2309018 (Migration)

[2023] AATA 3241

2309018 (Migration) [2023] AATA 3241 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Dr Bernie Carrick

CASE NUMBER:  2309018

MEMBER:Jane Marquard

DATE:17 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050. 223 of Schedule 2 to the Regulations

Statement made on 17 July 2023 at 9:54am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – periods of unlawful residence – criminal and migration history – applicant charged with several offences – no convictions recorded – mental health issues – substantial family and community support – decision under review remitted           

LEGISLATION

Bail Act (QLD), ss 16, 20
Migration Act 1958, ss 73, 367
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.615; 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 dated 21 June 2023 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). The applicant applied for the bridging visa on the basis of seeking ‘ministerial intervention’.

   BACKGROUND TO APPLICATION FOR REVIEW

2. The applicant is [an age]-year-old man from Iraq. He is currently in [immigration detention]. According to submissions to the Tribunal, he usually lives in [Suburb 1] with his partner, an Australian citizen, and her [age]-year-old daughter.

3. The applicant’s extended family live in Iraq including his parents [and specified family members]. He said that one brother was murdered in 2006. He keeps in contact with them ‘from time to time’.

4. He first arrived in Australia [in] March 2013 by boat without a visa. He was granted a Humanitarian Stay (Temporary) (Class 449) visa on 29 May 2013 which ceased on 4 June 2013. He was on a bridging visa until 29 November 2013 and then became unlawful for one year and three months, until 16 March 2015.

5. He was granted a bridging visa on 22 February 2016 and lodged an application for a Temporary Protection (Subclass 785) visa on 23 March 2016. The Department of Home Affairs (Department) refused to grant this visa on 6 January 2017. This decision was affirmed by the Independent Assessment Authority on 21 March 2017. The Federal Court dismissed his appeal [in] June 2018. He lost an appeal to the Full Federal Court [in] March 2020.

6. On 9 April 2020 the applicant’s Bridging Visa E ceased and he became unlawful for one month and 19 days.  He was granted a further bridging visa which ceased on 22 August 2020, and he again became unlawful for 26 days, until 17 September 2020. He was unlawful again on 2 February 2021 for 10 days, and on 24 April 2021 for 17 days. He was granted a Bridging Visa E on 11 May 2021 which ceased on 9 July 2021.

7. On 9 July 2021 he applied for another bridging visa, which was refused on 21 June 2023, the decision which is the subject of this review.

8. He was charged with criminal offences in November 2022. [In] February 2023 at the [named] Correctional Centre upon release from criminal custody on bail, he was taken from the centre and transferred to [Immigration] [detention].

9. The decision dated 21 June 2023 made by a delegate of the Minister for Home Affairs to refuse to grant the applicant the Bridging E (Class WE) visa under s 73 of the Act was made on the basis that the delegate was not satisfied that the applicant would abide by a condition of the visa to be imposed on the visa (Condition 8564), given his criminal and migration history.

10. The applicant was invited by the Tribunal to a hearing of the matter on 29 June 2023. At the request of the applicant, the hearing was postponed until 13 July 2023, in order that the representative could provide submissions and evidence. This postponement was granted pursuant to s 367(2) of the Act which permits the Tribunal with consent of the applicant to extend the prescribed period to make the decision.

11. The applicant appeared before the Tribunal by MS Teams video on 13 July 2023 to give evidence and present arguments. The hearing was held by means of MS Teams video as the applicant was in [name], an immigration detention facility. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant confirmed that he understood the interpreter and could see and hear well. The Tribunal also received oral evidence from the applicant’s partner, [Partner A] and a friend, [Friend A].

12. The applicant was represented in relation to the review. His representative, Mr Bernie Carrick from the Refugee and Immigration Legal Service was present at the hearing.

    KEY ISSUE IN THIS MATTER

13. The key issue in this matter is whether the applicant would abide by conditions imposed on a Bridging visa E pursuant to cl 050.223 of the Migration Regulations 1994 (Cth) (the Regulations).

    RELEVANT LAW

14. The applicant applied for the visa on 9 July 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 Regulations.

15. The purpose of a Bridging Visa E is to allow persons to remain lawfully in Australia while they make arrangements to leave, finalise immigration matters or wait for an immigration decision.

16. Clause 050.223 of Schedule 2 to the Migration Regulations requires that the Tribunal is satisfied that, if a bridging visa is granted, the applicant will abide by conditions impose on it.

    EVIDENCE CONSIDERED IN THIS REVIEW

17. The Tribunal has taken into consideration evidence before the Department including migration records and criminal records as discussed with the applicant at the Tribunal hearing. The Tribunal has also taken into consideration new evidence before this Tribunal including oral evidence at the hearing and including the following:

    a. Report of [Social Worker A], Social Worker, dated 4 February 2022.
    b. Bail Undertaking.
    c. Medical reports and letters relating to knee injury:
    (i) MRI report dated 19 September 2019
    (ii) Letter from [a named] Physiotherapist, dated 13 May 2020
    (iii) Medical cannabis approval dated 26 July 2021
    (iv) Medico-legal report dated 25 July 2022
    d. Mental health reports and related records:
    (i) Report of [Psychiatrist A], Psychiatrist, dated 8 February 2023
    (ii) Report of [Counsellor A], Counsellor, dated 10 May 2023
    (iii) Updated report of [Counsellor A], dated 23 June 2023
    (iv) Report of [Psychologist A], Psychologist, dated 16 June 2023
    (v) Hospital records in relation to suicide attempt, November 2022
    (vi) Hospital records in relation to suicide attempt, April 2023
    (vii) Hospital records in relation to suicide attempt, June 2023
    (viii) [Agency 1] reports February, June and July 2023
    e. Character references:
    (i) Statutory declaration of [Declarant A] dated 9 March 2023
    (ii) Statutory declaration of [Declarant B] dated 9 March 2023
    (iii) Statutory declaration of [Declarant C] dated 13 March 2023
    (iv) Statutory declaration of [Declarant D] dated 15 March 2023
    (v) Statutory declaration of [Declarant E] dated 15 March 2023
    (vi) Statutory declaration of [Partner A] dated 16 March 2023
    (vii) Statutory declaration of [Declarant F] dated 16 March 2023
    (viii) Statutory declaration of [Declarant G] dated 16 March 2023
    (ix) Statutory declaration of [Declarant H] dated 17 March 2023
    (x) Statutory declaration of [Declarant I] dated 18 March 2023
    (xi) Statutory declaration of [Declarant J] dated 17 March 2023
    (xii) Character reference of [Agency 2] dated 9 March 2020
    (xiii) Character reference of [Declarant K] dated 18 March 2023
    f. Certificates of courses completed by [the applicant]:
    [Four courses and completion dates]

18. The evidence and submissions are referred to where relevant in the findings.

    APPLICANT’S MENTAL HEALTH

19. As discussed in more detail below, there is evidence that the applicant is suffering from a number of mental health conditions including post-traumatic stress syndrome (PTSD), anxiety and depression, and has suicidal ideation. He has attempted to commit suicide on multiple occasions, including two recent attempts in June 2023.

20. At the Tribunal hearing, the applicant was asked if he felt capable of giving evidence and he confirmed that he did. The Tribunal advised him that he could take a break if needed, and that he should seek support after the hearing. The Tribunal also notified the representative that he was able to make submissions if needed, in accordance with the Tribunal’s Guidelines on Vulnerable Persons.[1]

    [1] Administrative Appeals Tribunal, Migration and Refugee Division, ‘Guidelines on Vulnerable Persons’, November 2016.

    FINDINGS

    The issue for consideration - whether the applicant will abide by conditions - cl 050.223 of Schedule 2 to the Migration Regulations

21. Clause 050.223 of Schedule 2 to the Migration Regulations requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it.

22. In this case, the applicant has claimed that he is applied for a bridging visa on the basis of an application for ministerial intervention: cl 050.212 (6). In determining the conditions to apply cl 050.615A therefore applies.

    What conditions would be imposed on the visa?

23. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 of Schedule 2 to the Regulations and set out in Schedule 8 to the Regulations.

24. The Tribunal must consider which conditions, if any, should be imposed before considering whether it is satisfied that the applicant would abide by those conditions.

25. In this case, cl.050.615A applies because the applicant is a person who has applied for ministerial intervention. Cl.050.615A prescribes that condition 8101 (‘no work’) must be applied, unless condition 8116 is imposed (the latter condition provides that the ‘holder must not work in Australia other than engaging in an activity specified by a legislative instrument made by the Minister for this clause’ but the Tribunal notes that this condition must not be imposed unless the applicant is in a class of persons specified by the Minister by legislative instrument for the purposes of subclause 050.612A(3). There is no evidence that the applicant is in a specified class of persons and thus condition 8116 cannot be imposed in her case). However, condition 8101 must be imposed.

26. There are a number of other discretionary conditions. The Tribunal is satisfied that the following conditions should be imposed in the circumstances of the case, given that the applicant has engaged in criminal conduct and been unlawful in the past, and to ensure that the applicant engages with the Department:

    ·Condition 8564: Must not engage in criminal conduct

    ·Condition 8401: The holder must report as directed

    ·Condition 8506: The holder must notify Immigration at least two working days in advance of any change in the holder’s address

27. The Tribunal notes that the delegate would also have imposed condition 8207 (No Study). The Tribunal has decided not to impose this condition as there is no indication that he is interested in study.

    Will the applicant abide by conditions of the visa?

28. Extensive new evidence was provided to the Tribunal to support the contention that the applicant would abide by the identified visa conditions. The Tribunal has considered this evidence in its totality, including the past immigration history, criminal history and the bail undertaking, personal circumstances, family and community support, character references and mental health issues. The Tribunal is satisfied considering these factors cumulatively that the applicant will abide by visa conditions. The evidence and findings are set out below.

    Immigration history

29. The Tribunal has considered the likely conduct of the applicant, taking into consideration his migration history. The court has suggested that matters to be taken into consideration include 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].

30. The applicant has breached migration laws on a number of occasions but has described mitigating circumstances for those breaches.

31. His history is as follows. He arrived in Australia [in] March 2013 by boat without a visa. He was granted a Humanitarian Stay (Temporary)(Class 449) visa on 29 May 2013 which ceased on 4 June 2013. He was on a bridging visa until 29 November 2013 and then became unlawful for one year and three months, until 16 March 2015. He was then granted various bridging visas but there were short periods of unlawfulness (On 9 April 2020 for one month and 19 days, 22 August 2020 for 26 days, 2 February 2021 for 10 days, and 24 April 2021 for 17 days).

32. At the Tribunal hearing, he was asked why, if he was of good character as claimed in his submissions, he did not regularise his visa status on these occasions. He responded that he was ignorant about the law and could not read or write. He said that when he arrived in Australia his English was very poor and he relied on his lawyer at the time. The representative submitted that there are often occasions when bridging visa finalisations take a long time, which may explain some of the periods of unlawfulness, although the representative was not acting for the applicant at the times of these applications. Asked why he would comply with the conditions if he had disregarded migration law on prior occasions, the applicant said that he now understood the law and his responsibilities, and his girlfriend would help him comply. He said that he was willing to comply with all conditions.

33. The Tribunal considers that the breaches were not wilful and instead were negligent, given his poor literacy and English skills. A report of [Social Worker A], Social Worker dated 4 February 2022 suggested that poor literacy had affected the applicant’s enjoyment of life and his participation in legal processes. She also noted that he did not always have legal representation. While the applicant has not demonstrated significant contrition, he does appear to have more insight into his poor compliance and the need to comply with conditions in the past.

34. The Tribunal notes the report of [Social Worker A], Social Worker dated 4 February 2022 referring to an incident in 2006 when the applicant’s family home in Iraq was raided by militia looking for his brother. The applicant was shot three times [and] was in a coma for seven days and hospitalised for three months and had three operations. He still carries scars. Outside the hospital he saw many dead and wounded people. A scan conducted by [Doctor A], [from a named clinic] shows a likely bullet fragment lodged in his liver.

35. The Tribunal accepts that the applicant suffered a debilitating work accident which according to his representative and references from numerous friends, led to him becoming depressed and anxious as he became unable to work. According to submissions, the applicant worked as [an occupation 1] until September 2019 when he suffered a knee injury, which prevented him from working and caused significant pain. He was prescribed medicinal cannabis and has a worker’s compensation claim pending. A radiology report from 2019 was provided which confirmed that he had a meniscus tear and a number of other knee issues. A physiotherapist’s report dated 13 May 2020 discussed ongoing pain he was undergoing after a meniscal arthroscopy. A letter dated 26 July 2021 from [a named health service] confirmed that medical cannabis had been approved. A medico-legal report dated 25 July 2022 from [a named] orthopaedic surgeon confirmed that the applicant had suffered an injury to his knee while performing duties at work in 2019 and that despite adequate treatment he continued to have significant symptoms and incapacities.

36. The Tribunal accepts these mitigating circumstances when considering his migration history.

    Criminal history

37. The Tribunal has also considered the applicant’s criminal history, in determining whether he would comply with conditions. His history was summarised as follows in the delegate’s decision:

Finalised Offences	Offence		Order/Comment
[Court 1] [April] 2017	Commit Public Nuisance [November] 2016		No Conviction Recorded $150.00 Recognisance Good Behaviour Period 12M
[Court 2] [July] 2021	Contravention of Domestic Violence Order [March] 2020		No Conviction Recorded Probation 18 M
[Court 2] [October] 2021	Stealing [April] 2020 Contravention of Domestic Violence Order [April] 2020		No Evidence
[Court 2] [February] 2022	1) Possession of Dangerous Drugs 2) Possession of Dangerous Drugs		No Conviction Recorded Fined $350
Outstanding Offences	Offence		Order/Comment
[Court 2]	Enter Premises with intent to commit indictable offence [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023
Assaults occasioning bodily harm whilst armed/in company [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023
Attempting to pervert justice [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023
Common Assault [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023
Stealing [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023
Possessing dangerous drugs [November] 2022		Next appearance [Court 2]. Currently set for [August] 2023

1. According to the delegate’s decision, the recent charges are still before the court, due for mention [in] August 2023 in [Court 2].

2. The applicant’s representative provided the following information about these charges:

   As the decision record outlines, [the applicant] was charged with several offences [in] November 2022. He is also subject to a 2-year Peace and Good Behaviour Order beginning [in] January 2023. That Order and the November charges all relate to the breakdown of [the applicant’s] relationship with his former business partner, [Mr A]. [The applicant] has not yet entered a plea in relation to these charges but instructs that he intends to plead not guilty. He adamantly refutes suggestions of his guilt and maintains that he was the victim of fraud and assault by [Mr A].

   [The applicant’s] criminal law solicitor, [Solicitor A], has instructed that it will be some considerable time before these charges are heard by a court. Prior to his release on bail, he was assessed by [Health Service 1]. He states in an email to us: As such, they have suspended his charges pending the outcome of a Mental Health Assessment Report determine if he was of sound mind at the time he is alleged to have committed the offences. Until such time as the suspension is lifted, the charges are unable to progress.

   [Solicitor A] further instructs that: If the report comes back that he was of sound mound, then the charges will proceed through the Courts. Due to the nature of the charges, it is unlikely that they would be resolved within 12 months.

3. At the Tribunal hearing, the applicant’s friend, [Friend A], told the Tribunal that the charges arise out of a business conflict between the applicant and [Mr A]. According to [Friend A], [Mr A] had taken the applicant’s money and was an unethical person, who was trying to get the applicant deported so he could keep this money and for this reason had taken out a protection order against the applicant.

1. After warning the applicant about self-incrimination, the Tribunal asked the applicant about references to a weapon which were made in the delegate’s decision and the psychiatrist’s report. He said that he had been threatened with a knife and acted in self-defence. He said that he wished to have a chance to prove his innocence.

2. The applicant’s representative submitted to the Tribunal that the Tribunal should not take into consideration the most recent charges as they have not been proven and the applicant has not been found guilty. It was submitted by the representative also that there was doubt that he was of sound mind at the time.

3. The Tribunal makes no finding on the factual matters relating to the offences as it does not have sufficient information before it to do so. The Tribunal has not considered the recent charges in respect of whether the applicant will comply with conditions, as they have not been proven and are disputed by the applicant.

4. The Tribunal has taken into consideration the other offences on his record, public nuisance, contravention of domestic violence order and possession of dangerous drugs.

5. The applicant emphasised at the Tribunal hearing that he promised because of the situation he finds himself in that he would change his life and comply with all his conditions. He said that one day in detention feels like a year. He said that he promises he would not engage in criminal activity and his life would start anew and he wants to marry his girlfriend. He was asked what sort of changes he would make so that he would not engage in criminal conduct. He said that he would be busy with work and his girlfriend. He said that he would seek mental health assistance and therapy and go to hospital if needed.

6. Submissions were provided as follows in regards to these criminal offences:

   The decision record details finalised and outstanding offences recorded against our client. The following additional information is provided to assist the Tribunal in assessing [the applicant’s] risk of offending.

   [The applicant’s] past offences comprise:

   a. one very minor charge of Public Nuisance in 2016 for which our client received

   a $150 fine;

   b. two matters in relation to alleged breaches of a Domestic Violence Order (DVO) in relation to our client’s former partner, [Partner B] (further discussed below); and c. two counts of Possession of Dangerous Drugs in 2020, for which our client received a $350 fine.

   Breaching a DVO is potentially a very serious matter. We note, however, that the second of these charges dated [in] April 2020 was dismissed by [Court 2] [in] October 2021 due to no evidence.

   In relation to the first DVO breach [in] March 2020, our client instructs that no violence was involved. The Order prevented him from going within a certain distance of [Partner B]. She approached him and then called the Police and claimed he had breached the Order.

   We refer the Tribunal to the report of [Social Worker A] which casts a very different light on [the applicant’s] relationship with [Partner B] that that gleaned from the bare evidence of the DVO and its breach.

7. The report of [Social Worker A] dated 4 February 2022 stated that the applicant had reported a tumultuous relationship with his former partner, [Partner B]. The applicant told [Social Worker A] that he was charged with a drugs offence on the basis of drugs [Partner B] had brought into the house. Further, he was charged with breaches of domestic violence orders due to contact, however she initiated the contact. He also told her that [Partner B’s] brother and associates threatened him. In [Social Worker A] view, there was domestic and family violence committed against him by [Partner B].

8. The Tribunal notes the evidence of [Social Worker A] about violence committed by his former partner and evidence of the applicant that his partner was responsible for the breach of the domestic violence order and also for having drugs in the house. The Tribunal makes no findings on this, given that a court has found against the applicant.

9. However, while taking the criminal history into account negatively in an assessment of whether the applicant would comply with visa conditions, the Tribunal does accept that nuisance is a minor offence and that there was no violence involved in the contravention of the domestic violence order. The Tribunal has also taken into consideration the fact that the penalties imposed by the court were in the lower range of the kinds of penalties which can be imposed, demonstrating that the court did not view these offences as particularly serious. The Tribunal has also taken into consideration the applicant’s assurances that he does not use drugs or alcohol except for medicinal cannabis which was prescribed by doctors for pain and that he now has the support of his fiancé, and they plan to marry.

   Bail undertaking

10. In assessing the likely conduct of the applicant, the Tribunal has given significant weight to the fact that the applicant has been granted bail in relation to the current charges against him. A copy of the bail undertaking dated [in] February 2023 pursuant to section 20 of the Bail Act, 1980, Queensland, was provided to the Tribunal. The Tribunal notes that the bail conditions include the following:

    ·Provide change of address

    ·Live at particular address ([Suburb 1])

    ·Curfew night-time

    ·Report to police station on Mondays and Fridays

    ·Not possess weapon

    ·Take part in drug testing

    ·Make an appointment for a mental health plan

11. According to s 16 of the Bail Act, 1980, Queensland, bail must be refused if there is an unacceptable risk that the defendant would fail to appear, or while on bail would commit an offence or endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare.

12. In assessing whether there is an unacceptable risk, the court or police officer must look to the nature and seriousness of the offence, the character, antecedents, associations, home environment, employment and background of the defendant, previous bail and the strength of evidence against the defendant.[2]

    [2] Section 16, Bail Act, 1980, Qld

13. A judicial officer, with more evidence before it than is before this Tribunal, has assessed on the basis of multiple factors, that there is not an unacceptable risk of the applicant committing an offence while on bail or endangering any person or the community. This is given significant weight in finding that the applicant would comply with conditions of the visa. The Tribunal notes also that the bail conditions include reporting and notifying of change of address, such that the court has had faith that he would be able to comply with this kind of condition.

    Mental health

14. The Tribunal has also taken into consideration numerous mental health reports which indicate that the applicant has suicidal ideation and is negatively impacted by detention. It was submitted that since he was remanded [in] November 2022 and transferred to immigration detention, his mental health has deteriorated significantly.

15. The applicant has attempted suicide on multiple occasions since being remanded in November 2022. He has attempted suicide as follows:

    ·[November] 2022 – attempted hanging, [at location]

    ·[April] 2022- attempted poisoning, [location]

    ·June 2023- attempted hanging, [at location]

    ·[June] 2023 – swallowed razor blades, [at location]

16. It is more likely, according to the reports, that he would stabilise outside a detention environment, and therefore have the capacity to comply with conditions on his visa. The Tribunal notes that detention in an immigration detention facility is characterised by confinement and deprivation of liberty. Some people may experience detention as a traumatic event.[3]

    [3] Administrative Appeals Tribunal, Migration and Refugee Division, ‘Guidelines on Vulnerable Persons’, November 2016

17. Extracts and summaries of the various mental health reports are set out below.

18. On 23 June 2023 the applicant’s counsellor, [Counsellor A], reported to [Health Service 2]:

    [The applicant] reported that in the past two days he has attempted suicide
    by hanging and by swallowing a razor blade. [The applicant] indicated that this
    was precipitated by finding out on the 21/06/23 that his application for a
    Bridging Visa has been rejected. [The applicant] reported intrusive suicidal
    ideation with immediate plan, intent and impulsive action to gain access to
    means. [The applicant] reports no capacity to be able to not take action on
    intrusive thoughts that contain suicidal planning. [The applicant] has reported
    concerns for his safety and has requested psychiatric treatment at a mental health inpatient facility.

19. His counsellor, [Counsellor A] reported ongoing ‘persistent suicidal ideation’:

    It is apparent that the prolonged and restrictive detention environment,
    and the ongoing uncertainty regarding his current immigration status
    significantly exacerbates [the applicant’s] trauma related psychological symptoms
    and increases his risk of suicide… It is apparent that the prolonged and
    restrictive detention environment, and the ongoing uncertainty regarding
    his current immigration status significantly exacerbates [the applicant’s] trauma related psychological symptoms and increases his risk of suicide.

20. It was submitted that he would be able to cope with his mental health issues if in the community, but not in detention. [Psychologist A] stated:

    In the community he reports strong interest in camping, animals and
    gardening and proudly shows photos of the birds that he takes care of… His
    range of coping strategies (such as being with animals, walking and in
    nature) appear ineffective and inaccessible in detention and he struggles to
    manage intrusive memories and worries in this environment…
    It is noted that prior to his recent criminal charges he has a long period
    within the Australian community in which he was able to participate in
    employment and find meaning in a relationship and positive activities. He
    appears to have relied on mindfulness activities; looking after pet birds,
    enjoying nature and also smoking cannabis as a means of self-regulation in
    the community and is struggling without access to this range of techniques
    in therapy.

21. The applicant’s representative submitted that ‘we submit that this evidence of our client’s extreme distress in the detention environment is directly relevant to the question of whether he will engage in criminal conduct if granted a bridging visa. It speaks strongly to the level of motivation he has to successfully defend himself against the pending charges and avoid any possibility of future arrests.’

22. A psychiatric report of [Psychiatrist A] of [Health Service 1] dated 8 February 2023, stated that the applicant had been reviewed twice in prison. It was stated that he is a Shiite Muslim Iraqi man who grew up in Baghdad. He travelled to Australia aged [age] and was taken to immigration detention. He has an Australian partner. His mother has had cancer for five years. He has [specified family members] in Iraq. His brother was murdered by terrorists. He claimed that he invested in a [product] business but that the business partner had threatened him and he had reported him to police. In regard to forensic history it was reported that in November 2022 he was charged with a number of offences and ‘QPs inform that (the applicant) reportedly attacked someone with a lethal weapon’. He said that he cannot remember and it was in the context of self-defence. He had been referred to the psychiatrist after an attempted hanging. There was a ‘previously reported history of PTSD, anxiety and depression’, a reported history of a previous suicide attempt in Iraq and a history of drug overdose. The psychiatrist questioned whether there were some psychotic symptoms. An impression was that he was ‘delusional in nature’. It was also stated that he had PTSD symptoms. There was ‘an ongoing risk of suicide attempt which will likely increase in the detention centre and when informed of deportation’.

23. A report was also prepared for [Agency 1]. In February 2023 the service had received a referral for torture and trauma counselling. The applicant presented with diagnoses of depression, anxiety and PTSD. He presented with trauma symptoms and suicidal ideation. Instances of attempted suicide [in] November 2022 and [April] 2023 were reported. [Agency 1] reported being concerned about the deterioration in his mental health and ‘escalating impulsive suicide attempts’. It was concluded that there was evidence that being held in a prison or detention like environment dramatically increased his risk of further impulsive suicide attempts and dying by suicide.

24. An updated report was provided by [Agency 1] on 27 June 2023. The applicant had attended his 7^th counselling session with [Agency 1] on 23 June 2023. His risk of harm had been assessed as too high to hold a session in person, and instead the session was held by telephone. According to the report, the applicant presented in a depressed mood, with ‘pervasive hopelessness’, and an ‘inability to connect with future’. In the previous two days he had twice attempted suicide by hanging and swallowing a razor blade. The report noted that the applicant said these suicide attempts were precipitated by finding out on 21 June 2023 that his application for a bridging visa had been rejected. It was reported that there was ‘no capacity to be able to not take action on intrusive thoughts that contain suicidal ideation with immediate plan, intent and impulsive action to gain access to means’. The applicant had reported ‘concerns for his safety and has requested psychiatric treatment at a mental health inpatient facility. His risk level was elevated to Level 4.

25. An updated report on 11 July 2023 from [Agency 1] stated that the applicant had attended his 9^th counselling session on 7 July 2023. He presented with alternating moods of hopefulness and fearfulness due to the upcoming Tribunal hearing. The report stated ‘it is foreseeable that a negative outcome at this hearing could rapidly increase [the applicant’s] risk state and increase his vulnerability to further impulsive suicide attempts, and his subsequent risk of dying by suicide’.

26. A psychological report of [Psychologist A] dated 16 June 2023 stated that he had seen the applicant for a month through [Health Service 2]. He said that the applicant was being treated with Mirtazapine, prazosin, and quetiapine. The applicant had reported physical abuse from his father as a child and sexual abuse from another person. He had also reported that he went to his former business partner to get his money back and instead charges were pressed against him. It was noted that prior to this he had a long history of employment in the community and relied on mindfulness activities, looking after birds, enjoying nature and smoking cannabis. Treatment was centred on ‘behavioural activation’.

27. Reports were provided from the [named] Hospital providing an overview of the applicant’s admission following the suicide attempts [in] November 2022, [April] 2023 and 22 June 2023. Admission to hospital for longitudinal assessment was recommended in November 2022 due to the ‘high lethality suicide’, level of distress and agitation, and lack of clarity as to whether there a psychotic episode.

28. A report of [Social Worker A], Social Worker dated 4 February 2022 referred to earlier in this report reported on an incident in 2006 when the applicant’s family home in Iraq was raided by militia looking for his brother and the applicant shot three times [and] was in a coma for seven days and hospitalised for three months with three operations.

29. These reports about the applicant’s mental health and suicide attempts are disturbing. Of particular relevance to this review are the comments in the reports that the applicant would be able to cope much better in the community, given his outside interests and family support, and that detention has had a negative impact on his mental health. He has described detention as ‘misery’. The numerous reports suggest that if he were to be released into the community, with the positive effect this would have on his mental health, and with the right treatment and support, there is a stronger likelihood his mental health would improve and he would have the capacity to comply with conditions of the visa. A report of [Social Worker A], Social Worker dated 4 February 2022 stated that he is ‘highly motivated not to re-offend’ and ‘has the support and skills to ensure that he would not do so’.

    Personal and community support and character

30. The Tribunal has taken into consideration positively the level of personal and community support the applicant has, as well as his generally good character.

31. The applicant has a partner who is an Australian citizen and [an age]-year-old stepdaughter. His bail conditions require that he lives with them. It was submitted by his representative that his relationships would be a continuing support to him, and the Tribunal accepts that this is the case, particularly after hearing from his partner at the Tribunal hearing. [Partner A], the applicant’s partner said in a Statutory Declaration provided to the Tribunal that she had known the applicant since January 2020 and they were engaged in August 2020. She said that they have a close and honest relationship, and he is helpful, supportive and social with a can-do attitude with work, family and home life. She said that he is giving, compassionate, loving and family-oriented and is a fantastic role model and father figure in her daughter’s life. She said that she had never seen him partake in any illegal activity and he had never tried to dominate, control or abuse her. She said that he has suffered from anxiety and depression since his accident, and it was not safe for him to return to Iraq.

32. At the Tribunal hearing [Partner A] said that she continued to support the applicant emotionally and financially. She said that she knows ‘all about’ the domestic violence orders and current charges. She knows that he was unlawful for short stints later but did not know that there was a longer period when he was unlawful. She said that if released from detention he would live with her and her daughter in a house that she rents. She works as [an occupation 2]. She would ensure that he complied with conditions by keeping him busy around the house and nagging him to make sure that he complied. She would make sure that he attended medical appointments. She said that she is a support to him as they speak openly to each other. He is able to speak openly to her mother, with whom both she and the applicant have a close relationship. They all lived with her mother for a period off time. Her extended family all know his circumstances and support him. She said that he will keep busy with gardening as he likes to take good care of her garden. They also have an aviary and look after animals, and he is very involved with this.

33. She believes that the applicant would not commit any further criminal offences as they want to start a family, which is a ‘big incentive’ for him and because of his commitment to their home. She said that he loves family and is close to his father and mother. She thinks that he would ‘keep his head down and do the right thing’. She said that he is nice, caring and giving and a lot of his issues have come from a language barrier and communication issues.

34. The Tribunal is persuaded by her evidence, particularly as she is cognisant of his criminal and migration history. The Tribunal accepts that the applicant has strong support from his partner and her family and that this will incentivise him to act according to the law.

35. Numerous character references were provided for the applicant. It was submitted by the representative that these references ‘speak to the quality of our client’s relationships with others in the community’ and show that he has support in the community.

1. It does appear from the references that he is well-supported, liked and respected.  [Declarant A] said that the applicant was a good man who had helped him and his family. [Declarant C] said that he had known the applicant for ten years and he is honest and hardworking and helpful. He said that he has a good heart and had a bright future. [Declarant D] said that he had known the applicant for three years and he was well-respected, kind, helpful and caring. [Declarant E] said that he had known the applicant for four years, and he was kind and compassionate, and was a Good Samaritan in the community. [Declarant G] said that the applicant was a good support for their community and is always humble and fun. [Declarant H] said that he had known the applicant for many years. He said that he has a can-do attitude and is hard-working and supportive of friends and family. He said that the applicant is always ready to help others. He said that his workplace accident had caused him pain and depression.

2. [Declarant I] said that the applicant had been an inspiration to children at the soccer grounds. He had been a good coach and displayed sportsmanship.

3. [Declarant F] said that he had been friends with the applicant for nine years. He said that he is patient and devoted with a ‘fantastic sense of humour’. They met through work and [Declarant F] has taught him a great deal. He said that he has qualities that ‘our country strives towards’ including being kind, hard-working and understanding. The applicant had been to his home for many family barbeques and birthdays. He said that his children love the applicant and consider him family. He always brings gifts for the children. He has never displayed a negative side. He said that the workplace accident had negatively impacted the applicant’s work as [an occupation 1]. He has been mentally and physically burdened by his inability to work and has become depressed, anxious and discouraged. He said that the applicant considers Australia his home and loves it, but now worries he will not be able to stay.

4. [Declarant J] said that their children had a close relationship with the applicant who always brought them gifts. He showed love and support and was very positive.

5. [Declarant L] said that the applicant was a valued team member at [Agency 2]. He assisted in stock sorting, removal of waste and maintaining WHS standards. He said that the applicant was trustworthy, committed and reliable, characteristics which are ‘rare’. He said that the applicant has a likeable, sensible, down-to-earth personality. He was proactive and good team member. He said that they do not often get workers of his calibre.

6. [Declarant K] said that the applicant had a strong community spirit. He met him through work in [his industry], where he took pride in his work. He said that the applicant was an asset to the community and to Australia. He said that they enjoyed barbeques, bushwalking, fishing, camping and four-wheel driving. The applicant celebrated Easter and Christmas with them. [Declarant K] said that he had seen his good friend become depressed and anxious after his injury.

7. The Tribunal accepts that these references demonstrate that the applicant has strong influences around him and a positive community, and is regarded highly by his community.

8. The Tribunal has taken into consideration positively the fact that the applicant has participated in a number of self-improvement courses - [four courses and completion dates].

   Summary of findings

9. In assessing whether the applicant will comply with conditions imposed on the visa, the Tribunal has taken into account negatively the periods of unlawfulness in his migration record as this does demonstrate disregard for the migration system. However, the Tribunal accepts that the applicant did not wilfully become unlawful and that his illiteracy, background and lack of language skills are mitigating factors. The Tribunal has also taken into consideration negatively the applicant’s criminal history. However, the Tribunal acknowledges that the courts imposed less severe penalties in his matters, and that no convictions were recorded. In assessing whether the applicant will abide by visa conditions, the Tribunal has given significant weight to the fact that the court, with more information before it, recently granted the applicant bail, assessing that there was no unacceptable risk that the defendant would fail to appear, or while on bail would commit an offence or endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare. The Tribunal is also persuaded that the applicant will be able to be treated for his mental health issues in the community and will have support from his partner and community, who will also incentivise him to comply.

   Condition 8101 (No Work)

10. The applicant has promised that he will not work if this condition is imposed on his visa. The Tribunal notes that his knee injury has in any event significantly inhibited his ability to work, as corroborated by numerous of his friends. His partner has said that she will financially support him and the applicant has indicated that he is expecting a significant payout from Work Cover for his injury. The applicant’s partner said that she would keep him busy with house chores, and he also enjoys gardening, looking after their animals and their aviary. He also appears to have many friends and a community who would support him if not working.

    Condition 8401 (Must report) and Condition 8506 (notify change of address)

11. The Tribunal is satisfied that the applicant would comply with condition 8401 given that he must also report under his bail conditions. The Tribunal is also satisfied that he would comply with Condition 8506 given that there is a similar requirement in his bail conditions. He appears to have much more insight into his responsibilities in the migration system and also has the support of his fiancé who has said that she will ensure he complies. He and his fiancé have provided assurances to the Tribunal that he would report with his fiancé saying she would check on him to ensure that he would report and engage with the Department. The Tribunal notes that the applicant has greater incentive to comply than in the past given that he will be on a bridging visa and given his adverse experience in detention.

    Condition 8564 (Must not engage in criminal conduct)

12. The Tribunal has considered this condition carefully, as the delegate of the Department refused this visa because they were not satisfied that he would abide by this condition.

13. The Tribunal acknowledges that the applicant has had dealings with the criminal justice system. However, as discussed earlier the Tribunal gives weight to the following factors:

    ·No conviction was recorded in relation to the criminal offences of public nuisance, contravention of the domestic violence order, and possess dangerous drugs

    ·No violence was involved in the contravention of the domestic violence order

    ·In relation to the current offences, in February 2023 the court granted bail to the applicant, thus finding that there was no unacceptable risk that the defendant would fail to appear, or while on bail would commit an offence or endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare

    ·There is a night-time curfew as part of his bail conditions

    ·He will live with his fiancé and her young daughter and this is part of his bail conditions

    ·His fiancé gave compelling evidence that she and her extended family would support him

    ·He has significant community support

    ·He has strong character references

    ·He has suffered in detention and has a strong incentive not to return to detention or have his visa cancelled

    ·He has demonstrated insights into the breaches of the migration law and his criminal conduct

    ·He has been actively getting medical treatment and is required under his bail conditions to continue with a mental health plan

    ·He has said that he is aware that his visa will be cancelled if he does not comply with visa conditions

14. The Tribunal is satisfied that the applicant would abide by condition 8564.

    CONCLUDING PARAGRAPHS

15. The Tribunal is satisfied that the applicant meets cl 050.223.

16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

    The Tribunal remits the matter for reconsideration with the direction that the applicant meets 
    the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl 050. 223 of Schedule 2 to the Regulations

    Jane Marquard
    Member