2200808 (Migration)

[2022] AATA 280

2200808 (Migration) [2022] AATA 280 (31 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2200808

MEMBER:Alison Murphy

DATE:31 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2022 at 8:21am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – applicant convicted of offences – applicant’s immigration history – awaiting the outcome of judicial review – outstanding debt to the Australian government – arrangements for accommodation and living expenses – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cl 050.223; Schedule 8, Conditions 8401, 8506, 8564

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 16 January 2022. 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 18 January 2022 on the basis that the delegate was not satisfied the applicant would comply with the conditions of the visa, if a visa were to be granted.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

   Background

5. The applicant is [an age]-year-old male national of Afghanistan. He first arrived in Australia [in] March 2010 as the holder of a spouse visa. He was later granted a resident return visa which was cancelled on 26 August 2019. A review of the decision to cancel that visa is currently before this Tribunal (differently constituted).

6. In July 2020 the applicant applied for a visa, which was refused by the Department on 4 August 2020. On 27 October 2020 this Tribunal (differently constituted) found it had no jurisdiction to review the decision to refuse to grant the protection visa and at the time of this review that matter is before the Federal Circuit and Family Court of Australia.

7. In his bridging visa application, the applicant states that he was convicted of traffic and driving offences in 2016 and common assault in 2018. The delegate’s decision indicates these convictions form only part of the applicant’s criminal offending, which is recorded as follows:

   In 2010 and 2013 you were charged and convicted for common assault and assault occasioning actual bodily harm, for which you were sentenced to a 400 hours Community Service Order and directed to pay a fine. You also were convicted with multiple driving offences in 2014, 2016 and again in 2017 resulting in suspension of your licence, multiple fines and a direction to participate in a six month Alcohol Educational Program. [In] February 2020 you were convicted of six counts of common Assault (DV) and two counts of assault occasioning actual bodily harm (DV)-T2 and sentenced to 1 year and 8 months imprisonment, commencing [in] June 2019 with a non-parole period of 1 year.

8. [In] June 2020 the applicant was released from prison and detained in immigration detention pursuant to s 189 of the Act. He is currently being held in [a named] Detention Centre.

9. Since being in detention, he has made a number of applications for a bridging visa. The current application was made on 16 January 2022.

10. The review was listed for a hearing by video conference on 28 January 20211 at 10:30am. The applicant did not attend the hearing and shortly after the scheduled commencement time the Tribunal was advised by an officer at the [detention] centre that the applicant had declined to attend the hearing when asked.

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

    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. The delegate’s decision indicates that there are no mandatory conditions and it was considered that the following conditions should be imposed in the circumstances of this case:

    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.

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

17. The information available to the Tribunal does not suggest the applicant has studied in Australia in the past, nor that he has any intention to do so in the future. Consequently the Tribunal has no reason to consider the applicant will not comply with condition 8207.

18. However the Tribunal is not satisfied the applicant will comply with conditions 8401, 8506 and 8564.

19. Firstly, the applicant has declined the opportunity to attend the Tribunal hearing and provide evidence about his intentions if the visa is granted and he is released from immigration detention. He has provided only the briefest information about his circumstances in his bridging visa, including that he is divorced, that there are no members of his family unit included in the application and that he is awaiting the outcome of judicial review in relation to his protection visa application and merits review at this Tribunal in relation to the cancellation of his resident return visa. He also states that he has been convicted of traffic, driving offences and assault in the context of domestic violence and has an outstanding debt to the Australian government which is subject to recovery action.

20. Relevantly there is no information before the Tribunal as to where the applicant will live should he be granted the visa, any arrangements he has made for accommodation or how he will fund his living expenses. He does not suggest that he has any intention of returning to Afghanistan voluntarily and his application for a protection visa would appear to indicate that he does not. He has provided no information as to his plans if the cancellation of his resident return visa is not revoked and he is not granted a protection visa. In these circumstances the Tribunal is not satisfied the applicant will abide by conditions requiring him to report to the Department or notify it of any change of address. It follows that the Tribunal is not satisfied he will abide by the terms of conditions 8401 or 8506.

21. Secondly, the material before the Tribunal indicates the applicant has a significant history of criminal offending in Australia between 2010 and 2019 including multiple charges of assault, assault occasioning actual bodily harm and traffic and driving offences for which he has been sentenced to fines, a community service order and imprisonment of 1 year and 8 months. In these circumstances the Tribunal is not satisfied the applicant will not engage in further criminal conduct should he be granted the visa and it follows that the Tribunal is not satisfied he will abide by the terms of condition 8564.

22. It is not suggested the applicant has any capacity to provide a security sufficient to satisfy the Tribunal that the applicant would abide by the conditions attached to the bridging visa.

23. 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.

    CONCLUSIONS

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

25. 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

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

    Alison Murphy
    Member