2200648 (Migration)

[2022] AATA 1979

2200648 (Migration) [2022] AATA 1979 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2200648

MEMBER:Katie Malyon

DATE:27 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2022 at 2:34 pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – criminal history – Assault occasioning actual bodily harm – no remorse expressed – multiple pending charges – sexual intercourse without consent – released on bail – decision under review affirmed

LEGISLATION
Bail Act 2013 (NSW), ss 17, 19
Crimes Act 1900 (NSW), s 61I
Migration Act 1958 (Cth), ss 73, 74, 116, 189, 269, 359AA
Migration Regulations 1994 (Cth), rr 2.10A, 2.20, 4.07; Schedule 2, cls 050.223, 050.613A, 050.618, 051.211; Schedule 8, Condition 8564

CASES
Applicant VAAN of 2001 v MIMA [2002] FCA 197
Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant, Pakistani national [the applicant], a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. [The applicant] applied for the visa on 13 January 2022. At that time, Class WE contained 2 subclasses: Subclass 050 Bridging (General); and, Subclass 051 Bridging (Protection Visa Applicant). In the present case, [the applicant] is seeking to satisfy the criteria for the grant of a visa in either of these subclasses. Criteria for these visas are set out respectively in Part 050 and Part 051 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  

3. The decision to refuse to grant [the applicant] a Subclass 050 Bridging (General) visa was made on 17 January 2022 on the basis that he does not satisfy cl.050.223 of Schedule 2 to the Regulations because the delegate found that [the applicant] will not comply with visa conditions imposed including, relevantly, condition 8564 (Must not engage in criminal conduct). Further, the delegate felt that a security would not act as an incentive for [the applicant] to abide by the proposed visa conditions, in particular, condition 8564.

4. In relation to [the applicant]’s Subclass 051 Bridging (Protection Visa Applicant) visa, the delegate refused the application on the basis that [the applicant] does not satisfy the criteria in cl.051.211 of Schedule 2 to the Regulations because he is not an ‘eligible non-citizen’ of the kind set out in r.2.20(7), (8), (9), (10) or (11) of the Regulations.

5. Following lodgement of the review application, the Tribunal considered the information before it and was unable to make a decision favourable to [the applicant].  It invited him to attend a hearing notwithstanding his online review application form which indicated that he did not wish to attend a hearing.  [The applicant] accepted the Tribunal’s invitation and appeared before the Tribunal on 24 January 2022 via MS Teams video from [the Immigration Detention Centre] to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue

7. The issue in this case is whether the applicant will abide by any visa conditions imposed on a Subclass 050 Bridging (General) visa.   Alternatively, as the applicant has applied for a Protection visa, the issue is whether he is a relevant ‘eligible non-citizen’ such that the Tribunal should consider criteria for grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.  

   Background

8. [The applicant] is [age] years old.  As confirmed by Departmental records and his oral evidence at the hearing, [the applicant] arrived in Australia [in] July 2017 as the holder of a Student Subclass 500 visa to undertake a Bachelor of [Discipline 1] at [University 1].  He changed to study a Bachelor of [Discipline 2] at [Education Provider 1] in March 2018.  Since arriving in Australia, [the applicant] has left on 2 occasions only: for just over a month in August 2018 and then 2 weeks in late January / early February 2019. 

9. Whilst giving oral evidence during the hearing, [the applicant] accessed a copy of the delegate’s decision to refuse his Bridging E (Class WE) visa application on his mobile phone.  He confirmed the information set out in that decision accurately reflects both his immigration history and his criminal history in Australia.  [The applicant] also gave the Tribunal further details in relation to the 3 criminal charges set out in the delegate’s decision, 2 of which are still pending before the [Court].  The Tribunal has summarised below relevant aspects of [the applicant]’s background in this regard.

10. On 26 June 2019, [the applicant] pleaded guilty to the charge of Assault occasioning actual bodily harm - T2.  This involved an incident with another taxi driver in [named] Street, [Suburb 1] when both taxi drivers parked their vehicles in a bus lane, late one night.  After being found guilty by the court the Assault occasioning actual bodily harm - T2 charge was finalised without proceeding to conviction and [the applicant] was sentenced to a Conditional Release Order for a period of [number] months.  

11. [The applicant] confirmed that, as set out in the delegate’s decision, on 11 September 2019 he was remanded into criminal custody at [Suburb 2] and charged with Sexual intercourse without consent – SI.  This charge (Charge No. H7188XXXX) relates to an alleged incident on 29 June 2019 of having non-consensual sexual intercourse with a woman who had been a passenger in his taxi.  [The applicant] was granted bail by the NSW Police pending the matter coming before the court.  The bail conditions included that he must report to the police on a weekly basis.

12. On 25 September 2019 when, consistent with his bail condition he reported to the [Suburb 2] police, [the applicant] was arrested again and charged with Sexual intercourse without consent – SI in relation to his alleged conduct with another woman.  This charge (Charge No. H7216XXXX) relates to conduct on 25 April 2019 when he is alleged to have had non-consensual sexual intercourse in his taxi with a different woman passenger.  [The applicant] was taken into custody pending hearing of his 2 sexual offence charges.   

13. As noted in the delegate’s decision, when [the applicant]’s situation came to the attention of the Department, he was issued on 25 November 2019 with a Notice of Intention to Consider Cancellation (NOICC) of his Student Subclass 500 visa. The NOICC was issued to [the applicant] on the basis that it had come to the delegate’s attention that grounds existed for cancellation of his Student visa under s.116(1)(e)(i) of the Act because he had been charged by NSW Police with multiple counts of Sexual intercourse without consent - SI.  He confirmed he received the NOICC by mail whilst being held at [the] Correctional Centre.

14. [The applicant] responded to the NOICC on 9 December 2019. In brief, he acknowledged he has been charged with offences in relation to 2 women, submitted that the charges are based on false allegations, maintained his innocence as well as his intention to defend the charges and confirmed that he had not engaged in any violent behaviour: as such, he was confident that the court would find him not guilty of the alleged offences. On 19 December 2019, [the applicant]’s Student visa was cancelled under s.116(1)(e)(i) of the Act as it was determined that his continued presence in Australia may be a risk to the safety of a segment of the Australian community, namely women. [The applicant] did not seek review of the delegate’s decision to cancel his Student visa. As a result of the cancellation of [the applicant]’s Student visa, he became an unlawful non-citizen.

15. As at the date of the Tribunal’s hearing, [the applicant]’s multiple counts of Sexual intercourse without consent - SI are still currently before the court.  He is scheduled to appear at the [Court] in March 2022, with his trial due to begin in August 2022.  

16. On 18 November 2021, [the applicant] was granted bail and, upon his release from [a] Correctional Centre at [Suburb 3] on 24 November 2021, he was interviewed by Australian Border Force (ABF) officers as he was known to be an unlawful non-citizen following cancellation of his Student visa. Thereafter, [the applicant] was detained pursuant to s.189 of the Act and transferred to [location] for 14 days immigration quarantine before being transferred to [the immigration detention centre] where he remains. He has been in NSW Police custody or immigration detention since 25 September 2019.

17. [The applicant] lodged an application for a Bridging E visa on 6 December 2021.  However, that application was refused by the delegate on 9 December 2021.  He did seek merits review of this decision.

18. On 9 December 2021, [the applicant] lodged a valid application for a Protection visa which remains ongoing. His associated Bridging E visa application was deemed invalid as he was prevented by s.74 of the Act from making a valid application earlier than 30 days after his last Bridging E visa application was refused.

19. [The applicant] lodged another Bridging E visa application early on 13 January 2022. A Detention Review Officer appointed under r.2.10A(2) of the Regulations was notified about the lodgement of this application on the same day as required under Item 1305(3)(c) of the Regulations. [The applicant] was interviewed by the Detention Review Officer later the same day. This was the Bridging E visa application refused by the delegate on 17 January 2022 and which is the subject of this review application. Some of [the applicant]’s comments during the interview are included in the delegate’s decision. As noted above, [the applicant]’s Bridging E visa application was refused on the basis the delegate was not satisfied he will abide by visa conditions including condition 8564 (Must not engage in criminal conduct) and, further, that no amount of security would act as an incentive for [the applicant] to abide by the proposed visa conditions.

    Tribunal hearing

20. At the commencement of MS Teams video hearing on 24 January 2022, the Tribunal confirmed that it was reviewing the delegate’s decision made a week earlier on 17 January 2022 to refuse his Bridging E visa application ([reference number]) lodged on 13 January 2022.  The Tribunal clarified it was not reviewing the decision to refuse his earlier Bridging E visa application lodged on 6 January 2022 and nor was it reviewing the delegate’s decision to cancel his Student visa made on 19 December 2019.  [The applicant] acknowledged he understood the Tribunal’s comments: he had not lodged review applications in respect of these decisions.  The Tribunal also noted it was not appropriate to consider any aspects of his Protection visa application lodged 9 December 2021 as that application is still pending.  [The applicant] acknowledged the Tribunal’s comments in this regard. 

21. The Tribunal noted the delegate set out the conditions that would be imposed on his Bridging E visa if granted but was not satisfied [the applicant] will abide by visa condition 8564 (Must not engage in criminal conduct) and, further, that no amount of security would act as an incentive for [the applicant] to abide by the proposed visa conditions.  [The applicant] confirmed he understood the purpose of the hearing was to review the refusal of his Bridging E visa lodged 17 January 2022, not his other applications, and he confirmed that he had access to a copy of the delegate’s decision on his mobile phone.  He then opened the delegate’s decision letter on his phone. 

22. The Tribunal observed that it needed to clarify aspects of [the applicant]’s criminal history and his time in custody or detention in Australia. It noted the delegate’s decision sets out some details. Consistent with the provisions of s.359AA of the Act, the Tribunal put to [the applicant] the summary of his criminal history set out on p.4 of the delegate’s decision and outlined above at paras [10] – [16]. The Tribunal explained to [the applicant] that the information indicated he pleaded guilty to a charge of Assault occasioning actual bodily harm - T2 and, currently, has pending before the [Court] 2 counts of Sexual intercourse without consent – S1.  It observed this is a very serious crime, each of which carries a sentence of up to 14 years in jail consistent with s.61I (Sexual assault) of the Crimes Act 1900 (NSW). The Tribunal provided [the applicant] with an opportunity to comment on, or respond to, the information. He elected to do so at the hearing.

23. In relation to being found guilty of the crime of Assault occasioning actual bodily harm - T2, [the applicant] stated that, at the time, he was attending university and did not have the benefit of legal advice.  Someone told him that, if he pleaded not guilty but the court found him to be guilty, then the judge might sentence him to 6 - 8 months jail.  Alternatively, if he pleaded guilty, he might just have to pay a fine.  He said the circumstances involved another taxi driver, a friend of a friend, who was making a video of him having parked his taxi in the bus lane late one night in [named] Street, [Suburb 1].  [The applicant] told the guy to stop taking the video, they argued and then the other taxi driver punched him 3 - 4 times before [the applicant] hit him back.  [The applicant] said it was he who actually called the police, but the other taxi driver had more visible evidence of injuries.  In the end, [the applicant] said he pleaded guilty at the hearing on 26 June 2019, no conviction was recorded and he was given a ‘good behaviour bond’ and a fine of $165.  The Tribunal noted the delegate’s refusal decision states he was given a Correctional Release Order: it observed that such orders have replaced good behaviour bonds as a sentencing option in NSW since 24 September 2018.  [The applicant] acknowledged the Tribunal’s comment.  He expressed no remorse at being involved in this incident.

24. In relation to multiple pending charges of the crime of Sexual intercourse without consent – S1, [the applicant] acknowledged that the delegate’s decision confirms he insisted during his interview with the Detention Review Officer on 13 January 2022 that 2 of the former 4 charges have been dropped but there is no record of this on paper.  He told the Tribunal that he understands the Director of Public Prosecution had laid 4 charges against him.  The Tribunal confirmed his understanding of the charge numbers referred to above - Charge No. H7216XXXX and Charge No. H7188XXXX - relate to 2 separate allegations of his having non-consensual sexual intercourse with 2 different female passengers on 25 April 2019 and 29 June 2019 respectively.  [The applicant] said he had no evidence to provide to the Tribunal that the original 4 charges have now dropped to 2 charges. 

25. The Tribunal noted that these are very serious charges.  The second charge relates to an incident which is alleged to have occurred just 3 days after [the applicant] was given a Correctional Release Order and fine in relation to his guilty plea of assaulting another taxi driver.  [The applicant] responded that he is not guilty of the alleged sexual assault charges and is confident that he will be found not guilty.  He said the matters have been listed for hearing in August 2022: however, his criminal lawyer has advised that it could be even early to mid-2023 before the matters are finalised.

26. In relation to his arrests for the 2 sexual assault charges, [the applicant] said that, initially, when he was arrested in relation to Charge No. H7188XXXX (the Sexual intercourse without consent incident which is alleged to have occurred on 29 June 2019) he was given bail.  One of the conditions of his bail was that he report to the police.  [The applicant] said he did so as required and, then, when he reported to the police on 25 September 2019 he was arrested in relation to Charge No. H7216XXXX (the Sexual intercourse without consent incident which is alleged to have occurred on 25 April 2019).  He added the fact he did report to police as required by his bail condition indicates that he will comply with any visa conditions imposed on his Bridging E visa.

27. The Tribunal then discussed with [the applicant] some apparent inconsistencies in his evidence given at various interviews which raised doubts regarding the reliability of his evidence.  Some of these inconsistencies were resolved during the course of the hearing.  For completion, the Tribunal notes the following information appeared to raise some inconsistencies:

    1)the institution where he has been studying.  The Department’s PRISMS records and the delegate’s decision to cancel [the applicant]’s Student Visa confirm that he was originally enrolled in a Bachelor of [Discipline 1] at [University 1] and then changed to complete a Bachelor of [Discipline 2] at [Education Provider 1].  However, in an interview with a Detention Centre Officer on 25 November 2021 following arrival at [the immigration detention centre], [the applicant] is reported to have said he was half-way through a Bachelor of [Discipline 3] at [University 2]. 

    When the Tribunal put this inconsistency to [the applicant], he said the officer clearly got that wrong.  He clarified that he recalls being was asked where he was studying to which he replied at ‘a university in Sydney’.  He added that the Department has full records of where he has been studying and posited the question as to why he would lie about that to the Detention Centre Officer.  The Tribunal notes that the record of interview requires the officer to insert the name of the School/University.  However, [the applicant]’s explanation appears possible;

    2)the court considering his multiple counts of Sexual intercourse without consent – SI.  In his response to the Department’s NOICC, [the applicant] stated that his multiple Sexual intercourse without consent charges would be heard by the Supreme Court.  However, in other interviews he stated that the matters would be heard at the [District Court]. 

    [The applicant] clarified that he understands his charges will be heard at the [District Court] and that he made an error when referencing the Supreme Court as he is unfamiliar with the court structure in New South Wales.  The Tribunal accepts this explanation.  It notes in passing that the [District Court] hears more serious criminal cases (as well as appeals from lower courts and civil proceedings);

    3)the nature of his work in Australia.  In his interview with the ABF at [the] Correctional Centre on 24 November 2021, [the applicant] is reported as saying that he worked as a taxi driver with [company].  However, in his interview with the Detention Centre Officer on 25 November 2021 upon arriving at the [the immigration detention centre], he said that he worked with [Company 1] in [Suburb 4] as a Line Manager in 2018/19 and, prior to that, as a [Occupation 1] with [Company 2] in [Suburb 5]. 

    In response to this inconsistent information, [the applicant] said the officer at the [the immigration detention centre] was aware that he was a taxi driver and just asked him about what he did in addition to driving a taxi.  The Tribunal notes the form completed by the [the immigration detention centre] officer requires a [Yes] or [No] response to the question ‘Have you been working in Australia?’.  The officer has ticked Yes and then inserted details in a Table requiring information about the Year, Location, Employer details and Occupation.  The officer has inserted the details set out immediately above: there is no reference to [the applicant] being a taxi driver.  In the opinion of the Tribunal, had the officer been aware - as claimed by [the applicant] - of his work experience as a taxi driver these details would have been inserted by the officer and [the applicant] would have then been requested to provide the Year, Location and Employer details; and,

    4)the value of money paid as part bail conditions.  In his interview with the Detention Centre Officer on arrival at [the immigration detention centre] on 25 November 2021, [the applicant] told the officer that, in terms of his assets in Australia, he has $25,000 as a bail condition held by the court (and $600 in property).  However, as noted in the delegate’s decision, in his interview with a Detention Review Office following lodgement of his Bridging E visa application on 13 January 2022 he told the officer that he has provided funds of $10,000 for compliance with bail conditions. 

    [The applicant] clarified that the full amount is $25,000: it represents $15,000 paid when he was initially granted bail following being arrested and remanded into custody on 11 September 2019 and then a further $10,000 was paid on 18 November 2021 prior to his release from [the] Correctional Centre and his being located by the ABF.  The Tribunal accepts this clarification.

1. At the end of the hearing, [the applicant] asked if he could provide further documentation to the Tribunal before it finalised its decision. The Tribunal noted that r.4.07 of the Regulations requires that its decision must be made within 7 business days of the date of lodgement of the Bridging E visa application, that is, on or before 27 January 2022. Further, the Tribunal stated it would, of course, take into account any additional information provided by [the applicant]. He reiterated information provided to the Detention Review Officer on 13 January 2022 that he has $4,000 in a trust account in Pakistan. [The applicant] said this will go some way to provide evidence that he will comply with any conditions attached to the Bridging E visa he hopes the Tribunal will grant to him pending the Department’s consideration of his Protection visa application.

2. On 27 January 2022, [the applicant] provided the Tribunal with a copy of his [financial institution] Account Statement No. 8810XXXXX for the period 1 January to 26 January 2022 confirming he has a closing balance of $11,603.  A total of $11,500 was paid into his account by 8 different friends on 24 January and 25 January 2022.  In his covering email, [the applicant] notes that he has more money overseas (in Pakistan) but it will take 3 days for funds to appear in his Australian bank statement.

3. The Tribunal has considered below relevant provisions of the Act and the Regulations as they relate to [the applicant]’s application for a Bridging E (General) visa and his application for a Subclass 051 Bridging (Protection Visa Applicant) visa.

   Application for a Bridging E (General) visa – will the applicant abide by visa conditions: cl.050.223?

4. Clause 050.223 of Schedule 2 to the Regulations requires that the Tribunal is satisfied that, at the time of its decision, if the Bridging E visa is granted, the applicant will abide by any conditions imposed on the visa. Conditions that may, or must, be imposed on a Bridging E (General) Subclass 050 visa are provided for in Division 050.6 and are set out in full in Schedule 8 to the Regulations.

5. 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 an applicant will abide by conditions (if any) 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 [2002] FCA 197 (Vann) at [15] - [16].

6. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: Vaan at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a Bridging E visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: Vaan per Finklestein J at [21] - [22]; Liu v MIAC [2008] FMCA 725, Wilson FM at [33] and [37].

   Which visa conditions should be imposed?

7. In this case, cl.050.613A and cl.050.618 apply to the conditions to be imposed on a Bridging E (General) visa.   

8. Relevantly, cl.050.613A(1) applies because [the applicant] has applied for a Protection visa.  As a consequence, condition 8101 must be imposed: it is a mandatory requirement.  In addition, cl.050.613A(2) provides for the discretionary imposition of a number of additional conditions including, relevantly, conditions 8207, 8401 and 8506.  Further, cl.050.618 provides that in addition to any other condition being imposed, condition 8564 may be imposed. 

9. The Tribunal considers that, in the circumstances of this case, the following conditions should be imposed:

   8101 -  The holder must not engage in work in Australia.

   8207 -  The holder must not engage in any studies or training in Australia.

   8401 -  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 -The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

   8564 -The holder must not engage in criminal conduct.

10. In passing, the Tribunal notes these were the same conditions set to be imposed by the delegate.  The delegate made no findings in relation to conditions 8101, 8207, 8401 and 8506: rather, as noted above and as discussed with [the applicant] at the hearing, the delegate focused only on his criminal history and, therefore, condition 8564.

    Findings and reasons

11. The Tribunal has considered [the applicant]’s immigration history, his explanation for his past conduct and evidence provided at the hearing that he would abide by any conditions imposed on his Bridging E visa.

12. With regard to condition 8564, the Tribunal notes [the applicant] pleaded guilty to the offence of Assault occasioning actual bodily harm – T2.  He explained during the hearing that he was found guilty on 26 June 2019 by the court because he decided to plead guilty due his desire to have the matter finalised as quickly as possible.  Although it was not recorded as a conviction, [the applicant] was sentenced to a Conditional Release Order which he says he complied with.  Following his arrest on 11 September 2019 and being charged with the offence of Sexual intercourse without consent – S1 (Charge No. H7188XXX in relation to an alleged incident with Victim 2 on 29 June 2019) he was released on bail, a condition of which included payment of $10,000.  He confirms that he complied with the bail obligation to report to the police which is why, 2 weeks later on 25 September 2019, he was arrested and charged with the offence of Sexual intercourse without consent – S1 (Charge No. H7216XXXX in relation to an alleged incident with Victim 1 on 25 April 2019). 

13. The Tribunal is of the view that the mere fact that [the applicant] was charged and found to be guilty of Assault occasioning actual bodily harm demonstrates that he may pose a risk, albeit it remote, to the community.  He expressed no remorse about his involvement in this incident.  However, this is in addition to the now more very serious 2 sexual assault charges he is currently facing.

14. The Tribunal accepts that sexual assault is a crime of violence and as such, cannot be taken lightly under any circumstances.  [The applicant] has been charged with not one, but 2, such serious offences arising from complaints to police from 2 different women about incidents which allegedly occurred late at night on 25 April 2019 and 29 June 2019.  The second such complaint is alleged to have occurred just 3 days after [the applicant] was found guilty of assault and issued with a Correctional Release Order.  The Tribunal acknowledges that [the applicant] is pleading not guilty to the multiple sexual assault charges he is facing, as is his right.  It accepts that whether he is guilty or not guilty is entirely a matter yet be determined by a District Court jury.  The Tribunal also accepts [the applicant]’s oral submission at the hearing that he has a right to treated as innocent until proved guilty. 

15. In addition, the Tribunal acknowledges that [the applicant] was released on bail following his initial arrest on 11 September 2019 in relation to Charge No. H7188XXXX Sexual intercourse without consent with Victim 2.  The decision to release [the applicant] on bail would have involved consideration of the relevant provisions of the Bail Act 2013 (NSW) (the Bail Act). In the Bail Act, an assessment of any ‘bail concerns’ must be made by the police before deciding to grant an accused person bail: s.17(1) of the Bail Act. The term ‘bail concern’ is defined as a concern that, if the accused person is released on bail, the accused would (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims or the community, or (d) interfere with witnesses or evidence. The Bail Act also requires that bail be refused to any person who is an ‘unacceptable risk’ of failing to appear at any proceedings for the offence, or committing a serious offence, or endangering the safety of victims or the community, or interfering with witnesses or evidence: s.19 of the Act. The Tribunal accepts that, following his subsequent arrest on 25 September 2019 in relation to Charge No. H7216XXXX Sexual intercourse without consent with Victim 1, [the applicant] was remanded into custody by the NSW Police.  Clearly, it had been determined that [the applicant] was an ‘unacceptable risk’ of doing any of the things which may give rise to a ‘bail concern’.

16. It is not the case that the Tribunal is constrained by concepts of ‘unacceptable risk’ or ‘an acceptable risk’ when determining whether an applicant will engage in criminal conduct for the purposes of considering whether the applicant will comply with condition 8564.  The Tribunal needs to be satisfied that [the applicant] will not engage in criminal conduct as the holder of a Bridging E visa. This is a very high bar.  In the Tribunal’s view, the very serious nature of the 2 offences of Sexual intercourse without consent allegedly committed against female passengers on 25 April 2019 and then again on 29 June 2019 together with [the applicant]’s earlier pleading guilty on 26 June 2019 to having assaulted another taxi driver, leave the Tribunal unsatisfied that [the applicant] will not engage in criminal conduct if he is released from immigration detention on a Bridging E visa.

17. Given the Tribunal is not satisfied that [the applicant] will not comply with condition 8645, the Tribunal has not considered whether he will comply with conditions 8101, 8207, 8401 and 8506.  Accordingly, it makes no findings in relation to whether [the applicant] will comply with these conditions.

    Will the applicant comply with conditions if a security is taken?

18. The Tribunal acknowledges receipt of [the applicant]’s bank statements confirming that 8 different friends have provided him with $11,500 on 24 January and 25 January 2022.  However, the Tribunal is not satisfied that [the applicant] will comply with condition 8645.  In the Tribunal’s view, no security, even the not insignificant funds loaned by his friends, would act as an incentive for [the applicant] to comply with proposed conditions.

    Conclusion

19. On the evidence before it, the Tribunal is not satisfied that [the applicant] will abide by conditions imposed on a Bridging E (General) visa if granted. Therefore, he does not meet cl.050.223 of Schedule 2 to the Regulations.

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

    Application for a Subclass 051 Bridging (Protection Visa Applicant) visa

21. [The applicant]’s visa application lodged 13 January 2022 is also an application for a Subclass 051 Bridging (Protection Visa Applicant) visa.  

22. The Tribunal finds that [the applicant] is not an ‘eligible non-citizen’ as set out in r.2.20(7), (8), (9), (10) or (11) of the Regulations as required by cl.051.211 of Schedule 2 to the Regulations. Accordingly, he does not meet the requirements for the grant of a Subclass 051 Bridging (Protection Visa Applicant) visa.

    DECISION

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

    Katie Malyon

    
    Member