2213973 (Migration)

[2022] AATA 4225

2213973 (Migration) [2022] AATA 4225 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Zaki Omar

CASE NUMBER:  2213973

MEMBER:Sheridan Lee

DATE:30 September 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 30 September 2022 at 1:08pm

CATCHWORDS
MIGRATION – Cancellation – Bridging E (Subclass 050) visa –criminal conviction– Tribunal is not satisfied that the applicant will abide by condition 8564 – applicant does not meet the requirements of cl 050.223 – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 051.211

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. Mr [A] (the applicant) is currently held in Australian immigration detention. He applied for a Bridging E visa on 30 August 2022, seeking to be released into the community. 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. On 20 September 2022, the delegate refused to grant the Bridging visa on the basis that the applicant would not abide by the discretionary conditions imposed under cl 050.223.

   Background

4. The applicant first arrived in Australia on [date] August 2011 with [Ms B] and Mr [Mr C]. He, [Ms B] and [Mr C] were listed as secondary applicants on [Mr D] ’ Skilled – Sponsored Subclass 176 visa. The group presented themselves as a family unit. The applicant returned to Nigeria on one occasion from May 2013 until June 2014.

5. On 7 January 2016, a delegate of the Minister for Immigration cancelled [Mr D]’s Subclass 176 visa, finding that he provided incorrect information and bogus documents. The relevant information provided in the visa application was that the applicant and [Mr C] were his sons and the documents were birth certificates reporting [A] and [Mr C]  as his sons. [Mr D] applied to the Tribunal for merits review of that decision, and on 6 September 2016 the Tribunal concluded that [A] and [Mr C] were not the children of [Mr D] and [Ms B] and upheld the decision of the delegate.

6. There is some debate and confusion about the applicant’s date of birth resulting from the absence of reliable documentation. The date of birth recorded in the bogus birth certificate was [date]. However, in a submission of 27 September 2022, the applicant’s representative advised that the applicant was recently told by [Mr D] that his date of birth was [date]. I note that by the date of this decision, the applicant would be an adult using either date.

7. Between 2018 and 2020, the applicant was charged with criminal offences in Australia on three occasions.

8. On 10 December 2018, the applicant was charged with theft for allegedly stealing from a shop in the Australian Capital Territory. When asked about the charges at the Tribunal hearing, the applicant was unsure if there was a conviction. However, he was later charged with committing an indictable offence whilst on bail. As such, the Tribunal has inferred that there was a sentence imposed.

9. On 17 July 2019, the applicant was charged with affray, theft, attempting to commit an indictable offense, theft from a shop, committing an indictable offense whilst on bail, robbery, assault by kicking, dishonestly retaining stolen goods and dishonestly receiving stolen goods. The applicant was sentenced without conviction and was released on a youth supervision order for nine months.

10. On 4 June 2020, the applicant was convicted of two counts of theft, six counts of robbery, one count of intentionally causing injury and one count of committing an indictable offence whilst on bail. The applicant was sentenced to five months imprisonment (with time served), and an eighteen-month community order. The applicant was detained by Immigration officials on 4 June 2020 following his release from prison.

11. The applicant made an application for a protection visa on 29 September 2020. On the same day, he applied for a Bridging E visa. The Bridging visa application was refused by a delegate of the Minister on 5 October 2020 on the basis that the applicant would not abide by two discretionary conditions: 8401 and 8564. Condition 8401 requires that the applicant report as directed and condition 8564 requires that the applicant not engage in criminal conduct. The applicant appealed that decision to the Tribunal (differently constituted) and on 16 October 2020 the decision of the delegate was affirmed.

12. The application for protection was refused by a delegate on 16 November 2020. The applicant then requested that the Minister exercise their discretion to grant the via under s 195A of the Act or to determine that the applicant could reside at a specified place rather than be held in detention under s 197AB. However, on 1 February 2022 it was determined that the request did not meet the Minister’s guidelines.

13. The applicant again applied for a Bridging visa on 16 June 2022. Accompanying the application was a request for the Minister to allow the applicant to reapply for a protection visa based on claims and/or grounds that were not previously assessed under s 48B of the Act. The Bridging visa application was refused because the delegate was not satisfied that the applicant was making acceptable arrangements to depart Australia. The applicant applied to the Tribunal for a review of that decision and on 4 July 2022 the Tribunal (differently constituted) affirmed the decision of the delegate.

14. A new application for a Bridging visa was submitted on 30 August 2022. This is the application currently before the Tribunal. The application was first refused on 2 September 2022 because the delegate was not satisfied that the applicant satisfied any of the grounds set out in cl 050.212 of Schedule 2 of the Regulations. An application for review of that decision was made to the Tribunal. The Tribunal (differently constituted) remitted the application for reconsideration with a direction that the applicant satisfied cl 050.212(5B) as he had an outstanding request for the Minister to make a determination under s 48B of the Act.

15. The application was again refused by a delegate on 20 September 2022 on the basis that the applicant would not comply with discretionary visa conditions: 8101, 8401 and 8564. The decision of the delegate noted the applicant’s criminal history and highlighted that the applicant had been involved in a number of incidents while in immigration detention.

16. The applicant applied to the Tribunal for a review of that decision. A copy of the decision was provided to the Tribunal. The Tribunal has also reviewed the notes of a telephone interview with the applicant conducted by the delegate on 1 September 2022. The applicant was asked about the following three incidents during the interview:

    ·On 28 July 2022 the applicant was involved in a physical altercation following a major disturbance in which a Serco officer was stabbed by a detainee with a makeshift weapon.

    ·On 16 August 2022 the applicant physically assaulted a detainee by punching him with a closed fist.

    ·On 18 August 2022 the applicant was involved in a physical altercation with a detainee which resulted in the detainee sustaining injuries to his cheek and face.

17. In response to the questions, the applicant maintained that he had only acted in the aide of other detainees or in self-defence.

18. The applicant’s representative made written submissions on his behalf on 27 September 2022. The submissions provide an overview of the applicant’s immigration history and address whether the applicant would comply with the conditions imposed on his visa if it were to be granted. It was contended that the decision under review was erroneous, unsubstantiated, and untenable. Provided along with the submissions were the following documents:

    ·Letter from Solicitor Allie [Sutherland], who acted on behalf of the applicant in relation to prior criminal proceedings at the Melbourne Magistrates’ Court, dated 26 September 2022. The letter advises that Magistrate [sentenced] the applicant to an 18 month Community Corrections Order with therapeutic conditions including judicial monitoring.

    ·Previous Tribunal decision for case 2209104, dated 4 July 2022, affirming the decision not to grant the applicant a Bridging E (Class WE) visa.

    ·Email correspondence dated July 2022, between Alison Battisson from Human Rights For All and Humanitarian Observer [of] Australian Red Cross. The emails attach letters broadly outlining the support available to people in Victoria and Queensland with uncertain visa pathways.

    ·Email correspondence dated July 2022, between Zaki Omar from Human Rights For All and Human Services [Manager], relating to financial assistance and support that may be available for the applicant as a vulnerable temporary visa holder in Australia.

    ·Letter issued by Team Leader Operations - [of] Australian Red Cross, outlining the scope of The Australian Red Cross Migration Support Program in Victoria, dated 7 July 2022.

    ·Statement by Ms [E] dated 27 September 2022, outlining her willingness and ability to support the applicant financially if released from immigration detention, accompanied by Bank of Melbourne statements for the period between 13 January and 12 July 2022.

    ·Letter from [Ms] [F], , dated 9 April 2021. During the period Ms [F] worked with the applicant he was placed into residential care on an Interim Accommodation Order after his guardians relinquished care.

    ·Letter issued by Team Leader MSP [of] Australian Red Cross, outlining the scope of Australian Red Cross Migration Support programs, dated 7 July 2022.

    ·Psychological Assessment Report for [Mr A]  issued by Psychologist MAPS, [dated] 19 May 2020.

    ·Applicant’s statutory declaration made in support of the application for a visa that would release him from immigration detention in the special circumstances of his case, dated 7 June 2022.

    ·Department of Home Affairs Visa Class Bridging E (class WE) visa refusal decision record, dated 20 September 2022.

    ·Department of Home Affairs Visa Class Bridging E (class WE) visa refusal decision record, dated 2 September 2022.

    ·Community Correction Order (CCO) issued for the applicant by the Melbourne Magistrate’s Court on 4 June 2020.

    ·Statutory declaration made by the applicant’s partner, [in] support of the application, dated 3 June 2022.

    ·Australian Border Force Incident Reporting Guideline booklet, dated June 2016.

    ·Serco Immigration Services Incident Reporting procedures, dated 16 June 2015.

    ·Department of Home Affairs Detention Services Manual – Safety and security management – Incident response and management booklet, dated 19 December 2018.

    ·Serco Immigration Services Incident Management Protocols, dated 4 August 2016.

    ·Copy of the Supreme Court of Victoria decision Boulton v The Queen [2014] VSCA 342.

19. The remaining content of the submissions and attached documents will be discussed below where relevant.

20. The applicant appeared before the Tribunal from Yonga Hill Immigration Detention Centre via video on 28 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [E] over the telephone and submissions from Zaki Omar, Alison Battisson and Eric Zhang from Human Rights For All, who represented the applicant.

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

    CONSIDERATION OF Claims and evidence

22. The issue in this case is whether any conditions should be imposed if a bridging visa were granted to the applicant, and whether the applicant would abide by those conditions.

    Whether the applicant will abide by conditions - cl 050.223

23. Clause 050.223 of Schedule 2 of the Regulations 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.

24. 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].

25. In this case, cl 050.615A applies because the applicant was found to meet the requirements of subclause 050.212(5B) and was an unlawful non-citizen for the period after the application for a substantive visa was finally determined until the time of the request for the Minister to make a determination under s 48B of the Act. This clause prescribes that, in addition to condition 8101 (no work) or 8116 (no work other than specified activity), certain conditions may be imposed. Further, cl 050.618 stipulates that in addition to any other condition imposed under another Division, condition 8564 may be imposed.

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

    8101 – The holder must not work

    8401 – The 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.

    8505 – The holder must continue to live at the address specified by the holder before the grant of the visa.

    8564– The holder must not engage in criminal conduct.

27. In the submissions of 27 September 2022, it was highlighted that the delegate who refused the current Bridging visa application was the same for both the first and second refusals, on 2 September and 20 September respectively. The representative noted that the delegate made no findings in respect of cl 050.223 of Schedule 2 of the Regulations in the first refusal decision. She then went on to refuse the visa for failure to meet the requirements of cl 050.223 in the second refusal decision. As discussed with the representative at the hearing, once the delegate had determined that the applicant was not eligible to apply for the visa, there was no reason for her to go on and assess the remaining criteria. This was only done once the matter was remitted for reconsideration by the Tribunal. Failure to consider cl 050.223 in the first decision has no bearing on the validity of the second decision.

28. In relation to whether the applicant would engage in criminal conduct, the primary arguments put forward by the applicant’s representatives were that:

    ·none of the applicant’s activities in immigration detention were referred to law enforcement authorities and could therefore not properly be categorised as criminal.

    ·the applicant’s offending had a causal link to his traumatic childhood and poor mental health and that he would benefit from the mental health assessment and management under the CCO in 2020.

    ·the applicant would be subject to judicial monitoring under the CCO. Mr Zhang referred to Boulton v The Queen to highlight that CCO’s are designed to be rehabilitative and encouraged the Tribunal to provide a pathway for the applicant to complete the ordered activities. The letter from Ms Sutherland states that there is scope under the Sentencing Act for the Corrections Order to be varied and extended to ensure the applicant would be supervised whilst in the community. Such a variation would be determined by the Magistrate.

    ·the longer the applicant remains in detention the further his mental health would deteriorate.

    ·the applicant would have both emotional and financial support from friends, family and charity organisations such as the Red Cross if he were released into the community.

    ·the Tribunal had previously accepted that the applicant did not intend to disobey Australian laws in future in its decision from 4 July 2022. In particular, the representative drew attention to the following passage:

    The Tribunal accepts that the applicant wishes to be released to stay with his partner, that he does not intend to disobey Australian laws in future and intends to return to study and better himself. The Tribunal accepts that he does not intend to breach any conditions imposed on the visa.[1]

    [1] Mills [2022] AAT (4 July 2022), para 24.

29. When asked about the incidents in immigration detention at the Tribunal hearing, the applicant again explained that he had acted in self-defence or in the defence of another. However, he also explained that on one occasion he had acted out when in a moment of severe stress – which he described as a break down.

30. The applicant expressed a strong desire to behave in a way that would not see him placed back into detention. He further advised that he wished to engage with the mandated activities under his CCO and expected that he would have a busy schedule as a result. The applicant said that he now understood how his actions would impact other people. He felt that he had learnt from his mistakes and noted that he would have support now.

31. When questioned about his prior issues with substance abuse, the applicant gave evidence that he has not used illicit drugs during his time in detention, which has now been more than two years.

32. As discussed at the hearing, the Tribunal has no evidence to suggest that any incidents involving the applicant in detention were referred to the police or any other law enforcement agency. The Tribunal has insufficient evidence to be satisfied that the applicant has engaged in any criminal behaviour while in immigration detention. Nevertheless, the behaviour is relevant when considering the applicant’s general character and whether he would be able and willing to abide by lawful directions, such as visa conditions. Regardless of the motivation behind the incidents, the Tribunal is concerned by the ongoing pattern of physical violence.

33. In her letter, [the Psychologist] expressed the opinion that the applicant’s profile was indicative of an anxiety disorder, which originated from pre-migratory traumas and his family fragmentation and re-settlement challenges. She outlined that prolonged detention and deportation would negatively impact his recovery. [She] also expressed the view that the applicant needs therapeutic assistance to address his behaviours, treat his anxiety and encourage return to high school studies. The letter did not express a view on the applicant’s chance of recovery or likelihood of reoffending.

34. Mr Omar argued that the applicant’s problems stem from being trafficked as a child and being brought to Australia when he was young. His visa being cancelled added to his problems.

1. I accept that the applicant suffers from an anxiety disorder and was diagnosed with depression as a child. I further accept that he had a traumatic childhood, which contributed to his mental health issues, drug use and problems with the law. Unfortunately, even with support, I am not satisfied that his situation has improved such that he would not engage in criminal behaviour again if he were released from detention.

2. While there may be scope for the CCO to be amended to provide further supervision, this is speculative. There is no evidence before me to indicate that the CCO would be amended. Further, no medical evidence was put forward to suggest that there has been an improvement in the applicant’s mental health or a reduction in the chances of reoffending at the time of this decision.

3. While the Tribunal had regard to the earlier decisions relating to the applicant, it is not bound to follow them. Further, while the Tribunal noted that the applicant intended to abide by the law on 4 July 2022, the Tribunal previously made an explicit finding that the applicant would not comply with condition 8564 on 16 October 2020. As noted at the hearing, the Tribunal considered the facts and evidence anew in making its decision. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8564 if the visa was granted. Given this finding, it is unnecessary to consider the remaining conditions.

4. The Tribunal finds that the applicant does not meet the requirements of cl 050.223. For this reason, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

5. 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

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