2204575 (Migration)

[2022] AATA 5190

2204575 (Migration) [2022] AATA 5190 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204575

MEMBER:Nathan Goetz

DATE:1 August 2022

PLACE OF DECISION:  Sydney

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

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review application that information that would identify the applicant or the victim must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material is not published because it may breach restrictions on publication of the kind in family violence legislation.

The Tribunal is satisfied it is in the public interest that this material is not published because. it would unreasonably reveal information about the applicant’s protection visa application (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 01 August 2022 at 10:57am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – requirement to obtain, or make arrangements to obtain, a passport – willingness to report to the Department – criminal history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.613A, 050.618, 051.211; Schedule 8, Conditions 8401, 8506, 8519, 8564

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 sections 378 and 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. On 15 November 2021 the applicant applied for the Bridging E visa that is the subject of the review application. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the subclasses are contained in Part 050 and Part 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. On 21 March 2022 the delegate refused to grant the Bridging E visa on the basis that the applicant did not satisfy cl 050.223 or cl 051.221.

4. On 29 March 2022 the applicant applied to the Tribunal for review of the decision to refuse to grant the Bridging E visa.

5. On 1 July 2022 the Tribunal wrote to the applicant under s 360(1) of the Act to invite him to appear at a Tribunal hearing scheduled for 10:00am on 29 July 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal did not consider that it should decide the review application in the applicant’s favour on the basis of the material it had.

6. On 29 July 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal determined that a telephone hearing was appropriate in all the circumstances.

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

   THE RELEVANT CRITERIA FOR THE GRANT OF THE BRIDGING E (CLASS WE) VISA

   Whether the applicant will abide by conditions - cl 050.223

8. 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.

9. 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].

10. 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.

11. The applicable conditions which may attach to the Bridging E visa is governed by the basis upon which the applicant satisfies the grounds for seeking the Bridging E visa. The circumstances of the applicant mean that he satisfies cl 050.212(3)(a) as he ‘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.’ This is because the applicant applied for a Safe haven enterprise visa that has not been finally determined.

12. The delegate wrote in the decision record that the discretionary conditions that the delegate would impose on the bridging visa if granted are conditions 8401, 8506, 8510 and 8564. Regrettably, the delegate did not identify the basis upon which those conditions could be imposed, meaning the Tribunal needed to go through all of cl 050.6 to find out the basis upon which any conditions could be imposed.

13. A ‘protection visa’ is defined under s 35A of the Act to include a ‘Safe haven enterprise visa.’ Clauses 050.613A and 050.614 are the only clauses that refer to this type of visa. Clause 050.613A applies where an applicant applies for a protection visa and is not in a class of persons specified by the Minister by instrument in writing for this paragraph. Legislative Instrument IMMI 15/026 has been provided for this purpose and applies to any person granted a Bridging E (Class WE) visa (subclass 050 or 051) under section 195A of the Migration Act 1958 (the Act). Section 195A applies where the applicant is in immigration detention.

14. The applicant is not in immigration detention. Therefore, he is not in a class of persons provided for the purpose of 050.613A. As he has applied for a protection visa, cl 050.613A applies, which governs the conditions which may be imposed on the Bridging E (Class WE) visa.

15. Regrettably, this appears to have been overlooked by the delegate, because cl 050.613A requires that Condition 8101 must be imposed on the bridging visa (unless Condition 8116 is imposed) in addition to any of Conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 that may be imposed. The Tribunal notes that the delegate decision record does not indicate that Condition 8101 needed to be imposed, and no assessment was made about whether the applicant would comply with that particular condition.

16. Additionally, cl 050.618 applies and allows Condition 8664 to be imposed because this clause allows that condition to be imposed in addition to any condition imposed by any other clause.

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

    8401The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified by the Minister from time to time. The Tribunal is satisfied that this condition should be imposed because it is reasonable to expect that a non-citizen report to the Department to ensure the orderly management of that non-citizen in Australia.

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. The Tribunal is satisfied that this condition should be imposed because it is reasonable to expect that the Department be informed of where a non-citizen is living in Australia to ensure the orderly management of that non-citizen in Australia.

    8510Within the time specified by the Minister for the purpose, the holder must, either: (a) show an officer a passport that is in force; or (b) make an arrangement satisfactory to the Minister to obtain a passport. The Tribunal is satisfied that this condition should be imposed because it is reasonable to expect that a non-citizen possess a passport of their home country to ensure the non-citizen can be removed to their home country by the Department if required.

    8564The holder must not engage in criminal conduct. The Tribunal is satisfied that this condition is appropriate because it is reasonable to expect non-citizens do not commit crimes in Australia.

18. The Tribunal conducted the Tribunal hearing on the basis that the only applicable conditions were those detailed in the delegate decision record. The Tribunal did not discuss the issue of whether the applicant would satisfy Condition 8101 at the Tribunal hearing because the Tribunal was not alerted to the fact that it must impose that condition (unless Condition 8116 was imposed) in the delegate decision record. If the Tribunal was satisfied that the applicant would abide by Conditions 8401, 8506, 8510 and 8564, the Tribunal would have held another Tribunal hearing to discuss with the applicant whether he would abide by Condition 8101.

19. Having considered whether the applicant would abide by conditions, the Tribunal was not satisfied that the applicant would abide by Conditions 8401, 8506, 8501 and 8564. This meant there was no need to hold another Tribunal hearing to consider whether the applicant would abide by Condition 8101.

    Whether the applicant is an eligible non-citizen – cl 051.211

20. To satisfy this clause, the applicant must be an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11) at the time he applied for the Bridging E visa and at a time a decision is made on the Bridging E visa application.

    CONSIDERATION

    Who is the applicant and what is his migration history?

21. The applicant identifies as [age]-year-old male citizen of Sri Lanka presently located in Australia. [In] July 2012 the applicant arrived in Australia unlawfully by boat. On 23 October 2012 the applicant was granted a Bridging E visa which ceased on 4 December 2012.

22. On 29 January 2013 the applicant was granted a Bridging E visa which ceased on 18 January 2016.

23. On 18 January 2016 the applicant was granted a Temporary protection visa. On 19 February 2021 a delegate commenced cancelling the applicant’s Temporary protection visa. On 7 October 2021 the temporary protection visa was cancelled under s 116 of the Act. The applicant became an unlawful non-citizen which he remains to date. On 14 October 2021 the applicant applied to the Tribunal for review of the decision to cancel the temporary protection visa. On 21 March 2022 the Tribunal affirmed the decision to cancel the temporary protection visa in AA case 2114224.

24. On 6 December 2018 the applicant applied for a Safe haven enterprise visa. Records indicate that no decision has been made by a delegate to grant or refuse that visa to date.

25. At the Tribunal hearing, the applicant identified that he had his mother, father, [number] older sisters, [number] younger sisters and [number] younger brother in Sri Lanka. He identified that he had a wife and [number] children in Australia.

26. In response to a written request by the Tribunal, the applicant provided his residential address in Australia as follows:

    ·November 2012 to June 2013: [Address 1]

    ·June 2013 to November 2016: [Address 2]

    ·November 2016 to April 2018: [Address 3]

    ·April 2018 to June 2022: [Address 4]

    ·July 2022 to date: [Address 5].

27. The applicant provided an electricity account, tenant ledger and rental agreement for the [Address 3] address.

28. In response to a written request by the Tribunal, the applicant provided his employment history in Australia as follows:

    ·2013 to 2014: [Employer 1], [address] as a [Occupation 1]

    ·2015 to 2018: [Employer 2], [address] as a [Occupation 2]

    ·2018 – 2019: [Employer 3], [address] as a [Occupation 2]

    ·2019 to 2020: Self-employed as an [Occupation 3]

    ·2020 to 2021: Unemployed

    ·2021 to 2022: [Employer 4], [address] role unidentified.

29. The applicant provided a letter dated 12 October 2021 from [Employer 4] which confirmed employment at that organisation to date which noted his qualities as an employee.

30. At the Tribunal hearing, the applicant told the Tribunal that he had made some mistakes but had corrected his behaviour and was living with his family in Australia. He said he needed a Bridging E visa to regularise his status so he could remain in Australia, which the Tribunal understands to mean regularising his migration status pending his application for the Safe haven enterprise visa.

    Did the applicant understand and agree to abide by the conditions to which the Bridging E visa would be subject?

31. At the start of the Tribunal hearing, the Tribunal indicated that it was considering imposing Conditions 8401, 8506, 8519 and 8564 on the Bridging E visa if it was granted. The Tribunal went through what those conditions required of the applicant. The applicant said that he understood those conditions and initially agreed to abide by them. However, during the Tribunal hearing, the applicant specifically told the Tribunal that he would not abide by Conditions 8401 and 8510.

    The issue arising concerning the requirement to obtain, or make arrangements to obtain, a Sri Lankan passport

32. The applicant told the Tribunal that he previously held one a Sri Lankan passport, but it was now expired. He believed that he obtained this passport in either 2006 or 2007 and that it was valid for 5 years. He told the Tribunal that he had not taken any steps to obtain a new Sri Lankan passport because there was no need for him to do so.

33. The Tribunal pointed out that the delegate was considering a condition that required him to do so in order to be granted the bridging visa, and that the applicant had an interview with the delegate in February 2022 about the conditions. Given the applicant had not done anything to obtain a Sri Lankan passport after the delegate interview in February 2022, the Tribunal put to the applicant that this would suggest that the applicant would not take steps to obtain a Sri Lankan passport. This would mean that he would fail to satisfy Condition 8510. The applicant told the Tribunal that he could not obtain a Sri Lankan passport because he had problems in that country.

34. The Tribunal pointed out to the applicant that he had previously told the Tribunal that he would abide by Condition 8510 but was now saying that was not prepared to do so. The applicant disputed that he previously agreed to comply with Condition 8510. The applicant said that there was no discussion at the delegate interview about the requirement to obtain a Sri Lankan passport. The only information that the Tribunal has about the delegate interview is what is contained in the decision record and the Tribunal accepts that there was nothing explicit in the decision record which reads that there was a discussion about this requirement. The Tribunal is prepared to give the applicant the benefit of the doubt about this matter. However, the Tribunal noted to the applicant that the delegate decision record made it quite clear that 8510 was a condition that the applicant was required to meet, and asked the applicant why he had not taken steps to obtain a new Sri Lankan passport once the delegate made a decision to refuse to grant the Bridging E visa on 21 March 2022. The Tribunal reasoned that the applicant applied to the Tribunal for review of the delegate refusal decision and by doing so he was insisting that he would meet that particular condition. His failure to take any steps since the delegate decision to obtain the Sri Lankan passport was evidence that the Tribunal viewed as capable of demonstrating that the applicant had no intention to apply for a Sri Lankan passport.

35. In response to his failure to take any steps to address this issue since the delegate decision of 21 March 2022, the applicant said that he did not read the delegate decision because of his lack of English and he relied upon his lawyer. He told the Tribunal that his lawyer only told him that the Bridging E visa was refused because of his criminal history and that he had no idea about the other conditions.

36. Giving the applicant the benefit of the doubt that he did not read the delegate decision record and relied upon his lawyer to tell him the basis of the delegate refusing to grant the Bridging E visa, the Tribunal asked the applicant whether he was going to apply for a new Sri Lankan passport. He said no because he had problems in Sri Lanka. The Tribunal asked whether the applicant was telling the Tribunal that he would not comply with Condition 8510 if it was imposed on the bridging visa and the applicant agreed that this was the case because he could not have any contact with the Sri Lankan authorities on the basis that his life was at risk.

    The issue arising from the extent of the applicant’s willingness to report to the Department

37. The Tribunal explored with the applicant at the Tribunal hearing the extent of his willingness to comply with Condition 8401.

38. The Tribunal asked the applicant if he was unsuccessful being granted the Safe haven enterprise visa what he planned to do. He said he would appeal. The Tribunal asked what he would do if he exhausted all his options to appeal against a decision to refuse to grant this visa and inquired whether the applicant would return to Sri Lanka. The applicant said he would not return to Sri Lanka and would never leave Australia.

39. The Tribunal asked what the applicant would do if he was required to report to the Department for the purpose of detaining him and removing him to Sri Lanka. The applicant said he would not go to the Department because he had no guarantee for his safety in Sri Lanka.

    The issues arising from the applicant’s criminal history

40. At the Tribunal hearing, the applicant told the Tribunal that he did not have any outstanding criminal charges. The Tribunal accepts that this is the case because it has no evidence to undermine this claim.

41. The delegate decision record makes it clear that on 19 February 2021 the Department received information that the applicant was sentenced on 13 August 2020 to a 12-month Community Correction Order for a charge of common assault in the context of domestic violence. At the Tribunal hearing, the applicant admitted that he had been sentenced for that offending, but that the Community Correction Order was actually for 24 months and that the order will end on 12 August 2022.

42. The Department file contained the Facts Sheet concerning the charge of common assault to which the applicant pleaded guilty. The Facts Sheet detailed that the applicant was arrested [in] May 2020. The relevant facts can be summarised as the following:

43. The applicant and the victim have both lived at an address in [suburb], NSW for three years which is the length of their relationship. At the time of the assault, the victim was pregnant. They live at that address with their child, who is described as a child from a previous relationship. The relationship between the applicant and the victim became increasingly volatile over the last 12 months.

44. About 2:40pm [in] May 2020 the accused was in the living room on the couch and playing a game on his mobile phone. The victim was also sitting down but on a separate couch. The victim told the applicant that he needed to pick-up their child drom school and that if he did not, the victim would call the police on him. The applicant said that after he finishes with his game, he will pick up their child. The facts sheet reads that the child finishes school at 2:50pm.

1. About 2:50pm, the applicant was still at home playing a game on his mobile phone and failed to pick up their child. The victim called the applicant’s sister and that is when the applicant stood up and approached the victim while she was seated. The applicant was standing directly in front of the victim about 20 centimetres away.

2. While standing in front of the victim, the applicant formed a fist with an unknown hand and raised it in an up and downward motion striking the victim’s back several times causing immediate pain. The victim retaliated by pushing the applicant away with one hand while seated, causing the applicant to take a step back. In the process, the applicant’s necklace broke and the victim took possession of it.

3. The victim was still on the phone with the applicant’s sister during the altercation and told her to call the police. The applicant grabbed the victim’s phone from her hand. Following this, the victim stood up and walked outside in an attempt to find another telephone to call the police.

4. The victim was unable to locate another telephone and walked back towards the unit and saw the applicant standing by the front door. The victim said that she wanted her phone and the applicant replied with words to the effect that he wanted his necklace back. The victim and the applicant exchanged the phone and the necklace and the victim called police.

5. Police arrived and the victim disclosed the applicant had hit her. The applicant denied hitting the victim and said the victim had mental health problems. The applicant said that the victim threatened that if he did not pick up their child from school she would call the police and that the victim had previously tried to scare the applicant by saying to him that she could have him arrested at any time. An AVO was sought, granted and served on the applicant after being released by police.

6. As the applicant was sentenced for the charge by the time the delegate made a decision on the Bridging Visa E application, the Tribunal is satisfied that the Facts Sheet contained on the Department file contained the factual basis upon which the applicant was sentenced. At the Tribunal hearing, the applicant agreed he pleaded guilty and was sentenced upon those facts.

7. The Tribunal asked the applicant how it could have any confidence that the applicant would not commit criminal offending in the future given he had previously hit his pregnant partner. The applicant said that this happened accidentally, and that he had been working through things for the past two years. He noted that he was completing his Community Correction Order and taking various courses, particularly noting his involvement with Relationships Australia.

8. The Tribunal notes that prior to the Tribunal hearing, the applicant provided several documents which appear to address what the applicant has done to address his offending. The documents were:

9. A letter dated 3 April 2022 from [Mr A], who was identified as a retired United Church Minister. The letter spoke of how the author met the applicant in 2014, how the applicant and the victim met in Australia, and summarised how the offending came as a great shock to the author and fellow church members. The author noted an appointment with the applicant and the author where the applicant was upset, remorseful and in tears, and also detailed the subsequent discussions between the author where the applicant continued to express remorse. The author also detailed his assessment of the applicant and detailed the steps the applicant had taken to address the behaviour.

10. A letter dated 12 October 2021 from [Ms B] who was identified as an Accredited Mental Health Practitioner with [a named] Medical Practice. In that letter, the author detailed that the applicant was referred to her by his general medical practitioner in May 2021 to address the deterioration of the applicant’s mental health which was characterised by poor sleep, feelings of hopelessness and the stress associated with the criminal proceedings. Separation from his family apparently worsened his mental health state. The author detailed that the applicant was having fortnightly counselling with the author and a referral had been made for the applicant to see a psychiatrist for review and treatment for depression.

11. A letter dated [in] October 2021 from Relationships Australia detailing that at the time of writing the applicant had attended six group sessions as part of completing the Men’s Behaviour Change Programme which aims to provide opportunities for men who have used violence to think about their intentions and goals so they can stop engaging in abuse and acting violently in relationships.

12. A letter dated [in] April 2022 from the [position] of the Tamil Refugee Counsel which related to the applicant’s protection claims and asked for consideration of the risks the applicant will likely face if he were repatriated to Sri Lanka.

13. The delegate decision also detailed that the applicant had a current intervention order (AVO) which he was required to comply with as part of current bail conditions. The applicant told the Tribunal that he was currently not subject to an AVO as this ceased in June 2022. The Tribunal is prepared to accept that there is no current AVO against the applicant.

14. The delegate decision also detailed that on 12 February 2021 the applicant was charged with new offences and detailed those as two charges of assault occasioning bodily harm, two charges of common assault, and one charge of contravening the AVO. At the time of the delegate decision on 21 March 2022, the applicant had a hearing scheduled for 6 June 2022 as detailed in the decision record.

15. At the Tribunal hearing, the applicant told the Tribunal that the charges against him that were listed for 6 June 2022 were withdrawn. The applicant provided the Tribunal with an ‘Advice of Court Result’ from the Local Court of New South Wales which confirmed that all of those charges were dismissed by the Local Court on 6 June 2022 on the basis that they were withdrawn by the prosecution. The Tribunal accepts that those charges were withdrawn and has not taken them or the allegations concerning those charges into account when determining whether the applicant would comply with conditions which would attach to the grant of the Bridging E visa.

    The issue of the certificate and notification under s 376 of the Act concerning certain information

16. On the Department file there was a certificate issued in respect to the Department file concerning Folio [number]. It was claimed that the information contained in this document ‘may endanger the life or physical safety of a person(s) and where the information was provided ‘in confidence,’ the provider of the information has not consented to the disclosure of the information to the review applicant.’ It was on this basis that the information was not to be disclosed ‘in the public interest.’

17. The Tribunal is not satisfied that the certificate is valid. The information is the Fact Sheet for the charges that were withdrawn against the applicant. How a ‘Fact Sheet’ could endanger the life or physical safety of a person is not apparent to the Tribunal. Further, there is nothing to support the delegate’s claim that the Fact Sheet was provided to the Department in confidence. The Facts Sheet, just like everything else in the Department file, is disclosable to the applicant. However, as noted previously, the charges against the applicant were withdrawn and the Tribunal had no regard of them when making its findings about whether the applicant would comply with conditions on the Bridging E visa.

    FINDINGS AND REASONS

18. The issue in this case is whether the applicant meets either cl 050.223 or cl 051.211.

19. If the applicant meets either of those clauses, then the Tribunal must remit the matter back to the delegate for reconsideration of the grant of the Bridging E (Class WE) visa with a direction that the applicant satisfies either cl 050.223 or 051.211.

20. If the applicant does not meet cl 050.223 and cl 051.211 then the Tribunal must affirm the delegate decision to refuse to grant the Bridging E (Class WE) visa.

21. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    Will the applicant abide by conditions?

22. The Tribunal is not satisfied that the applicant would abide by the conditions which would attach to the grant of the Bridging E visa for the following reasons.

23. First, the applicant did not suggest to the Tribunal that the reason he had not obtained a Sri Lankan passport or taken any steps to obtain a Sri Lankan passport was only due to the fact that the delegate did not tell him this was required, or because the applicant did not read the delegate decision where this issue was raised for the first time (if the applicant is to be believed that it was not discussed in the interview). Rather, the applicant specifically told the Tribunal that he would not take steps to obtain a Sri Lankan passport because he did not want to bring himself to the attention of the Sri Lankan authorities and he would be harmed upon his return to Sri Lanka.

24. At the time of making this decision, the Tribunal notes that the applicant has been found to not be owed protection obligations due to the cancellation of his previous protection visa but that he has an outstanding visa application for a safe haven enterprise visa. Irrespective of whether there is any credibility to the applicant’s protection claims (of which the Tribunal has no idea), the fact is that the applicant would be required to obtain and provide a Sri Lankan passport or provide evidence that he was making attempts to obtain this travel document for the purpose of the grant of the Bridging E visa. He may not desire to do so, but that does not mean that the applicant does not have to comply with that condition.

25. Given what the applicant said at the Tribunal hearing, and the fact that the applicant has not obtained a new Sri Lankan passport to date, the Tribunal is not satisfied that the applicant will comply with Condition 8510.

26. Second, the applicant specifically told the Tribunal hearing that if he was required to report to the Department for the purpose of removal from Australia, he would not attend this appointment because he feared harm in Sri Lanka. The Tribunal is comfortable making this finding in the knowledge that there is no evidence that the applicant has previously been required to report to the Department and failed to do so. The Tribunal is satisfied that the applicant would not report to the Department if the reporting was connected to his removal from Australia. This demonstrates to the Tribunal’s satisfaction that any compliance with conditions attached to the Bridging E visa would be entirely dependent on whether the applicant agrees with the actions of the Department. In the event that the applicant does not agree with the actions of the Department, such as the Department determining that the applicant is to be removed from Australia and requiring that he attend an appointment with the Department to commence this process, the Tribunal is satisfied that the applicant would not attend the appointment.

27. The applicant’s view about whether he would comply with the requirement to attend an appointment with the Department is equally applicable to the condition which would require the applicant to notify the Department of any change of address. The Tribunal is satisfied that if the applicant was successful in his migration efforts, he would keep the Department advised of any change of address as required by the relevant condition. However, in the event that the applicant was unsuccessful in his migration efforts and was required to depart Australia, the Tribunal is satisfied that the applicant would probably move residences and not advise the Department of any address change because he will refuse to depart Australia for the reason he told the Tribunal hearing. The Tribunal is comfortable making this finding in the knowledge that there is no evidence that the applicant has previously been required to advise the Department of any change in residential address but failed to do so.

28. Given what the applicant said at the Tribunal hearing, the Tribunal is not satisfied that the applicant will comply with Conditions 8401 and 8506.

29. Third, the Tribunal is not satisfied that the applicant will not engage in criminal conduct if granted the Bridging E visa. The Tribunal is comfortable making that finding on the basis of the single charge to which the applicant pleaded guilty, and in the absence of the applicant having any other outstanding or proven criminal matter for the following reasons.

30. The applicant hit his spouse while she was pregnant and initially attempted to stop the victim calling the police. The Tribunal views this offending as serious but concedes that this is not an example of the most serious of domestic violence offences. The Tribunal accepts that there is no evidence that the applicant breached the AVO, his Community Correction Order, and that he has engaged in a variety of programmes to address his reasons for offending. The Tribunal also accepts that he has support in the community as evidenced by the letter from the former Uniting Church Minister. The Tribunal also understands from the applicant’s oral evidence at the Tribunal hearing that he and his wife have reconciled. The Tribunal accepts that the applicant is remorseful for his actions and that he has done all that he can do to try and atone for his offending and correct his behaviour. All of that is commendable.

31. However, the Tribunal is required to be satisfied that the applicant must not engage in criminal conduct (the Tribunal’s emphasis), not whether the applicant is an acceptable risk of engaging in criminal conduct, or a low or negligible risk of engaging in criminal conduct.

32. While it could be reasonably argued that where an applicant has one single instance of offending that is not an example of the most serious type of offending, has engaged in various rehabilitation programmes, has good support around him, and has not committed further offending since the incident that it is unlikely that such a person would engage in criminal conduct again, that does not mean that the Tribunal can be satisfied that the applicant will not do so. As far as the Tribunal can go is to say that it is unlikely that the applicant will engage in criminal offending again in the future. That is well short of being satisfied that he would not. The Tribunal struggles to accept that there would never be a circumstance that the applicant would not repeat his previous behaviour.

33. The Tribunal is not satisfied that the applicant would comply with Condition 8564.

34. As the Tribunal is not satisfied that the applicant would comply with any of the discretionary conditions discussed above, it is unnecessary to consider whether the applicant would comply with Condition 8101, because it would make no difference to the decision.

35. As the Tribunal is not satisfied that the applicant would comply with conditions that would be imposed on the grant of the Bridging E visa, the issue of security does not arise.

36. Accordingly, the applicant does not satisfy cl 050.223.

    Is the applicant an eligible non-citizen?

37. To satisfy cl 051.211 the Tribunal must be satisfied that the applicant is an eligible non-citizen of a specified kind.

38. The Tribunal is not satisfied that applicant is an eligible non-citizen because the applicant is [age] years of age and subregulation 2.20 requires the applicant to have not turned 18 years of age to meet that subregulation. Likewise, the applicant does not satisfy subregulation 2.20(8) because that subregulation requires the applicant to have turned 75 years of age.

39. The Tribunal is not satisfied that the applicant is an eligible non-citizen of a kind provided in subregulation 2.20(9) because that requires the applicant to have special needs in respect of which a medical specialist appointed by Immigration has certified that the applicant cannot be properly cared for in a detention environment. There is no evidence that a medical specialist appointed by Immigration has certified this.

40. The Tribunal is not satisfied that the applicant is an eligible non-citizen of a kind provided in subregulation 2.20(10) because that subregulation applies to a person who is a spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. There is no evidence that the applicant is such a person.

41. The Tribunal is not satisfied that the applicant is an eligible non-citizen of a kind provided in subregulation 2.20(11) as that requires the applicant to be a member of the same family unit as a person to whom 2.20(10) applies, and there is no evidence that the applicant is such a person.

    CONCLUSION

42. For the reasons above, the applicant does not satisfy cl 050.223 for the purpose of a grant of a Subclass 050 (Bridging (General)) visa.

43. For the reasons above, the applicant does not satisfy cl 051.211 for the purpose of a grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    Nathan Goetz
    Member