2316387 (Migration)

[2023] AATA 3819

2316387 (Migration) [2023] AATA 3819 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mukesh Chand (MARN: 0962241)

CASE NUMBER:  2316387

MEMBER:P. Maishman

DATE:20 October 2023

PLACE OF DECISION:  Perth

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

Statement made on 20 October 2023 at 9:23am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – criminal convictions – failure to depart Australia – failure to attend parole appointment – several AVO breaches – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.611, 050.618, 051.211; Schedule 8

CASES

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for the visa on 6 October 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 12 October 2023 because the delegate was not satisfied that if the visa is granted, the applicant will comply with the conditions imposed on the visa as required by cl 050.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal by video on 17 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A], the sponsor of the applicant’s substantive Partner visa application.  

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before a copy of the Department’s file. The applicant confirmed to the Tribunal he gave the Department copies of his intensive correction orders (ICO) dated [in] December 2022 and [March] 2023, and a copy of his record of convictions, sentences and appeals extracted 27 March 2023.

8. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review.

9. The Tribunal declined the representative’s request to postpone the hearing as any delay might extend the applicant’s detention longer than necessary. The representative kindly made arrangement to appear at the hearing in support of his client.      

10. At hearing, the Tribunal recounted the applicant’s Immigration history as set out in detail in the delegate’s decision record. The applicant agreed the history was correct, although thought he had applied for a Partner visa in December 2022. The applicant’s representative confirmed the intention had been discussed, but for a number of reasons that application was not made.  

11. The applicant confirmed his criminal history was accurately summarised in the delegate’s decision record. The applicant told the Tribunal he did not know why his first ICO was revoked. The applicant acknowledged he previously breached his parole conditions but has changed a lot since being locked up. He has stopped using marijuana and his mind and thinking are clear and fresh. He thinks only of being with his partner and wants to finish these immigration matters so that he can live with her. He is unable to show what a good person hears while he is in detention and needs another chance. He has not kept on top of his immigration matters he because he has been dealing with his criminal issues. Previously his priority was partying and breaking rules rather than

12. The issue in this case is whether the applicant will comply with visa conditions if a visa were granted.

    Whether the applicant will abide by conditions - cl 050.223

13. 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.

14. 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].

15. 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.

16. In this case, cl 050.611 and cl 050.618 applies because the applicant meets cl 050.212(3). The delegate noted it would apply the following conditions if the visa was granted. The Tribunal agrees that the following conditions should be imposed in the circumstances of this case:

    8207(NO STUDY)

    The holder must not engage in any studies or training in Australia.

    8401(REPORT AT SPECIFIED TIME AND PLACE)

    The holder must report:

    (a)at the time or times; and

    (b)at a place or in a manner;

    specified by the Minister from time to time.

    8506(NOTIFY CHANGE OF ADDRESS)

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

    8564(NO CRIMINAL CONDUCT)

    The holder must not engage in criminal conduct.

17. In assessing whether the applicant would comply with conditions if the visa were granted, the Tribunal considered his immigration history; his record of convictions, sentences and appeals; his current circumstances; the documents provided by the applicant; the applicant’s and [Partner A’s] oral evidence and other relevant matters.

18. The Tribunal noted the applicant had previously held a BVE visa issued [in] December 2022 in order for him to arrange his departure from Australia. The Tribunal asked the applicant why he had not complied with the condition of that visa, specifically to depart Australia. The applicant told the Tribunal his girlfriend had suffered a miscarriage and he was distracted supporting her and thought he had applied for a Partner visa. As noted above (para 9) despite a conversation with his migration agent no Partner visa application was made in December 2022 or January 2023.

19. In relation to condition 8207 (NO STUDY), the applicant said he is not enrolled in any study. He had been planning to join TAFE to obtain [specific] qualifications and open a workshop with his friend. The applicant said if he has not allowed to study he would work.

20. The Tribunal is satisfied the applicant would comply with condition 8207.

21. In relation to condition 8401 (REPORT AT SPECIFIED TIME AND PLACE) the Tribunal observed the applicant was recorded as telling the delegate his second ICO was revoked for a number of reasons including the failure to attend an appointment with his parole officer and not updating his contact details. The applicant told the Tribunal he was required to report to his parole officer every two weeks and asked for one meeting to be rescheduled. He was late to that meeting because it was hot and he missed the bus. The applicant said he also called in sick on one occasion. The applicant said he had ticked all the Immigration boxes since engaging his current migration agent.

22. The applicant’s record of convictions, sentences and appeals indicates he was released on an ICO [in] December 2022 which was revoked [in] March 2023. The ICO was revoked at least in part because, on the applicant’s evidence, he did not report to his parole officer as required by the conditions of his ICO. Although the applicant has offered reasons for failing to comply with those ICO conditions, and is apparent the parole authority did not accept those reasons as being reasonable for not complying with the conditions. The Tribunal is concerned that the ICO being revoked so shortly after grant suggests it is unlikely the applicant will comply with the condition to report to Immigration at a time and place specified if he considers he has other priorities.   

23. The Tribunal is not satisfied the applicant will comply with condition 8401.

24. In relation to condition 8506 (NOTIFY CHANGE OF ADDRESS) the applicant told the Tribunal he has retained the lease on his premises for three years. [Partner A] currently resides at the premises.

25. The Tribunal is satisfied the applicant would comply with condition 8506.

26. The applicant told the Tribunal he would comply with condition 8564 (NO CRIMINAL CONDUCT). The Tribunal asked the applicant to address its concern that he appeared to ignore conditions, demonstrated by three breaches of an AVO and three instances of driving while disqualified. The applicant said the AVO was taken out by the police, not by his previous girlfriend. The ATO was for a period a little over 12 months and during that time the applicant continued his relationship with his girlfriend. Each of the three AVO and driving while disqualified breaches occurred concurrently. The police would register his, and his ex-girlfriend’s, license plate numbers and would pull his car over if it were being driven, and similarly pull his girlfriend’s car over if he were driving it. He was attempting to assist her with her visa issues and claims that he was caught driving without a license 90% of the times that he drove while disqualified.

27. The applicant says he has changed a lot since being locked up and has not used marijuana. The Tribunal asked the applicant about incidents the delegate noted occurred while he was in criminal custody. The applicant told the Tribunal it was difficult to avoid fighting and present. The applicant said he was provoked, jumped, and had to fight back to protect himself. In relation to disobeying a direction the applicant said he was told by a guard to pick up a trolley, the applicant said he asked another inmate, who was closer to the trolley, to pick it up for him and was charged for disobeying the guard’s direction.

28. The Tribunal asked the applicant to outline the circumstances that led to his ICO being revoked. The applicant told the Tribunal that around January 2023 he was going to a party with a friend when police found drugs and cash in his bag. The applicant says he pleaded to guilty to the drugs but they belonged to the female friend he was with. The applicant said he did not plead guilty to issues related to the cash because it was his rent money. The Tribunal suggested it was implausible to carry a significant amount of cash intended to pay rent, to a party.

29. The applicant told the Tribunal he intends to move away from the bad influences if he is released from detention. He has obtained a lot of useful insights into his behaviour during psychological counselling sessions. He wants to spend his time with his partner, [Partner A] and no longer wants to be involved in his previous partying lifestyle.

30. [Partner A] told the Tribunal she met the applicant about three years ago at a gathering at his house. She has not been involved in his criminal matters. She converted to Islam and they married each other in a religious ceremony [in] December 2022. She does not restrict him from seeing his friends and just wants him to be home when he says he will be.

31. The applicant’s representative submitted the nature of finding whether the applicant would comply with visa conditions is quite subjective. The representative submits the applicant’s circumstances have changed: he has a partner and has made moves to be away from the bad influences in his life. The representative submits the applicant knows he has done wrong and now wants to spend time settled down with his partner.

32. The Tribunal is not persuaded by the applicant’s claim that he will comply with his visa conditions because he has settled down since being with [Partner A]. Although the finding is subjective, the objective evidence suggests the applicant is likely not to abide by conditions imposed on him. The applicant was imprisoned because he did not comply with the conditions imposed by an AVO and he did not comply with the condition that he was disqualified from driving. The applicant was released from prison with conditions imposed by an ICO in December 2022. In January 2023, despite being out of prison and married to [Partner A] for less than a month, he found himself on the way to a party carrying another female’s drugs and a suspicious amount of cash for which his ICO was revoked because he did not comply with its conditions. When the applicant returned to prison he was involved in a fight and disobeyed a direction, contrary to the conditions applicable to being in prison.

33. The Tribunal has not satisfied the applicant will comply with condition 8564.   

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

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

36. 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

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

    P. Maishman
    Member