2432312 (Migration) - [2024] AATA 3685

2432312 (Migration) [2024] AATA 3685 (23 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2432312
MEMBER:Melissa McAdam
DATE:23 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 23 September 2024 at 5:25pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – not engaging in criminal conduct – applicant charged with criminal offences – arrangements to depart Australia – no valid passport – abiding by visa conditions – risk of reoffending – limited financial support – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 73, 189, 417
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, 050.617, 050.618, 051.211; Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
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 applied for the visa on 4 September 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 050.212 and cl 050.223.
The decision to refuse to grant the visa was made on 9 September 2024. The delegate found the applicant did not meet the criteria in cl 050.223 because the delegate was not satisfied the applicant would abide by a condition not to engage in criminal conduct.
Background
The applicant was born in [specified year] in Pakistan.
He first arrived in Australia in 2011 on a Student visa and last arrived here in 2013. His Student visa was cancelled in April 2014. In June 2014 he lodged an application for a Protection visa which was refused. He sought review of the refusal by the AAT. The AAT affirmed the decision on 17 November 2016.
[In] April 2015 the applicant was charged with the following criminal offences in the ACT:
-Sexual Intercourse without consent (x4)
-Unlawfully confine person
-Recklessly inflict actual bodily harm
[In] November 2016 the applicant was convicted of the above offences and sentenced to an aggregate of [period] imprisonment with a non-parole period of 8 years and 2 months.
[In] September 2022 the applicant lodged a request for Ministerial intervention under s 48B of the Act. According to the Department’s records this request was finalised and not referred to the Minister.
On 14 October 2022 the applicant lodged a request for Ministerial intervention under s 417 of the Act. According to the Department’s records this request was finalised and not referred to the Minister.
[In] August 2024 the applicant was released from criminal custody in the ACT on parole and detained under s189 of the Act at [a named detention centre].
In an interview with a Department officer [in] August 2024 the applicant stated that his Pakistan passport is being held by the police and that it had expired in [2015]. He stated he is willing to apply for a new passport. He stated he wished to return to Pakistan as soon as possible. He is willing to cooperate with arrangements to facilitate his departure. He understands he is barred from making further substantive visa applications. He stated he received good mental health care in Australia.
In a further interview with a Department officer [in] August 2024 it was confirmed that the Department would purchase a departure ticket for the applicant and he will travel as a ‘removee’.
The records state that the applicant’s prison sentence ends [in] December 2028.
Delegate’s Decision
The Delegate noted that the only subclause of cl 050.212 the applicant could meet was subclause 050.212(2), namely that the Minister is satisfied that that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The Delegate noted that the applicant is under strict parole conditions which prohibit him from departing Australia without the permission of the State Parole Authority and he will be subject to these conditions until [December] 2028.
The Delegate was satisfied that there were “reasonable barriers” to the applicant’s departure and he was “therefore the subject of acceptable arrangements to depart Australia.”
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
-8564 must not engage in criminal conduct.
The delegate was not satisfied the applicant would abide by Condition 8564 because of the severity of the applicant’s criminal offences, his lack of demonstration of compassion for the victim, and because he had breached another visa condition in the past.
Other Information
The applicant’s Parole Order from the ACT Sentence Administration Board (‘SAB’) is dated [in] August 2024. It contains conditions regarding not committing further offences, reporting, residence, substance use and abuse, possession of weapons, compliance with orders and directions, undertaking treatment, undergoing testing, engagement with psychological treatment, movement restrictions, compiancey with directions from Border Force, and no contact etc with the victim. The movement restrictions include that the applicant “must not leave Australia without the Board’s prior written permission”.
Information to the Tribunal
The applicant appeared before the Tribunal on 16 September 2024 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.He thinks there has not been a decision yet regarding his first s 417 Ministerial request.
b.He has been co-operating with Border Force to arrange his departure from Australia. He signed some basic documents for this with the Department’s Removals officer [named] and the process is rolling. He also signed some documents for the Pakistan Embassy.
c.He has not yet applied for a new Pakistan passport.
d.If he obtains the Bridging visa he will go back to the ACT. He will be on supporting conditions there and can’t leave the Territory without permission. He will tell them he is going back to Pakistan and show his passport and ticket.
e.His Pakistan passport is with the Australian Federal Police. It has expired.
f.He wants to be in the community to organise his departure. He will attend the Pakistan Embassy to get his new passport.
g.He has been pushing Border Force to get out of detention so he can renew his passport and get a ticket to depart.
h.He has to apply for a new passport in person at the Pakistan Embassy in Canberra. They will interview him and take his fingerprints.
i.He has a friend [Friend A] who will support him if he is released from detention. He can live with [Friend A]. [Friend A] will also financially support him to depart Australia as will the applicant’s sister who lives in [Country 1]. They will help him get a plane ticket.
j.He will report as required if released. He will have strict reporting conditions as part of his parole and for his visa.
k.He will go back to Pakistan because he has had enough of Australia. He was in jail for [period] and is now in detention. [This detention centre] is even worse than the jail.
l.He has learnt his lesson and will not reoffend. While he was in prison he completed rehabilitation programmes. He became a Peer Mentor in the Jail. He was found to be a low-risk reoffender. All this was disclosed in his parole assessment.
m.He has learned from his mistakes. He knows to respect relationships, especially with women and family. He knows if he is angry to just walk away and to talk with his family or counsellor.
n.His mental health is good. He is on medication prescribed by a psychiatrist.
o.He does not use alcohol or illicit drugs. He had a clean record while in jail. When he mentioned methadone to the Department officer it was because he was given methadone in the past as a pain killer for his back problems.
p.He does feel compassion for his victim. He said to the Department Delegate that what he did was wrong and had a long lasting impact upon the victim. He has empathy and knows he has caused her PTSD. He himself has PTSD.
q.If he is released on a Bridging visa these are the steps he will take:
-He will go to Canberra.
-He will go to [Friend A’s] place.
-[Friend A] will take the applicant to see his Parole Officer within 24 hours of his release.
-The Parole Officer will place conditions on the applicant such as reporting, presenting for tests and sample, and seeing his Corrections appointed psychologist, [Psychologist A].
-The applicant has an obligation to be seen, counselled and assessed by [Psychologist A]. Corrections appointed [Psychologist A] for interventions and to do ‘maintenance’ with the applicant. [Psychologist A] was also involved in the applicant’s parole application.
-The applicant will then speak with his sister in [Country 1]. He will arrange with his sister and [Friend A] to provide the money to cover the costs of his departure, such as the passport renewal, the CNIC renewal, and the plane ticket. He thinks this will cost thousands of dollars.
-The applicant will then go to the AFP to recover his expired Pakistan passport as this will speed up the process of renewing his passport.
-The applicant will then attend the Pakistan Embassy to apply for his new passport and CNIC.
-Once he receives his new passport he will let [Psychologist A] and his Parole Officer know.
-With [Psychologist A’s] assistance he will seek permission from the ACT Sentence Administration Board to depart Australia.
-Once he has permission to leave he will obtain a plane ticket.
-He will show his passport and plane ticket to Border Force and his Parole Officer.
-He will then depart Australia.
r.During these processes the applicant will engage with all the conditions imposed upon him for his parole and the visa.
s.He thinks it will take him 4 to 6 months to depart Australia once released on a Bridging visa. If he remains in detention it will take up to two years. He knows of people in detention who have valid passports and have signed their consents to be removed yet are still in [his detention centre] after two years. He thinks this is because it is expensive for Border Force to remove someone so it takes time.
t.He won’t stay in Australia because he no longer thinks it is a good country for him. In the past he presented himself to the Department when he was unlawful, he did not try to go underground and hide.
u.He agreed to try to provide evidence to the Tribunal from his psychologist, sister and [Friend A] in support of the above, by Friday 20 September 2024.
Post-Hearing Submissions
Between 17 and 20 September 2024 the applicant submitted the following materials to the Tribunal:
-Copies of email correspondence between the applicant and ACT Corrections Service personnel in which he requests information from them.
-Submissions in support of the applicant for his Parole Application, by [Mr A], dated 1 June 2024.
-The applicant’s Pre-Release Report prepared by ACT Corrective Services, dated [in] July 2024. The report states:
An actuarial risk assessment was completed, which placed [the applicant] in a cohort for general risk of reoffending as Low/Medium. The STATIC-99R outcome was above average risk of sexual reoffending. His criminogenic needs are related to his substance abuse issues, mental health, attitudes towards his offending, accommodation, and lack of prosocial influences.
…
SUMMARY
[The applicant] is [an age]-year-old man, who had reported he was a victim of sexual assault during his formative years as a child and an adult during his current custody episode. [The applicant’s] offences against his then-partner are severe and would have caused significant harm to the victim. During interviews for this report, [the applicant] had articulated the adverse impact his offences would have on his victim for many years.
The SOP Exit Report described [the applicant’s] participation in the program and treatment gains as limited. However, his engagement with the community operations psychologist has been beneficial for developing further insight into his offences. The community operations psychologist has a well-developed professional relationship with [the applicant]. Should he be granted a parole order and remain in the ACT, engaging with the community operations psychologist could achieve the optimum outcomes for community safety.
[The applicant’s] behaviour throughout his sentence was unsatisfactory, although it improved after December 2023, leading to him being granted accommodation at [a specified location].
[The applicant’s] drug use in custody is a concern. He had completed the [Addiction] program and had adverse drug screening outcomes since January 2023. However, should he be granted a parole order and remain in the ACT, it is recommended he engage in one-on-one counselling as maintenance for the sexual offending, family violence and substance misuse.
When he exits the [specified location], [the applicant’s] visa expires, and he will be placed in the custody of ABF for return to his country of origin. He expressed his desire to return to Pakistan.
The outcome of the home visit scheduled for [July] 2024 will determine if he has approved accommodation in the ACT as a contingency.
RECOMMENDATION
In light of the above, release to parole is not recommended at this time. However, should [the applicant] continue to engage in pro-social behaviours at the [specified location], and secure allocation of suitable accommodation; this recommendation may change.
-A Supplementary Pre-Release Report dated [in] August 2024 recommends the applicant is released on parole, on the basis of the following ‘additional information’:
[In] July 2024, this Service assessed [the applicant’s] proposed accommodation as suitable. The property address is … [Town 1], ACT.
Since the preparation of the PRR dated [in] July 2024, [the applicant’s] custodial behaviour has been positive with nil episodes of disciplinary action.
[In] July 2024, [the applicant] obtained a [vocational qualification]. [Later in] July 2024, [the applicant] completed a six-week peer mentor program.
[The applicant’s] deportation status remains unchanged and it is anticipated he will be taken into immigration detention upon his release.
-The applicant’s Case Plan Agreement with ACT Corrective Services, dated [in] May 2024. It refers to courses completed by the applicant while in custody. It also states the applicant’s proposed accommodation in [Town 1], ACT as the residence of the applicant’s friend, [Friend A]. It also refers to the applicant’s intention to return home to Pakistan upon release.
-A copy of the applicant’s signed ABF Request for Removal from Australia, dated [in] August 2024.
-A copy of the applicant’s ACT Corrective Services ‘Release Plan’.
-A list of the occupational courses the applicant completed while in custody and a list of the applicant’s work history while in custody.
-Emails from the applicant to the Tribunal stating that he should be released from detention as he has served his time.
-An email from an ACT Corrective Services Officer to the applicant, dated [in] September 2024 in which the officer states the following:
I can confirm the below:
(l) you must not leave Australia without the Board’s prior written permission;
Condition l of your parole order is a standard condition for all parolees subject to a parole order in the community.
z) must comply with any direction given from Australian Border Force
Given your current visa status and subsequent hold with Border Force, condition ‘z’ supersedes the above condition. Should you be removed from Australia as a result of your immigration outcome, you would not be in breach of condition ‘I’.
[13631827] General Submission
In the event you are released from immigration detention and granted approval by Border Force to remain in Australia, you would be required to return to the ACT immediately and condition ‘I’ would be in full effect.
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.
In this case, the applicant is seeking to meet cl 050.212(2). 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.
Acceptable arrangements to depart Australia
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
The relevant Department guidelines (PAM3) state:
… the assessment as to whether an applicant is making, or is the subject of 'acceptable arrangements' to leave Australia will depend on the applicant's individual circumstances.
…
When assessing this criterion, officers may take into account any or all of the following factors in satisfying themselves that the applicant is making, or is the subject of, acceptable arrangements to leave Australia:
·The applicant has a valid ticket for travel and a booking or reservation to leave Australia.
·The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.
·The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).
·The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (AVR) arrangements).
·The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.
·The applicant is the subject of departure arrangements in circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.
·The department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).
…
An applicant will satisfy 050.212(2) if they indicate an intention to arrange departure from Australia, provided officers are satisfied the applicant will make the necessary arrangements within an acceptable timeframe.
·If the applicant is unfit for travel (for example, has physical or mental health issues), certification by a doctor for the purpose of establishing that the applicant is too ill to travel should be requested. If officers suspect that the medical certification is incomplete or inaccurate, they may ask the applicant to make an appointment to see a doctor appointed by the department. Departure arrangements should be pursued as soon as the applicant is certified well enough to travel.
·If an applicant is willing to leave Australia, but has no funds and no means of obtaining funds to purchase a ticket, officers may:
oadvise the applicant to seek consular assistance and/or
oprovide information about the Status Resolution Service's assisted voluntary return (AVR) arrangements, under which the department may, in certain circumstances, arrange and pay for the applicant's return to their home country.
…
It is open to officers not to be satisfied the applicant is subject to acceptable arrangements to leave Australia if the applicant:
·has not made a booking/reservation to leave Australia within a reasonable or acceptable timeframe, for example, within the next two weeks or
·supplies a booking/reservation to leave Australia, but the destination is not a country where the applicant is permitted to enter - for example a booking for travel to a country that the applicant requires a visa to enter or
·has failed to attempt to obtain a valid travel document or
·does not agree to seek consular assistance or engage with the Status Resolution Service or
·is not maintaining meaningful engagement with the Status Resolution Service or
·has not left Australia as arranged under the assisted voluntary return program or has subsequently refused to leave under the program or
·is unwilling to provide certification by a doctor that they are too ill to travel
…
An applicant may be granted a BVE 050 on the basis of acceptable departure arrangements if, although they are not currently making arrangements to leave, they have acknowledged they are on a departure pathway, and are prepared to engage with the Status Resolution Service on that basis. …

The applicant does not hold a valid passport. He is also subject to a parole condition set by ACT Corrective Services not to depart Australia without the Board’s permission.
However the applicant has also signed a request for removal from Australia in which he requests the Department of Home Affairs and Border Force to remove him from Australia as soon as reasonably practicable. Further, ACT Corrective Services has recently confirmed that the applicant’s removal from Australia by the Australian Border Force would not be considered a breach of his non-departure parole conditions, as his compliance with ABF directions supersedes the departure restriction condition.
Given the applicant’s cooperation with the ABF and the Department for his removal, and the lack of parole restrictions upon his removal by the ABF, the Tribunal is satisfied he is the subject of acceptable arrangements to depart Australia.
The Tribunal is therefore satisfied that at the time of application the applicant was the subject of acceptable arrangements to depart Australia. Therefore the applicant meets cl 050.212(2).
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].
In this case cl 050.617 applies. There are no mandatory conditions but certain conditions may be imposed. Clause 050.618 also sets out that Condition 8564 may be imposed. The Delegate considered that Conditions 8207, 8401, 8506 and 8564 should be required. In the circumstances the Tribunal considers these are appropriate Condition to impose. The Tribunal therefore considers that the following conditions should be imposed:
8207 – no study
8401 – reporting condition
8606 – notify the department of any change of address
8564 – not engage in Criminal conduct.
Condition 8207
There is no evidence or indication that the applicant wishes or needs to study. The Tribunal is satisfied the applicant will abide by Condition 8207.
Condition 8401
This Condition requires the applicant to report to the Department as specified by the Department.
The applicant will be under strict parole reporting and testing conditions as well as his reporting condition if released from detention. If he breaches his parole reporting conditions he may be subject to re-arrest and if he breaches Condition 8410 he may be re-detained.
Therefore there are substantial incentives upon the applicant to comply with his reporting conditions, including Condition 8401.
The applicant has also been cooperative with the Department in the past and presented to the Department when he became unlawful.
The evidence before the Tribunal indicates the applicant will comply with Condition 8401. The Tribunal is therefore satisfied the applicant will abide by Condition 8401.
Condition 8506
The applicant has provided his friend’s address in the ACT as the address he will reside at while he makes his arrangements to depart Australia. The applicant is also under a parole condition to live at the address as ‘an approved premises’.
It is in the applicant‘s interest to keep the Department informed of his place of residence in order to receive any notifications from them. Further, his parole conditions require the applicant to comply with all directions given by the Australian Border Force.
On the evidence before it the Tribunal is satisfied the applicant will comply with Condition 8506.
Condition 8564
The applicant was convicted of very serious crimes in November 2016 and was sentenced to over [period] imprisonment of which he served [period], until recently paroled. The offences were committed against his then partner.
The applicant stated at hearing that he has learned not to engage in offending behaviour, and to be respectful to women, family and his relationships. The applicant was persuasive that he has found both prison and immigration detention to be horrible experiences.
Under his Parole Conditions the applicant is required to regularly engage with the corrections officers and his treating psychologist, as well as report and submit to substance testing.
The applicant has submitted the ACT SAB’s relevant Pre-Sentencing reports. The substantive report dated in July 2024 recommends against the applicant’s release on parole. It details an assessment that the applicant is at “low to medium” general risk of reoffending and an “above average” risk of sexual reoffending. A brief Supplementary Report, signed just over one month later changes the overall recommendation to release of the applicant on parole. It references four pieces of additional information as the basis for the change of recommendation. The first piece of information relates to suitable accommodation in the ACT, the second relates to the applicant’s positive behaviour in the month or so since the substantive Pre-Sentencing Report, the third relates to the applicant’s completion of a [vocational] course and a peer mentor course, and the fourth confirms his immigration status in unchanged and that he will be subject to deportation and immigration detention upon release. There is no mention of the applicant’s risk of reoffending or any indication of change or reappraisal of the risk assessment set out in the substantive July 2024 Pre-Sentencing report. The assessments that the applicant’s general risk of reoffending is low to medium and his risk of sexual re-offending is above average therefore appear to stand.
In view of the recency of the risk assessments provided in the ACT Corrective Services report the Tribunal considers they carry substantial weight.
The applicant has stated that he has changed his behaviour so that he will be respectful to others including women. He has also completed a number of relevant behaviour and attitudinal courses while in custody. He has some support in the community.
However there is also a significant degree of uncertainty about the applicant’s situation if he is released into the community including as to whether and for how long he can rely upon others’ financial support, his security of residence, and his ability and willingness to initiate and navigate all the processes required for him to be able to depart Australia.
In such circumstances the assessment of the applicant’s risk of reoffending needs to be carefully considered. The assessments of ‘low to medium’ and ‘above average’ risks of reoffending indicate a real possibility the applicant would engage in criminal conduct upon release.
On the basis of all the information before it the Tribunal is not satisfied that the applicant will abide by Condition 8564.
The applicant therefore does not satisfy the criteria in cl 050.223.
Conclusion
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Melissa McAdam
Member