tribunals questioned the closeness of the relationship when he had been in detention since April 2020 and he said that they are good friends, like brothers. The Tribunal questioned that it was concerned that as he has no money he may breach the no work condition. He said he would not work and he has his family who can also support him. The Tribunal noticed that no independent evidence had been provided of funds that his family held and funds held by [Mr A].

3. The Tribunal then asked whether an amount of security bond will ensure he meets the condition of the visa and was raised with him it was concerned that no amount of bond would ensure this, particularly as he had no funds personally and due to his past criminal behaviour. The Tribunal noted the Department had also found that no amount of security bond would ensure he met the condition. He said his family will support him and he will follow the conditions placed on him.

4. As to the relationship with his wife, he said he separated from her at the time of the domestic violence incident but later they would go out to dinner together and they were thinking of getting back together when his visa was cancelled.

5. The Tribunal contacted [Mr A] at the applicant’s request. He confirmed they have been close for about two and half years and that he is the holder of a subclass 485 Visa. He said he is prepared to fully support the applicant if released as he has a full-time job, as does his wife and they are close friends. He said he rents a house and there is a spare bedroom and he realises he will be fully supporting him until he departs, in about 1 ½ months. It asked him about the connections the applicant has in India and he referred to his parents and daughter. He confirmed that when or if the applicant is released he will fully support him.

6. The Tribunal repeated a number of concerns raised as to whether he is genuine in his intention to depart and whether he will meet the conditions of his visa. He confirmed he will depart and will abide by all conditions.

7. He said he had provided all the evidence and that he was happy with the telephone hearing and understood the interpreter.

   Assessment of the evidence

8. 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

9. In this case, the applicant is seeking to meet cl.050.212(2) The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

   Acceptable arrangements to depart Australia

10. 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]).

11. Whether an applicant is making acceptable arrangements to depart Australia is a question of fact for the decision maker, with an element of discretion or judgment lying at the heart of it.[1]It is appropriate to consider what the person has done to date.[2] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[3]

    [1] Chen v MIMIA [2001] FCA 285 (Carr J, 20 March 2001) at [21]; Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [21].

    [2] The making of arrangements can be seen as a continuing process and it would make no sense to assess whether at a particular time the person was making acceptable arrangements, without considering what, if any, arrangements had already been made and what further arrangements remained to be made: Chen v MIMIA [2001] FCA 285 (Carr J, 20 March 2001) at [11]; Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [11].

    [3] Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [30].

12. While the Tribunal has some concerns as to whether the applicant is genuine in his intention to depart including that he has not sought assistance from Australia Border Force by signing the form for them to assist in his departure and he has been in detention since April 2020 and not indicated any wish to depart; it accepts his family has bought and paid for a ticket for him to return to India on 25 November 2021, he has strong family connections in India, including his daughter and there is evidence his mother is not well. On the evidence before it, the Tribunal accepts that the applicant meets cl.050.212(2) because the applicant is making, or is the subject of, acceptable arrangements to depart Australia.  

    Whether the applicant will abide by conditions - cl.050.223

13. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, he will abide by any conditions imposed on it. Conditions that may be imposed on the 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.

14. 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].

15. If the Tribunal is satisfied 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 the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

16. Certain conditions may be imposed on a Bridging E visa. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·81010 – the holder must not work in Australia

    ·8401 - the holder must report at a time or times, at a place specified by the Minister.

    ·8506 – the holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    ·8564 - holder must not engage in criminal conduct.

17. On the evidence before it the Tribunal is not concerned that the applicant will not comply with conditions 8101, 8401 and 8506. However, for the following reasons, it remains concerned that the applicant may not comply with condition 8564.

18. In this case the delegate was not satisfied the applicant would comply with condition 8564.

19. The delegate noted the following as reasons for the refusal of the Bridging Visa E.

    As [the applicant] has been convicted to a Community Based Order for 10 months and has been convicted of breaching this order [in] 11/2019, I cannot be satisfied that [the applicant] will abide by Condition 8564 – Must not engage in criminal conduct were it to be imposed on this Bridging Visa E (WE050) and therefore refuse the application under 050.223.

20. The Tribunal notes that condition 8564 is not drafted to the effect that the applicant is an acceptable or remote risk of engaging in criminal conduct. The condition is absolute and the Tribunal must be satisfied that the applicant will not engage in criminal conduct. This requires a high degree of satisfaction.

21. It is not in contention that the applicant has repeatedly been charged with and committed crimes in Australia as outlined above at paragraph 9. The crimes relate to domestic violence against his wife and criminal damage in 2019. The evidence indicates he was given a Community Based Order and was subsequently convicted of breaching this order in November 2019. The applicant has accepted he committed the crimes and was convicted of breaching the Community Based Order.

22. The Tribunal views as of concern his past criminal behaviour associated with a disregard of a court order when he breached the Community Based Order. While the convictions are spent the Tribunal views his past behaviour as a risk that in the future he will breach condition 8564.

23. The applicant claims at that time when he committed these crimes he was depressed, drinking alcohol, and that he does not remember what happened when he breached the order and damaged a car. He noted at hearing that he no longer lives with his wife and they have not talked for 6 to 7 moths, that she lives in Melbourne and he will go and stay with his friend, [Mr A], who lives in Perth if he is granted the Bridging Visa E. He stated that he has not drunk any alcohol for almost 2 years and indicated he underwent counselling in the past. He referred to being in a better metal space. [Mr A] advised that he financially would support the applicant if the Bridging Visa E is granted.

24. The Tribunal accepts he has separated from his wife, not talked to her for many months and she is in Melbourne and he will have the support of [Mr A] while living in Perth. While it accepts he has not consumed alcohol for many months and not committed any crimes, the Tribunal is concerned that this is as a result of a lack of opportunity as he has been in detention for most of this time, since April 2020 to date. While it accepts he has attended counselling in the past, despite the claims by the applicant that he will abide by all of the conditions, based on his past criminal behaviour and the applicant’s contravention of a court order, which the Tribunal considers to be serious, the Tribunal cannot be satisfied that at this point in time he will not breach condition 8564.

25. The Tribunal acknowledges the support offered to the applicant by [Mr A]. However, the Tribunal has unresolved concerns that when past measures were put in place and he was given a Community Based Order he breached that order with disregard for the law. As discussed above, the question for the Tribunal is whether it can be satisfied the applicant will comply with the condition that he must not engage in further criminal conduct. The Tribunal has not achieved satisfaction. Consequent to these findings, the Tribunal is unable to be satisfied that the applicant will comply with condition 8564.

26. Having found that it is not satisfied the applicant will comply with condition 8564 which would be imposed on a Bridging E visa the Tribunal has considered whether the payment of a security would assist it to be satisfied that the applicant would abide by the conditions on the visa. The Tribunal explained to the applicant that it may not be satisfied that any amount of security would be sufficient to provide the incentive to abide by conditions imposed on a Bridging E visa.  No financial documentation has been provided to demonstrate the applicant’s or his family’s capacity to provide the security. Notwithstanding, having considered all of the evidence and circumstances in this case the Tribunal has concerns about whether the provision of a security bond would provide sufficient incentive for the applicant to abide by condition 8564, given his past criminal history, contravention of a court order and damage to property  . The Tribunal is not satisfied the payment of a security bond will provide the applicant with sufficient incentive to abide by the visa condition.

27. After consideration of this issue, the Tribunal is not satisfied that the applicant will abide by visa conditions, even with a security of any amount. It therefore finds that he does not meet cl.050.223.

28. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on a Bridging E visa if one is granted. The Tribunal finds that it is not satisfied he will abide by the conditions regardless of any security that may be imposed.

29. Therefore, the applicant does not meet cl.050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

30. 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

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

    Gabrielle Cullen
    Member