2303768 (Migration)

[2023] AATA 773

2303768 (Migration) [2023] AATA 773 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2303768

MEMBER:Tania Flood

DATE:24 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2023 at 9:57am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – valid application for a substantive visa – applicant convicted of criminal offences – Australian citizen family – not engaging in criminal conduct – breaching a Code of Behaviour – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 46, 73, 424AA, 501
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, 051.211; Schedule 8

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 March 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 050.212 and cl 050.223.

3. The decision to refuse to grant the visa was made on 15 March 2023 on the basis that the delegate was not satisfied the applicant would abide by conditions to be imposed on the visa.

4. The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife by telephone.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant’s migration history is outlined in detail in the delegates decision which is before the Tribunal for the purpose of this review.  The decision reveals the applicant first arrived on Christmas Island as an Unauthorised Maritime Arrival (UMA) [in] August 2013.  On 24 February 2015 he was granted a Temporary Safe Haven (Class UJ) (Subclass 449) Visa and a Bridging E (Class WE)(Subclass 050) visa.  On 18 May 2018 he was granted a Temporary Protection (Class XD) (Subclass 785) visa.  Following a criminal conviction for [two specified charges] and a corresponding prison sentence his Temporary Protection visa was cancelled on 11 February 2020 under s501 and he became an Unlawful Non-Citizen.  He lodged an application for revocation of this cancellation which was refused on 20 July 2022.  He appealed the decision to the AAT and on 29 September 2022 the AAT set aside the decision.  However, his visa was not reinstated as it had already naturally ceased on 17 April 2021.  On 17 November 2022 he lodged an application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa which was deemed invalid on 2 December 2022.  He was subsequently advised that the s46A bar had been lifted to allow him to make a Resolution of Status (Class CD)(Subclass 851) visa application which he made on 9 February 2023.  He was also taken to have made an application for a Bridging E (Class WE) (Subclass 050) visa.  On 15 March 2023 the delegate refused to grant the Bridging E visa.

7. 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.

8. Subclause 050.212(3) states that:

   (3)       An applicant meets the requirements of this subclause if:

   (a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or

   (b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

9. On 9 March 2023 the applicant applied for a Resolution of Status (Class CD) (Subclass 851) visa which has been deemed valid and has not been fully determined.   Based on available information the Tribunal is satisfied that the applicant meets cl 050.212 (3) and continues to satisfy this criterion at the time of decision.

10. The issue in this case is therefore whether, if the visa is granted, the applicant will abide by the conditions that will be placed on the visa.

    Whether the applicant will abide by conditions - cl 050.223

11. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

12. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

13. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

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

    8401 (report at a time and place specified by the Minister)

    8506 (notify change of address)

    8564 (must not engage in criminal behaviour)

    8566 (must not breach code of conduct)

    Evidence provided to the Tribunal

15. In a letter to the Tribunal dated 17 March 2023 the applicant states that he acknowledges his guilt regarding his criminal offence and during his incarceration for [term] he undertook steps to become a better person including taking courses to address his offending behaviour, continuous self-education and reflection.  He expresses deep remorse and sorrow for his victim, her family, and the community at large.  He submits that the offence was out of character and will never happen again.

16. The applicant further states that he has strong ties with his wife and child who are both Australian and is committed to support them.  He states he intends to find employment immediately and begin the healing process with his wife and child. 

17. The applicant submits that he is fully rehabilitated, poses no risk and is ready and willing to engage with the community to regain respect and honour.  He submits that through self-education he has become fully aware of his obligations under Australia law.  He states he is aware of the implications of being placed on the Sex Offenders Register upon release from immigration detention if that is imposed.

18. The applicant notes that a decision of the Department to cancel his temporary protection visa on character grounds was set aside by the AAT. 

19. The applicant attached several documents including reports from his psychologist and [Agency 1] and a copy of the AAT’s decision to revoke cancellation of his temporary protection visa.

20. In support of his application the application also provided various documents in respect of his criminal conviction and jail sentence; a copy of a pre-release report and copies of various certificates of course completion including - Assertiveness Training; Child Abuse Recognition, Investigation and Protection; Domestic Violence 101; Sexual Harassment Compliance; various letters of support.

21. The applicant gave oral testimony to the Tribunal which is summarised below along with the oral testimony of his wife:

22. He is seeking to be released into the community and if his application is successful he intends to live with his wife and [age]-year-old daughter in their rental accommodation.  He is in daily phone contact with his wife and she and their daughter visit him about twice a month in the detention centre.   His wife is caring for their daughter alone and lives off Centrelink assistance.  She is diagnosed with [a named condition] but is currently in relatively good health.  She manages her condition with medication.  That said she needs his help and support and wants them to live together again. 

23. The applicant stated that he completed education courses in prison and learned about Australian laws and the consequences of him reoffending.  He said he will never again commit a sexual offence as it will destroy his dignity and be the end of his life and his family.  He said he is aware his name could be placed on a register of offenders and that the awareness of this will also keep him from doing anything stupid. 

24. The applicant acknowledged signing a Code of Behaviour in the past and breaching it, but again promised he would never again reoffend.

25. The applicant was asked about the courses he attended in prison.  He said they were online courses which ran for 3-4 weeks.  When asked what he learned from the courses he said he knows about the law and the rights of children and the consequences of abusing children.  He said he has forgotten a lot of the content noting that he did the courses when he was busy preparing for his previous AAT hearing.  However, he said he still has the course material and can review it.  When asked if he had revisited the material before now he said he has as he has instructed some other detainees to do the courses.  

26. The applicant spoke about his remorse for his past actions.  He said he even considered handing himself into the police before his arrest.  He said he has been punished for his actions and it won’t happen again as he now aware of the law and regulations. 

27. When asked who he could go to for support in the community if needed he said he could go to see a psychologist.

28. The Tribunal put it to the applicant that it appears the psychological treatment he is receiving in detention is focused on his depression and Post Traumatic Stress Disorder (PTSD) rather than anything related to his past offences and he said the sessions are guided by the psychologist and he hasn’t been asked about his charges.  He added that he was asked in a more recent session on 15 March 2023 if those issues had ever been discussed.

29. The applicant’s wife testified that her husband had been a good husband and a tremendous source of support to her during their marriage and her illness and that she could never forget that.  She said she is hoping her husband will be released from detention in order that he can continue supporting her and her daughter.  She stated that everybody makes mistakes and forgiveness is deserved.

30. When asked if she is worried her husband may reoffend she said she doesn’t believe he would.  She said she doesn’t believe he is a bad person and noted he is religious. 

31. When asked about her family’s opinion of him she said her brothers don’t believe he did something wrong.  She said she told them that if they didn’t see anything they should not believe it.  She said her brothers support her.  

32. The Tribunal asked the applicant’s wife if she also believes her husband did anything wrong and she answered, “yes I don’t believe it”.  The Tribunal asked her if her husband told her he didn’t do anything wrong and she answered, “yes he told me that”.

33. Pursuant to the requirements at s.424AA of the Act the Tribunal put it to the applicant that his wife’s testimony appears inconsistent with his professed admittance of guilt and associated feelings of remorse.  He replied that he initially told the police and his wife that he didn’t do what he was accused of but afterwards he pleaded guilty and told his wife the truth.  He said he thinks she must have forgotten that and that her response must be linked to what he told her initially.  He added that she has her own way of thinking noting her statement ‘if you don’t see it you don’t believe it’.   He said his wife has forgiven him.

    FINDINGS AND REASONS

34. The Tribunal has first considered whether the applicant will abide by conditions 8564 (must not engage in criminal behaviour) and 8566 (must not breach code of conduct) if the visa is granted.

35. The applicant claims he has learnt his lesson as a result of his incarceration and through the self-education he undertook during his prison sentence.  He states he now understands Australian law and the consequences of his behaviour and that this knowledge will prevent him acting out of character again. 

36. The Tribunal has considered the available information and the testimony of the applicant and his wife but is cognisant of the very serious nature of the criminal offences outlined above.  The Tribunal found his answer to the question about what he had learned from the courses to be brief and unconvincing.  The Tribunal found it particularly concerning that the applicant stated during the hearing he had forgotten much of the content of the courses he completed in prison.    The Tribunal was not comforted by his claim to be able to revisit that material online.

37. Further, the applicant’s testimony as to why he would not reoffend centred largely on the disadvantage he has suffered, namely being imprisoned and apart from his family, rather than demonstrating any convincing understanding of the harm he had caused the victim.  Despite the suggestion from his wife’s testimony that he may not have fully accepted responsibility for his past crime the Tribunal nevertheless considers he has demonstrated remorse for his past behaviour.  However the Tribunal  remains unconvinced, based on his testimony, that the risk of him reoffending in future can be fully discounted.

38. Also, while it might be the case that the applicant has greater knowledge now of Australian law he nevertheless concedes he knowingly breached an undertaking in the past to abide by a Code of Behaviour which according to the delegates decision stated he must never make sexual contact with another person without that person’s consent and must never make sexual contact with someone under the age of consent.  Based on the available evidence the applicant knowingly breached this Code of Behaviour in the past and despite that he has expressed regret and remorse for his actions the Tribunal cannot be certain, on the evidence overall, that he would not do so again. 

39. The Tribunal has read and had regard to the letters of support from the applicant’s family, friends and community members.  While the authors of those letters speak highly of the applicant and attest that he can be trusted to act appropriately in future the Tribunal is not satisfied that their personal assessments can be relied upon, especially given the serious concerns which are present in this case.

40. The Tribunal accepts the applicant is undergoing psychological treatment in detention but based on the reports provided in submissions this treatment appears to be focused on the management of his depression and PTSD rather than exploring his awareness of his past sexual offences. 

41. While the Tribunal accepts the applicant’s desire to be reunited with his wife and child may act as an incentive for him not to reoffend, it is not persuaded, for the reasons above, that he will abide by visa conditions 8564 and 8566 if he is granted the visa.  Having regard to the concerns set out above, the Tribunal is not satisfied that any amount of security, will act as a meaningful incentive for the applicant to abide by visa conditions.

42. Therefore, the Tribunal finds the applicant does not meet cl 050.223.

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

44. 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

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

    Tania Flood
    Member