2201181 (Migration)

2201181 (Migration) [2022] AATA 460 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2201181

MEMBER:Amanda Mendes Da Costa
DATE:8 February 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 8 February 2022 at 1.41pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – valid application for a substantive visa – complying with visa conditions – updating contact details and change of circumstances – not engaging in criminal conduct – applicant charged with criminal offences – preparations for legal proceedings – decision under review affirmed
LEGISLATION
Bail Act 1982 (WA)
Migration Act 1958, ss 5, 73, 116, 189, 359
Migration Regulations 1994, Schedule 2, cls 050.211-050.213, 050.221, 050.223, 050.224, 050.613, 051.211; Schedule 8, Condition 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

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).
The applicant applied for the visa on 25 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 Regulations1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212 which provides 17 separate criteria, each of which provides a ground for the grant of a Subclass 050 visa. The primary criteria for the grant of a Subclass 051 visa include cl.051.211 which provides five separate criteria, each of which provides a ground for the grant of the Subclass 051 visa.
The decision to refuse to grant the visa was made on 28 January 2022 on the basis that the delegate was not satisfied that the applicant met any of the criteria in cl.050.212 or in cl.050.211 for the grant of a Subclass 050 or Subclass 051 visa respectively.
The applicant appeared before the Tribunal on 4 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mother A], [Brother A], [Friend A] and [Employer A].
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Tribunal exercised its discretion to hold the hearing by video given the applicant is detained [in] Western Australia and the Tribunal Member is located in Melbourne. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has also taken into account that the applicant was prepared to participate in a video hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review and his migration agent participated in the hearing.
The applicant provided the Tribunal with the following documentation in support of his review application:
·Affidavit of applicant, (unsworn), dated 3 February 2022.
·Affidavit of [Friend A] (unsworn) dated January 2022.
·Affidavit of [Mother A], dated 29 January 2022.
·Written submission dated 3 February 2022.
·Applicant’s bail undertaking dated [in] January 2022.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues the Tribunal have to decide are:
·Whether the applicant is eligible to be granted a Bridging E visa.
·If the applicant is eligible to be granted a Bridging E visa, what conditions should be attached to the visa.
The grounds for seeking the visa – cl.050.212
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.
In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.
Whether the applicant continues to satisfy the time of application and time of decision criteria – cl.050.211 and cl.050.221
An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212. The Tribunal has already stated it is satisfied that the applicant meets the requirements of cl.050.212.
The Tribunal is also satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application, the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10, (11) or (17) as required by cl.050.211(2).
Clause 050.221 requires that an applicant for a Bridging E visa must continue to satisfy the criteria set out in cl.050.211 and cl.050.212 at the time of the Tribunal’s decision.
The Tribunal is satisfied that the applicant continues to satisfy the requirements of both clauses at the time of this decision as the applicant remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense, he has made an application for a substantive visa able to be granted in Australia, in this case a Subclass 866 protection visa and that application is yet to be determined.
The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and cl.50.212 and therefore meets cl.050.221.
Substantive visa application
Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.
The Tribunal is satisfied that the applicant meets the requirements of cl.050.213(3) as he has made a valid application for a substantive visa, being a XA-866 protection visa, which is of a kind that can be granted if the applicant is in Australia and that application is yet to be determined.
Accordingly, the applicant meets cl.050.212(3).
Reasons for the Delegate’s decision
The delegate of the Minister in their decision to refuse the applicant a Bridging E visa found that they was not satisfied that the applicant would comply with the conditions 8101, 8401, 8506 and 8564 if they were imposed on the visa. In making their decision, the delegate considered the information given by the applicant in an interview with Departmental staff on 27 January 2022. During that interview the applicant explained that he applied for a protection visa because the Islamic law in Pakistan prohibits a man from sexual activities before marriage and given the charges laid against him by the West Australian police, he is unable to return home.
The applicant told Departmental staff that prior to being placed in detention he worked as [an occupation 1] for several [businesses]. If granted the bridging visa, he will reside with his friend. The delegate noted in their decision that his friend will pay for the rent and his mother (in Pakistan) will pay for his legal fees. However, he did not provide any other evidence of how he will support himself without working in the community.
During the interview with Departmental staff the applicant stated that he had moved to his new address in Perth approximately a month prior to the interview. Departmental records do not indicate that the applicant attempted to update his contact details or regularise his immigration status. The applicant told Departmental staff that he was not aware that he was required to update the Department about changing his address and claimed that he didn’t know anything about the legality of immigration law.
The delegate did not accept this explanation and found that the onus was on bridging and temporary visa holders to update the Department about a change of address and other circumstances. Further, visa holders are informed about this when their visas are granted.
In determining that the applicant would not comply with the proposed conditions if they were imposed on the visa, the delegate took into account the following:
·the applicant’s migration history;
·the applicant’s failure to notify the Department of the cessation of his studies;
·the criminal charges brought against the applicant;
·although cl.050.224 does not apply to the applicant because an authorised officer has not required that a security be lodged, the imposition of a security bond would not provide a sufficient incentive to the applicant to abide by any visa conditions imposed.
Whether the applicant will abide by conditions – cl.050.223
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 in 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.
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 his/her unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2202) 70 ALD 289 at [15]-[16].
If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets 050.223. However, if the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
In this case, cl.050.613A applies because the applicant has made a valid application for a protection visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that conditions 8401, 8506 and 8564 are relevant to the applicant.
The Tribunal also explained to the applicant that condition [8101: The visa holder must not engage in work in Australia] is a mandatory condition place on the visa.
The Tribunal further informed the applicant:
·the Tribunal was reviewing the decision by the delegate of the Minister to refuse his application for a Bridging E visa;
·the delegate of the Minister had raised a concern that the applicant would not comply with the discretionary conditions [8401], [8506] and [8564], such that consideration of these conditions is an issue before the Tribunal, if the Tribunal considers the imposition of such conditions necessary;
·the Tribunal was satisfied the applicant had made a valid application for a Bridging E visa as he had made an application for a substantive visa that can be granted in Australia, being a protection visa, and that application had not yet been decided, which meets the requirements of cl.050.212(3) of Schedule 2 to the Regulations; and
·the Tribunal would consider whether the applicant would comply with any conditions the Tribunal considers reasonable to impose if the applicant were granted a Bridging E visa.
The applicant indicated that he understood the above matters as outlined to him, including the conditions which he would abide with if granted the visa.
Applicant’s history in Australia
The applicant was granted a TU-500 (offshore) Student visa on 23 May 2019. [In] June 2019 the applicant arrived in Australia on that visa. The applicant was enrolled in an ‘English for academic purposes’ course which he completed in November 2019 after 10 weeks of study. He then commenced studies for a [Degree 1] and completed the first semester, passing his exams. Both courses undertaken by the applicant were at [University 1] in Perth. Whilst he was undertaking his studies, the applicant worked on a part-time basis [in] a [business 1] owned by [Employer A].
The applicant also worked as [an occupation 1] for a [business 2] in Perth and worked in this role until 8 December 2021 when his TU-500 Student visa was cancelled by the Department.
On [a specified day in] June 2020 the applicant was arrested by Western Australian police and charged with the following offences:
·two charges of unlawful and indecent assault in circumstances of aggravation;
·aggravated sexual penetration without consent;
·two charges of unlawful and indecent assault; and
·three charges of sexual penetration without consent.
The applicant remained in custody until [a day in] August 2020 when he made a successful application for bail. He has pleaded not guilty to the charges and the proposed trial date is [in] December 2022.
The applicant’s current bail conditions include a surety to be comprised of a cash deposit payable into the registry at [Court 1], requiring him to:
·to reside at an address in [Suburb 1], Western Australia;
·surrender all passports held and not to apply for any other passport nor to attempt to leave the country or leave the country;
·not leave the State of Western Australia;
·not to engage in any employment [related to occupation 1];
·report to police every Saturday or if he is imprisoned on the first Saturday after his release from prison and on Saturday each week after that; and
·not to contact or attempt to contact the complainant.
On 15 November 2021 the applicant lodged an application for a XA-866 protection visa and on 17 November 2021 was granted a bridging visa in association with that application. In his application, the applicant advised the Department of the criminal charges.
On 8 December 2021 the Department cancelled the applicant’s TU-500 Student visa under s.116(1)(b) of the Act. This was on the basis that the applicant had not complied with a condition of his visa, being the requirements that he remained studying in Australia.
Departmental records indicate that the applicant did not advise it of the cessation of his studies or his change of address, prior to the cancellation of his TU-500 Student visa.
On [a day in] January 2022 the applicant was located by Departmental staff and detained under s.189(1) of the Act. The applicant has remained in immigration detention since that date.
Applicant’s oral evidence
The applicant’s oral evidence was consistent with the contents of his unsworn affidavit.
The applicant is aged [age] years and is a national of Pakistan, where he was born. His mother and [a sibling] live in Pakistan where his mother is [an occupation 2]. The applicant is a single man who has never married and has no children. He is not currently involved in an intimate relationship.
The applicant has no family in Australia. His mother and [a sibling] live in Pakistan whilst his father died in 2004. He came to Australia in order to get an education and to improve his career.
The Tribunal discussed with the applicant and his representative the criminal charges against the applicant. The Tribunal asked the applicant about the circumstances of the alleged offences (as described by the complainant) which led to the charges being laid. In this context the Tribunal explained that it understood that the applicant was pleading not guilty to the charges and that he had the right to refuse to answer any question which may tend to incriminate himself. In response, the applicant indicated that he understood this explanation and that his version of events was very different from that given by the complainant to the police. However, despite further questioning by the Tribunal, he did not provide any details of the case alleged against him.
Pursuant to s.359AA of the Act the Tribunal invited the applicant to comment on or respond to information which (subject to his comments/response) would be the reason or part of the reason for affirming the decision under review. That information was contained in a newspaper article in [a named] newspaper published [in] January 2021. That article concerned a report of a former [occupation 1] (with the complainant’s name) who had been accused of raping a woman in [business 2]. His bail had been varied in relation to his curfew.
The article further describes the man being initially denied bail because of the seriousness of the offences. He was later granted bail on strict conditions including being prohibited to work as [an occupation 1], reporting to police and adhering to a curfew. [In] January 2021 his bail was varied to extend his curfew.
The article describes the complaint made against the applicant, which alleges that the offences occurred on [the day in] June 2020 at 4.30am when the applicant was working as [an occupation 1]. The article goes on to say the complainant suddenly became very drowsy during the [service] and became unconscious by the time [deleted]. The applicant then drove the complainant to an isolated location where he sexually assaulted the woman and took indecent photographs and videos of her whilst she was unconscious. The applicant thought the sex was consensual and stated that the complainant “enjoyed” it.
Before inviting the applicant’s comments/response, the Tribunal advised that applicant that he could have additional time in which consider his answer. The applicant conceded that he was the person referred to in the article and it accurately described the allegations made against him by the complainant and alleged by the police and the variation of his bail conditions. However, he denied that he had had non-consensual sex with the complainant.
The applicant told the Tribunal that prior to being charged by police, he had been living with friends in a rental property. After being released from custody on bail in August 2020 he had returned to this property and approximately a month before being placed in immigration detention, he had moved into another rental property (in [Suburb 1]) with a friend. If his bridging visa were to be granted and he was released from detention, he intended to return to living with his friend, who is prepared to support him financially by paying the rent, utility bills and household expenses. His mother is also prepared to continue supporting him financially – approximately $1500 to $2000 per month. With this support he is able to comply with any condition attached to his bridging visa that refrain from work.

The applicant explained that whilst on bail he had complied with all of his bail conditions including the one that required him to report to a police station once a week. There had been no breach application by police and he had not been charged with any further criminal offences. The surety attached to his bail conditions was provided by a friend in Western Australia.
The applicant ceased his studies at [University 1] due to the trauma and stress associated with the criminal charges. He could not keep up his studies because of his mental condition and stress. He later enrolled in a [Vocational] course.
The applicant also explained that he had complied with the conditions of his student and bridging visas, including the reporting conditions. When the Tribunal questioned him about the delegate’s finding that he had not advised the Department about his change of address to [Suburb 1], the applicant said he didn’t realise that he was required to report this to the Department as he was already reporting to police and living at an address known to them. He had however, informed the Department of his telephone and email contact details.
The applicant told the Tribunal that if the Department had any concerns that he would not abide by the conditions of his visa it would not have granted him a bridging visa in conjunction with his protection application.
The applicant told the Tribunal that it was important for him to be granted the bridging visa because he needed to consult with his lawyer in preparing his defence for the trial in December. He explained that it would be very difficult to do this if he remained in detention. He said that the Department had taken away his “lawful liberty” to prepare for his trial outside detention, which is a breach of his human rights. I also denies his right to defend himself properly against the alleged criminal charges and to pursue his protection application.
The applicant is prepared to abide by any conditions attached to a bridging visa and in particular is prepared to abide by conditions which require him to refrain from study, work and criminal offending , to keep the Department informed of his address and to report to the Department as required.
Affidavit of [Mother A]
[Name] is the applicant’s mother and is [an occupation 2] by profession. She deposes that she will provide financial support to her son in the amount of AUD2000 per month to cover living and other expenses pending his criminal trial and determination of his protection visa application.
[Mother A] further asserts that her son has no criminal history and is a person of integrity and good character.
Oral evidence of [Mother A]
[Mother A] lives in Pakistan and gave evidence by video from that country. [Mother A] is employed by [a named employer] as [an occupation 2] and also has a private [related business]. He described the applicant as hardworking, punctual, honest and very innocent. She sent him to Australia for a good education and to further his career prospects.
[Mother A] explained that when she was advised about the allegations against the applicant she was shocked because he was “not like that at all”. She stated the applicant had never had much interaction with girls despite attending a co-educational school in Pakistan.
[Mother A] said that the applicant had never behaved in a violent or inappropriate manner with women and was a quiet and polite young man. She felt she could not “describe enough how good he is.”
[Mother A] confirmed that she had been providing financial support to her son in Australia, including paying his tuition fees and living expenses. She explained to the Tribunal that she was prepared to continue supporting the applicant if the bridging visa was granted and that he would not be forced to work because she would pay for his living and personal expenses pending the determination of his criminal matters and protection application
Oral evidence of [Brother A]
[Name] is the applicant’s brother and lives in Pakistan. He gave evidence by video from that country. [Brother A] told the Tribunal that the applicant was more like a friend than a brother to him. He described the applicant as a straightforward and honest person. [Brother A] was totally shocked and disbelieving when he was informed about the criminal charges against his brother because he was not the type of person to behave violently or in a sexually aggressive manner.
Oral evidence of [Friend A]
[Friend A’s] oral evidence was consistent with the contents of her affidavit. [Friend A] has been a friend of the applicant for approximately 18 months. They met at as students at [University 1] and had continued their friendship after the applicant ceased his studies in June 2020.
[Friend A] said that her friendship with the applicant was one of companionship and not a romantic one. She explained that she and the applicant had spent time together in fitness sessions, studying and going out for meals. [Friend A] has continued to provide emotional support to the applicant since he was charged by the police. She told the Tribunal that she had always felt safe and respected by the applicant and accordingly, could not imagine him behaving in the manner alleged by the police.
[Friend A] will continue to support the applicant whilst he is living in Australia, regardless of whether he remains in detention or is released in the community on a bridging visa.
Oral evidence of [Employer A]
[Employer A] is the owner of [several business 1s] in Perth. The applicant was employed [at] his [business 1] in the suburb [named], prior to being charged by police in June 2020. [Employer A] described the applicant as a very shy, clean, organised and respectful young man. He explained that the applicant was a diligent employee whose behaviour with other staff and customers was polite and appropriate. [Employer A] was shocked and surprised at the charges against the applicant as they were out of character for him. [Employer A] had never observed any behaviour in the applicant which indicated an aggressive or disrespectful attitude towards women.
[Employer A] told the Tribunal that he had accessed a publicly available social media site for the complainant (without naming her) and had formed a negative view about the complainant from her appearance and social media presence.
The Tribunal advised [Employer A] that it was not the role of the Tribunal to determine whether the applicant has committed the alleged offences and the appearance of the complainant was not a relevant consideration for the Tribunal in making its decision.
Applicant’s written and oral submissions
The applicant’s submissions may be summarised as follows:
·The applicant successfully completed his ‘English for academic purposes’ and the first semester of his [Degree 1] course at [University 1].
·The applicant has no criminal history in either Pakistan or Australia save for the criminal charges against him.
·The applicant has complied with the conditions of his bail and maintained his lawful visa until he was detained by the Department [in] January 2022.
·Departmental records show that the applicant updated his contact details (email, mobile and mailing address) with the Department.
·Apart from the outstanding criminal charges, the applicant is a person of good character. There is no adverse information on the Department’s file regarding the applicant’s character.
·The applicant advised the Department of his criminal charges in his protection application. If the Department had any concerns about the applicant’s credibility or him not abiding with conditions on his visa, or him being a risk to others, he could have been detained by the Department at that stage.
·In making its decision, the Tribunal should take into account the character testimonials from the applicant’s witnesses, the applicant’s good behaviour and his compliance with bail conditions.
The applicant referred the observations of Finkelstein J. in Vann v. MIMA[1] in which his Honour observed in relation to the Tribunal’s role in determining a bridging visa application:
… it is incorrect to characterise the Tribunal’s decisions as based solely on the ground that the applicants had breached Australia’s migration laws. The Tribunal’s approach was different from, and more precise than that. The Tribunal took into account matters such as 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 applicants had shown any contrition for their unlawful conduct. These matters are clearly relevant to the question whether the applicants would abide by conditions. They are relevant because they bear upon each applicant’s character, including his honesty and whether he can be relied upon. In the circumstances of these cases it was both necessary and appropriate for the Tribunal to form a view on these issues for the purpose of deciding whether the applicants satisfied the criterion of 050.223.
[1] [2002] FCA 197.
The applicant submitted that this Tribunal should adopt the approach taken by Finkelstein J. in determining this application.
Findings
The Tribunal notes that whether the applicant has committed any offences will have to be determined by the [specified court] and is not a matter for the Tribunal. However, the Tribunal acknowledges that the alleged offences against the applicant are extremely serious and that sexual crimes are of great concern to the community.
The Tribunal further notes that bail is granted in Western Australia to an accused person under the Bail Act 1982 (Western Australia) (the Bail Act). This Act regulates whether a person charged with an offence should be granted bail, with or without sureties or be remanded in custody. The provisions of the Bail Act weigh the importance of community safety taking into account of the presumption of innocence and the right to liberty. A judge or magistrate when deciding whether to grant bail is obliged to consider a number of factors, including the nature and seriousness of the offending, the strength of the prosecution case, the accused’s criminal history and the accused’s personal circumstances.
The Tribunal acknowledges that there is no evidence indicating that the applicant was non-compliant with his bail conditions in the seventeen months he was living in the community and before being placed in immigration detention.
The Tribunal has considered the applicant’s evidence that he has abided by his bail conditions and acknowledges that the consequences for the applicant were he to breach either the terms of his bail or any conditions attached to a Bridging E visa would be significant – he would be returned to prison or immigration detention.
However, the Tribunal does not accept that the applicant was unaware of his obligation to advise the Department of his change of address when he moved to [Suburb 1] a month before he was taken into immigration detention. The Tribunal is satisfied that the obligation to notify the Department of any change of address (together with other visa conditions) is explained to visa holders when their visas are granted. However, the Tribunal does accept that the applicant informed the Department of his criminal charges, in his protection visa application.
The Tribunal further accepts that there is no evidence of any prior criminal offending by the applicant, save for the current charges against him.
The Tribunal also notes that the applicant remained in Australia on his TU-500 Student visa after he ceased his studies in June 2020 but accepts that the conditions of his bail require him to remain in Australia pending his trial.
The Tribunal has taken into account the emotional and financial support available to the applicant from his mother in Pakistan and friends in Perth. It also acknowledges that it would be easier for the applicant to consult with this lawyer in preparing his defence to the criminal charges and his trial in December 2022. However, the Tribunal consider that he will still be able to prepare his defence whilst in immigration detention and his lawyer will be able to visit him there. The Tribunal does not accept that the applicant will be denied his human rights to a fair trial if he is required to prepare his defence whilst in detention.
The Tribunal does not attach any weight to the comments made by [Employer A] about the complainant, which as it explained to him, are not relevant to the Tribunal’s decision.
The applicant submits that if he is granted a Bridging E visa, there is a minimal risk of him engaging in future criminal conduct. Whilst the Tribunal accepts that the applicant is entitled to the presumption of innocence, it finds that the circumstances of the applicant’s offending (if proven) involve a predatory and violent sexual attack compounded by the exploitation of the complainant by the taking of photographs and videos of her whilst she was in a vulnerable position. The Tribunal is further concerned that there is no evidence before of any psychological evaluation of the applicant or of him receiving therapeutic assistance since charged by the police.
Given the seriousness of the alleged offences, the circumstances in which it is alleged they occurred and the lack of any explanation or context for the events between the applicant and the complainant on [the day in] June 2020 (save that the allegations are denied by the applicant), the Tribunal is not satisfied that he will comply with a condition that he refrain from engaging in criminal behaviour if the Bridging E visa is granted. In reaching this conclusion, the Tribunal acknowledges that there is no evidence of the applicant offending whilst on bail) but this is not sufficient to allay the Tribunal’s concerns about the applicant’s future conduct.
The Tribunal has considered Condition 8101 which is a mandatory condition. It further considers that Conditions 8401, 8506 and 8564 are relevant conditions to be considered in the context of the grant of a Bridging E visa to the applicant. Based on the above, the Tribunal makes the following findings in respect of the proposed conditions:
Condition 8101 – Must not work
[Mother A] is prepared to provide financial support to the applicant if his visa is granted and his friend is prepared to allow him to live rent-free. Accordingly, the Tribunal is satisfied that the applicant will comply with this condition.
Condition 8401 – Must report as directed
Although there is no evidence of the applicant failing to comply with the reporting condition of his bail conditions, the Tribunal considers that he has not been as conscientious in his attitude towards reporting his change of circumstances (including his change of address) to the Department. Although he previously provided his telephone number and email address to the Department the Tribunal considers that he was aware of his obligation to report his change of address to the Department, he did not do so. Accordingly, the Tribunal is not satisfied that he will comply with this condition.
Condition 8506 – Must notify change of address
Given the applicant’s failure to advise the Department of his change of address (as required) the Tribunal is not satisfied that he will comply with this condition.
Condition 8564 - Must not engage in criminal conduct
The Tribunal accepts that the applicant’s criminal charges are yet to be determined and that he has pleaded not guilty to them. The Tribunal further notes that there is no evidence before it that the applicant has any previous criminal convictions. However, given its findings (as set out in paragraphs 85 and 86 of this decision), the Tribunal is not satisfied that he will refrain from further offending.
Provision of Security
Whilst the Tribunal accepts that the applicant is in a position to provide a security, it is not satisfied in any event that the provision of security would secure the applicant’s compliance with conditions. This finding is based on the evidence before the Tribunal including evidence regarding the alleged offences against the applicant and its findings regarding his potential compliance with Conditions 8401, 8506 and 8564.
Conclusion
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by all of the conditions imposed on the visa if granted. 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.
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.

[2022] AATA 460

8 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice