2118261 (Migration)

[2021] AATA 5155

2118261 (Migration) [2021] AATA 5155 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2118261

MEMBER:Alison Murphy

DATE:13 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2021 at 8:55am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions of visa – criminal history – conviction, imprisonment and immigration detention – further criminal conduct unlikely – visa history – previous application for protection visa refused, associated bridging visa ceased and two periods as unlawful non-citizen – previous invalid partner and bridging visa applications – ticket booked for departure – partner and children nationals of third country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.617

CASE
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 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 November 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). Relevantly to this matter, the primary criteria include cl 050.223.

3. The decision to refuse to grant the visa was made on 1 December 2021 on the basis that the delegate was not satisfied the applicant would abide by the conditions placed on his visa. The applicant appeared before the Tribunal on 10 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A].

4. The applicant was represented in relation to the review by his registered migration agent.

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

   Background

6. The applicant is a [Age]-year-old male national of Tonga. The delegate’s decision records he most recently arrived in Australia [in] August 2011 as the holder of a tourist visa which allowed him to stay in Australia until 15 November 2011.

7. The applicant lodged an application for a protection visa on 3 July 2019 and was granted an associated bridging visa. When the application for a protection visa was refused on 11 June 2020, his bridging visa ceased on 16 July 2020 and the applicant again became an unlawful non-citizen.

8. The delegate’s decision indicates that on 10 December 2020 he was arrested and remanded in custody and [in] April 2021 he was convicted of 2 accounts of assault occasioning bodily harm, intentionally choking a person with recklessness, stalk/intimidate intent fear physical harm and destroy or damage property. He was imprisoned for a period of 1 year and 6 months with a non-parole period of 10 months.

9. On 6 October 2021 he was released from prison and subsequently located by Australian Border Force officers and detained pursuant to s 189 of the Act. He was transferred to [an] Immigration Detention Centre where he remains.

10. While in detention, he lodged an application for a partner visa which was found to be invalid. He lodged 2 bridging visa applications that were found to be invalid before lodging the application for the current visa on 29 November 2021.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the Tribunal is satisfied that the applicant will comply with conditions it considers appropriate to impose on the visa if a visa were to be granted.

    Whether the applicant will abide by conditions – cl 050.223

12. 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.

13. 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].

14. 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.

15. In this case, cl 050.617 applies and the delegate’s decision records that there are no mandatory conditions that must be applied to the visa granted. Clause 050.617 prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The delegate assessed that the following conditions should be applied:

    8101(NO WORK)

    The holder must not engage in work in Australia.

    8207(NO STUDY)

    The holder must not engage in any studies or training in Australia.

    8401(REPORT AT SPECIFIED TIME AND PLACE)

    The holder must report:

    (a)at a time or times; and

    (b)at a place or in a manner;

    specified by the Minister from time to time.

    8506(NOTIFY CHANGE OF ADDRESS)

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

    8564(NO CRIMINAL CONDUCT)

    The holder must not engage in criminal conduct.

    8512(LEAVE AUSTRALIA)

    The holder must leave Australia by the date specified by the Minister for the purpose.

16. The Tribunal concurs that each of the above conditions should be imposed on the visa in the circumstances of this case.

17. At hearing the applicant and [Ms A] gave evidence that the applicant intended to depart Australia on 1 January 2021 as they realised he had no pathway to remaining lawfully in Australia. They each gave evidence that he had been financially supported by [Ms A] and her family for the duration of their 10-year relationship and that she could and would continue to financially support him if he is granted a bridging visa.

18. The applicant told the Tribunal that he had a flight booked to Tonga where he would live with his parents in their home village. He and [Ms A] gave evidence that his criminal offending was a one-off incident that was out of character and [Ms A] gave evidence that the applicant had never been violent towards herself or their children. [Ms A] gave evidence that if granted the visa, the applicant would comply with all conditions and depart Australia as planned. In relation to a security, she indicated she could provide a security of $5,000 if a security was imposed. She said that she and the children were [Country 1] nationals who had lived their whole lives in Australia.

19. The Tribunal accepts the applicant has never studied in Australia and has no intention of undertaking studies and would not breach condition 8207. It further accepts that if granted the visa, the applicant would return to the home he shares with his partner, children and her family and they would financially support him as they have done in the past.

20. The Tribunal also accepts that the applicant is unlikely to breach condition 8564 by engaging in further criminal conduct. In making that assessment it notes that the charges of which he was convicted arose out of a single incident and that he has not previously been charged with any criminal offence in the 10 years he has been in Australia. Correspondence from the lawyers who appeared for him in court at sentencing confirm that he pleaded guilty to those offences and the magistrate accepted the applicant had no prior record, that he had taken steps to rehabilitate himself and that the offences were out of character.

21. However the Tribunal is not satisfied the applicant will comply with conditions 8401, 8506 and 8512. The primary reason for this is that while the applicant claims he intended to depart Australia on 1 January 2021, he has a very significant history of remaining unlawfully in Australia in the past. As noted in the delegate’s decision, the applicant did not depart Australia when his tourist visa expired on 15 November 2011, remaining unlawfully for almost 8 years until he was granted a bridging visa associated with his protection visa application.

22. After his protection visa application was refused and his associated bridging visa ceased, the applicant again remained unlawfully in Australia for a further 18 months before being remanded in custody in December 2020. The applicant’s poor compliance with the conditions of his earlier visas causes the Tribunal to consider he may again fail to comply with the conditions of his visa, in particular 8401 (report at a specified time and place), 8506 (notify change of address) and 8512 (depart Australia).

23. At hearing [Ms A] gave evidence that the applicant did not depart Australia at that time because he did not want to leave [Ms A] and their daughter. The Tribunal accepts that to be the case, but notes that [Ms A] and the applicant have since had another child and the applicant has even greater incentive to remain in Australia. As well the applicant’s partner and children are resident in Australia and are not Tongan nationals.

24. While the Tribunal understands the applicant and his family wish to spend Christmas and other family occasions together, it remains concerned that if granted a bridging visa and released into the community the applicant will again overstay his visa and fail to depart Australia as he has done in the past. The Tribunal has considered [Ms A]’s evidence that she could pay $5,000 by way of security, but is not satisfied that the applicant would abide by the conditions attached to the bridging visa even if a security in that amount was provided.

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

    DECISION

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

    Alison Murphy
    Member