2317654 (Migration)

2317654 (Migration) [2023] AATA 4516 (21 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr STANLEY CHAN (MARN: 0430097)
CASE NUMBER:  2317654
MEMBER:Melissa McAdam
DATE:21 November 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;

and
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8401, 8506 and 8564 will be imposed if the visa is granted.

Statement made on 21 November 2023 at 5:03pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – pending judicial review proceedings – abide by conditions imposed – report as directed – notify change of address – immigration history – established home and family – must not engage in criminal conduct – criminal history – breach of an Apprehended Domestic Violence Order (AVO) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.223, 050.614; Schedule 8, Conditions 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

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).
The applicant was represented in relation to the review.
Visa application
The applicant applied for the visa on 25 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.
The decision to refuse to grant the visa was made on 30 October 2023 on the basis that the applicant did not meet cl 050.223.
In his visa application the applicant provided the following information:
a.He is applying for a Bridging visa E for reason of a judicial review. He commenced judicial review proceedings on 31 May 2023. His application has not been finalised.
b.He was born in China in [year].
c.He is in a de facto relationship.
d.He is in [an Immigration] Detention Centre.
e.He has a sponsor who will provide him with accommodation and other expenses to ensure he complies with his visa conditions.
f.His child is an Australian citizen and requires parenting.
g.He has been the subject of a family violence order. The order was raised [in] April 2023 and it is an apprehended violence order.
h.He has previously overstayed his visa in Australia.
The applicant submitted a copy of Orders issued by [the] Local Court [in] July 2023. It states that the orders have been made to protect [Ms A], [Child B], and [Child C]. The applicant is ordered not to assault, threaten, stalk, harass or intimidate them or destroy or damage their property or animal. He is also ordered not to approach their place of study or childcare. The order is in force until 12 April 2024.
The applicant also submitted a letter from the chaplain of the [specified] Catholic Chinese Community, [Father D], dated 19 June 2023, in support of the applicant and stating his family need to reunited with the applicant.
The applicant submitted a Statutory Declaration dated 17 October 2023 from his daughter [Child B] in support of the applicant; and her Australian passport recording that she was born in [year].
The applicant submitted a letter from [Mr E] dated 6 September 2023 plus his Australian passport, rates notice, and bank statements. In his letter he writes:
My name is [Mr E] and I am Australian Citizen, I have known [the applicant]’s family for many
years and I witness the children growing up, I would like to provide personal assurance to [the applicant] in order to make sure he will be complying with all the visa conditions after he releases
from the [Immigration] Detention center.
I am working full time and have been paid well, I financially can support his accommodation, feed, travel cost, daily expenses. Please find attached water rate, my pay slip, my bank account and my passport. I also would like to pay the bond to the Department as well.
Delegate’s Decision
The delegate refused to grant the Bridging visa because he was not satisfied that the applicant would abide by the conditions of the visa.
In his decision the delegate set out the following details of the applicant’s immigration and criminal history in Australia:
On 20 December 2007, you were granted a [student] visa. [In] January 2008, you arrived in Australia whilst holding this visa and you have not departed Australia since. On 05 February 2008, you were granted permission to work on your visa.
On 16 December 2008, your [student] visa was cancelled under section 116 of the Act because you breached conditions of your visa. Following the cancellation of your visa, you became an unlawful non-citizen (UNC) and concealed yourself in the community.
On 03 September 2012, you lodged an application for a Permanent Protection (Class XA) (Subclass 866) visa as a dependant applicant. You were subsequently granted a Bridging C (Class WC) (Subclass 030) visa in association with this application on the same day. On 16 July 2013, your application for a Permanent Protection (Class XA) (Subclass 866) was refused.
On 07 August 2013, you lodged an application for a review of this refusal at the Refugee Review Tribunal (RRT). On 03 September 2013, you were subsequently granted a further Bridging C (Class WC) (Subclass 030) visa in association with this review. On 14 October 2014, the RRT affirmed the Department’s refusal of your Permanent Protection (Class XA) (Subclass 866) visa.
On 06 November 2014, you lodged an application for Judicial Review of the RRT’s decision at the Federal Circuit Court (FCC) and on 07 November 2014, you were granted a further Bridging C (Class WC)(Subclass 030) in association with this review. [In] August 2016, your Judicial Review was finalised in the Minister’s favour and on 07 September 2016, you lodged an application for Judicial Review of the FCC’s decision at the Full Federal Court (FFC).
On 02 April 2019, the Minister withdrew from the review and the original decision to refuse to grant you a Permanent Protection (class XA) (subclass 866) was remitted back to the Administrative Appeals Tribunal (AAT) for reconsideration.
On 25 February 2020, the AAT made a decision to once again affirm the decision to refuse your Permanent Protection (Class XA) (Subclass 866) visa. On 23 March 2020, you lodged an application for Judicial Review of the AAT’s decision at the FCC. You were granted two Bridging C (Class WC) (Subclass 030) visas in relation to your Judicial Review on the 11 June 2020 and 15 July 2020 respectively. On 06 August 2020, the Minister withdrew from the Judicial Review and on 07 August 2020, your Permanent Protection (class XA) (subclass 866) refusal was again remitted back to the AAT for reconsideration.
[In] December 2020, you were convicted of Contravene Prohibition/Restriction in AVO (Domestic) and sentenced to a Conditional Release Order without conviction for 12 months.
[In] March 2021, you were convicted of the following offences:
1. Resist officer in execution of duty – T2
2. Assault occasioning actual bodily harm (DV) – T2
3. Assault occasioning actual bodily harm (DV) – T2
As a result of these convictions, you were sentenced to an Intensive Correction Order (ICO) for a period of two years and an Apprehended Domestic Violence Order (AVO) was issued against you for two years, expiring [in] March 2023.
On 08 September 2021, your Bridging C (Class WC) (Subclass 030) visa was cancelled under s116(1)(g) reg 2.41(1)(ao) of the Migration Act due to your criminal convictions listed above.
Following this visa cancellation, you once again became an UNC. On the 15 September 2021, you applied for merits review of your visa cancellation at the AAT. On 15 March 2022, the AAT affirmed the Department’s decision to cancel you Bridging C (Class WC) (Subclass 030) visa.
On 22 September 2021, you lodged an application for a Bridging E (Class WE) (Subclass 050) visa. This application was refused on 31 March 2022 as you did not satisfy the interview criteria for this visa.
On 04 July 2022, the AAT again affirmed the Department’s decision to refuse to grant you a Permanent Protection (Class XA) (Subclass 866) visa.
On 02 March 2023, your ICO was revoked and you were subsequently arrested taken to prison to serve out the remaining 8 months of your sentence from 12 March 2021.
On 13 April 2023, you were convicted of Contravene Prohibition/Restriction in AVO (Domestic) under section 10A and no penalty was imposed. On the same day, a further AVO was issued against you and is due to expire on 12 April 2024.
On 04 May 2023, you were released from criminal custody and subsequently detained by the Australian Border Force (ABF) under s189(1) of the Act. You were then transferred to [an] Immigration Detention Centre where you currently remain.
On 07 May 2023, whilst in immigration detention, you lodged an application for a Bridging E (Class WE) (Subclass 050) visa. On 10 May 2023, this application was refused.
On 31 May 2023, you lodged a further application for Judicial Review of the AAT’s most recent decision at the Federal Court. At the time of this assessment, this review remains ongoing.
On 12 June 2023, you lodged a second application for a Bridging E (Class WE) (Subclass 050) visa. On 15 June 2023, this application was refused. On 23 June 2023, you applied for merits review of this refusal decision at the AAT and [in] June 2023, the AAT determined that they did not have jurisdiction in this matter.
On 22 June 2023 and 26 June 2023, you lodged two further applications for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. These application were determined to be invalid on 26 June 2023 and 28 June 2023 respectively as you did not satisfy section 74 of the Migration Act.
On 17 July 2023, you lodged a fifth application for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. On 20 July 2023, this application was refused and you applied for merits review of this refusal decision at the AAT on the same day. [In] July 2023, the AAT affirmed the Department’s decision to refuse to grant you a Bridging E (Class WE) (Subclass 050) visa.
On 25 August 2023, you lodged a sixth application for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. This application was determined to be invalid on 29 August as you again did not satisfy section 74 of the Migration Act.
On 31 August 2023, you lodged a seventh application for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. On 05 September 2023, this application was refused. On 06 September 2023, you applied for merits review of this refusal decision at the AAT and [in] September 2023, the AAT affirmed the decision to refuse to grant you a Bridging E (Class WE) (Subclass 050) visa.
On 25 October 2023, you lodged an application for a Bridging E (Class WE) (Subclass 050) visa whilst in immigration detention. The Detention Review Officer was informed of the application on 26 October 2023 as required under item 1305(3)(c) of the Migration Regulations. It is this BVE application that is currently under assessment.
Review application
Pre-Hearing submissions
With his review application the applicant submitted the following additional information:
-A copy of the delegate’s decision.
-A letter dated 6 October 2023 from [Dr F] regarding [Child B] and ‘crowding’ in her teeth.
-A statement of estimation of fees for surgery on [Child B]’s teeth.
Hearing
The applicant appeared before the Tribunal on 16 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A], and the applicant’s friend, [Mr E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative attended by telephone.
The following is a summary of the information provided by the applicant at the hearing:
a.He wants a Bridging visa while he awaits the outcome of his judicial review proceedings. If he is unsuccessful in his judicial review application he will definitely leave because he doesn’t want to be detained any longer. Even if he dies in China he will still go back there because being detained is worse than dying.
b.He was detained because he did not have a visa. He did not have a visa because he made a mistake. He argued with his wife and she called the police and applied for an AVO. She called the police because he argued with her. He used physical violence and she was hurt.
c.He last saw his wife about two weeks ago. She visits him every one or two weeks at the detention centre. His children visit him there too.
d.He treats his wife well usually. On that day on 4 December 2020 he had an argument with his wife. She said she would jump down from the window and he used violence. He now knows he was wrong. He was detained in the police station for some days and he thinks his brain was not working.
e.He realises he was wrong to use violence.
f.He was released from the police station on 7 December 2020. He was told he had to report each week to the police station at [Suburb 1]. He asked the judge if it was okay to pass by his house on his way to the police station. The judge told him it was as long as he did not try to go inside the home.
g.On the day of his release, 7 December 2020, he drove to the [Suburb 1] police station to report to the police. The police asked him where he had got the car from. He told them he picked up his car from outside his home as he had the keys. The police then detained him for breaching his AVO and kept him at the police station for about 4 days. His wife must have found the car missing and called the police. His wife was using the car and had keys for it too. The Tribunal put to the applicant that it seemed strange he would take the car when he knew his wife was using it. The applicant responded he had just been released from the police station and had no money. He had to beg for a train ticket to get to [Suburb 2]. He then walked to [Suburb 1] station and on the way he passed by his home and saw his car parked in the street. He did not intend to break his AVO. He was detained at the police station that night. If he had not been detained he would have stayed with his relatives. His elder brother and sister are here. They work with [Mr E] at [Workplace 1].
h.[Mr E] will support the applicant if he is released. He wants to help the applicant to live with his wife.
i.His wife hopes that the applicant can be released so the family can be united. He has spent six months at [the immigration detention centre].
j.He believes people should be forgiven as Christ said.
k.He was put in prison because he did not complete his community service. He did some community service for 18 hours, but then the centre he attended in [Suburb 3] closed because of the pandemic. He called them to ask them to let them know when they re-opened but they didn’t. Then he forgot to follow up with them. He was supposed to complete 200 hours of community service. He didn’t get a chance to explain why he didn’t complete it as he was just put straight in prison. Legal aid called him. They said because he didn’t do his community service he needed to do the service in the prison.
l.He has not yet done an anger management course. He thinks no matter how angry he gets he will not lose his temper anymore. He has learned and is scared of being alone. He was put in a cell by himself in prison.
m.He knows his wife is a caring person and he is lucky. She works hard to look after the children by herself. She thinks of him. Anyone else would abandon their husband, but she hasn’t. She told him not to go to the prison anymore.
n.If he is released he will live at his friend [Name 1]’s place. [Name 1] is [Mr E]. They have known each other for several years and worked together at [Workplace 1]. If he can he hopes to live with his wife and children but this will depend on the conditions that are put on his visa. He has discussed living together with his wife and she is happy for this to happen. He can then help her look after the children so she can go to work. Otherwise his friend will provide the applicant with a place to live and with food.
o.He thinks there will be a condition that he is not allowed to work. If he is allowed to work he will try to get some work at [Workplace 1].
p.He wants a proper life together with his wife.
q.His wife went to the court to try to have the AVO cancelled but it was not possible. However the AVO was varied further in August and September, and the conditions about his children have been removed. He remembers that the judge asked the prosecutor why the children’s names were included and two weeks later the applicant attended the court again and the children’s names were removed. His wife has provided a copy of the new orders to the applicant’s representative.
r.The applicant’s representative told the Tribunal that he did not have a copy of the latest AVO variation. However later during the hearing the representative emailed the Tribunal with the latest AVO attached and stated that he did have a copy and had been mistaken earlier.
s.The Tribunal discussed with the applicant the conditions that would be applied to his visa if it is granted. These are Conditions 8401, 8506, and 8564. The applicant stated he would be able to comply with Condition 8401, report to the department as directed, without any problem. He had been attending the police station every week on time before he went to prison. It would also be no problem for him to comply with Condition 8506, to notify the department of any change of his address within two days.
t.The Tribunal put to the applicant that in relation to Condition 8564, to not engage in criminal conduct, his history was not good. The applicant responded that he knows this but he is scared of being put in the prison again. He was in a cell by himself because of discrimination. He will not break the law again.
u.He believes he has learned to control himself. He reads passages from the bible when he feels emotional to stop getting angry. The Tribunal put to the applicant that there was some indication that the applicant had become angry at his previous Tribunal hearing regarding the cancellation of his Bridging visa C. The applicant agreed he had become angry at the Presiding Member then and had said some silly things.
v.If he becomes angry with his wife in the future he will just walk away and calm himself down.
The following is a summary of the information provided by the applicant’s wife [Ms A] at the hearing:
a.The Tribunal asked [Ms A] if she would like to give her evidence in private and she responded to the Tribunal that she did not need to. The Tribunal advised [Ms A] that at any time she could change her mind and ask to give her evidence in private. [Ms A] confirmed she understood.
b.[Ms A] wants her husband to be released and to come home.
c.She showed the Tribunal a copy of the latest variation of the AVO. It was issued in [the] Local Court [in] August 2023. It contains only one order that the applicant not assault, threaten stalk, harass, intimidate his wife, [Ms A] or anyone she has a domestic relationship with; and that he not destroy or damage her property or animal. The Tribunal asked why the court document listed another court appearance date in September 2023 and she responded to confirm the order.
d.She wants herself and the applicant to be a good wife and husband again. She thinks she was also in the wrong because at that time it was Covid and they would argue and her temper was not so good. She has been trying. Now when the children are very naughty she speaks to them in a kind way. She knows it is hard for them without their father.
e.Her husband has had a lot of hardship in prison and detention.
f.She is not concerned he will be violent to her again. She thinks he will listen to her and that they will not argue. Or if they argue and get angry they will know to just walk away and get calm. He would not hurt their children.
g.The Tribunal asked [Ms A] whether, if her husband was released from detention, she would prefer them to live separately or together. [Ms A] responded she would like them to live together as a family. She and her husband need to live together and to look after each other. They will go to counselling together.
h.Her children are suffering at school because the other children make fun of them because their father is in detention.
i.Her husband had not been violent to her before the day when she called the police and has not been violent to her since.
j.She has a tumour and needs to get to [the] hospital for treatment. The children need their father to help look after them.

The following is a summary of the information provided by [Mr E] at the hearing:
a.He knows the applicant because his girlfriend is friends with the applicant’s wife and because they worked together at [Workplace 1]. The applicant did [specified work] there.
b.[Mr E] has a two bedroom apartment at [Suburb 4] and the applicant can stay with him there.
c.[Mr E] wants to help the applicant because he knows about his problem. [Mr E] wants to help the applicant and his wife get back together with their kids.
d.[Mr E] thinks the applicant and his wife have both learned from the past and will be fine. The applicant is a hard worker to support his family.
e.[Mr E] may be able to lodge a small bond for the applicant’s release.
Post-Hearing Submissions
On 17 November 2023 the representative submitted the following materials to the Tribunal:
-Copies of a Court Order notice from [the] Local Court, dated [in] October 2023, in relation to the applicant, varying the AVO made on 6 July 2023. It has effect until 12 October 2024 and contains the following one order:
Orders about behaviour
1. The defendant must not do any of the following to [Ms A], or anyone she has a domestic relationship with:
A. assault or threaten her,
B. stalk, harass or intimidate her, and
C. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [Ms A].
-A typed letter from the applicant in which he states the following:
My name is [the applicant], I knew sometimes I was bit hard to control my emotion, but I have learned my lesson and I would not harm my family, I regretted what has happened and I felt very sorry for my daughter, I felt I let them down. I promise I would never do this again, I would take anger management course, and I will have deep breath before I take any action, I will leave the argument if we have any. And I will cool my self down and come back. I will have more communication with her and be a listener, I always think about her good side and be a mother is not easy. I appreciate her effort and contribution to the family.
-A typed letter from [Ms A] in which she states the following:
[The applicant] is my children’s father. I understand he has been issued the AVO order and intent to forgive him and the AVO was lifted and amended, because he has been really nice to my children and he is a nice man who provides me all support in the past, he was bit lost temper because he has lost the job during the Covid and he was very upset and depressed.
My commitment to safety and the well-being of both of us (e)nsure that I do not downplay any past incidents of violence or abuse.
I want to give [the applicant] a chance to be with my children again, to fulfill his parental role and be responsible to my children. I felt overall, he is a good father and my children cannot leave him.
I understand he sometimes could not control his temper, but we have learned from the our past, we have known each other for almost 10 years, we did not have problem until the covid and he was depressed, I really need him to be on my children’s side, my children can not stay without him, he has been so nice to my children, he would never hurt them.
Please give him a chance and let him come back to his children.
CONSIDERATION OF CLAIMS AND EVIDENCE
The grounds for seeking the visa - cl 050.212
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.
Judicial review, merits review, s 137K revocation
In this case, the applicant is seeking to meet cl 050.212 (3A). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
According to the Department and Tribunal records the applicant currently has a judicial review application of a Tribunal review decision in the Federal Circuit and Family Court of Australia.
Accordingly, the applicant meets cl 050.212 (3A). At the time of this decision the applicant continues to satisfy cl 050.212(3A), so the applicant meets cl 050.221.
Whether the applicant will abide by conditions - cl 050.223
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.
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].
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.
In this case, cl 050.614 applies because the applicant meets cl 050.212(3A) and is an applicant for a Protection visa, which is the subject of the judicial review application.
Clause 050.614 indicates that conditions 8101 and 8116 are mandatory conditions if they applied to the last visa held by the applicant, and if not then any one or more of the prescribed conditions may be imposed on the applicant’s Bridging visa. The last visa held by the applicant was not subject to conditions 8101 or 8116. The discretionary conditions which may be applied under cl 050.614(2) are conditions 8104, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548.
Clause 050.618 specifies that “[i]n addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.”
The Tribunal notes that the delegate correctly identified that there were no mandatory conditions to be imposed, however indicated the following as discretionary conditions that would be imposed in this case: 8207 (no study), 8401 (report as directed), 8506 (notify change of address) and 8564 (must not engage in criminal conduct).
The Tribunal considers that that the following conditions should be imposed in view of the circumstances of this case: 8401 (report as directed), 8506 (notify change of address) and 8564 (must not engage in criminal conduct).
Conditions 8401 and 8506
Condition 8401 states:
8401 The holder must report:
(a) at a time or times; and
(b) at a place;
specified by the Minister for the purpose.
Condition 8506 states:
8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.
The Tribunal notes that the applicant does not have a good immigration history in Australia and that at times he has failed to engage with the department as required. This factor suggests he may not comply with a reporting condition.
However the applicant also now has an established home and family in Sydney, as well as an application for judicial review which he is continuing to pursue. His elder daughter has become an Australian citizen and is attending school in Sydney. There is no current motivation for the applicant to try to conceal himself from the Australian authorities. There is a need for him to make himself available to the authorities and school officials in the interest of his family’s welfare and his children’s education here.
As he stated he complied with his weekly reporting conditions to the police regularly and on time over a substantial period. There is no available evidence to contradict the applicant’s statement.
The Tribunal is therefore satisfied that in the applicant’s current circumstances he will comply with Condition 8401 and Condition 8506.
Condition 8564
Condition 8564 states:
8564 The holder must not engage in criminal conduct.
The Tribunal notes that the applicant has committed past offences. The most serious of these occurred on 4 December 2020 and resulted in criminal charges against him and an AVO being issued against him. He subsequently breached the AVO. He was convicted of the criminal offences and given an Intensive Corrections Order penalty. He did not comply with the ICO and so served the rest of his sentence in prison.
The applicant gave evidence that his breach of the AVO involved him taking the family car from the family home a few days after the AVO was issued. There is no evidence available to the Tribunal to controvert his account. The Tribunal notes the applicant provided a similar account in his previous review application before the Tribunal (differently constituted) in July 2023. The Tribunal therefore gives him the benefit of the doubt that the breach occurred as the applicant stated.
The applicant gave evidence that his imprisonment was a result of him not complying with the conditions of his Intensive Correction Order. He explained that this occurred because the centre he was required to attend and do service at closed during the pandemic lockdown in Sydney; the centre did not notify him when it reopened; and he failed to follow up after lockdown restrictions were lifted to resume his ICO obligations. Again there is no other evidence before the Tribunal as to how the applicant breached his ICO. In the absence of other evidence the Tribunal gives him the benefit of the doubt regarding his explanation. The Tribunal therefore finds there was an initial reason outside of the applicant’s control to explain a short period of non-compliance, however he remains responsible overall for the breach in his failure to take further steps to arrange his compliance.
In accordance with the above findings the incidents underlying the applicant’s criminal history are: two physical assaults upon his wife; resisting arrest by police; taking the family car from the family home while subject to an AVO; and not completing his ICO obligations.
The substantive matters involving physical assaults and resisting arrest occurred on the one day in December 2020. The AVO breach occurred three days later. The ICO breach was a failure over time by the applicant to do his community service. In the Tribunal’s view these matters, viewed cumulatively, do not necessarily indicate the applicant is likely to re-offend. The Tribunal is therefore also considering the applicant’s surrounding circumstances and situation in order to determine if it can be satisfied he will comply with an order not to engage in criminal conduct.
There is no indication that the applicant is likely to engage in general criminal conduct outside of his past criminal history. That is, the potential for his future criminal conduct appears to be limited to harm, or a threat of harm, to his wife, as well as not complying with AVO orders. If the applicant did engage in such criminal conduct it is highly probable that he would no longer be eligible for an ICO and would therefore be sentenced to imprisonment. Further, breach of the AVO as it stands now would involve the applicant acting in a way that would harm or threaten to harm his wife or others in a relationship with her, or her property. There is no indication before the Tribunal that the applicant has or would harm others in a relationship with his wife, or her property. The Tribunal therefore is focussing its consideration upon the chance that the applicant would harm or threaten to harm or attempt to harm his wife, in its consideration of condition 8564.
Matters of concern to the Tribunal are that the applicant has not undergone an anger management course to date; and his wife’s expression of some self-blame for the applicant’s violence on 4 December 2020. As explained to the applicant’s wife it is highly concerning if she believes she needs to modify her behaviour to avoid violence from the applicant. The applicant’s wife did acknowledge that she understood this and that she did not believe the applicant would be violent to her in any event.
Both the applicant and his wife presented claims in the hearing that the applicant would not get angry or ‘lose is temper’ in the future. The Tribunal does not accept this. As put to them anger is an emotion that is part of everyone’s life and can readily arise in married life. Further, the applicant did not present as a person who is now incapable of anger. The relevant consideration is therefore how the applicant will behave if and when he does get angry.
The evidence which may support a finding that the applicant would comply with condition 8564 is the applicant’s stated fear of being imprisoned and detained again; his awareness that he will be imprisoned and detained again if he does engage in criminal conduct; his acknowledgement of his wrongdoing; his expression of contrition; his claimed intention he will ‘walk away’ if he finds himself getting angry again. Further, there is the applicant’s wife’s evidence that the applicant had not been violent before 4 December 2020 and was not violent to her after 4 December 2020; her evidence that they will go to counselling together; her evidence they are both committed to having a good married relationship; her evidence that she strongly believes an argument will not escalate into a violent reaction from her husband as both of them will not allow this to happen; her evidence that she is not concerned for her physical safety; and her evidence that she strongly wishes for the applicant to return to her home.
There is also some evidence of support and faith in the applicant’s future behaviour from his church and his friend [Mr E].
The Tribunal notes that the applicant’s wife has continued to regularly visit her husband in detention and that she initiated the court processes to have the AVO varied to remove the ‘no contact’ provision and her children’s names from the order. The Tribunal accepts that the applicant’s wife’s continuing visits to the applicant suggest she is reasonably well-placed to assess his behaviour and what potential risk he may present to her. The Tribunal notes also that the AVO was varied without apparent challenge from the prosecutor or the magistrate.
The Tribunal considers that the evidence to indicate the applicant will not engage again in criminal conduct if released is cogent and persuasive. The factors of concern, namely his lack of participation in an anger management course and his wife’s thoughts of self-blame, are relevant considerations, but less directly so in some respects. The Tribunal is satisfied they are sufficiently outweighed by the factors and indications that the applicant will not harm or threaten or attempt to harm his wife again.
In making this finding the Tribunal gives substantial weight to the applicant’s wife’s evidence regarding her lack of concerns for her security and her wish to have the applicant live with her in the family home again, as well as the Local Court’s decision to vary the terms of the AVO to remove a no contact order.
On the basis of its assessment of the evidence before it the Tribunal is satisfied that the applicant will abide by with Condition 8564.
Conclusion
On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted, namely conditions 8401, 8506 and 8564. Therefore, the applicant meets cl 050.223.
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.
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8410, 8506 and 8564 will be imposed if the visa is granted.
Melissa McAdam
Member

[2023] AATA 4516

21 November 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Appeal