2318030 (Migration)

[2023] AATA 3930

2318030 (Migration) [2023] AATA 3930 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2318030

MEMBER:Peter Katsambanis

DATE:14 November 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 14 November 2023 at 10:35am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – criminal history – applicant convicted of multiple criminal offenses – domestic violence order breaches – non-completion of court-ordered courses – 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 378 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 29 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, which requires that, if a bridging visa is granted to an applicant, the applicant will abide by the conditions (if any) imposed on that visa.

3. The decision to refuse to grant the visa was made on 7 November 2023 on the basis that the delegate was not satisfied that the applicant would abide by the conditions imposed on any visa granted to him, and specifically the delegate was not satisfied that the applicant would abide by condition 8564, which requires that the applicant must not engage in criminal conduct.

4. The applicant appeared before the Tribunal on 13 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether, pursuant to cl 050.223, if a bridging visa is granted to the applicant, he will abide by any conditions imposed on it.

7. The applicant’s criminal history in Australia is summarised in the delegate’s decision record as follows:

   ·Convicted of ‘drive with middle range prescribed concentration of alcohol – 1^st offence’ and ‘negligent driving’ [in] February 2021 and sentenced to [a specified] fine and a 9-month community corrections order.

   ·Remanded into criminal custody [in] September 2022 after being charged with multiple offences related to domestic violence.

   ·Convicted and sentenced to a term of imprisonment of [period], with a non-parole period of [period] [in] May 2023, for the following offences:

   oCommon assault (DV) T2

   oIntentionally choke etc person without consent (DV) T1

   o[number] counts of Contravene prohibition/restriction in AVO (Domestic)

   o[number] counts of Threaten to record intimate image without consent (DV) T2

   oStalk/intimidate intend fear physical etc harm (domestic) T2

   o[number] counts of Assault occasioning actual bodily harm (DV) T2

8. In addition, the applicant provided the Department with an Australian Federal Police certificate dated [in] June 2021 which indicates that [in] February 2021 the applicant’s sentence for his driving offences included a requirement to complete a ‘sober driving’ program and an alcohol interlock program. This certificate also indicated that the applicant was awaiting court appearances (scheduled for [October] 2021) for a charges of Common Assault (Dv) – T2 and Intentionally choke etc person without consent (Dv) – T1.

9. A release certificate from Corrective Services New South Wales indicates that the applicant was held in custody from [September] 2022 to [October] 2023.

10. [In] October 2023, the applicant was released from prison into immigration detention. On 29 October 2023, he applied for a Permanent Protection (class XA) (subclass 866) visa which is also an application for the Bridging E (Class WE) visa that is the subject of this review.

11. It is noted in the delegate’s decision record that the applicant was interviewed by the delegate on 6 November 2023.  The decision record notes that at this interview the applicant stated that he had been imprisoned for domestic violence offences that had occurred between 2020 and 2022. He further indicated that the victim of these offences had been his former partner. He specifically stated that in 2020 he had strangled his former partner and that he had sent naked photos of her to other people without her permission. The couple had broken up after these incidents but later reconciled. However, the applicant stated that in September 2022 he punched his former partner in the back, and he was subsequently arrested and detained in custody until his release in October 2023.

12. According to the decision record, the applicant stated at the interview that he would not re-engage in criminal behaviour if he was released from immigration detention because he was no longer in a relationship with the victim of his crimes and because he no longer drank alcohol. He also stated that he wanted to do something different with his life.

13. The decision record notes that, when asked to outline any other criminal record in Australia apart from the domestic violence that he had referred to, the applicant did not initially disclose the driving-related convictions in 2021. When these convictions were raised with him by the delegate, it is noted in the decision record that the applicant stated that he did not think these driving offences counted. When asked why he had not declared any criminal convictions or any term of imprisonment on his protection visa application form, the applicant stated that he did not understand that he had been convicted of crimes in Australia until the interview.

14. At the hearing, the applicant initially claimed that he had been to Australia three or four times since his first arrival in 2014 as a seasonal worker. However, he agreed with the Tribunal that Department movement records indicated he had travelled to Australia on seven separate occasions, with the last arrival occurring in January 2020. The applicant claimed that after his initial arrival as a seasonal worker he had been issued with a multiple entry visitor visa which enabled him to visit Australia regularly as he sought opportunities for his future.

15. The applicant claimed that in Tonga he worked as [an occupation 1] for [Employer 1]. He had paid for his own airfares when he first arrived in Australia in 2014. On subsequent visits, his girlfriend had paid for his airfares. He was married in Tonga, but he separated from his former wife when he was stuck in Australia during the Covid lockdowns. He has three children, aged [ages] respectively. His former wife and his children have now moved to [another country].

16. The applicant claimed that he had not worked in Australia since his last arrival in January 2020. He had been supported to live here by his Australian relatives and members of his [church] which he claimed was [a specified denomination] church located in a suburb near [Suburb 1]. He stated that it was normal for members of his community to support each other in this way, especially when people like himself had been stuck in Australia due to the Covid lockdowns.

17. When asked to provide details of where he had resided in Australia between January 2020 and September 2022 when he was taken into criminal custody, the applicant claimed that in 2020 and 2021 he had lived in the Sydney suburb of [Suburb 2] with his aunt and her daughter. In 2022, he claimed to have lived in Melbourne with his cousin. However, when asked where he was living in September 2022 when he was arrested and detained by the police, the applicant stated that he was not in Melbourne but at a motel in [Suburb 3], a suburb of Sydney in the [Suburb 4] area. When asked who he was living with at this motel, the applicant stated that he lived there with his former girlfriend. He then clarified that he and his former girlfriend did not reside at this motel on a permanent basis, but this former girlfriend had paid for the room for one day after she had discovered that he had returned to Sydney from Melbourne. The applicant stated that he tried to avoid this former girlfriend because he knew there was an AVO in force that precluded him from seeing her and he initially went to a friend’s house in [Suburb 4] on his return to Sydney. However, the former girlfriend knew where he was and came to pick him up. The family he was staying with were not happy to see her, so the applicant went to the motel with her.

18. The applicant indicated to the Tribunal that he was fully aware that the AVO he had referred to prevented him from seeing this woman. When asked if he chose to deliberately disregard or break the law in order to see this woman, the applicant initially stated that he knew about the AVO, but he was stuck in a situation. He tried to avoid her, but the woman took him away. When the Tribunal questioned the claim that this woman would forcibly take him away without his consent or agreement, which was akin to kidnapping, the applicant agreed that he knowingly breached his AVO when he chose to go to the motel with this woman.

19. The applicant was asked why he chose to breach the law in this way. He responded that when his former girlfriend came and cried to him, he knew they still had feelings for each other.

20. When asked why he was arrested by the police [in] September 2022, the applicant stated that he had a quarrel with his former girlfriend, and she called the police. He confirmed that he was arrested at this motel in [Suburb 3] and then remanded into custody. He has not been in the community since that date.

21. The applicant stated that if he was issued with a bridging visa he would live with his uncle in [Town 1]. He claimed to be in regular communication with his uncle and this man was prepared to support the applicant and pay for all of his expenses. The applicant confirmed that he did not have any savings of his own.

22. The applicant claimed that he did not have a criminal record in Tonga and had never been charged with any offence in that country. When asked to outline the nature of his criminal offending in Australia, the applicant stated that his first issue was his AVO, his second issue was when he assaulted his former partner, and his third issue was threatening to share photos of his former partner on social media. He added that he had also been charged with drink-driving offences in 2021.

23. At the Tribunal hearing, the applicant agreed that the totality of his criminal offending in Australia was summarised in the delegate’s decision record, as outlined above.

24. When asked why he had committed these offences in Australia, the applicant stated that at first, he was very suppressed when he stayed with his former girlfriend. He claimed that she attacked him and broke his nose and added that he got fed up with that treatment. He claimed that his former partner always threatened him and used his situation to manipulate him because of his uncertain visa status.

25. The Tribunal pointed out to the applicant that it did not make sense that he would choose to willingly go to a motel with his former partner in September 2022 if he had previously been subjected to this kind of treatment such as being attacked, having his nose broken, being threatened and being manipulated by this woman, as he had claimed earlier in the hearing. The applicant responded that at the time, he still loved her but when he was in prison she moved on and the relationship was now finished.

26. The Tribunal asked the applicant if the relationship had already ended when he moved to Melbourne earlier in 2022 and some time before the September 2022 incident. The applicant agreed that the relationship was finished at the time he had moved to Melbourne, but this woman still tried to get back with him.

27. The applicant stated that the AVO precluding him from contacting his former girlfriend was taken out after the couple had a fight. He claimed that this AVO was taken out by the police. He confirmed that all [number] offences for which he was sentenced [in] May 2023 were related to incidents between himself and his former girlfriend. He agreed that these [offences] highlighted a very serious level of offending and domestic violence. He stated that the nine breaches of the AVO had not occurred on the same day but had occurred on different occasions and were separate breaches of the AVO.

28. On the basis of this evidence, the Tribunal pointed out to the applicant that nine separate breaches of an AVO over time may tend to indicate that he had a blatant disregard for the law. The applicant responded that as soon as he was issued with an AVO, his former girlfriend was waiting for him outside the court and crying for him to go home with her. He told her about the AVO, but she kept pestering him. After he agreed to go with her, she used that incident to threaten that she would report him if he did not do what she told him to do.

29. The applicant agreed with the Tribunal that he made conscious choices not to follow the law on a number of occasions despite being aware of restrictions being placed on him by the AVO and despite being aware of the consequences for breaching the AVO. On this basis, the Tribunal asked the applicant why he would not engage in similar breaches of the law or other criminal conduct in the future. The applicant responded that he had learnt a lot since he had spent time in jail, and he had reflected on what he had done in the past. He was determined not to break the law again and now realised the consequences of his actions.

30. The applicant claimed that he had completed courses relating to domestic violence, alcohol use and drug use whilst he was imprisoned. He claimed to have copies of certificates indicating he had completed these courses but stated that it did not occur to him that these certificates would help with this matter. He agreed to provide copies of the certificates after the hearing.

31. The Tribunal pointed out to the applicant that from the way he had described the domestic violence offending at the hearing, it did not appear to indicate that alcohol had been a major factor in this type of behaviour. The applicant responded that the couple did all of this when they were both drunk. However, he agreed that neither he nor his former girlfriend were under the influence of alcohol at the time his former girlfriend asked him to breach the AVO outside the court when the order was issued. On the basis of this response, the Tribunal expressed its concern to the applicant that it appeared that he was telling the Tribunal what he believed it wanted to hear rather than providing factual responses. The applicant responded that what he meant to say was that the altercation in September 2022 and the violence happened when he was drunk.

32. The Tribunal asked the applicant why it should accept that he would not get violent once again if he became intoxicated in the future. The applicant responded that he had promised to himself that he would not consume alcohol in the future. He had also made this promise to his mother because she had brought him up in the church. He added that he had now changed his ways. When asked if he had attended any alcohol rehabilitation program, the applicant stated that he had done a drugs and alcohol program in jail but had not attended any rehabilitation program.

33. The Tribunal pointed out to the applicant that he had either been in prison or in immigration detention since September 2022 and therefore, his ability to avoid alcohol had not been tested in an environment where alcohol was readily available to him. On this basis, the Tribunal asked the applicant why it should accept that he would not return to drinking alcohol if he was released into the community and had access to alcohol. The applicant responded that he had learned the hard way and he was determined to live a better life and not break the law again. He just wanted a better life for himself.

34. The Tribunal pointed out to the applicant that in the past he had an AVO against him that carried significant legal consequences if it was breached yet he had chosen to breach it on multiple occasions. On this basis, the Tribunal asked the applicant why it should accept that he would follow a promise he had made to himself or his mother not to act in this way in the future. He responded that if he was to be honest, he did not really understand all of the consequences of the AVO until he ended up in jail, but he did not want to go there again. He added that now he understands the seriousness of an AVO.

35. The applicant confirmed to the Tribunal that when he was sentenced for his drink driving offences in February 2021, one of the sentencing requirements was that he complete a ‘sober driving’ program. He claimed that he could recall attending this program on one occasion but did not attend on any further occasions because he didn’t really understand what was going on and because he was being careless at the time. He added that he forgot to attend. He confirmed his evidence that he had not completed this court-ordered course.

36. It was pointed out to the applicant that based on his own evidence he had not complied with the conditions of an AVO on multiple occasions in the past and had not complied with a court order to complete a ‘sober driving’ program. On the basis of his past disregard for these types of legal directives, the Tribunal asked the applicant why it should accept that he would not engage in criminal conduct if he was released into the Australian community. He responded that he did not understand the seriousness of what he was doing until he ended up at this point. He now understood and did not want to go back to jail so he was determined to change his behaviour.

37. In closing, the applicant stated that he felt remorseful about breaking the law, he had learned his lesson and he had decided to change his ways. He had promised himself to obey and respect the law.

38. The applicant agreed to provide the Tribunal with additional documents in support of his claims by 14 November 2023.

39. The applicant subsequently provided the Tribunal with the following documents that had been issued to him whilst he was in prison:

    ·A certificate of completion for ‘The Inmate Hairdressing Course’.

    ·A certificate of acknowledgement that the applicant participated in an ‘induction, orientation and health survival tips’ information session.

    ·A certificate of completion for the Dialectical Behaviour and Resilience program consisting of 8 modules.

    ·Two letters of attendance for a ‘Remand Addictions Program’ certifying that the applicant attended this program. When the attendance dates on the two letters are combined, it appears that the applicant attended 13 separate sessions of this 20-session program.

    ·A letter of completion certifying that the applicant attended 6 sessions of the ‘Remand Domestic Abuse’ program.

    Whether the applicant will abide by conditions - cl 050.223

40. 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.

1. 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].

2. 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.

3. In this case, cl 050.611 and cl 050.618 apply because the applicant meets cl 050.212(3), given that the applicant has made an application for a protection visa. These clauses prescribe that, in addition to any mandatory conditions, certain conditions may be imposed.

4. The delegate’s decision record notes that the delegate determined that the following conditions should be imposed if the applicant was granted a bridging visa:

   8101 (No work)

   The holder must not engage in work in Australia.

   8401 (Report at a 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 2 working days in advance of any change in the holder’s address.

   8564 (No Criminal Conduct)

   The holder must not engage in criminal conduct.

5. Condition 8101 (No Work) is a mandatory condition and therefore, must be imposed in these circumstances.

6. In addition, the Tribunal considers that Condition 8401 (Report at a Specified Time and Place), Condition 8506 (Notify change of address) and Condition 8564 (No Criminal Conduct) should be imposed in the circumstances of this case. In particular, in relation to Condition 8564, the Tribunal considers that it is an appropriate and reasonable condition to impose on the applicant given his extensive criminal record in Australia, including convictions for numerous offences related to domestic violence for which he was sentenced to a term of imprisonment. At the Tribunal hearing, the applicant agreed that it was reasonable and appropriate in his own personal circumstances that these conditions by imposed on any bridging visa granted to him.

7. In relation to Condition 8564, the Tribunal notes that the applicant has a history of criminal offending in Australia, including having served a term of imprisonment for a series of offences related to domestic violence that included assault occasioning bodily harm, common assault, intentional choking without consent, threatening to record an intimate image without consent and multiple breaches of an AVO.

8. At the hearing, the applicant accepted that he did have a history of committing these crimes in Australia. However, he stated that he had now learned his lesson, he was remorseful, he was determined to not reoffend and to obey the law in the future. He also stated that he had promised to himself and to his mother to stop consuming alcohol and to no longer break the law. The applicant also provided evidence to indicate that he had attended some sessions in prison programs relating to addiction and domestic violence.

9. The Tribunal has placed some weight on the applicant’s remorsefulness and desire to reform his life, including a desire to refrain from alcohol and it has also placed some weight on his attendance at addiction and domestic violence programs whilst in prison when determining whether the applicant will comply with Condition 8564 by not engaging in criminal conduct. However, as discussed with the applicant at the hearing, the weight placed by the Tribunal on his expressed desire to refrain from alcohol is reduced by the fact that this desire has not been tested since September 2022 (when he was first taken into custody) in an environment where alcohol is actually available to the applicant.

10. However, the Tribunal has also considered the factors that point to the applicant not complying with Condition 8564. The applicant’s criminal history in Australia is significant and shows a level of escalation of his domestic violence offending over time. He did not breach an AVO on one occasion or on multiple occasions on one day. His own evidence at the hearing indicated that he knowingly and deliberately breached the AVO on multiple occasions over a considerable period of time and he was convicted of 9 such breaches over time. He also has two separate assault convictions, including one of occasioning actual bodily harm. The Tribunal is also concerned that at the hearing the applicant attempted to apportion some or all of the blame for his offending to the victim of his offending including ascribing coercive behaviour to the victim and suggesting that this coercive behaviour was the catalyst for his own serious violent and criminal behaviour. On the evidence before it, the Tribunal does not accept that this alleged behaviour of the victim occurred as claimed and also considers that even if such behaviour did occur that it is not a reason or justification for the violent and criminal actions of the applicant. Accordingly, the Tribunal has placed significant weight on the applicant’s criminal history in Australia and his attempts at the hearing to apportion some of the blame for this domestic violence offending on his victim as indicating that he will not comply with Condition 8564.

11. The Tribunal has also considered the applicant’s behaviour over time in Australia that has demonstrated a disregard for the laws of Australia. The Tribunal accepts the claims of the applicant that he did not fully understand the level or seriousness of the consequences of breaching an AVO, such as leading to imprisonment, until he actually ended up in jail. However, the applicant clearly stated at the hearing that he was fully aware when he had been served an AVO that it imposed a legal requirement on him not to contact his former girlfriend and he also indicated that he was aware that some level of legal consequences attached to any non-compliance with this order. Yet, based on his own evidence, he was still prepared to breach the AVO despite knowing it was illegal to do so and despite knowing there were legal consequences to any breach of the AVO.

12. The applicant also failed to complete a court-ordered sober driving course. By his own admission, he attended one session and then stopped going to this program. The Tribunal accepts that the applicant may not have fully understood what the program entailed but considers that in such circumstances the appropriate course of action for the applicant would have been to seek assistance or clarification about the program rather than to stop attending.

13. On the evidence before it, the Tribunal considers the applicant’s deliberate breaches of the AVO and his non-completion of the court-ordered sober driving program displays an ongoing disregard for Australian law on the part of the applicant. The Tribunal has placed significant weight on this demonstrated disregard for Australian law as indicating that he will not comply with Condition 8564.

14. Having considered the evidence before it, the Tribunal finds that the factors indicating that the applicant will not comply with Condition 8564 (being his criminal history in Australia, his attempt to blame some of his domestic violence offending on the victim  of his crimes and his demonstrated disregard for Australian law) far outweigh the factors indicating that he will comply with this condition, which are his remorsefulness, his desire to reform his life, including a desire to refrain from alcohol and his attendance at addiction and domestic violence programs whilst in jail.

15. Therefore, on the evidence before it, the Tribunal is not satisfied that the applicant will not engage in criminal conduct if he is granted the visa and accordingly, the Tribunal is not satisfied that the applicant will comply with Condition 8564.

16. Accordingly, 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.

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

18. 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

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

    Peter Katsambanis
    Member