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

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.
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.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2111575 (Migration) [2021] AATA 4267
Case: [2021] AATA 4267
Decision Date: 9 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa made by the applicant, who had arrived in Australia in June 2018 as a dependent on his wife's student visa. The applicant had a history of domestic violence offences, for which he was convicted in October 2019 and sentenced to a Community Based Order. His student visa was subsequently cancelled on 24 February 2020, a decision affirmed by the Tribunal on 16 June 2020, with the Federal Circuit Court dismissing his application for judicial review on 26 November 2020. The applicant applied for a Bridging E visa on 26 August 2021, indicating arrangements to depart Australia, citing his mother's ill health and a desire to be with his daughter. The Tribunal affirmed the decision not to grant the applicant a Bridging E visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Bridging E (Class WE) visa, specifically concerning his intention to depart Australia and his compliance with visa conditions, particularly the condition that he must not engage in criminal conduct. The applicant sought to demonstrate his intention to depart by providing evidence of a flight booking and assurances of financial support from a friend. He also asserted his commitment to abide by all visa conditions, including reporting requirements and the prohibition of criminal activity, attributing his past behaviour to depression and alcohol consumption, from which he claimed to have abstained.

The Tribunal considered the applicant's criminal history, including multiple domestic violence offences and a breach of a Community Based Order, as well as the fact that his student visa had been cancelled due to these convictions. While acknowledging the applicant's stated intention to depart and his assurances of future compliance, the Tribunal was not satisfied that he would adhere to the conditions of the visa, particularly the requirement to not engage in criminal conduct. The Tribunal noted the seriousness of the offences and the applicant's prior breach of a Community Based Order. The Tribunal also noted that the applicant was not eligible for a Bridging (Protection visa applicant) visa, as he did not meet the criteria for that visa subclass. Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

On 6 September 2021 he made the following submissions:1. Background1) 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 Cancellation7) 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. Assessment10) 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 activity15) 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. Conclusion19) 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground to the review The applicant has provided to the Tribunal a copy of the delegate’s decision record. 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. On 26 August 2021 he applied for the WE 050 Bridging Visa E. 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 The evidence indicates he has committed family violence against his partner which the applicant confirmed at hearing. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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