2405963 (Migration)

[2024] AATA 911

2405963 (Migration) [2024] AATA 911 (12 April 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2405963

MEMBER:Nora Lamont

DATE OF DECISION:  12 April 2024

DATE CORRIGENDUM

SIGNED:30 April 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·At paragraph 4 of the Decision Record, the word ‘affirmed’ should be deleted, and replaced with the word ‘remitted’.

Nora Lamont
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2405963

MEMBER:Nora Lamont

DATE:12 April 2024

PLACE OF DECISION:  Melbourne

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;

·Imposes conditions 8101, 8207, 8401, 8506, 8564.

Statement made on 12 April 2024 at 9:56am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by the visa conditions – period of unlawful residence – applicant convicted of multiple offences – protection visa application – family support – Australian citizen wife and children – visa conditions to be imposed – decision under review remitted

LEGISLATION

Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.223, 050.613, 050.618; Schedule 8, Conditions 8101, 8207, 8401, 8506, 8564

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 20 March 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 050.223.

3. The decision to refuse to grant the visa was made on 22 March 2024 on the basis that the delegate was not satisfied the applicant would abide by the conditions on his visa. The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and father-in-law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criminal History

5. The applicant’s criminal background is as follows: [1]

   [1] [File numbers] AAT Folio 22/03/2024

   [In] July 2020 the applicant was convicted in [Court 1] of the following:

   ·1x Count of Common Assault (DV) T2; and

   ·1x Count of Stalk/Intimidate Intend Fear Physical Etc Harm (Domestic)

   [In] June 2021, the applicant was convicted in [Court 2] of the following:

   ·2x Counts of Common Assault (DV) T2;

   ·2x Counts of Stalk/Intimidate Intend Fear Physical Etc Harm (Domestic) T2; and

   ·1x Count of Contravene Prohibition/Restriction in AVO (Domestic).

   [In] February 2022, the applicant was convicted in [Court 2] of the following:

   ·2x Counts of Common Assault (DV) T2;

   ·2x Counts of Stalk/Intimidate Intend Fear Physical Etc Harm (Domestic) T2;

   ·2x Counts of Contravene Prohibition/Restriction in AVO (Domestic); and

   ·1x Count of Destroy or Damage Property <=$2000 (DV).

   [In] September 2022, the applicant was convicted in [Court 3] of

   ·Possessing Prohibited Drug

   [In] February 2023, the applicant was convicted in [Court 4] of the following:

   ·1x Count of Destroy or Damage Property

   ·1x Count of Contravene Prohibition/Restriction in AVO (Domestic)

   On or around [a day in] October 2023, a warrant was issued for the applicant’s arrest, and he was placed in [Prison 1] as he breached is AVO conditions.

   [Later in] October 2023, the applicant was convicted in [Court 3] of the following:

   ·2x Count of Contravene Prohibition/Restriction in AVO (Domestic)

   Migration History

   ·On 18 August 2016, the applicant lodged a [temporary] Visa which was subsequently refused on 26 August 2016.

   ·On 08 September 2016, the applicant lodged another [temporary] Visa which was granted on 30 September 2016.

   ·[In] October 2016, the applicant arrived in Australia using the [temporary] Visa.

   ·On 24 November 2016 the applicant’s [temporary] Visa ceased, and the applicant became an Unlawful Non-Citizen.

   ·[In] July 2017, the applicant was located by an Australia Border Force (ABF) Officer. You were subsequently detained pursuant to section 189 of the Act and transferred to [Immigration Detention Centre 1].

   ·On 1 August 2017, the applicant lodged a Bridging E Visa (BVE) while in detention that was refused on 08 August 2017, and the applicant subsequently sought review of the application on 10 August 2017 to the Administrative Appeals Tribunal (AAT). The AAT concluded the on 21 August 2017 by affirming the decision of the Delegate.

   ·[In] August 2017, the applicant requested Ministerial Intervention which was finalised on the same day with the outcome being that the request for Ministerial Intervention was not referred.

   ·[In] September 2017, the applicant was removed from Australia.

   ·On 03 April 2020, the applicant lodged a [temporary] Visa which was granted on 07 April 2020 allowing 3 months stay.

   ·[Later in] April 2020, the applicant arrived in Australia using the [temporary] Visa.

6. The issue in this case is whether the applicant will abide by the conditions on his visa.

   Tribunal Hearing

7. The applicant appeared before the Tribunal via video link. The applicant spoke about how he met his wife [Wife A] [in 2016]. The applicant was deported back to [Country 1] and remained there until 2020 when he was granted a [temporary] visa and arrived back in Australia.

8. The applicant appeared remorseful and concerned for the welfare of his family including his wife and [number] children. He told the Tribunal he never hit or did any physical violence on his wife. Rather it was all verbal. The Tribunal asked if any of their verbal fights were in front of the children and he said they were outside away from the children.

9. The applicant said he would drink with his friends and that he does not intend to drink anymore. His wife [Wife A] told the Tribunal she does not drink, and alcohol is not allowed in her house. The applicant has also completed some alcohol and anger management classes whilst incarcerated. He said he promised his wife he would not drink.

10. The applicant told the Tribunal if he has to return to [Country 1] to live, he will have to take the [youngest] children with him as his wife would not be able to cope with the little ones and work at the same time. This would split the family up. He said life is hard in [Country 1] and there isn’t much work. When he lives in [Country 1] he sells vegetables he grows on some village land. He has paid off the debt he owes to the Australian government, and they are hopeful of getting some legal advice and getting a partner visa one day.

11. The applicant’s father-in-law joined the hearing via the telephone and spoke of how he has to help with the children and support [Wife A], and he is tired and old. He said the applicant is a good man and is needed to help his daughter.

12. Whilst the Tribunal continues to hold concerns over the applicant’s behaviour it is outweighed by the needs of his family as his Australian citizen wife has [number] children and no one to assist her with childcare. The applicant’s wife was homeless for three months and has a [young] baby she must look after. She cannot work because there is no one to look after the children and she needs her husband to be in the home to look after the children while she provides for the family.

13. The Tribunal also continues to hold concerns about the applicant’s migration history and non-compliance with his visa conditions. However, the applicant and his wife assured the Tribunal that the non-compliance is behind him and he would be seeking legal ways to maintain his status in Australia.

    Whether the applicant will abide by conditions - cl 050.223

14. 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.

15. 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].

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.

17. In this case, cl 050.613A applies as the applicant has applied for a protection visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101NO WORK

    The holder must not engage in work in Australia.

    8207NO STUDY

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

    8401REPORT 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.

    8506NOTIFY CHANGE OF ADDRESS

    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564NO CRIMINAL CONDUCT

    The holder must not engage in criminal conduct.

18. The Tribunal notes that the applicant is remorseful, that many of his problems resulted from drinking and he would not be drinking again. Having considered the evidence provided by the applicant, his wife and father-in-law, and the applicants desire to be at home with his children and wife and to resume a caretaking role, the Tribunal is satisfied that the applicant will comply this time with the conditions on his visa.

19. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.

20. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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

    ·            Imposes conditions 8101, 8207, 8401, 8506, 8564.

    Nora Lamont
    Member