2306873 (Migration)

[2024] AATA 743

2306873 (Migration) [2024] AATA 743 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2306873

MEMBER:James Silva

DATE:22 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2024 at 4:38pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Federal Circuit and Family Court remittal – abide by conditions imposed – No work requirement – financial hardship – psychological wellbeing – Report and notification requirements – No criminal conduct requirement – domestic violence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223; Schedule 8, Conditions 8101, 8401, 8506, 8564

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for the visa on 15 November 2021. 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, which requires an applicant to comply with the conditions imposed on the visa.

3. The decision to refuse to grant the visa was made on 21 March 2022 on the basis that the delegate was not satisfied that the applicant would comply with condition 8564 ‘No Criminal Conduct’.

4. The applicant sought merits review of the delegate’s decision, and on 1 August 2022 the Tribunal, differently constituted (‘first Tribunal’), affirmed the decision to refuse to grant the visa, on the basis that the Tribunal was not satisfied that the applicant would comply with condition 8564 and other conditions (relating to his continued engagement with the Department and his presentation of a Sri Lankan passport). On 16 May 2023, the Federal Circuit and Family Court of Australia issued consent orders remitting the decision for reconsideration according to law.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In brief, the Tribunal is not satisfied that the applicant will abide by the mandatory visa condition 8101 (No Work), if granted a bridging visa, and it finds that there is no security bond available to provide added assurance about his compliance with visa conditions.

   BACKGROUND AND EVIDENCE

6. The applicant is a [age]-year-old Sri Lankan national. A brief summary of his migration history and personal circumstances in Australia, drawn from the delegate’s decision record[1], and the applicant’s oral and written submissions to the Tribunal, provides essential context for this decision.

   [1] A copy of which the applicant provided to the first Tribunal.

7. The applicant arrived in Australia [in] July 2012, by boat and without permission. He was granted a Bridging E visa on 29 January 2013.

   §  On 18 January 2013, the applicant was granted a temporary protection visa (TPV). The visa was cancelled on 7 October 2021, under s.116. He applied to the Tribunal (differently constituted) for review of the TPV cancellation, and on 21 March 2022, the Tribunal affirmed the decision to cancel the visa. That matter is now finally determined.

   §  Meanwhile, on 6 December 2018, the applicant lodged an application for a Safe Haven Enterprise visa (subclass 790)(SHEV). On 30 September 2022 a delegate of the Minister made a decision to refuse to grant the SHEV visa. The applied to the AAT for review of this decision on lodged an application for review on 16 October 2022, and the matter is ongoing.

   §  The applicant is married to [Ms A], also a Sri Lankan citizen who has (separately) sought protection in Australia. [Ms A] has a child from an earlier [relationship]. The applicant and [Ms A] have two children born in Australia.

   §  The applicant has lived in various addresses in Sydney; he provided details of his past addresses up to July 2022 to the first Tribunal. His current address is in [Location 1], subject to a tenancy agreement signed by his wife on 24 October 2022.

   §  According to information submitted by the applicant to the first Tribunal (and confirmed in part to the current Tribunal), the applicant worked as a [Occupation 1] from 2013 to 2019; later worked as a self-employed [Occupation 2]; and most recently (from May 2021 to April 2022) as a casual employee with [a specified] company. He claims to have been unemployed (and with no permission to work) since April 2022.

   §  As noted in the delegate’s decision record, the applicant was arrested in May 2020, and charged with multiple counts of common assault. He convicted, and on 13 August 2020, he was subjected to a 24-month Community Correction Order that ended on 12 August 2022.

   ­   He was later charged with new offences on 12 February 2021, including two charges of assault occasioning bodily harm, two charges of common assault and one charge of breaching an apprehended violence order. [In] June 2022, the prosecution withdrew the charges, and they were dismissed by the Local Court.

8. The applicant has not held any visa since the visa cancellation on 7 October 2021, and is currently an unlawful non-citizen. As noted above, he applied for the current Bridging E visa on 15 November 2021.

   Evidence

9. The Tribunal has before it materials provided to the Department, the first Tribunal and the current Tribunal. These include relevantly (not exhaustive):

   §  The application for a Bridging E visa, lodged online on 15 November 2021.

   §  The decision record dated 21 March 2022, a copy of which the applicant provided to the first Tribunal (this includes, among other things,  information about the applicant’s family, his conviction and sentencing in August 2020, and further charges brought in February 2021).

   §  The applicant lodged the review application on 29 March 2022. He forwarded to the Tribunal a copy of the delegate’s decision record, and in subsequent correspondence, details of his addresses in Australia, family circumstances, financial situation (multiple accounts), partly in connection with an application for fee reduction. There are also some medical reports and letters of support. Some of this material is no longer relevant (for instance, in light of the cancellation of the applicant’s protection visa in October 2021) and/or has been covered by submissions in the review before the current Tribunal.

   §  The applicant appeared before the first Tribunal on 29 July 2022, by telephone, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

10. The applicant appeared before the current Tribunal on 5 February 2024, to give evidence and present arguments. It was held with an interpreter in Tamil and English. The applicant’s newly appointed representative, legal practitioner Ms Noeline Harendran of Australian Migration Consultants and Practitioners, accompanied him. The Tribunal also took oral evidence from [Ms A], the applicant’s wife. At hearing, the Tribunal alerted the applicant to the privilege against self-incrimination, given the nature of the material before it.

11. Following the hearing, the Tribunal received several emails with supporting documents, including: (a) documents relating to the family’s banking and rental accommodation[2]; (b) letters of support addressing the applicant’s finances and past employment[3]; (c) the applicant’s health[4]; and (d) his participation in counselling related to domestic violence[5].

    [2] Including: Residential tenancy Agreement dated 24 October 2022, with [Ms A] recorded as the tenant, and [Mr B] as the other person nominated as an occupant; bank statements for [Ms A], for selected periods, showing SRSS payments and various outgoings; and a [Bank 1] letter dated 18 October 2022 advising that the applicant closed a [Bank 1] Account on 29 August 2022.

    [3] Letter from [Mr C], Manager of [Business 1], dated 13 February 2024, confirming that the applicant was employed there casually until 24 April 2022; [Ms D], Sydney Refugee Team, WEC Hope (a company operated by the Christian faith-based WEC International), 7 February 2024 (this notes that the applicant does not a visa, work rights or access to social security benefits, and states that they have helped the family with food, gift cards and other support); [Mr B], who wrote in a statutory declaration dated 11 February 2024 that they have provided financial assistance to the family; M/ [Mr E], who wrote in a statutory declaration dated 11 February 2024 that the family experiences financial difficulty, and he has lent them $1.500 in September 2023; [Mr F], who wrote in a statutory declaration dated 11 February 2024 that the family has a low income, and he lent them $1,750 in June 2023.

    [4] Mental health assessment dated 14 May 2021, diagnosing him with depression/anxiety, PTSD and sleep disorders; Letter from [Ms G], accredited mental health social work, dated 12 October 2021, describing the impact on the applicant’s mental health of his separation from his wife and children, following his step-son’s allegations of physical assault, and his current situation in the community on bail and subject to an AVO; An SRSS medical letter dated 10 February 2023, from [Dr H], declaring the applicant unfit for work from 10 February to 10 August 2023, with diagnoses of  PTSD (with reference to what appear to be specific protection claims), as well as asthma, anxiety and depression, and low self-esteem; with the additional comment that ‘he will  be ready to work as soon as his visa comes through with work permit’ [sic].  There is also a referral of the same date to [Ms G], with a completed K10 (‘simple measure of psychological distress’); A billing history for the period May 2022 to January 2024 appears to show that [Dr H] has sent bills to Medicare but not received funds, and that the applicant has a single unpaid bill; Letter from [Mr I], provisional psychologist, NSW STARTTS, dated 15 February 2024, address to the ‘Principal Migration Officer’ addressing some of the applicant’s reported past experiences and his assessed psychological symptoms. The letter notes that the applicant’s psychological health is deteriorating daily, and notes that resolving his visa status could alleviate the factors and benefit his emotional health. The submission included some pathology requests and copies of prescriptions.

    [5] [Ms J], Program Coordinator, Relationships Australia NSW, dated 25 February 2022 (two years ago), describing the applicant’s participation in group counselling and other casework.

12. The Department files includes a copy of a NSW Police Facts Sheet arising from the applicant’s arret on 28 May 2020, and a copy of a decision by the Tribunal (differently constituted) to affirm the decision to cancel the applicant’s Temporary Protection (subclass 785) visa, dated 21 March 2022. These contain information concerning the applicant’s criminal offending and personal/family circumstances. The delegate’s decision record

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant will abide by the conditions imposed on the bridging visa, if granted. The Tribunal first addresses preliminary matters, such as the applicant’s immigration status and the grounds for seeking the visa.

    Immigration status of the applicant - cl 050.211

14. 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). 

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

16. The Tribunal is satisfied that the applicant meets cl.050.211 at the time of application, and the time of decision.

    The grounds for seeking the visa - cl 050.212

17. 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.

18. In this case, the applicant met two of the grounds at the time of application:

    §  Subclause 050.212(3) applies where: ‘(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 […]’.

    ­   The applicant had applied for a Safe Haven Enterprise (XE790) visa (SHEV visa) on 6 December 2018, and the application was still ongoing (at the primary stage).

    §  Subclause 050.212(4) applies where ‘[…] (b) the applicant has applied for merits review of a decision to cancel a visa’.

    ­   The applicant had before the Tribunal (differently constituted) an application for review of a decision to cancel a subclass 785 (Temporary Protection) visa, lodged on 14 October 2021.

19. Accordingly, the applicant meets cl.050.212(3) and cl.050.212(4)(b), and hence cl.050.212, at the time of application.

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

20. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. In relation to cl.050.212, it is not necessary for the applicant to meet the same subclause (050.212(2)-(9)) as they met at the time of application.

21. In relation to cl.050.212(3), on 30 September 2022, a delegate made a decision to refuse to grant the applicant a SHEV visa. The applicant lodged two applications for review of the decision, one on 12 October 2022 (nominating Ms Kate Coffrey as his representative) and another on 16 October 2022 (nominating Ms Noeline Harendran). He withdrew the former, and the latter is ongoing.

22. In relation to cl.050.212(4), on 21 March 2022, the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s subclass 785 visa. There is no record of the applicant having sought judicial review of the Tribunal’s decision. He confirmed this at the recent hearing.

23. The Tribunal therefore finds that the applicant continues to meet cl.050.212(3)(a) at the time of decision, and satisfies 050.221. 

    Whether the applicant will abide by conditions - cl 050.223

24. 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.

25. 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].

26. 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.

    Conditions attached to the bridging visa

27. The applicant meets cl.050.212(3) at the time of this decision, on the basis of his application for merits review of a decision relating to a protection visa.

28. When determining what conditions attach to a Bridging E visa, cl. 050.613A applies ‘in the case of a visa granted to any applicant (whether or not the applicant is an applicant to which any other clause in this Division applies other than clause 050.613 or 050.616A) who: (a) applies for a protection visa; and (b) is not in a class of persons specified by the Minister by instrument in writing for this paragraph’. The Tribunal is satisfied that the exceptions and qualifies set out in cl.050.613A do not apply in this case.[6]

    [6] Cl.050.613 applies to persons who meet cl.050.212(6A) or cl.050.212(8), as the holder of a Bridging E visa granted in specified circumstances who has a compelling need to work. Cl.050.616A applies to the holders of a Bridging visa granted under s.195A of the Act (the Minister’s power to grant detainees visas.)  The applicant does not meet any of these requirements. The Minister has not specified any class of persons in an instrument in writing for the purpose of cl.050.613A(1)(b).

29. Clause 050.613A requires that condition 8101 must be imposed (unless condition 8116 is imposed), and that ‘any 1 or more of conditions 8116, 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.’ Additionally, cl.050.619 provides that condition 8564 may be imposed on any bridging visa.

30. At hearing, the representative queried whether condition 8101 was mandatory, but confirmed following the hearing her understanding that cl.050.613A was applicable in this case. Neither she nor the applicant made comments on the other proposed conditions.

31. In light of this, the Tribunal considers that the following conditions should attach to the bridging visa:

    8101 (No work) The holder must not engage in work in Australia.[7]

    8401 (Report at specified time and place) The holder must report (a) at the time or times; and (b) at a place or 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.

    [7] There is no evidence that condition 8116 (No Work – other than specified work) has been or would be imposed.

    Condition 8101 (No Work)

32. The Tribunal must be satisfied that the applicant will comply with the mandatory visa condition 8101 (No Work) attached to a Bridging E visa.

33. During this review, the applicant raised two broad matters regarding his unlawful status and hence, his lack of work permission. First, he stated that he has complied with migration law and his visa conditions to date, for instance by not working after the cancellation of his protection visa in October 2021 (although he acknowledged in his oral evidence that he continued working up to April 2022[8], when his lawyer advised him to stop). Second, he and his representative have stressed that his current lack of a bridging visa and work permission has caused the family financial hardship, as they are living ‘almost on the poverty line’ (in the representative’s words) and are reliant on SRSS payments as well as donations. The applicant’s evidence and letters of support also suggest that his inability to work and provide for his family have affected his psychological wellbeing, and (together with lack of access to Medicare) his capacity to obtain and pay for medical treatment.

    [8] The Tribunal notes the letter from [Mr C] that confirms the applicant’s casual employment up to April 2022.

1. The Tribunal formed the impression that the applicant highlighted the family’s financial hardship and his need to work on the initial understanding that the grant of a Bridging E visa would result in him having permission to work. However, as noted above, mandatory condition 8101 precludes this possibility. As a result, the applicant’s presentation of his and his family’s dire financial circumstances tends to undermine his claim that he will comply with visa condition 8101. 

2. The applicant provided some information regarding his financial situation, family expenses and experiences since the cancellation of his protection visa in October 2021, all of which are potentially relevant to his future compliance with condition 8101 (No Work):

   §  The applicant has previously advised that he has no assets and no debts in Australia. At hearing, he stated that he owes nearly $1,500 to one person. The post-hearing submissions indicate that he borrowed $1,750 from a [Mr F] in June 2023, and $1,500 from a [Mr E] in September 2023. These persons state that the applicant undertook to repay them, without further details.

   §  In addition to his own living expenses, such as accommodation, food and other basics, the applicant also has a wife and three children living with him in Australia.

   §  As noted above, the applicant has not held a visa since October 2021, when his protection visa (subclass 785) was cancelled; hence, he has also not had permission to work from this time. At hearing, he told the Tribunal that he had worked in [a specified company] up to April 2022, but stopped that work on the advice of a lawyer who had been assisting him. Although this suggests that the applicant continued to work for some period after the visa cancellation (which also entailed the loss of work rights), his account suggests at face value that he stopped working once alerted to his migration status.

   §  The Tribunal asked the applicant how, if he is not working, he keeps busy. He said that he struggles to keep occupied without work; he sometimes takes the children to the park. While the Tribunal accepts that people without work or similar commitments may lack a fixed routine, and may find it difficult to account for their daily activities. Even so, it found the applicant’s evidence very vague, and has some concerns that he has not been completely candid about his activities, including possibly some form of employment.

   §  The applicant said that his wife has an application for judicial review of a decision to refuse to grant her a protection visa (this appears to be an application of a decision made by the Independent Assessment Authority) and has permission to work. She is not working at the moment, due to her childcare responsibilities. He said that she typically cooks in the morning, and looks after the children for the rest of the day. Asked if she had any future plans regarding work (for instance, when the children are a little older), the applicant said that she was mentally unstable and had some back pains.

   §  The Tribunal requested details of how, if neither the applicant nor his wife are working, they are currently meeting the family’s living expenses. The applicant replied that his wife and children currently receive some limited Centrelink benefits, and some vouchers. They also receive some assistance from ‘the community’. After the hearing, [Ms A] provided evidence of receiving regular SRSS payments into her bank account, and [Ms D] confirmed that the WEC Hope Sydney Refugee Team provides food and similar assistance. While these sources may assist the applicant and his family meet their immediate needs, the Tribunal considers that, if granted a bridging visa, he will be motivated to provide for his family directly.

   §  In response to questions, the applicant said that his wife signed the family’s tenancy agreement and provided details of her income in support of the lease agreement. He said that she has a bank account; he does not. The post-hearing submission included documents to support these claims. The Tribunal notes that the tenancy agreement, dated 24 October 2022, identifies [Ms A] and [Mr B] as the occupants of the premises

3. In sum, the Tribunal notes that the applicant is in his mid-[age range], with a wife and three children. Significantly, the applicant claims that over the past two years (following the protection visa cancellation in October 2021 and his cessation of work in April 2022), he and his family have struggled financially, and that he has suffered psychologically as a result of not being able to work and provide for his family. In addition, he has borrowed over $3,000 to meet his and his family’s expenses. More generally, the Tribunal found the applicant’s evidence about his family’s financial situation and how (as a person claiming to be unemployed) he keeps busy, to be vague and unsubstantiated.

4. While his medical records point to some health issues, such as asthma, PTSD, and anxiety and depression, they also suggest that these would not prevent him being able to work (indeed, there is some suggestion that permission to work, and more generally, favourable resolution of his migration status) would be beneficial to his mental health.

5. Taking all of the above factors into account, the Tribunal finds that the applicant will, if granted a Bridging E visa, face considerable pressure to work in breach of condition 8101, to supplement his and his family’s income, to start repaying debts and to keep busy.  

6. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8101, which must attach to the visa if granted.

   Conditions 8401 and 8506

7. As the Tribunal is not satisfied that the applicant will abide by mandatory condition 8101 (No Work), it is unnecessary to assess whether he will comply with other visa conditions. The Tribunal nonetheless notes that the applicant has an ongoing application for review in relation to the SHEV visa refusal decision, and appears to be in a settled living arrangement with his wife and children (although past instances of domestic violence, proven and alleged, call for caution in forming any views as to the family dynamics). Overall, these circumstances suggest that the applicant would likely comply with conditions 8401 and 8506.

   Condition 8564

8. Similarly, the Tribunal finds it unnecessary to determine whether the applicant will comply with condition 8564 (No Criminal Conduct).

9. However, as there was detailed discussion of this matter at the hearing, the Tribunal considers it appropriate to record a few observations:

   §  The Tribunal is mindful that the question is whether it is satisfied that the applicant will abide (for the duration of the bridging visa) with a condition that he must not engage in criminal conduct, based on its view of his likely conduct.

   §  Given that the applicant’s criminal conduct has occurred in a domestic and family setting, the National Domestic and Family Violence Bench Book[9] (National Bench Book) provides relevant guidance when considering the circumstances of past events and factors that may influence the applicant’s future conduct.

   [9] National Domestic and Family Violence Bench Book: The Tribunal shares the concerns of the delegate and the first Tribunal as to the seriousness of the applicant’s criminal conduct toward his wife in May 2020.

   ­   At hearing, the applicant and the representative commented that during the trial he had pleaded guilty without full knowledge; and that he had acted on the advice of a solicitor who has since been disqualified. They also presented the applicant’s wife as a witness. She spoke about having been depressed and moody at the time; more or less provoking the applicant into striking her; and not realising the consequences of seeking police help.

   ­   The Tribunal alerted the applicant that his conviction for common assault stood, and the court would have taken into account relevant circumstances when sentencing him. It did not propose to revisit or contextualise these.

   ­   In relation to the wife’s evidence at the current hearing, the Tribunal recorded its disquiet that the applicant and his representative had presented her – the victim of his proven domestic violence – to accept partial responsibility for his criminal offending. It notes in particular the comment in the National Bench Book that it is myth that domestic and family violence is a relationship issue, and that both parties are responsible.

   §  At hearing, the applicant confirmed that he had been charged with a second set of offences, in January 2021. These involved one alleged breach of an apprehended violence order, and four offences relating to common assault (two occasioning actual bodily harm). The applicant said these allegations involved his [child] (the oldest of the three children in the [family]).

   ­   The representative submitted a copy of the outcome of the court proceedings, dated 6 June 2022, indicating that the charges were withdrawn and dismissed.

   ­   She contended that it would be inappropriate to take into account any criminal proceedings that have been withdrawn and dismissed, as only the courts have jurisdictions to determine matters of criminal liability. The Tribunal accepts this submission.

   ­   At the same time, the Tribunal notes that the applicant and [Ms A] addressed in some detail the circumstances that led to the police being called to their home. They said that the charges rose from a ‘misunderstanding’ which, in turn, led the applicant’s [child] to report ‘something’ to his teacher, concerning both parents. The applicant believed the police brought charges against him because of his previous conviction. The Tribunal noted that the charges included reference to actual bodily harm but did not gain any further insight as on this point.

   ­   While the Tribunal accepts that it would be inappropriate to take into account the charges and criminal proceedings, it considers the applicant’s and [Ms A]’s evidence as to the circumstances surrounding the police attendance to be potentially relevant when considering the applicant’s future conduct with condition 8564, not least because it suggests that have been subsequent conflict and ‘misunderstandings’ within the family, and hence the potential for violence.

   §  The Tribunal also queried whether the applicant had undergone counselling or other treatment that might reduce the risk of him engaging in future domestic and family violence. He stated that he has attended 15 sessions of counselling through STARTTS[10], which included working through material provided by Relationships Australia. His GP referred him to a counsellor as well. The applicant noted that he does not have access to Medicare, implying that he had not followed up his GP’s referral.

   [10] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors

10. In sum, the applicant’s criminal conduct in Australia has taken place in a domestic and family setting. The limited available information suggests that he lived separately from his wife and children for about 18 months, but that they are now living as a family. It is very difficult to gain any impression as to how much therapy the applicant has received, its effectiveness and/or the dynamics within the family (in particular, whether the circumstances that led to the conviction in August 2020 have fundamentally changed). For the reasons stated above, the Tribunal considers some aspects of the applicant’s and his wife’s evidence incomplete and/or troubling. However, for the reasons stated above, it finds it is unnecessary to reach firm conclusions as to his compliance with condition 8564.

    Conclusion

11. As the Tribunal is not satisfied that the applicant will abide by condition 8101 (and also taking into account that there is no offer a security bond to incentivise the applicant to comply), the Tribunal finds that he does not satisfy cl.050.223. As such, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

12. 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.

    Humanitarian considerations

13. As discussed at hearing, this review is confined to the question of whether the applicant meets the requirements for the grant of a Bridging E visa. The Act and Regulations do not afford the Tribunal any general discretion.

14. The Tribunal has some doubts as to whether it has a complete picture of the applicant’s circumstances, including his activities and any paid work, and the family situation. The latter is of particular concern given the applicant’s past conviction for domestic violence. Nonetheless, the Tribunal also acknowledges the difficult situation he faces, as an unlawful non-citizen in the community without work permission or access to other benefits (such as Medicare) since October 2021, whose whereabouts are known to the Department, and who has presented as the (potential) breadwinner for his wife and children. Moreover, it acknowledges that, if he were granted a Bridging E visa without work rights, this would appear to leave open the possibility of him subsequently seeking a variation to visa conditions to allow him to work.

15. Section 351 gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. It will be a matter for the applicant whether he wishes to make such a request to the Minister, supported by relevant material.

    DECISION

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

    James Silva
    Member