2431885 (Migration)

[2024] AATA 3940

2431885 (Migration) [2024] AATA 3940 (12 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2431885

MEMBER:Melissa McAdam

DATE:12 September 2024

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 050.212 of Schedule 2 to the Regulations; and

·cl 050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8207, 8401, 8506, 8510 and 8564 will be imposed if the visa is granted.

Statement made on 12 September 2024 at 7:16pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – dependent on ex-wife’s application for permanent work visa, in progress – refusal of applicant’s visa remitted on review, and re-assessment in progress – abidance by conditions of visa – must not engage in criminal conduct – criminal convictions, imprisonment, conditional bail and immigration detention – circumstances of offences – no previous convictions, remorse and insight, rehabilitation courses, psychological assessment and low risk of re-offending – continued contact with and support of ex-wife, victim of offending step-child and applicant’s child –child’s age and development – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), r 1.12(5), Schedule 2, cls 050.212(3), 050.221, 050.223, 050.617, 050.618, Schedule 8, conditions 8207, 8401, 8506, 8510, 8564

CASE
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 was represented in relation to the review.

3. The applicant applied for the visa on 29 August 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. Under this criteria the Minister must be satisfied the applicant will abide by conditions imposed on a Bridging visa.

4. The decision to refuse to grant the visa was made on 5 September 2024 on the basis that the delegate was not satisfied that the applicant would abide by Condition 8564 – must not engage in criminal conduct.

   Background

5. The applicant is a dependent upon his ex-wife’s application for a subclass 186 visa.  This application is still pending.

6. [In] June 2021 the applicant was convicted in NSW of the following offences and sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years:

   Aggravated - Carry Out Sexual Act With Another (Dv)-T2;
   Act With Intent To Influence Witness-T1;

   Do Act Etc Intending To Pervert The Course Of Justice-T1.

7. [In] November 2021 the applicant was released from criminal custody on conditional bail and detained under s189 of the Act at [an] Immigration Detention Facility.

8. On 5 June 2024, the applicant’s subclass 186 application was refused under s 501(1) of the Act and the applicant sought review of tis decision at the AAT. On 28 August 2024 the AAT set aside the decision to refuse to grant the applicant the subclass 186 visa and remitted the application back to the Department for assessment. The application remains pending.

9. The applicant subsequently lodged a BVE application, the subject of this review.

   Delegate’s Decision

10. The delegate was satisfied the applicant met clause 050.212 of the Schedule 2 criteria as he satisfied cl 050.212(3), having made a valid application for a substantive visa, his subclass 186 application, which had not yet been finally determined.

11. In her consideration of cl 050.223 the conditions the delegate would impose on the Bridging visa if granted were:

    -8207 (no study)

    -8401 – report as directed

    -8506 – notify change of address

    -8510 – show a valid passport

    -8564 – must not engage in criminal conduct.

12. The delegate was not satisfied the applicant would abide by Condition 8564 and provided the following reasoning:

    I have considered whether or not you will comply with condition 8564 (Must Not Engage in Criminal Conduct). It is noted that you have been convicted of the following offences for which you received a sentence of 4 years’ imprisonment with a non-parole period of 2 years:

    -Aggravated - Carry Out Sexual Act with Another (Dv)-T2;

    -Act With Intent to Influence Witness-T1;

    -Do Act etc Intending to Pervert the Course Of Justice-T1

    It is also noticed that, following your initial release from criminal custody on conditional bail on 17 February 2020 you were subsequently arrested for breach of your bail conditions on 05 August 2020 and returned to criminal custody where you were held on remand until 11 June 2021, the date on which you were convicted of the offences.

    During the interview on 04 September 2024, you were asked to provide the details of your criminal history, including the nature of the offending and outcomes of your charges/convictions. In response, you confirmed you were charged with “carry out sexual acts and intercourse”. You then outlined the circumstances that led to your arrest, stating that you engaged in sexual conduct in bed with your step-daughter present. You stated you were intoxicated and you mistook your step-daughter for your wife. You expressed regret for your actions that night.

    You were then asked to explain why your bail was revoked. In response, you stated that you were contacting your wife over the phone in order to discuss your divorce proceedings. You confirmed that you knew were not supposed to talk to or contact your wife or daughters but did so as “at that time I was not intelligent… [and] was sad that my relation is going down.”

    Tribunal application

    Pre-Hearing submissions

13. On the morning of 11 September 2024 the applicant’s Representative provided the following materials to the Tribunal:

    -A written submission by the Representative

    -A copy of a psychological assessment by Consultant Psychologist [Mr A], dated 15 December 2023.

    -IHMS records of the applicant’s attendance and participation in SMART Recovery group education Workshops at [the] IDC.

    -The applicant’s Certificates of Completion in June 2024 for the following courses:

    oChild Safety for Parents

    oUnderstanding Addictions

    oCommunity Development 101

    oChild Abuse Recognition, Investigation, and Protection.

    -A copy of the AAT’s decision revoking the refusal of the applicant’s subclass 186 visa application.

    -The NSW District Court’s sentencing statement in the applicant’s criminal matter, [in] June 2021.

    Tribunal Hearing

14. The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from psychologist [Mr A] and the applicant’s ex-wife [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

15. The following is a summary of the information the applicant provided at the hearing:

    a.If he is released from detention the applicant will live at the house of a friend who had provided his address. The applicant provided an address in [Suburb] and the name of his friend to the Tribunal. The friend will help the applicant temporarily until he can organise a room to rent.

    b.If he is permitted to work the applicant can start work immediately. [Mr C] has confirmed he will employ the applicant. The applicant also has some savings.

    c.The applicant’s ex-wife lives with their young daughter. The applicant’s step-daughter has a unit of her own.

    d.The applicant and his ex-wife have discussed his contact with their daughter if he is released.  Basically when he has free time he will be available for school pick ups and will see her on weekends.  His ex-wife also does not object to the applicant spending time with their daughter at her home.

    e.The AVO against the applicant expired in March 2024 and there is no new order against him.

    f.The applicant can be depressed about his situation. It is one he has never been in before in his life. When he feels this way he tries to learn so he can have a better future.

    g.The Tribunal asked the applicant how he behaves when he is angry. He responded that he thinks about the reasons and then tries to think about the way to resolve the situation.

    h.The applicant was not involved in any violent incidents while in prison.

    i.The Tribunal asked the applicant is he felt any resentment that he was jailed for two years and is now in immigration detention.  The applicant responded no because he has learned to agree with and accept the justice process.  He feels no resentment towards his ex-wife or step-daughter. He tries to have a good and respectful relationship with his ex-wife and is respectful of [Ms D].

    j.The Tribunal asked how he would behave if [Ms D] comes to her mother’s home while he is there.  He responded he will be fully respectful and show no bad behaviour at all stages.

    k.The Tribunal asked the applicant if he would rely upon alcohol in difficult situations. He responded that during his time in detention he has learned alcohol is a bad presence in his life.  This has left a strong impression upon him.  He has never suffered from alcoholism. In the past he was a social drinker.

    l.He thinks it can be difficult knowing that other people think badly of him and he has received help with this.  He will try to give his best response. Others knew who were involved in his Court case.  He feels embarrassed that they know, but he is always ready to own and explain it to them.

    m.He does not react violently when angry. He is a calm person. He is tolerant. He understands some people may make him feel bad but he will try to respond in the best way.

    n.The applicant is seeing a counsellor in detention who is providing him with support and assistance.  The applicant also has support in the community and many friends. Many know about his conviction and supported him in court.

    o.The applicant is still a dependent on his ex-wife’s subclass 186 visa application. It has not yet been decided. Even though they are divorced he is still considered a member of the family unit under reg 1.12(5) of the Migration Regulations.

    p.If he can stay in Australia he wants to integrate and support his daughter through her life.  He is fully committed to Australian law and respects Australian life.  He wants to be part of the Australian community and not re-offend. He wants to contribute to his daughter’s life.

    q.The applicant has no need or wish to study at the moment but may want to go to TAFE in the future.  He will comply with a no-study condition.  He will be employed by [Mr C] as a general labourer so does not need to study for this work.

    r.He previously had permission to study and studied English for nine months.  He has never studied without permission.

    s.He has a valid passport but he had to surrender it to the District Court.  It won’t be a problem for him to recover it from the Court as his criminal matter was completed in November 2023.  He just needs to make an application for it.  He will be able to show his passport to the Department.

16. The following is a summary of the information the provided by Consultant Psychologist [Mr A] at the hearing:

    a.[Mr A] has written a detailed psychological assessment of the applicant.

    b.[Mr A] considers that the applicant has learned a lot from his experiences.  He has also expressed a desire to learn from them.  He has shown insight into his behaviour and his offences.

    c.The applicant has a clinically unremarkable history. There is an absence of previous sexual offending or alcohol overuse by the applicant prior to the incident.

    d.The applicant is not at all bitter or resentful towards his family about his situation.

    e.[Mr A] recommends a treatment regimen to support the applicant upon release. The applicant would benefit from supportive cognitive and behavioural counselling.  This is because there will be a period of adjustment for the applicant if released from detention. If the applicant is unable to access a treatment regimen upon release this does not mean he will drift into criminal behaviour.

    f.[Mr A] is aware that the applicant is very well regarded by his employer, [Mr C], who is willing to re-employ the applicant.

17. The following is a summary of the information provided by the applicant’s ex-wife [Ms B] at the hearing:

    a.[Ms B] lives with her and the applicant’s daughter, [Ms E]. 

    b.Her other daughter [Ms D], the applicant’s step-daughter, lives nearby.  [Ms D] visits [Ms B]’s home every day.

    c.[Ms B] does not know where the applicant will live. He has told her he is looking for a place.

    d.If the applicant is released she hopes to have close contact with him so he can be in contact with their daughter and support her.

    e.[Ms B] has no problem with the applicant coming to her home.

    f.It will not be a problem with [Ms D] because [Ms D] always calls before she visits.  But if the applicant is there when [Ms D] is also there [Ms B] does not think there will be any problem.  [Ms D] wants [Ms E] to be close to her father.

    g.The Tribunal asked [Ms B] if the applicant tends to confront people who have negative thoughts about him.  She responded that she has never seen him confront anyone.

    h.The Tribunal asked [Ms B] how the applicant behaves on alcohol. She responded that there was only that time when that thing happened. Otherwise he has always behaved well when he consumed alcohol. And now alcohol is not allowed.

    i.The Tribunal asked [Ms B] if the applicant has shown any resentment about his conviction and imprisonment.  She responded that he has changed a lot. He has spent a lot of time and she thinks it has helped him. He will never do anything like that again.

    j.The Tribunal asked [Ms B] if she had spoken with [Ms D] about the applicant visiting [Ms E] at her home.  She responded yes and the only thing she says is she wants to see [Ms E] happy. [Ms B] does not think it will cause tension for [Ms D] because she knows her sister [Ms E] has been sad because she does not have her Dad.

18. The following is a summary of the further information the applicant provided at the hearing:

    a.He understands that treatment is expensive but if he can work he will be able to afford further counselling upon release.

    b.He has spoken and apologised to [Ms D] in the past and acknowledged his error.  [Ms D] also knows him from before, apart from that incident.  He thinks it is a good idea for him to talk in his counselling sessions about the impact of his release upon [Ms D].  He knows [Ms D] was the victim of what he did. As a consequence all his family were greatly affected.

    c.If he is given the opportunity to leave detention he wants to strengthen his relationship with [Ms B] and [Ms D], in a respectful way.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The grounds for seeking the visa

19. 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.

20. In this case, the applicant is seeking to meet cl 050.212 (3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

21. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined.

22. According to the Department’s records and the applicant’s evidence he currently has an application for a subclass 186 visa which has not yet been determined.  This is a substantive visa.

23. Accordingly, the applicant meets cl 050.212 (3).   At the time of this decision the applicant continues to satisfy cl 050.212(3), so the applicant meets cl 050.221.

    Whether the applicant will abide by conditions - cl 050.223

24. 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.

25. 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].

26. In this case, cl 050.617 and cl 050.618 apply, namely:

    050.617  

    (1)  In any other case -- any 1 or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.

    (2)  Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.

    050.618  

    In addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.

27. Therefore there are no mandatory conditions which would apply to the Bridging visa, but there are a number of discretionary conditions.

28. 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), 8510 (show a valid passport) and 8564 (must not engage in criminal conduct). 

29. The Tribunal considers these are appropriate conditions to impose upon the Bridging visa in the applicant’s circumstances.

30. There is no history of non-compliance by the applicant with Conditions 8207, 8401, 8506 and 8510. There is also no indication or evidence before the Tribunal that the applicant would not comply with such conditions.  The applicant gave persuasive evidence that he would readily comply with these conditions.

31. Based upon the information before it the Tribunal is satisfied the applicant will comply with Conditions 8207, 8401, 8506 and 8510.

    Condition 8564

32. Condition 8564 states:

    8564 The holder must not engage in criminal conduct.

33. The Tribunal notes that the applicant has committed past offences.  These arose out of an incident in May 2019 when, heavily intoxicated, he masturbated in front of his then [Age] year old step-daughter.  He was arrested and charged with offences. He later tried to influence his ex-wife and his step-daughter not to go to court and give evidence against him.  The applicant also breached his bail conditions him by telephoning his wife in contravention of the conditions and AVO.  Because of this his bail was revoked and he was remanded back in pre-trial custody. The applicant was convicted of the three offences as set out above. He was given a custodial sentence which he served and which expired in November 2023. 

1. Apart from these matters the applicant has no other criminal history.

2. In [Mr A]’s detailed psychological assessment he states his opinion that the risk of the applicant re-offending is low.  [Mr A] describes the applicant’s life in Australia prior to his commission of the offences as follows:

   It would appear that his life in Australia was uncomplicated with an absence of any involvement with the criminal justice system up until his index offending in May 2019, leading to his exposure to the criminal justice system, a period of incarceration and his now placement in immigration detention awaiting a decision on his application. During his time in the Australian community, he obtained employment and by all accounts appears to have been consistent and reliable referable to his work ethic. He had the support of his partner, step-daughter and child, with him stating that he did not experience any significant psychological symptoms during this period. He settled well into life in Australia apart from some of the initial adjustment issues, arising from his exposure to a divergent language and culture.

3. [Mr A]’s report also makes reference to the absence of a history of substance or alcohol abuse.  He writes that “[The applicant] has consistently expressed deep regret and remorse for his behaviour” and that “he has insight to the impact of his conduct upon his step-daughter, his now former wife and indeed his child aged [Age].”  [Mr A] refers to the applicant’s “strong motivation to not reoffend in the future.”

4. [Mr A] writes that:

   “[d]iscussions with his former wife confirm that [the applicant] has always been a good father to their daughter, as well as solid and reliable provider for the family. They are now divorced but she nonetheless remains supportive of him, particularly in terms of his desire to remain in Australia. [She] believes that their daughter is already suffering by his absence and anticipates that she will be further impacted should contact cease due to him being returned to [Country]. Her daughter is [Age] and is at a critical stage in terms of her psychological and cognitive development. Discussions with her indicate that she loves her father dearly and has been affected by his absence. Discussions with his step-daughter indicate that she is concerned about her sister and that she now remains neutral in terms of [the applicant’s] offending conduct and his capacity to remain in Australia.

5. [Mr A] also notes that the applicant has undertaken a number of programs in immigration detention, including the SMART Recovery Program and he is also seeing a psychologist.

6. [Mr A]’s assessment concludes:

   I further note an absence of any prior sexual offending and indeed, an absence of any prior involvement with the criminal justice system. Generally, individuals who are charged with sexual matters who have reached [the applicant’s] age, typically have acquired Court appearances and numerous convictions regarding their conduct, which can be best described as a continuing pattern of behaviour for them. [The applicant’s] offending appears to have been isolated and occurred in the setting of significant intoxication.  Arising from these dynamics, I believe that the likelihood of him reoffending is low.

7. [Mr A]’s oral evidence also echoed his view there was a low risk of the applicant re-offending on release.

8. The applicant further submitted evidence of his participation in SMART recovery programmes.

9. The applicant’s ex-wife gave evidence which complemented [Mr A]’s assessment.  She expressed no concerns that the applicant would re-offend or engage in any criminal conduct.  The Tribunal accepts she is supportive of the applicant’s release from detention, his resumption of a parenting role for their daughter, and his continued interaction with the family. 

10. The Tribunal gives considerable weight to [Mr A]’s evidence, [Ms B]’s evidence, and the absence of any indication of criminal conduct prior or subsequent to the offences outlined above.

11. The Tribunal also notes that the applicant’s former employer gave evidence before the Tribunal, in a different review application, that he maintained a positive opinion about the applicant and was very willing to re-employ him.

12. The Tribunal finds the evidence persuasive that the applicant has no pattern of criminal behaviour, is remorseful for his past offending, and is not inclined to criminal behaviour.  He also has good support in the community.  There is no indication that the environment the applicant will find himself in upon release would create a situation for the applicant to re-offend.

13. On the basis of all the evidence before it the Tribunal is satisfied that the applicant will abide by Condition 8564.

    Conclusion

14. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted, namely conditions 8207, 8401, 8506, 8510 and 8564. Therefore, the applicant meets cl 050.223.

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

    DECISION

16. 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 050.212 of Schedule 2 to the Regulations; and

    ·cl 050.223 of Schedule 2 to the Regulations.

17. The Tribunal also directs the primary decision maker

    ·to indicate to the applicant that conditions 8207, 8401, 8506, 8510 and 8564 will be imposed if the visa is granted.

    Melissa McAdam
    Member