2435212 (Migration)

2435212 (Migration) [2024] AATA 3997 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2435212
MEMBER:Jessica Edis
DATE:2 October 2024
PLACE OF DECISION: Perth
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 8401, 8506, 8564.

Statement made on 02 October 2024 at 4:50pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an Unlawful Non-Citizen – partner and son are both Australian citizens – criminal conviction – satisfied the applicant had applied for a partner visa – very limited understanding about the formalities associated with visa applications – applicant is sincerely remorseful – Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa – decision under review remitted
LEGISLATION
Migration Act 1958, ss 48, 73, 189
Migration Regulations 1994, Schedule 2, cl 050.223
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
BACKGROUND

The applicant is a [age]-year-old Tongan citizen. He has a de facto partner, Miss [A], and a [age] son. His partner and son are both Australian citizens.
The applicant travelled from Tonga to Australia on a visitor visa on[date] September 2018. He has not departed since then.
The applicant’s immigration history is best described as problematic. In summary:
·He overstayed his 3-month visitor visa and became an unlawful non-citizen on 2 November 2018.
·He remained unlawful until he lodged a protection visa application in October 2019, and he was granted an associated bridging visa.
·He was refused a protection visa in July 2021.
·The bridging visa linked to the protection visa application ceased in August 2021 and he became unlawful again.
·He applied for, and was granted, a 3-month Bridging E (Class WE) visa (BVE) in October 2022.
·He became unlawful again in February 2023, when the BVE expired.
·He applied for a second BVE in August 2023.
·The second BVE wasn’t granted because the applicant did not participate in an interview with a Departmental case officer, which was a required step in the process.
·Accordingly, the applicant has been an unlawful non-citizen since February 2023.
This case concerns a third BVE application. It stems from the applicant’s arrest by the New South Wales Police on 6 July 2024.
The applicant was remanded in criminal custody from 6 July 2024 until 3 September 2024. On 3 September 2024 the applicant was convicted of 3 offences which arose from a single incident which took place on 6 July 2024. They were common assault, destroy or damage property and contravene an Apprehended Domestic Violence Order (ADVO).
The applicant was sentenced to an 11-month good behaviour bond as the global penalty for the offences. A further 2-year ADVO was also made. At the conclusion of the sentencing hearing, the applicant was released from criminal custody and transferred to [a detention centre] on the basis that he is an unlawful citizen, pursuant to s 189 of the Migration Act 1958 (Cth).
On 9 September 2024 the applicant applied for a be (i.e., his thibeBVE application) to facilitate his release from [the detention centre]. It was made on the basis that he intended to apply for a partner visa. He told the delegate he would do so within 2 weeks of being released. But the delegate was not satisfied the applicant would follow through with those intentions. Accordingly, on 11 September 2024, the delegate refused to granbehe BVE.
On 13 September 2024, the applicant applied for a reviebef the BVE refusal decision with the Tribunal. He was invited to attend a hearing which took place on 20 September 2024. During the intervening period, on 19 September 2024, he lodged the partner visa application via IMMI Account.
Miss [A] emailed a copy of the Department’s acknowledgement letter in respect of the partner visa application to the Tribunal on the morning of 20 September 2024. The Member who presided over the hearing later that day considered the letter (among other matters), was satisfied the applicant had applied for a partner visa, and rbetted the BVE application to the Department for reconsideration.
However, on 24 Septeber 2024, the BVE application was refused again by a different delegate, on a different basis. The applicant is now seeking a review of this second refusal decision with the Tribunal.
THE DELEGATE’S DECISION OF 24 SEPTEMBER 2024
The criteria fbethe grant of a BVE are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria include cl 050.223 which requires the decision maker to be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
Conditions that must orbey be imposed on a BVE are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. As part of her assessment of the applicant’s circumstances, the delegate considered the following discretionary conditions ougbeto be imposed on the BVE, if granted:
·8207 No Study
·8401 Report as Directed
·8506 Notify Change of Address
·8564 Not Engage in Criminal Conduct.
Based on a consideration of the applicant’s immigration history and criminal offending, together with the information he provided during Departmental two interviews which took place at [a detention centre] on 9 and 23 September 2024, respectively, the delegate was not satisfied the applicant would abide by conditions 8401, 8506 and 8564 if he was released on a BVE with those conditions attached to it.[1]
[1] The question whether the applicant would comply with condition 8207 was not addressed.
TRIBUNAL REVIEW OF THE REFUSAL DECISION
On 25 September 2024, the applicant lodged an application for a review of the second refusal decision with the Tribunal. He appeared before the Tribunal on 1 October 2024 to give evidence and present arguments.
The applicant’s partner, Miss [A], provided the Tribunal with a number of documents prior to the hearing. She was present throughout the hearing and gave evidence too.
The hearing was conducted via MS Teams, and with the assistance of an interpreter in the Tongan and English languages. There were no issues either with the video link technology or interpretation.
OUTLINE OF EVIDENCE
Documents
I have considered a substantial amount of documentary material in this case, sourced from:
·the Department’s file in relation to the BVE application, including the two assessment processes and the respective refusal decisions;
·the Tribunal file in relation to the first refusal decision; and
·Miss [A], on behalf of the applicant.
These documents comprise (but are not limited to):
·various Court Orders made in the Local Court of NSW on 3 September 2024;
·the BVE application form;
·the Department’s record of the two interviews with the applicant;
·the partner visa application form;
·the sponsorship application form;
·the Department’s acknowledgement letter pertaining to the partner visa;
·the applicant’s identity documents;
·Miss [A]’s identity documents (including her Australian passport);
·the birth certificate for the son of the applicant and Miss [A];
·a photo of the applicant and Miss [A] with their baby son, in front of a [sign];
·evidence of the applicant and Miss [A]’s joint residential address; and
·a 3-page typewritten letter signed by Miss [A] and dated 29 September 2024.
Evidence at the hearing
Immigration history
I discussed the applicant’s immigration history with him at the hearing. He acknowledged the summary contained in each of the refusal decisions was correct.
The applicant admitted that he was aware that he had become unlawful (on and off) in Australia and expressed remorse for not appropriately attending to his visa status. He told me that he did not know what to do about it or where to get help.
The applicant recounted to me that he told a friend about the fact that he had let his visitor visa lapse, and he was worried about it, which prompted the friend to ask him for a copy of his passport. That friend said he would get him a bridging visa. As it turns out, the friend lodged the protection visa application, which did indeed facilitate a bridging visa grant.
The applicant told me that he had grown up in Tonga with the friend who submitted the protection visa application on his behalf. They were living together in Sydney at the time. But the friend moved to Melbourne after the application was lodged, and they lost touch.
The applicant said he never received the protection visa refusal decision. He thinks that his friend’s contact details were entered onto the form, rather than his own. The applicant explained that, in the end, it was Miss [A] who got to the bottom of his visa situation and tried to help him sort it out.
I asked Miss [A] when she became aware the applicant was unlawful. She said it wasn’t until a year or so after their relationship had started; in effect, she checked with him, and he didn’t know. In fact, she was involved in the applicant lodging the first BVE application in October 2022. This coincided with Miss [A] falling pregnant.
The applicant and Miss [A] said they genuinely intended to lodge a partner visa application in late 2022, while the applicant held the first BVE. But it turned out that they simply could not afford the visa application fee (in the amount of $8,505) at that time.
I asked each of them why it took until August 2023 for them to attempt to obtain another BVE for the applicant. Their evidence was somewhat unclear but, in effect, ‘time just went past’ and they were focused on trying to get the funds together so that by the time the applicant engaged with the Department again, they could pay for the partner visa.
Additionally, in late 2022, Miss [A]’s niece (who had been living with them) ‘ran away’ and left her twin boys with them to take care of. The twins were [age].[2] The niece did not return and has not returned to date. Meanwhile, the applicant and Miss [A]’s baby was born in [year]. So, they were responsible for caring for 3 very young children by mid-2023.
[2] Miss [A] provided a copy of the twin’s birth certificates to the Tribunal.
I asked the applicant why he didn’t participate in the Departmental (phone) interview in August 2023 as part of the second BVE application process. He said he had no idea there was going to be an interview. If he had known, there is no way he would have missed it. He had told the Department the reason why he needed the BVE, being that he and Miss [A] wanted more time to lodge a partner visa application. He was not told to expect a phone interview and, unfortunately, he had damaged his phone and never received the call. I checked this version of events with Miss [A]. She confirmed the applicant had dropped his phone, and he was using her phone around this time. Both the applicant and Miss [A] expressed confusion and regret about failing to understand the second BVE application process.
The applicant’s evidence about his visa applications presented as muddled but honest. He did not attempt to mislead me or justify his non-compliance. Without intending any disrespect towards the applicant, I got the impression at the hearing that he is not well educated and has very limited understanding about the formalities associated with visa applications and processes. He was contrite and repeatedly apologetic about failing to come to grips with it.
Each of the applicant and Miss [A] were adamant that Miss [A] is ‘in charge’ of the applicant’s visa and immigration matters from now on. She is the contact person for anything to do with the Department. It is simply too important. She will ensure nothing is overlooked and everything is complied with. I received the impression, based on her testimony at hearing and her written correspondence, that Miss [A] is literate and well organised.
I accept the evidence given by the applicant and Miss [A] about these matters.
Criminal offending
I discussed the applicant’s criminal offending with him. He told me what happened on the night of 6 July 2024 which caused him to be arrested.
The applicant had come home intoxicated that evening, after having been out drinking with friends. This caused a big argument with Miss [A] who told him that he should not have come home drunk. He admitted to me, in the course of giving his evidence, that Miss [A] was right, and he acted entirely unreasonably.
At some point, the applicant removed a false gold tooth from his mouth. He placed it on a table in the living room and went to the bathroom. When he came back from the bathroom, he could not find the tooth. He thought Miss [A] had deliberately taken it and was hiding it from him. He had a gap in his front teeth. He became very angry at Miss [A] because he thought she was trying to humiliate him. He took her phone, which was attached to a charger, and he smashed it. He did not throw the phone at her and did not attempt to hurt her. But he deliberately threw it and damaged it, because he was angry with her.
At some other stage during the argument, the applicant and Miss [A] were shouting in each other’s faces. The applicant forcibly pushed Miss [A] away from him, because she was pointing in his face and telling him off for being drunk, and he did not like it.
Miss [A] corroborated what the applicant told me, in terms of what happened. I asked her if she was the one who called the police to their home. She said that she did not; she assumed it must have been a neighbour who overheard them and made the call. They live in a block of flats.
The applicant repeatedly told me, without any prompting, that he had a drinking problem, and he was very sorry for what he did while intoxicated. He said that he is ‘not like that’ when he is sober. Miss [A] said so too. She told me he is ordinarily very kind and caring and calm. In her words: ‘he is only dysfunctional when drinking’.
I asked the applicant to tell me what he had been convicted of, and the sentence that was imposed on 3 September 2024. The evidence he gave to me was consistent with the Court documents. The applicant said he pleaded guilty to the offences, and he is aware that he is subject to an 11-month good behaviour bond and a 2‑year ADVO.
The applicant knows the terms of the ADVO are, essentially, he must not go near Miss [A] if he has been drinking alcohol. In other words, there is no problem with continuing to live together. But if he gets drunk, he cannot be around her. The applicant also knows if he commits an offence of any kind whatsoever, he will breach the good behaviour bond and be returned to custody and face a more severe penalty.
I asked the applicant about his ‘drinking habits’ at the time of his arrest. During the week, he looked after the children while Miss [A] was at work. But he would go out drinking with friends on the weekend, when Miss [A] was not working. He would ‘take a break’ (from the children) and visit friends and drink a few beers.
The applicant went on to tell me that none of the friends who he used to go drinking with have been in touch or visited him since he has been in custody and immigration detention for the past 2 months. He now realises they are not true friends, and he does not intend to maintain a relationship with any of them if he is released from [the detention centre]. The only person who has given him love and support this entire time has been Miss [A] and Miss [A]’s mother. Miss [A] has visited multiple times, together with their son, and she has helped him with the legal cases and the visa applications.
As noted, the applicant volunteered to me: ‘I have a drinking problem’. He said the only solution moving forward is for him to quit alcohol altogether. He had made a commitment to Miss [A], to his son, and to God, about that. He has never been in prison before. He had learned a lot of things; he said it has changed his life and his perspective. He misses his family terribly. He needs to find another way to live. He is ashamed of his past behaviour.
The applicant completed an ‘anger management’ and a ‘family violence’ course when he was on remand. He had never done anything like that before. He said they were really good courses. He expects he will be required to do more courses like that as part of the Court orders made on 3 September 2024; he doesn’t take issue with that. He apologised for not being able to provide me with his completion certificates; they are with his belongings that were removed from him when he was placed in immigration detention. He has not been able to access those items.
The applicant has received an offer from his local church to undertake ongoing counselling to help him abstain from alcohol. It is [a named church] in [suburb]. The applicant is committed to taking up the offer. He also intends to go to church each Sunday morning. He can take the children with him because there is a nursery service available.
The applicant was visibly emotional as he gave the above-described evidence. At times, he struggled to speak. He cried. He pleaded. The regret he expressed about his conduct, and his resolve about the future, seemed heartfelt and earnest.
I asked Miss [A] about her expectations in relation to the applicant’s alcohol usage moving forward. She confirmed the promise he had made to her, her son, and to God to the effect that he will not drink again. Based on what she has observed, ‘this experience has really changed him’. He is not too proud to admit he has a problem. She confirmed there is an offer for him to go to counselling via their church, and his genuine motivation to follow it up.
Miss [A] also took the opportunity to tell me about what can only be described as a very challenging ‘home life’. As mentioned, she is responsible for 3 children under the age of [age]. But she also works full-time. Her mother lives nearby and helps as much as she can. But Miss [A]’s father has dementia and needs significant support too. The current situation is not sustainable.
Miss [A] futher explained that she is accustomed to having the applicant at home on a full-time basis. He was a ‘stay‑at-home dad’ at the time of his arrest in July 2024. His extended absence has been a huge shock and an ongoing challenge. He was not given bail after his arrest, and then he was unexpectedly taken to immigration detention after his sentencing. Then, even after the partner visa application was lodged, using funds lent by Miss [A]’s mother, the BVE was refused for a second time.
Miss [A] indicated the applicant is well aware that he is responsible for this extremely stressful situation and is highly motivated to make up for it. She desperately wants him to be released from [the detention centre] and return home to help her, and make amends.
For completeness, I asked the applicant about his prior criminal offending. Consistent with the documentation, he admitted to a drink driving offence in June 2021, the imposition of an ADVO in 2023, and being interviewed by police in January 2024. In each case, the incident was directly linked to the applicant having consumed too much alcohol.
I have concerns about the applicant’s past criminal behaviour by reason of his drinking problem. But I am prepared to accept the evidence given by the applicant and Miss [A] about his vow to quit drinking and his commitment to counselling to help in that regard.
CONSIDERATION OF THE VISA CRITERIA
Time of application

An assessment of a BVE application is a two-stage process. I must start by determining whether the applicant meets what are known as the ‘time of application’ criteria per cl 050.211. If they are met, I must then consider if he meets the ‘time of decision criteria’.
I am satisfied the ‘time of application’ criteria are met because:
(a)the applicant is an unlawful non-citizen – by reason of not holding any visa;[3] and
(b)the applicant intended to apply, in Australia, for a substantive visa of a kind that can be granted if the applicant is in Australia, within a limited time period.[4]
[3] Per Schedule 2, cl 050.211(1)(a) of the Regulations.
[4] Per Schedule 2, cl 050.212(1) and (3)(b) of the Regulations.
Time of decision
The ‘time of decision’ criteria which are relevant to this case are cll 050.221, 050.222 and 050.223. The first two are not in dispute. In that regard, I am satisfied:
(a)the applicant continues to meet the ‘time of application’ criteria;[5] and
(b)the applicant was interviewed by an authorised officer on 23 September 2024.[6]
[5] Per Schedule 2, cl 050.221 of the Regulations, noting the partner visa was indeed applied for.
[6] Per Schedule 2, cl 050.222(1) of the Regulations.
The determinative question is whether cl 050.223 is met. This requires me to take account of all of the circumstances in this case, and to determine if I am satisfied that the applicant will abide by the conditions imposed on a BVE granted to him.
There are no mandatory conditions which must be imposed on a BVE granted to the applicant. Insofar as discretionary conditions are concerned, I am satisfied the following conditions are appropriate:
·     8401 Report as Directed
·     8506 Notify Change of Address
·     8564 Not Engage in Criminal Conduct
There is no evidentiary basis on which I am satisfied a ‘No Study’ condition is necessary or appropriate to be attached to the grant of a BVE to the applicant. The applicant has never held a student visa nor any intention to study in Australia. Study is not within his contemplation. Having said this, I do not wish to prohibit it altogether, given the applicant may be motivated in future to engage in a form of study as part of a rehabilitative process.
In deciding the question of whether the applicant would abide by the 3 conditions that I have determined should be imposed, I must consider the likely conduct of the applicant.[7]
[7] See Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15].
With regards to conditions 8401 and 8506, I accept Miss [A] has assumed responsibility for ensuring the applicant remains compliant with his immigration requirements from now on. I am confident in her abilities, as well as her impetus, to attend to these matters.
With regards to condition 8564, I accept the applicant is sincerely remorseful, that his problems resulted from drinking, and he will not be drinking again. I accept that if he is granted a BVE, he will return to living with Miss [A] who is a prosocial and supportive partner. I also accept he will engage with his local church. I find the applicant has an overwhelming incentive to resume his caretaking role at home and lead a very simple and sober life. I am satisfied he is well aware of the adverse consequences that would flow from further misconduct of any kind.
In summary, having considered the evidence before me, I am satisfied that the applicant will abide by conditions imposed on the BVE if granted. It follows, therefore, that the applicant meets cl 050.223.
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 8401, 8506, 8564.
Jessica Edis
Member

[2024] AATA 3997

2 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction