2401076 (Migration)

[2024] AATA 598

2401076 (Migration) [2024] AATA 598 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401076

MEMBER:Paul Noonan

DATE:2 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 2 February 2024 at 2.01pm

CATCHWORDS   
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Tribunal is not satisfied that the applicant would abide by his visa conditions – applicant has been convicted of significant domestic violence crimes – breached the terms of the AVO on two further occasions – there is a high risk that applicant will reoffend – not satisfied that the applicant will comply with condition 8564 – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 359
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, Schedule 8

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 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 19 January 2024. 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.

3. The decision to refuse to grant the visa was made on 24 January 2024 on the basis that the applicant would not comply with the condition imposed on the visa, being: must not engage in criminal conduct. The applicant appeared before the Tribunal on 1 February 2024 by video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The ground for seeking the visa – cl 050.212

5. 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.

6. In this case, the applicant is seeking to meet cl 050.212(8). 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.

7. 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. It was accepted by the delegate that the applicant has lodged an appeal against an Immigration Assessment Authority decision with respect to his substantive Safe Haven Enterprise (Class XE) (Subclass 790) visa claim. The applicant confirmed that his appeal has yet to be finalised.

8. Accordingly, the applicant meets cl 050.212(8).

   Whether the applicant will abide by conditions – cl 050.223

9. Clause 050.223 requires that the Tribunal is satisfied that at the time of decision, 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.

10. 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].

11. 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.

12. Given the applicant’s criminal history, however, the Tribunal is not satisfied that the applicant would abide by his visa conditions. This is because if a bridging visa were granted it would be appropriate to attach the following conditions:

    • 8564 – Must not engage in criminal conduct.

13. With respect to condition 8564 (must not engage in criminal conduct) the Tribunal put to the applicant under s 359AA of the Act that the delegate’s decision sets out his criminal history as follows and informed the applicant that this information is relevant because it may consider, on that basis, that he is highly motivated to continue his offending should he be released from detention and as such that he would not abide by condition 8564:

    ·On 24 October 2017 the applicant was convicted of:

    1.Driver consume alcohol while driving

    2.Drive with high range prescribed concentration of alcohol – 1^st Off

    3.Negligent driving (no death or grievous bodily harm).

14. The applicant submitted, with respect to the above convictions that, at the time his visa was cancelled he was very upset and worried and blamed this for his actions and also he did not understand the seriousness of the crime and it was only after the convictions were handed down did he realise that he had done something wrong.

    ·On 2 December 2019 the applicant was convicted of:

    1.Assault occasioning actual bodily harm (DV) – T2

    2.Stalk / intimidate intend fear physical etc harm (Domestic) – T2

15. The applicant submitted, with respect to the above convictions that, he had been an alcoholic and was drunk at the time and stated that yes this had been his fault because he had been drunk.

    ·On 8 April 2022 the applicant was convicted of:

    1.Assault occasioning actual bodily harm (DV) – T2

16. The applicant submitted, with respect to the above convictions that, at the time he had been under a lot of stress because of issues with his visa and work. He had also still been using alcohol and he blamed this combination of factors for his offence.

    ·On 16 May 2023 the applicant was convicted of:

    1.Twice contravene prohibition/restriction in AVO (Domestic)

17. The applicant submitted, with respect to the above convictions that, at around that time his mother had died and he felt alone and separated from his family as he had not seen his children for a long time. This caused him to twice breach the AVO.

    ·On 18 January 2024 the applicant was convicted of:

    1.Twice contravene prohibition/restriction in AVO (Domestic)

18. The applicant submitted, with respect to the above convictions that, he did not still really understand the seriousness of the offence at that time. He had not seen his wife and kids for a long time. At that time he was feeling very sad and he made these mistakes. He now understands what he did was wrong and was a very serious fault. He has lost his work, his peace of mind and feels that he has lost everything. He submitted to the Tribunal that he is very motivated not to offend again. This caused him to twice breach the AVO.

19. The Tribunal clarified with the applicant the circumstances surrounding his latest breaches of the AVO. The applicant stated that he was arrested for approaching his wife’s house without permission and for parking his car within 100 metres of his wife’s house and waiting in it for a long time, in breach of the AVO. Someone saw him do this and he was arrested later on at his workplace.

20. The Tribunal discussed with the applicant that he had previously been issued with a BVE in 2023 and in the interview process for that visa, conducted on 21 June 2023, he is recorded as expressing remorse for his previous domestic violence offending and stating that he had learnt his lesson and would not contravene his AVO again. The Tribunal noted however that, as set out in the offence history discussed with him, he had then proceeded to violate the terms of his AVO on two further separate occasions. In response the applicant asked for one more chance and that this time he truly understood what a serious issue it is for him to breach the AVO and he would not do so again. He submitted that he has undertaken a counselling session on 18 December 2023 in which he discussed his situation and family.

21. The applicant then submitted that he won’t reoffend again. Before, he was an alcoholic. He has stopped drinking alcohol. He had a community corrections session and adhered to the orders and did nothing bad. When he was released, he undertook an 8 month men’s behaviour correction program for 50 hours. He went to the church for a voluntary program (under orders). He stated that he won’t go near his family, rather he will go through the authorities and arrange to see them. He asked to be pardoned. If released he will work for his children’s future. He has two children aged 10 and 4. He will have a good life and prove that he is a good man in the community. The Tribunal has also taken into account the applicant’s written submission made prior to the hearing which reiterated what he told the Tribunal during the hearing. The Tribunal has also taken into account a letter of support from Re. [A] of [an organisation]. Re. [A] noted that he had previously written in support of the applicant within the context of his previous BVE application. He reproduced much of that submission and noted that the applicant was now in a worse position with the law. He submitted that he will arrange counselling for the applicant should he be released, that the applicant is traumatised from his past experiences and he is confident that he has learnt a bitter lesson in detention and prison and is resolved to start fresh.

22. Weighted against the above is the fact that the applicant has been convicted of significant domestic violence crimes. In the first instance he was convicted and punished but then again reoffended with a further assault. He then breached the terms of the AVO with respect to his partner and was convicted and punished. Most significantly he has recently been through the same BVE process as this, in which he seeks a positive outcome from this Tribunal, and, on that previous occasion, he was released with condition 8564 (must not engage in criminal conduct) applied. Despite this, and stating that he had learnt his lesson and would not reoffend or break the law and would not breach the terms of the AVO with respect to his partner, he then proceeded to breach the terms of the AVO on two further occasions.

23. In the Tribunal’s view the above history demonstrates that the applicant remains highly motivated to reoffend and is willing to disregard Australian law and continue to threaten the safety of his partner and the Australian community more broadly. The Tribunal gives his actions undertaken after his previous release under a BVE significant weight in this matter. This causes the Tribunal to give far less weight to his evidence that he has learnt his lesson and will not reoffend than it otherwise may have. On balance the Tribunal considers that the applicant’s recent past actions reflect that there is a high risk that he will reoffend and in so doing again breach the terms of condition 8564. The Tribunal is therefore not satisfied that the applicant will comply with condition 8564 (must not engage in criminal conduct).

24. With respect to the imposition of a security the applicant confirmed that he had no concrete proposal for how he would post security. Regardless the Tribunal is not satisfied that the imposition of a security will secure compliance with the condition. Therefore, the applicant does not meet cl 050.223.

    DECISION

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

    Paul Noonan
    Member