2313838 (Migration)

[2023] AATA 3326

2313838 (Migration) [2023] AATA 3326 (14 September 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley CHAN (MARN: 0430097)

CASE NUMBER:  2313838

MEMBER:Joseph Lindsay

DATE OF DECISION:  14 September 2023

DATE CORRIGENDUM

SIGNED:15 September 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

At paragraph 23, second sentence: The words “The key issue is that there was an AVO in place in the first instance when he breached it for the first time at the end of 2022” should be replaced with “The key issue is that there was an AVO in place in the first instance when he breached it for the first time at the end of 2020.”

Joseph Lindsay
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley CHAN (MARN: 0430097)

CASE NUMBER:  2313838

MEMBER:Joseph Lindsay

DATE:14 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 September 2023 at 12:16pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions – must not engage in criminal conduct – convictions, revocation of intensive correction order and imprisonment – apprehended violence order in place – demonstrated record of violence and lack of self-awareness – application for judicial review of protection visa refusal in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223, Schedule 8, condition 8564

CASE
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 31 August 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223.

3. The decision to refuse to grant the visa was made on 5 September 2023 on the basis that the delegate was not satisfied that the applicant will comply with the conditions imposed on his visa.

4. The applicant participated in a video hearing with the Tribunal on 13 September 2023 to give evidence. The Tribunal also received oral evidence from [Mr A].

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, Mr Stanley Chan. Mr Chan did not participate in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal put to the applicant that the Tribunal had to be satisfied of two matters – time of application criteria and time of decision criteria.

   Time of application criteria

9. The Tribunal has considered the delegate’s decision in regard to the time of application criteria. The Tribunal put to the applicant that, based on the information before it, the Tribunal was satisfied that the applicant satisfied the time-of-application criteria.

10. The Tribunal finds that the applicant satisfies the time-of-application criteria, including:

    a.subclause 050.211(1), where at the time of application the applicant is an unlawful citizen.

    b.subclause 050.211(2), where at the time of application the applicant is not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17).

    c.subclause 050.212(3A) in Schedule 2 of the Regulations, as the applicant has an ongoing Judicial Review of a decision to refuse his application for a Permanent Protection (Class XA)(Subclass 866) visa.

11. The issue in this case is whether or not the applicant satisfies the time-of-decision criteria.

    Time-of-decision criteria ­–whether the applicant will abide by conditions

12. Clause 050.223 requires that the Tribunal is satisfied at the time of decision that if a Bridging Visa E 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.

13. 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].

14. In this case, there are no mandatory conditions. However, the discretionary condition that will be imposed on the visa if granted are 8564.

15. Based on the evidence before the Tribunal, the Tribunal is not satisfied that the applicant will comply with condition 8564.

    Discretionary Condition 8564 – the holder must not engage in criminal conduct

16. The Tribunal discussed with the applicant why he thought he would comply with discretionary condition 8564 and not engage in criminal conduct. The Tribunal spoke to the applicant about the information the delegate had said in respect to this issue.

17. The delegate’s decision, as provided to the Tribunal by the applicant through his representative, shows that:

    -[in] December 2020, the applicant was convicted of “Contravene Prohibition/Restriction in AVO (Domestic)” and sentenced to a Conditional Release Order without conviction for 12 months.

    -[in] March 2021, the applicant was convicted of three offences, being “Resist officer in execution of duty – T2”, “Assault occasioning actual bodily harm (DV) – T2” and “Assault occasioning actual bodily harm (DV) – T2” and that as a result of these convictions, the applicant was sentenced to an Intensive Correction Order (ICO) for a period of two years and an Apprehended Domestic Violence Order (AVO) was issued against the applicant for two years, expiring [in] March 2023.

    -[In] March 2023, the applicant’s ICO was revoked and he was subsequently arrested and taken to prison to serve out the remaining 8 months of his sentence from [March] 2021.

    -[In] April 2023, the applicant was convicted of “Contravene Prohibition/Restriction in AVO (Domestic) under section 10A and no penalty was imposed.” On the same day, [April] 2023, a further AVO was issued against the applicant and is due to expire [in] April 2024.

18. In its discussion with the applicant, the applicant indicated to the Tribunal that he and his wife had simply gotten into arguments. In respect to the convictions in which he was convicted of causing actual bodily harm, the applicant indicated that it was because he had kissed his wife too hard on the neck. The applicant indicated that he only pled guilty because his wife asked him too. When asked why he breached the AVO for the second time, he indicated that he misunderstood and that it was his error. The applicant indicated that when he gets out of detention, he wanted to be with his wife, that she should not blame herself for what happened, and that he and his wife would be together. However, the applicant conceded that he had pleaded guilty to all of the offences and that the delegate’s account of his convictions and breaches of AVOs was correct.

19. In considering the above, the Tribunal places heavy weight on the information in the delegate’s decision and the applicant’s own admissions and makes the following findings:

    -[in] December 2020, the applicant was convicted of “Contravene Prohibition/Restriction in AVO (Domestic)” and sentenced to a Conditional Release Order without conviction for 12 months.

    -[in] March 2021, the applicant was convicted of three offences, being “Resist officer in execution of duty – T2”, “Assault occasioning actual bodily harm (DV) – T2” and “Assault occasioning actual bodily harm (DV) – T2” and that as a result of these convictions, the applicant was sentenced to an Intensive Correction Order (ICO) for a period of two years and an Apprehended Domestic Violence Order (AVO) was issued against the applicant for two years, expiring [in] March 2023.

    -[In] March 2023, the applicant’s ICO was revoked and he was subsequently arrested and taken to prison to serve out the remaining 8 months of his sentence from [March] 2021.

    -[In] April 2023, the applicant was convicted of “Contravene Prohibition/Restriction in AVO (Domestic) under section 10A and no penalty was imposed.” On the same day, [April] 2023, a further AVO was issued against the applicant and is due to expire [in] April 2024.

20. The Tribunal places low weight on the applicant’s explanation for his criminal conduct towards his wife.

21. It is noted that the applicant asked the Tribunal to contact his wife. The applicant indicated he wanted his wife to put in a good word for him. However, the Tribunal declined to grant the applicant’s request to contact his wife as the Tribunal was not going to potentially act in breach of an active AVO.

22. The Tribunal has considered the evidence from [Mr A] that he was willing to help the applicant, as the applicant's wife and [Mr A]’s partner were friends. The Tribunal places low weight on this undertaking by [Mr A].

23. The Tribunal is extremely concerned about the applicant’s lack of self-awareness in respect to his criminal conduct towards his wife. The key issue is that there was an AVO in place in the first instance when he breached it for the first time at the end of 2022. In spite of being convicted for violent offences against his wife, the applicant again breached the AVO in 2023. The Tribunal finds that the applicant has a demonstrated track record of violent behaviour towards his wife and a total disregard for Australian criminal law ostensibly put in place to protect women from family violence at the hands of their partner.

24. The Tribunal finds that given the applicant cannot abide by Australian criminal law, including AVOs, the Tribunal is not satisfied that the applicant is likely to abide by visa conditions including condition 8564.

25. For these reasons, the Tribunal is not satisfied that the applicant will abide by condition 8564 if he were to be granted a Bridging Visa E.

    Conclusion

26. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

27. Given that the Tribunal made the finding that it is not satisfied that the applicant will abide by condition imposed on the visa if granted, the Tribunal finds that no security, no matter the amount, could satisfy the Tribunal that the applicant would abide by the condition of a Bridging Visa E if it were to be granted.

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

29. 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

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