2203267 (Migration)

[2022] AATA 1729

2203267 (Migration) [2022] AATA 1729 (15 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203267

MEMBER:David McCulloch

DATE:15 March 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 15 March 2022 at 11:34am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – extensive criminal history – was an unlawful non-citizen within the Australian community for a considerable period of time – providing untruthful information in the current Bridging visa application – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 109
Migration Regulations 1994, r 2.20; Schedule 2, cl 050.223; Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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 1 March 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 and the decision relating was made on 7 March 2022. The applicant appeared before the Tribunal on 14 March 2022 at 9.30 am to give evidence and present arguments.

4. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. 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 remotely, particularly given that the applicant was in detention. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant will abide by conditions that ought to be imposed on the visa.

   Immigration and criminal history

8. The decision of the delegate dated 7 March 2022 outlines the applicant’s immigration and criminal history as follows:

   Immigration history 

   You first arrived in Australia on [date] March 2010 as the holder of a Provisional Spouse (class UF) (subclass 309) visa which permitted you to remain in Australia until 17 November 2011. You were granted an onshore Provisional Spouse visa on 17 November 2011 which permitted you to further remain in Australia until 25 November 2016. 

   In 2014 you lodged two applications for Australian Citizenship of which one was deemed invalid and the other was refused.

   I note that you travelled in and out of Australia on multiple occasions since you first arrived in this country. While you were offshore, after your Spouse Visa ceased, you were granted a Resident Return (class BB) (subclass 155) visa on 8 December 2016. You have travelled in and out of Australia holding this visa and last entered on [date] July 2017. 

   On 26 August 2019 your Resident Return visa was cancelled under section 109 of the Act given you provided incorrect information in your application. As a result of the visa cancellation, you became an unlawful non-citizen (UNC). I note, at that time and within statutory timeframes, you did not seek merits review of the decision to cancel your visa.

   On 27 February 2020 you were convicted of 6 counts of “common assault (dv)-t2” and 2 counts of “assault occasioning actual bodily harm (dv)-t2” and were sentenced to 1 year and 8 months imprisonment.

   On [date] June 2020 you were located by Australian Border Force (ABF) officers following your release from criminal custody after serving the term of imprisonment. You were subsequently detained by ABF officers pursuant to section 189 (1) of the Act. You are currently being accommodated at the Villawood immigration Detention Centre (VIDC).  

   On 29 July 2020 you lodged an application for a Permanent Protection (class XA) (subclass 866) visa (PV). Your application for an associated Bridging E (class WE) (subclass WE-050) visa (BVE) was refused on 04 August 2020. You sought merits review of the refusal of your associated BVE application at the Administrative Appeals Tribunal (AAT) and the AAT affirmed the decision to refuse you a BVE on 17 August 2020. 

   On 03 September 2020 your PV application was refused. You lodged an application for merits review of this decision on 14 September 2020 however this was finalised on 28 October 2020 as no jurisdiction as the review timeframes were not met. On 16 December 2020 you lodged an application for Judicial Review (JR) of the AAT’s decision at the Federal Circuit Court (FCC). [In] May 2021 the JR matter was finalised in favour of the minister.

   On 28 January 2021 you lodged an application for a BVE, this application was determined to be invalid.

   On 02 February 2021 you lodged a valid application for a BVE. This BVE application was refused on 04 February 2021. On 05 February 2021 you sought review of the decision at the AAT and on 18 February 2021 the AAT affirmed the department’s decision to refuse your BVE application. 

   On 07 July 2021 you lodged a valid application for a BVE. This BVE application was refused on 12 July 2021. On 12 July 2021 you sought review of the decision at the AAT and on 21 July 2021 the AAT affirmed the department’s decision to refuse your BVE application. 

   On 18 August 2021 you lodged an application for a BVE, this application was determined to be invalid on 19 August 2021. 

   On 27 September 2021 you lodged an application for merits review with the AAT of the decision made to cancel your Resident Return visa on 26 August 2019. This matter remains ongoing.

   On 28 September 2021 you lodged an online application for a BVE. This BVE application was refused on 05 October 2021. On the same day you sought review of the decision at the AAT and on 12 October 2021 the AAT remitted the decision with direction. On 12 October 2021 your BVE application was refused by the department and you further sought review of the decision at the AAT. 

   On 13 October 2021 you lodged a further appeal for Judicial Review (JR) of the AAT’s decision to the Federal Court (FC). On 15 December 2021 the minister withdrew JR proceedings in relation this matter. 

   On 26 October 2021 the AAT affirmed the department’s decision to refuse your BVE application. 

   On 05 December 2021 you lodged an online application for a BVE. This BVE application was refused on 08 December 2021. On 08 December 2021 you sought review of the decision at the AAT and on 16 December 2021 the AAT affirmed the department’s decision to refuse your BVE application. 

   On 16 January 2022 you lodged an online application for a BVE. This BVE application was refused on 18 January 2022. On 20 January 2022 you sought review of the decision at the AAT and on 31 January 2022 the AAT affirmed the department’s decision to refuse your BVE application. 

   On 28 February 2022 you lodged an online application for BVE. This application was invalid as your application for BVE was previously refused on 16 January 2022 and this application fell within the 30 days’ time limit of making further application for BVE.

   On 01 March 2022 you lodged an online application for a BVE and the Detention Review Officer was informed about the lodgement of the application on 03 March 2022 as required under Item 1305(3)(c) of the Migration Regulations. It is this BVE application that is currently under assessment.

   …

   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] 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 on 23 June 2019 with a non-parole period of 1 year.

9. In advance of the hearing the Tribunal wrote to the applicant attaching this information and requesting that he either write to the Tribunal in advance of the hearing or articulate at the hearing if he disagrees with any of his outlined history.

10. In the hearing, the applicant confirmed that he received this correspondence and that he reads basic English and that he does not take issue with any of the information indicated as to his circumstances.

    Whether the applicant will abide by conditions – cl 050.223

11. 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.

12. 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].

13. 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.

14. In this case, cl 050.223 applies. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case, similarly to those imposed in the delegate’s decision:

    ·8401 (Report as directed)

    ·8207 (No study)

    ·8506 (Notify change of address)

    ·8564 (Not engage in criminal conduct)

15. In the hearing, the Tribunal put to the applicant that he had acknowledged his extensive criminal history as outlined in the delegate’s decision. The Tribunal put to the applicant, however, that in his current application for the Bridging visa he had declared that he had not been the subject of any criminal convictions. The Tribunal put to the applicant that this creates concerns for the Tribunal is to the applicant’s credibility and honesty. The applicant agreed that this was not correct but explained that he was affected by mental health issues and changed medication at the time of the application. The applicant also indicated that he had difficulties understanding the question asked.

16. In relation to the latter, the Tribunal indicated to the applicant that in his most recent to the current Bridging visa application he had disclosed some of his criminal history in response to the same question. This creates doubts for the Tribunal that the applicant would have been confused as to what the question was asking, given that he had previously clearly understood the question. The applicant responded that he was mentally affected as a result of different medication.

17. The Tribunal has credibility concerns with explanation.

18. The Tribunal put to the applicant that his relevant history outlined in the delegate’s decision indicates that he had allowed himself to be an unlawful non-citizen in Australia in the community from the cancellation of his Resident Return visa on 26 August 2019 until he was detained on [date] June 2020. The applicant did not seek to regularise his status until 29 July 2020 when he applied for a Protection visa and an associated Bridging visa.

19. The Tribunal put to the applicant that the combination of him allowing himself to be unlawful in the community for approximately 11 months, combined with his extensive criminal history, and him providing untruthful information in the current Bridging visa application as to his criminal history could make it very difficult to be satisfied that the applicant comply with conditions to maintain contact with the Department, i.e. notify change of address and report as directed. Given the applicant’s history there are concerns that the applicant would disappear into the community.

20. In response the applicant indicated that things for him have now changed. He was previously under a lot of stress and his mental health was not good. His health has improved. He has learned lessons from his past experiences. He has undertaken courses which have caused him to better appreciate respect for the law.

21. The Tribunal asked the applicant if these were also reasons that he claims he would abide by a condition not to engage in criminal conduct. The applicant’s extensive criminal history creates concerns that the applicant would abide by a condition not to engage in criminal conduct. The applicant indicated that his situation was now different and he was reformed for the reasons indicated.

22. When the Tribunal asked the applicant if there was anything else he wanted to say, he indicated that the government is not in a position to deport him to Afghanistan given the situation in that country, and the difficulties in Afghanistan would create problems for him on return.

23. The applicant indicates that he does not want to spend more time in detention.

24. The Tribunal considers all of the evidence. This is the seventh valid application by the applicant for a Bridging visa, all of which have been unsuccessful apart from one remitted application to the Department.

25. The totality of the evidence causes the Tribunal to form the view that there is a significant dishonesty, criminality and untruthfulness by the applicant. The Tribunal is not persuaded that the applicant in the current application for the Bridging visa was confused about the question as to whether he had been the subject of criminal convictions or that the confusion was because of mental health problems.

26. The dishonesty in this respect, combined with the applicant allowing himself to be an unlawful non-citizen in the community for approximately 11 months, together with the applicant’s extensive criminal history result in the Tribunal not being satisfied that the applicant would abide by any of the conditions that the Tribunal considers ought to be imposed on the applicant, apart from a condition not to study. In relation to the latter, there is no history of study by the applicant in Australia nor any indication of future intention to study.

27. The Tribunal is not persuaded that, if judicial review by the applicant is successful, the applicant will properly engage with the Department, including in terms of reporting as directed and notifying change of address. The extensive criminal history of the applicant results in the Tribunal not being satisfied that the applicant will abide by the condition not to engage in criminal conduct.

28. The applicant has provided no indication of an ability or willingness to provide any financial security to ensure compliance. The Tribunal is not satisfied on the evidence that any amount of security would ensure compliance with the conditions that ought to be imposed on the visa.

29. 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.

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

31. 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

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

    David McCulloch
    Member