2301017 (Migration)

[2023] AATA 373

2301017 (Migration) [2023] AATA 373 (7 February 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2301017

MEMBER:Justin Meyer

DATE:7 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 7 February 2023 at 3:31pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – offer of a security bond – applicant convicted of several offences – periods of unlawful residence – no work condition – drug addiction – financial hardship – separation from family – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65, 73, 189, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 050.616, 051.211; Schedule 8; r 2.20

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

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), and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 23 January 2023. 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 to requiring a security was made on 25 January 2023 on the basis that he was not satisfied the applicant would comply with the conditions imposed on the visa for the following reasons.

   ·No work condition (8101):

   Despite financial and accommodation support from [Partner A] and his cousin [Cousin A], he had no savings and wanted to lodge a partner visa application he has a [Agency 1] debt of $10K. This provides him with a strong incentive to work. Therefore the delegate was not satisfied that the applicant would abide by condition 8101.

   ·Reside at specified address (8505) and report as directed (8401)

   The delegate was not satisfied the applicant would abide by these conditions given this history of poor compliance with Australian law,

   ·Must not engage in criminal conduct (8564)

   The applicant admitted at interview that he was addicted to heroin and meth during the period 2019 to 2021 and that he only stopped and got treatment once he was in prison. His criminal history which resulted in [term] in criminal detention and a community correction order. While he has completed some courses in relation to drug and alcohol abuse, and anger management, and has also stated he wants another chance to prove himself to the community.  The delegate also considered the risk to the public and the migration program if the applicant is released back into the community and was not satisfied that he would abide by this visa condition.

   ·Security bond

   The applicant's immigration history including the multiple periods of time living in the community unlawfully (including from 4 November 2020 to 9 June 2021), his criminal history, and the inconsistent information provided during interviews, the delegate was not satisfied that the imposition of a security bond regardless of the amount would ensure that the applicant would abide by visa conditions especially 8101 no work, 8401 report as directed, and 8564 not engage in criminal conduct.

4. The applicant appeared before the Tribunal on 6 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A], the applicant’s partner. The hearing was conducted by teleconference by consent of the applicant after an initial videoconference failed on the day due to a technical issue. The hearing was so held as the applicant is in immigration detention [in Detention Centre 1].

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

   CONSIDERATION OF Claims and evidence

6. The issue in this case is whether the applicant satisfies 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)

   Immigration status of the applicant - cl 050.211

7. Clause 050.211 is met if, at the time of application:

   (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

8. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

9. At the time of his application for a bridging visa the applicant was an unlawful citizen. Accordingly, he meets cl 050.211(1).

10. Based on the evidence before available, the Tribunal accepts that the applicant was not an eligible non-citizen, of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, he meets cl 050.211(2) and cl 050.211.

11. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and he is in detention as an unlawful non-citizen and therefore cl 050.221.

    The grounds for seeking the visa - cl 050.212

12. 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.

13. The applicant meets this criterion as he hass applied for a Substantive visa and is appealing in court the result of a protection visa which is a Substantive visa application

    Judicial review

14. Subclause 050.212(3A) 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 either the applicant has applied for judicial review of a refusal decision or the Minister has applied for judicial review of a decision.

15. ‘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.

16. The applicant applied for a Protection visa (sub-class 866) on 30 September 2021. It was deemed valid on 1 October 2021. The Department refused to grant the applicant the visa on 28 October 2021. He subsequently sought review at the Tribunal. A differently constituted Tribunal affirmed the Department’s refusal decision on 18 January 2022. On 10 June 2022 the applicant appealed the decision in the Federal Circuit and Family Court of Australia and in turn appealed that court’s judgment to the Federal Court of Australia where it presently is filed.

17. On that basis, the Tribunal is satisfied that the requirements of cl 050.212(3A)] in Schedule 2 of the Regulations are met.

    Whether the applicant continues to satisfy the time of application criteria - cl 050.221

18. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.: The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221.

    The requirement to be interviewed by an authorised officer - cl 050.222

19. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

20. Based on the written evidence before the Tribunal, including interview notes, the Tribunal accepts that the applicant meets cl 050.222 having been interviewed on 24 January 2023.

    BACKGROUND AND MIGRATION HISTORY

21. The background and history of the applicant have been summarised by the Tribunal (differently constituted) when dealing with a previous application of the applicant (AAT file reference 2212961). I paraphrase and/or repeat the Member’s descriptions below.

22. The applicant was born [in year] in Ludhiana, Punjab, India and is a citizen of India. His migration history is outlined in the Department’s Decision Record as follows:

23. The applicant first arrived in Australia [in] December 2017 travelling on his Visitor (Class FA) (subclass 600) visa granted 8 December 2017 and valid until 16 February 2018. The applicant departed [in] February 2018 and was granted a further Visitor (class FA) (subclass 600) visa on 7 April 2018 due to cease 18 October 2018. The applicant travelled to Australia on this visa, arriving [in] April 2018 and departed [in] July 2018.

24. The applicant last arrived in Australia [later in] July 2018 travelling on the same Visitor (class FA) (subclass 600) visa. The applicant was granted a Bridging visa A (WA-010) on 17 August 2018. On 23 October 2018 he was granted a Student (class TU) (subclass 500) visa valid until 15 November 2019. When his TU-500 visa ceased on 15 November 2019, the applicant was granted a Bridging visa A (WA-010). Since 9 July 2020 the applicant has been granted a series of Bridging visa E (050).

    CRIMINAL RECORD

25. The Department’s Decision Record outlines the applicant’s criminal history.

26. [In] May 2021 he was remanded for on four counts of obtaining property deceptively and 11 others at [Court 1] and at [Court 2] [in] August 2021 on three counts of Possess Drug, Receive Stolen Goods and for theft of motor car, on three counts of retaining stolen goods and 13 Others. [In] September 2021 the [Court 2] issued a Community Correction Order for the following offences:

    ·Two counts of theft from a shop

    ·Possessing Methyl Amphetamine

    ·24 counts of Dishonestly receive stolen goods

    ·Four counts of Obtain property by deception

    ·Attempted Burglary

    ·Three counts of Theft

    ·Burglary

    ·Theft of a motor vehicle

    ·Possessing Amphetamine

    ·Committing an Indictable Offence whilst on Bail

    ·Dealing with property Suspected Proceed of Crime

27. [In] October 2021 the applicant was remanded at [Court 3] for two charges of theft and receive Stolen Goods, four charges of obtain Property Deceptively and 25 Others.

28. The Department’s Decision record also states that for his offences, the applicant received [period] with [term] pre-sentence detention, and a Community Correction Order. He was convicted of the above charges and a Community Correction Order for a [period] was made against him, commencing [in] September 2021 with the condition of him undergoing assessment and treatment (including testing) for drug abuse or dependency as directed.

    Whether the applicant will abide by conditions - cl 050.223

29. 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.

30. 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].

31. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

32. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

33. In this case, cl 050.223 applies because it is a time of decision criterion for a Bridging visa. This clause prescribes that, in addition to any mandatory conditions (8101 – No work), certain conditions may be imposed. The Tribunal considers that the following additional conditions should be imposed in the circumstances of this case:

    8207 (NO STUDY)

    8401 (REPORT AT SPECIFIED TIME AND PLACE)

    The holder must report at time or times; and at a place or in a manner specified by the Minister from time to time.

    8506 (NOTIFY CHANGE OF ADDRESS)

    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564 (NO CRIMINAL CONDUCT)

    The holder must not engage in criminal conduct.

34. In considering whether the applicant will comply with the conditions attached to the Bridging visa, the Tribunal has had regard to his personal circumstances, his financial circumstances, his immigration history, previous breaches of immigration laws, the significance of the immigration laws that were breached, the wilfulness with which those laws have been breached, whether there were any mitigating circumstances justifying the breach and whether he has shown any contrition for his unlawful conduct.

    Information before the Department

35. The applicant provided the Department with:

    ·A copy of Court Orders from the Federal Circuit and Family Court of Australia dated [in] June 2022 that the applicant’s application for an extension of time would be listed on a date to be advised.

    ·A copy of a statement made by the applicant dated 29 August 2022. In it he wrote that he came to Australia in November 2017 for a better future. He acknowledged he was unlawful in the community between 10 March and 9 July 2020 and between 4 November 2020 and 9 June 2021 because of a bad drug habit he had. He stated that [in] September 2021 he was convicted of multiple criminal offences and that he served an imprisonment [term] after which he was placed on a Community Corrections Order and was subsequently detained into immigration detention. On 30 September 2021 he applied for a Protection visa. It was refused by the Department and that decision was affirmed by the Tribunal (differently constituted) and [in] June 2022 he appealed to the Federal Circuit and Family Court of Australia.

    ·Also provided is a notice of filing to the Federal Court dated [in] January 2023 indicating an appeal from the protection visa refusal and court dismissal in the inferior court.

    • In relation to the conditions that might be applied to his visa the applicant made the following claims. In relation to the condition of no work he stated that he is ready to comply with this because he knows that he has applied for a Protection visa and that he will not be allowed to work. He wrote that he has family and relatives to support him. He also wrote that he is willing to live with his partner and children and that she is committed to providing him all the facilities of accommodation, food and comfort. He wrote that his partner is [an occupation 1] employed by [Employer 1].
    • The applicant wrote that when the Department previously raised the issue that he was working beyond his conditions that he wishes to state that he was not working for the company whose truck he was driving but rather was working for a subcontractor who hired him for the job, and he was working 20 hours per week for the subcontractor. The subcontractor was working full-time for the company. He stated that when the police called to find out about him, they called the company not that subcontractor and his own details were not registered with the company.
    • In relation to the no study condition the applicant wrote that he has no plans to study further as he wishes to finalise his immigration case while living in the community.
    • In relation to the condition requiring Notifying a new address, he wrote that he is ready to comply with this condition as he previously also did. He wrote that the Department has never found him in breach of the change of address condition. He stated that if the visa is granted, he’ll be living with his partner and provided an address in [Town 1] in Queensland. He also referred to an attachment he provided of a lease agreement.
    • Insofar as the must report as directed condition is concerned, the applicant wrote that he admits it was his fault that previously did not pay attention to his visa status between the periods of 10 March to 9 July 2020 and 4 November 2020 to 9 June 2021. He wrote that he remained unlawful in the community due to his unstable mental health because he was addicted to taking drugs and was in bad company. As a result of that he could not think straight and made a huge mistake.
    • The applicant stated that he has now quit use of drugs and alcohol which previously led to a number of diseases and that he has now become a good person and having spent time in jail and the detention centre is aware of his mistakes. The applicant wrote that in relation to the must not engage in criminal conduct condition he is committed to not committing any criminal conduct or behaviour. He stated that he is aware that he if he commits any crime he could end up in jail or detention. The applicant wrote that his previous behaviour brought shame on his family and he wants to prove to them and the community and to the Department that he is a person of good character. He reiterated that he will not offend again and there were places he never wishes to return to or see again. The applicant also wrote that during his time in immigration detention he has had limited access to rehabilitative programs, but he has used all the supports available to him. He referred to completing an online course related to his offence and to gaining some knowledge about drug and alcohol abuse, anger management, and basic criminology. Certificates regarding these courses were provided to the Department. He was referred to attending appointments with a psychologist in detention centre and referred to copies of medical and psychological records provided to the Department.

    Written evidence provided to the Tribunal

    • The applicant provided the Tribunal with copy of the same documents he provided to the Department and a further statement from him dated 8 September 2022. In his statement he reiterated elements of his previous statement dated 29 August 2022 and made a number of additional comments. He reiterated that he is remorseful of the crimes he committed and that they occurred while he had a drug habit. He again explained that he worked for 20 hours per week, but that confusion arose because he was not employed by the company directly but had been sub-contracted. The applicant expressed concern that the delegate misinterpreted his response to the NO STUDY discussion at interview and expressed that he would only study if he was required to undertake any courses and that he would do them online.
    • A copy of a statement of support from [Partner A] dated 20 August 2022 stating that she has known the applicant for two years and that he is her partner. She wrote that she speaks to him on the phone ‘a lot’ and is aware that he has sought psychological help in the detention centre. She also referred to him completing drug and alcohol abuse and criminology courses this year. She wrote that she is afraid that she and her children will be separated from the applicant and that the children need their father and that it is difficult for her to tell them where their father is.
    • A Rooming Accommodation Agreement indicating the term of the agreement being from [August] 2022 until 30 June 2023 in the name of [Partner A]. It states the rental is $310 per week.
    • A certificate of course completion by the applicant of a number of courses dated 2 August 2022
    • Medical records provided by [Health Service 1] while he was in detention for the period between [dates in] 2021 and [2022].
    • A support letter for the applicant from [Cousin A], his cousin of 15 January 2023, as follows

    I am [Cousin A], permanent and law-abiding Resident of Australia currently living at xx   VIC , and [Occupation 2]. Working Details:-[Position specified] at [Employer 2], xx VIC, Here I do solemnly and sincerely declare that:-

    know [the applicant], Date of Birth xx  he is my cousin brother (who is currently at [Detention Centre 1]).

    I am happy to support him with accommodation, financial and other Basic needs as I did previously.

    I can support him emotionally, mentally and financially so that he can bring his life back on track. I can help him until he needs. As I have my own house here in Victoria and space for him.

    I am fully aware about his charges and I am sure that he will not commit any crime in future as I can feel his remorse when I talk to him.

    I ensure that I will help him to keep his visa status active and will cooperate with him and department to update his residence and visa status, so he does not have to face the trouble again.

    I take complete responsibility of him. If he gets his bridging Visa I am more than happy to look after his immediate needs.

    If you have any inquiries that how I can help him financially please do not hesitate to contact me according to Melbourne time between 11 am to 12 am or if I missed your call please leave your voice message with number to contact you back as I remain busy.

    Kinds Regards

    [Cousin A]

    PH: xx
    15/01/2023.

• A support letter for the applicant from [Partner A], his partner of 15 January 2023, as follows

  Full name and address:, xx, VIC

  Occupation: [Occupation 1] at [Employer 1]  xx  [Victoria] (Tel: xx)

  Telephone: xx

  I have known [the applicant] for more than 2 years since he was in the community. He is my partner. I am writing to ask the department to grant him visa and allow him to return to the Australian community and restart his life with us.

  Speaking to [the applicant] about his offences I can always feel the sympathy and hear him acknowledge the remorse and sadness and sorry for his offences. It's never about him even if he has been in immigration detention for over year now since 2021.

  I speak to [the applicant] a lot on the phone with him in detention when he was in [another] immigration detention centre before transferring at [Detention Centre 1] I have seen that he has sought psychological help from the detention centre to deal with his offences and his previous mistakes to feel sorry about it.

  [The applicant] I know will never reoffend. He was in bad companies and start taking drugs when he committed these offences. Now I can see the improvement within him if he is released from immigration detention and allowed to stay with me and my kid in Australia.

  [The applicant] after his offence to now he has opened to sharing his emotions and he will seek help rather than not. I know that [the applicant] completed drug and alcohol abuse and criminology basic courses in 2022, in our conversations he has spoken about what he had learnt in taking the program. He tells me that he now better understands the extent of his actions and how they were so detrimental to the Australian community - he understands how to address the factors contributing to the offence, as well as how to ensure it never happens again.

  [The applicant] is not a risk to the Australian community. I believe he has learnt from this experience, and will never have any interactions with the criminal justice system again.

  I assure you as a responsible citizen of Australia that he will not commit any crime. He has become mature as well and he now recognised the responsibility and importance of family.

  If [the applicant] does not grant visa, I am afraid that my children and I will be separated from him because now the children really need him and it is difficult for us without him.

  As my daughter's engagement ceremony is next month February and we are expecting him to come out to celebrate it with us. As my kid also desperate to meet their dad on this special occasion. If you would like to talk to my daughter, [named], to confirm about her engagement occasion or any other relevant information you can call on: [phone number]

  If he released from detention centre I am committed to help him financially, emotionally and psychologically.

  I would like to request the delegate to call me before making any decision on him and for confirmation of any above mentioned submission, so I can make you satisfied. I have provided these all information before to the department but department never call me back to confirm so this time I really want to talk with the case officer. I will send the pay slip to support my word with this

1. A payslip was included for [Partner A] of 9-15 January 2023 from [Employer 1]. Gross pay was AUD1,449.33 and net was AUD1,126.83. AUD29,758.74 gross had been paid thus far to [Partner A] for this financial year to date.

2. A record of interview for this decision was provided. It notes the applicant had not lived with his partner.  His mother is in India. He intends to live with her if released. He has nil savings. His partner will cover all expenses. He does not want to go to India. He wants to go to [Country 1] with his partner. His partner would pay any security bond.

3. The applicant’s substantive written submissions were as follows:

   Additional Information

   A. Background

   My name is [applicant’s name] born as a Sikh family in Punjab, India.

   In November 2017 I came to Australia for better future and living together with my family and Relatives. And then couple of times I was staying unlawful in the community as per department system between 10th March 2020 to 09th July 2020 and 04th November 2020 to 09th June 2021 because of my bad drug habit.

   [In] April 2021, I was charged with several offenses such as committing an indictable offence and many others.

   [In] September 2021, I was convicted of multiple criminal offences and released from criminal detention after serving a term of imprisonment of [term], and placed on a Community Corrections Order. I was subsequently detained under section 189(1) of the Migration Act and transferred to Immigration detention.

   On 30 September 2021 I applied for protection visa, which was remained unsuccessful in department, administrative appeal tribunal and federal circuit court then again I appealed the decision of these court in the federal court [in] January 2023, which is still under processing I will attach the court order to support this submission and marked ‘’A’’

   As I meet the requirements in subclause 050.212(3A) in Schedule 2 of the Regulations because I have lodged a protection visa application, and applied for judicial review I federal circuit court.

   Conditions

   I am ready to abide any conditions imposed by department as follows:

   8101 – No work Page 2 of 5

   I am ready to comply with your condition of not working because I know that I have applied for protection visa and I will not be allowed to work. I have my family my and relatives support. But I am willing to live with my partner who is ready to bear all my living costs and amenities. I will attached the support letter to support my claim and request the department to call her before consider anything marked letter ‘’B’’

   On the other hand, my cousin [Cousin A], he is also ready to support me as he supported me before.he is ready to provide me financial assistance if needed. as he is working as a [specified role] and he is committed to help me I will attach the support letter to support this and marked ‘’C’’

   On the other hand, I want to clarify that last time when the department raised the issue that I was working beyond my conditions, here I would like to state that since I was not working for a company whose truck I was driving. I was working for a subcontractor who hired me for his job and I was working 20 hours per week for the subcontractor and that subcontractor was working full time for the company. When police made call to find about me they called the company not subcontractor, who I working for.so my working related details was not with the company it was with my contractor.

   8207- No study.

   I have no plans to study further as I want to finalize my immigration case while living in the community and I have no intention of studying as of now. Even I cannot get myself enrolled in any university or college due to my criminal record.

   8506- Notify new address

   I am ready to comply with the condition notify new address as I always used to. Department never find me breach the condition of change the address.

   If I get visa I will live with my partner who is currently living at [specified address]. I want department to call my partner and cousin for more information.

   8401 – Must report as directed.

   I admit that it is my fault that last time I did not pay attention toward my visa status in between 10 March 2020 to 09 July 2020 and 04 November 2020 to 09 June 2021. I was remained unlawful in the community due to my unstable mental health because I was addicted to take drugs while being with bad companies, because of drug intake I could not think straight and I made huge mistake.

   I would like to state that now I have quit everything like use of drugs and alcohol which leads me to have several disease in past One off them was HP-c, which was consumption of drug substance I have gotten rid from HP-C now after quitting drug since last year as per my medical blood report. I now have become good person after see the hard time in Jail and detention centre. I have realised that I was in jail and detention centre because of my own mistakes.

   I want department to give me one single chance to prove myself to the community that I have become good person and I will update my details and visa status to the department while living with my partner.

   8564- Must not engage in criminal conduct.

   I am committed to not to commit any kind of criminal conduct or behaviour. I know that if I will commit any crime I will end up in jail or detention centre, where I do not want to go. I have learnt lesson from my previous offences.

   I have brought shame on my family due to my offending and it is very shameful for me too. I want to prove my family and community also the department that I am the person of good character.

   I recognised that the offences I committed due to started taking illicit drugs which put me in a bad society. I am committed that I will not use any substances in rest of my life.

   There is not any risk factor which I believe will lead me to commit any crime again in future. I know I will never offend again as it would lead me to prison and immigration detention. These are places, I will never return and never want to ever return or even see.

   During my time in immigration detention I have had limited access to rehabilitative programs however have utilised all supports available to me. I have completed an online course related to my offence and some of to gain the knowledge about such as, drug and alcohol abuse, Anger Management, Criminology Basic. I will enclose the online courses certificates to support this submission and marked ‘’D’’

   I have attended psychologist in the detention centre to feel sorry about my offences and the mistakes I did when I was on student visa and could not continue with my studies due to use of drug substances. I will enclosed the medical and psychological record from ([Health Service 1]) to support this and marked ’’E’’

   In completing this course and staying away from family members. I have realised and gained the skills that I needed to be a better person and law-abiding person and from online course and psychologist sessions, I have a clear understanding of wrongdoing and their effect on me and especially community.

   I want to proceed with my protection application while in the community where I am practically, emotionally and psychologically supported by partner and cousin I am having trouble finding a lawyer after being detained here. As I know I have applied for protection visa and it can take a long way to go for my whole process, so I request the delegate that please grant me visa so I can spent my time in community doing good deeds and with my partner and kids.

   Immigration detention is full of people with very little to lose and it is not a place I ever want to be in ever again. This shows my commitment to be a person of good character who will not reoffend.

   I never want to and never will have an experience with the Australian criminal justice system or any criminal justice system in any location in the world.

   I know that if I will get visa this time and if I will made any minor mistake I will have to go back in detention or prison, which I cannot afford again.

   Supporting documents are enclosed

   ‘’A’’ court order

   ‘’B’’ support letter from Partner

   ‘’C’’ support letter from cousin

   ‘’D’’ online course certificates

   ‘’E’’ medical and psychological record from ([Health Service 1])

   Sincerely

   Signed:-

   Date: 20 / 01 / 2023

   STATEMENT OF FACTS, ISSUES AND CONTENTIONS

   BACKGROUND / APPLICATION BEFORE THE TRIBUNAL

   I was born on [date]. I am [age] -year-old citizen of India.

   In November 2017 I came to Australia for better future and living together with my family and Relatives. I was not departed Australia since I first arrived.

   I had been convicted and sentenced at the [named] Court , to two (2) terms of imprisonment for a [period] total [term] in custody and [period] time for community correction centre for assessment and treatment for drug abuse or dependency for multiple offences related to theft, possess drugs, stolen goods and many more. On 30 September 2021 I applied for protection visa, which was remained unsuccessful in department, administrative appeal tribunal and federal circuit court then again I appealed the decision of federal circuit court in federal court [in] January 2023, which is still under processing.

   As I meet the requirements in subclause 050.212(3A) in Schedule 2 of the Regulations because I have lodged a protection visa application, and applied for judicial review in federal court.

   On 23/01/ 2023, I made application for a Bridging E (Class WE) visa.

   The delegate made a decision to refuse to grant the visa on 25 January 2023 under section 65 of the migration act 1958.

   I have made an application to the Tribunal on 27 January 2023 to review the delegate’s decision to refuse to grant the Bridging Visa E (Class WE).

   GROUNDS FOR THE CANCELLATION

   As delegate is not satisfied with the clause 050.223, 051.211(2) and 2.20(7), (8), (9), (10) or (11).in schedule 2 of the regulations that I have extensive criminal history and non-compliance while holding visa and do not meets the requirements.

   As I am still rely on my previous submission submitted to department during bridging visa e on 23/01/2023.

   There were some issues, which were not discussed while interview. I am going to discuss that here below.

   Member of home affairs did not discuss in interview that I have pending debt in [Agency 1] I have been informed when decision was made.

   Member of home affairs raised issue that I will not abide by the conditions whatever will be imposed by minister, to see my previous unlawfulness status and disengagement with department.

   SUBMISSIONS/ COMMENTS

   In this review I submit that it is not only a different time but there has been substantial changes. As I admit that I have committed crimes and I am remorseful for that till today and I regret why I did that.

   As it is true that I have debt from [Agency 1] which is unpaid I am very well known about that and I will have to pay it whenever I will go outside, I have made an instalments of these debt with the [Agency 1] with the help of my partner [Partner A] and I will pay it. I could not pay it earlier as I was detained in detention centre so it was a shock to me as I was detained and I could not pay attention to it. I am going to provide my instalment payment reference [number]. I commit to making $100 monthly payments to [Agency 1], beginning 01/02/2023. My partner [Partner A] is taking full responsibility of my [Agency 1] loan and she is ready to pay it in instalments till it is cleared.

   Delegate is not satisfied that I will abide by the conditions. I admit that I have made huge mistake and the offences were committed while I was on drug habit. I was engaged in bad companies which leads me to commit these crimes I have completed ‘’ drug and alcohol abuse and criminology basics’’ from where I have learnt the bad impacts of using drugs and the outcome and I have learnt how to overcome on it in future.

   Since these crimes were committed I was alone, now I have my partner and children guiding me in every aspect of life, which is a huge responsibility for me. I also acknowledge that I was illegal on some occasion depicted on the records of the Department.

   I assure you that now I have my partner with me and she will help me to stay legal as we are going to get married after release from here which is a proof that I will not be illegal anymore.

   As the delegate raised the issue that I have been given bridging visa on release from jail and why I have not depart Australia. As conditions were imposed on me by the magistrate that I should not leave the state (country) till the case is finalised, so I did not.

   I am ready to abide by the conditions 8505 live at specific location and 8401 report directly I agree that I have violated these conditions before which I should not do so. I have realized now and I am ready to abide by any kind of conditions whatever it may be.

   I submit that the Tribunal should give no weight to the primary decision maker.

   I submit that the Tribunal should determine for itself, and the proper exercise of the discretionary power to the visa application

   Having regards to the materials provided to the department, the submissions below, I submit that there is another reason why the original decision by the delegate of the minister should be set aside to refuse the grant of the visa.

   The Tribunal can also be comfortable that there is an extremely low risk posed by me and there is minimal likelihood of the re-offending as it is in my psychologist report.

   I understand the impact of my crime on society but I have not had a violent relationship with anyone. I admit that I have made a mistake and I am now committed to improving myself.

   I pleaded guilty to the offences this is a clear demonstration of accepting responsibility for my criminal actions. The Tribunal should be comfortable to find that by accepting responsibility, I has been able to work on his rehabilitation successfully.

   My partner has helped me financially many times during my stay in the detention centre. I can provide proof with this submission.

   Sincerely

   Signed

   Date: 03/02/2023

   The evidence in the hearing 

4. The applicant said that he had been with his partner since September 2020.

5. He had been in Australia in 2017 for a visit and returned in 2018.  He said he had lived with family in Melbourne. He is healthy at present. He speaks regularly with his partner on the telephone from [Detention Centre 1].

6. Although previously he had had a drug problem, he had received treatment for several weeks at a hospital and was cured. He said that he had been on heroin.

7. His partner is of [specified ethnic] background. His mother was currently in India although she had been in Australia. She is attending to property matters.

8. The applicant’s father died in 2003. He has [a] brother in Melbourne. He had lived with him before.

9. He discussed his partner’s income and whether it could support him without his working.  He said she received between AUD1,100 and Aud1,200 after tax. He said it was around AUD30,000 per annum after tax.

10. His partner has two children from a previous relationship - [ages specified]. [One] child has a relationship and lives elsewhere.

11. The applicant said he had asked for support from his mother as there was a property in his name in India that could be sold. He has a car worth AUD17,000, which is stored. He said people, had ‘robbed’ it so it was put in a garage.

12. I asked if he owned money to which the applicant said ‘no.’ I pointed out that he had a debt to [Agency 1] of AUD10,000.  He said this would be paid in instalment and ‘she will pay as well.’

13. The debts to [Agency 1] were for Covid-19 related fines – [fine details]. He was on an instalment plan. He said it is for AUD100 per month if he is released from detention.

14. I asked why he did not sell his property in India and pay off his debt now. He said that there needed to be a power of attorney and he had to be present for documents to be attested for India.

15. There were 10 acres of his in India. He was waiting for the documents. He expects to receive AUD200,000 for the property as rices were high in this area in Punjab. He also said there was a family dispute in India. He would go to [Country 1] if released.

16. The applicant said his partner was getting a different job. Her son had broken his ankle which had slowed this process.

17. His cousin was willing to assist him. His cousin was only available between 11am and 12pm to call and the Tribunal for time zone reasons could not achieve this. Given the need to make a timely decision and provide efficiency the Tribunal has relied on the cousin’s earlier mentioned declaration.

18. The applicant said he would live with his partner. He said his cousin would assist him. He said his partner pays rent. He says he has clothing and personal effects of his own.

19. The Tribunal also interviewed the applicant’s partner [Partner A] by telephone from Victoria. She said she is looking for another job. Said that presently at a [specified business] and she earned over AUD1,000 per week. She had approximately AUD2,000 in savings. She said she was looking after one of her children – [age specified]. Her older child, who is [age], lives with her partner and she does not support her.

1. I asked what rent she was currently paying to which she stated AUD1,100 per month. This is for a one-bedroom dwelling. She said her [other child] alternated with his father and with her to live.

2. Asked if there were any other ways in which the family were supported, [Partner A] said that her adult daughter had offered to support the applicant by working two jobs. She currently works in a [business type].

3. I asked about the applicant’s relatives and family. [Partner A] said that her partner’s mother lived in India although she had been in Melbourne and she said that the family will “100 per cent” help. I asked if they had helped for. She said that the cousin had worked but she did not know he did. She added that her partner had a property he could sell. She said his mother could sell it in a month.

4. [Partner A] also said that she had property in [Country 1]. She said in order to sell that property would take four months.

5. I asked about the debt to [Agency 1]. The applicant said that AUD100 per month was being repaid. I noted that this could take eight years to pay off such a debt at that rate. The witness said that she was going to get another job. She said it would be a cleaning job which she initially said was for five hours a week later corrected as being five hours a day. She would earn $25 per hour. She said she was “110 per cent” sure she would get this job.

6. The witness also said she could possibly work in [a specified industry]. She said that her job at [Employer 1] however was for 38 hours a week. She said she had bought a car for  AUD1,800.

7. I asked if her partner had a car of his own and she said it was still in a place in [Town 2]. I asked if he could sell it and she said she was not sure. She said they wanted to keep it because it was not in good condition. I asked if the car had been seized. She said that it had been caught because car the car was damaged and stolen. This apparently was as a result of the applicant’s difficulties with committing offences in the past.

8. I asked the witness if the applicant had good relationship with his mother. The witness said that her partner’s mother did not know that he was in detention. She did not know that he had gone to jail. She said that her partner’s mother had paid for the couple to go to [Country 1].

   Evaluation

9. The Tribunal is of the view that the applicant would not meet the “no work” condition. Firstly, the applicant is impecunious. He has no savings and he owes AUD10,000 to [Agency 1]. It appears from his oral evidence that he obtained movement order breach fines during the pandemic while driving a delivery vehicle. He said that he had gone outside the compulsory kilometre limit. The Tribunal finds that the applicant was working at a time when his previous bridging visas had “no work” conditions on. The Tribunal finds that the applicant has breached a “no work” condition in the past and is concerned that his lack of funds will prove to be too pressing in order for him not to work.

10. The applicant’s partner presented sincere evidence about how she supported her family on a relatively modest income. Looking at her pay receipts I conclude that her income is in the order of gross AUD50,000 per annum approximately. Tribunal notes that the witness wants to supplement her income by working a second job and she stated in later submitted evidence that she intended to work five extra hours per day at AUD25 an hour. The Tribunal has come to the conclusion that this would lead to a very onerous workload for a working mother and that could well prove to be unsustainable. On balance the Tribunal finds that this is an unrealistic goal and that the witness’s income would remain broadly within her current level.

11. The Tribunal notes the witness’s plans, but she needs to pay AUD1,100 per month in rent. She has a child at school and associated expenses and she appears to have all other expenses that she must carry including utilities food, and cost of living generally. While the applicant may be able to live cheaply, unexpected expenses and one-off costs to the Tribunal’s mind produce so many problems that there would be a strong incentive to work. On balance the Tribunal finds that the applicant would obtain paid employment, all things being equal, and would not be able to comply with the no work condition.

12. The Tribunal notes the previous bridging visas that the applicant held had “no work” conditions on them. There is a strong likelihood that the applicant breached such a condition while doing delivery work at the time which he received pandemic-related fines.

13. The Tribunal calculates that it would take years to pay off this debt at the current rate of repayment of AUD100 per month. Such a sum is not a trivial one to a family of modest means and it provides even less assurance that the applicant would be able to comply with the no work condition.

14. While a cousin may offer to assist, the parties portrayed him more as a back-up and that [Partner A] would be the primary or even sole financial support. That [Partner A’s] daughter will work another job to help the applicant is to the Tribunal’s mind a promise or intention, but is not currently occurring, is at an embryonic stage and is matter of speculation at this point.

15. The parties have discussed selling a property in India that is said to be in the applicant’s name and possibly selling a property in [Country 1]. Although there may be an intention to do so, and because indeed there would be logistical difficulties in arranging such sales while in offshore detention, the Tribunal cannot view such sales as being certain or even likely. A number of impediments may come in the way to sale of property, and common knowledge informs one that there are often delays as this takes place. The Tribunal notes that there is no substantial evidence of the existence of these properties, but even if they do exist the Tribunal is not satisfied that these could be expeditiously sold and thus relieve the financial pressures of the applicant’s household. I consider the applicant’s automobile to be damaged and of probable low value. I have negligible confidence that the sale of property or other possessions would make a “no work’ condition achievable.

16. The Tribunal has no option but to apply the no work condition to the grant of this visa as it is mandatory, per cl 050.616. 

    Findings

17. As noted above, cl 050.223 applies because it is a time of decision criterion for a Bridging visa relevant in this case. The Tribunal considers that the following conditions should be imposed in this case:

    8101 (NO WORK)

    8207 (NO STUDY)

    8401 (REPORT AT SPECIFIED TIME AND PLACE)

    8506 (NOTIFY CHANGE OF ADDRESS)

    8564 (NO CRIMINAL CONDUCT)

18. The Tribunal is not satisfied based on all the evidence that the applicant will abide by the mandatory no work condition (8101).

19. The Tribunal has taken account of claims that the applicant’s partner is committed to support him. The Tribunal did not find the evidence regarding planned finances convincing and therefore has doubts about the claimed support he claims she can provide. It also has insurmountable doubts about other proposed financial supports, as described.

20. It follows that no amount of security would ensure compliance.

21. As the Tribunal is not satisfied that the applicant will abide by the mandatory no work condition (8101), it did not go on to further consider in depth Conditions 8207 (No Study), 8401 (Report at Specified Time and Place) and 8506 (Notify Change of Address) or 856 (No Criminal Conduct). On the face of it those other conditions seemed achievable to the Tribunal (as I mentioned to the applicant) and I did not invite comment on them.  

22. 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.

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

24. 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

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

    Justin Meyer
    Member