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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2432312 (Migration)

Details

AGLC: 2432312 (Migration) [2024] AATA 3685
Case: [2024] AATA 3685
Decision Date: 23 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050, made by an applicant who had been released from criminal custody on parole. The delegate refused to grant the visa, finding that the applicant did not meet the criteria in clause 050.223 of the Migration Regulations 1994 because the delegate was not satisfied the applicant would abide by the condition not to engage in criminal conduct. The applicant had previously been convicted of serious criminal offences, including sexual intercourse without consent, unlawfully confining a person, and recklessly inflicting actual bodily harm, for which he received a significant period of imprisonment.

The legal issues before the court were whether the delegate erred in finding that the applicant would not abide by the condition not to engage in criminal conduct, and consequently, whether the delegate was correct in refusing to grant the Bridging E visa. The court was required to consider the applicant's criminal history, his current parole conditions, his stated intentions and plans for departure from Australia, and any evidence of rehabilitation or remorse.

The court reasoned that the delegate's satisfaction regarding the applicant's propensity to abide by visa conditions must be based on objective considerations. While acknowledging the severity of the applicant's past offending and the delegate's concerns about a lack of demonstrated compassion, the court also considered the applicant's evidence of rehabilitation, including participation in programs, his stated remorse, and his expressed desire to depart Australia. The court noted that the applicant was subject to strict parole conditions, which themselves included a prohibition on further criminal conduct and movement restrictions. The court also considered the applicant's stated willingness to cooperate with arrangements for his departure, including obtaining a new passport and arranging travel.

The court found that the delegate's decision to refuse the visa was not open to the applicant. The court determined that the applicant had provided sufficient evidence to satisfy the delegate that he would abide by the condition not to engage in criminal conduct, particularly in light of his rehabilitation efforts and the stringent parole conditions already in place. The court therefore set aside the delegate's decision and remitted the matter to the delegate to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.