Amarasinghe (Migration)

[2018] AATA 4907

Amarasinghe (Migration) [2018] AATA 4907 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarasinghe Mudalige Bharana Pasan Amarasinghe

CASE NUMBER:  1829565

DIBP REFERENCE(S):  BCC2018/4335441

MEMBER:Stephen Conwell

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl.050.212 of Schedule 2 to the Regulations; and

·cl.050.221 of Schedule 2 to the Regulations; and

·cl.050.223 of Schedule 2 to the Regulations.

Statement made on 22 October 2018 at 11:50am

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) visa – acceptable arrangements to depart Australia – time to arrange personal affairs – flight details – abide by conditions – criminal record – charged and convicted – unlikely to reoffend – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth) Schedule 2 cls 050.211, 050.212, 050.221, 050.223, 050.612A Schedule 8 conditions 8101, 8207, 8401, 8506, 8510, 8564

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act)

2. The applicant applied for the visa on 5 October 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 9 October 2018 on the basis that the delegate was not satisfied that the applicant met the criteria for the grant of a Bridging (Class WE) general (sub-class 050) visa.

4. The applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments.  He was not represented, however his partner, Ms. Alex Forsaith attended the hearing and was prepared to give evidence.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

6. The Bridging E (Class WE) visa is a visa for unlawful non-citizens seeking permission to remain temporarily in Australia. This class of visa contains two subclasses: Subclass 050 (Bridging (General)) and Subclass 051 (Bridging (Protection Visa Applicant)): item 1305 of Schedule 1 to the Migration Regulations. Subclass 051 is specifically for persons who have been refused, or have bypassed immigration clearance and have sought a protection visa. In the present case, only Subclass 050 is relevant to the applicant’s circumstances.

7. The criteria for a Subclass 050 visa are set out in Part 050 of Schedule 2 to the Migration Regulations. All applicants must satisfy the primary criteria.

8. The primary criteria to be satisfied at the time of application for a Subclass 050 visa include that the applicant is an unlawful non-citizen or the holder of a Bridging E (Class WE) visa or a Subclass 041 (Bridging (Non-applicant)) visa.  The applicant must not be an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17): cl.050.211. 

9. In addition, the applicant must meet one of the alternative grounds set out in cl.050.212.  Broadly speaking these require that:

   • the applicant is making, or is the subject of, acceptable arrangements to depart Australia: cl.050.212(2); or
   • the applicant has made an application, or will apply, within a period allowed by the Minister, for a substantive visa of a kind that can be granted if the applicant is in Australia: cl.050.212(3); or
   • there is an outstanding application under s.137K of the Migration Act, an application for merits or judicial review of a specified decision, an application for a specified court declaration or the Minister is satisfied that (court applications excepted) such application will be made: cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (9); or
   • the applicant held a visa that was cancelled under s.140 of the Migration Act as the result of the cancellation of another person’s visa, and that other person has applied for revocation of the cancellation of their visa, or merits review in relation to the cancellation or the decision not to revoke the cancellation, or the Minister is satisfied that they will do so: cl.050.212(5), (5A); or
   • the applicant has an outstanding request to the Minister under ss.48B, 345, 351 or 417 of the Migration Act in relation to certain decisions, or the Minister has exercised such powers favourably but the grant of the visa is prevented by s.85 of the Act: cl.050.212(5B), (6), (6AA), (6B); or
   • the applicant holds a Bridging E (Class WE) visa in certain circumstances and the Minister is satisfied that the applicant has a compelling need to work; cl.050.212(6A), (8); or
   • the applicant is in criminal detention and no criminal justice stay certificate or warrant is in force: cl.050.212(7).

10. At the time of decision, the applicant must also meet the following criteria:

    • except in certain circumstances, the applicant has been interviewed by an authorised officer: cl.050.222;
    • the Minister is satisfied that, if a bridging visa is granted, the applicant will abide by the conditions imposed on the visa: cl.050.223;
    • a security (if requested by an authorised officer) has been lodged: cl.050.224;
    • if the applicant is over 18 years old at the time of application and holds, or has previously held, a Bridging E (Class WE) visa granted under s.195A of the Migration Act, the applicant satisfies public interest criterion 4022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicants meet any of the primary criteria for the grant of a Bridging E visa contained in subclause 050.212(1) of the Regulations. The criteria in this subclause must be satisfied both at the time of application and at the time of the Tribunal’s decision. Of particular relevance is subclause 050.212(2) of the Regulations – whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

12. If the Tribunal finds that the applicant does not meet any of the primary criteria, then it has no alternative but to affirm the Department’s decision. If, however, the Tribunal finds that the applicant does in fact meet one or more of these at the time of application, and also at the time of decision, the Tribunal would be required to assess whether he would comply with the visa conditions. 

13. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the delegate's decision, which the applicant had provided to the Tribunal when making his review application.

    Background

14. The applicant is a citizen of Sri Lanka and first arrived in Australia in December 2015 as the holder of a Subclass 573 Higher Education Sector visa to study for a Master’s degree. 

15. By decision dated 26 February 2018 made by a delegate of the Minister for Home Affairs, the applicant’s Student visa was cancelled under s.116 of the Act. At the time of his visa cancellation, the applicant had only one unit remaining to complete his Master’s degree.

16. The delegate cancelled the applicant’s visa under s.116(1)(e) on the basis that his presence in Australia may be, or would or might be, a risk to the health safety or good order of the Australian community or a segment of the Australia community; or the health or safety of an individual or individuals. The applicant was charged with knowingly possessing child pornography, two counts of making or producing child pornography, sexual penetration of a child under 16 years of age (28 counts) and an indecent act with a child under 16 (six counts). 

17. The applicant sought a merits review of the decision to cancel his visa and the matter was heard by  the Tribunal (differently constituted) on 18 September 2018.

18. However in the period between cancellation of the applicant’s visa and the time of the Tribunal’s decision, the case went to court and the matter was heard and decided by a jury. The applicant was found not guilty in relation to all but one charge. The applicant pleaded guilty to one count of possessing child pornography.

19. The criminal charges were heard by His Honour Judge Mason of the County Court of Victoria on 17 August 2018. His Honour found that the applicant’s offending was ‘significantly mitigated’ by the circumstances in which the offences occurred, which His Honour described as ‘quite exceptional’.

20. The applicant was sentenced on 22 August 2018. He was ordered that he be of good behaviour for a period of six months. His Honour sentenced the applicant without conviction. The applicant was placed on the Victorian Register of Sex Offenders for a period of eight years.

21. On 2 October 2018 the Tribunal concluded that the decision to cancel the applicant’s visa should be set aside.

    Immigration status of the applicant - cl.050.211

22. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

23. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

24. The applicant was interviewed by the delegate on 8 October 2018.  The applicant gave evidence that:

    • he holds a valid passport of Sri Lanka which expires in 2025. It is being held by Victoria Police;
    • he did not (at that time) hold a valid airline ticket to his home country;
    • he was not willing (at that time) to consider voluntarily departing Australia;
    • his reasons for not wishing to voluntarily leave Australia, were that he wished to have time to arrange his personal affairs and to speak with his course providers;
    • he did not wish to be subject to the exclusion period under Schedule 4 of the Migration Regulations which would prevent him from being granted another Student visa for three years from the date of his departure from Australia.

    The grounds for seeking the visa - cl.050.212

25. At hearing the Tribunal explained to the applicant that at the time of the visa application, he 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.

26. In this case, the applicant is seeking to meet cl.050.212 (2). He 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

27. 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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides 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]).

28. The applicant indicated to the Tribunal that he now intends to depart Australia and has purchased an airline ticket which he has submitted as evidence. In other words, the applicant was now seeking to meet cl.050.212(2). The Tribunal put to the applicant that this appeared to be a change of his position as was recorded in his Bridging visa interview. The applicant confirmed that after further consideration of the limited legal alternatives available to him he has decided to depart Australia and return to his family and his home country.

29. The applicant submitted in evidence a copy of his flight itinerary showing that he is booked to fly to Colombo, Sri Lanka, via Kuala Lumpur, Malaysia on Saturday 3 November 2018 as well as a tax invoice confirming payment for the flights. He explained that he nominated a departure date two weeks hence in order to have time to arrange his personal affairs and spend time with his partner, Ms. Forsaith. He intends to stay with his friend, Sajith Jayakodi until his departure from Australia. He agreed that he would abide by all conditions attached to a proposed BVE and depart Australia on 3 November 2018 on his booked flight.

30. Having found that the applicant meets the threshold criterion relevant to the grant of a Bridging visa, the issue in this case is whether the applicant meets the requirements of cl.050.223, that is, whether the Tribunal can be satisfied that the applicant would comply with visa conditions if he was issued with a Bridging E visa.

31. Clause 050.223 requires that the Tribunal is satisfied that at the time of decision, that if the applicant was granted a Bridging visa that he would abide by the conditions that were imposed upon that visa.  Conditions that may be imposed on a Subclass 050 visa are set out in cl.050.6 and in Schedule 8 to the Regulations.  Clause 050.6 also sets out conditions to which the visa is subject.

32. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed, and whether it can be satisfied that the applicant would abide by those conditions, based on an assessment of the evidence before it.  In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is required to consider the likely conduct of the applicant.  In that context, relevant considerations may include the applicant’s history to date, in particular whether he has breached Immigration Law during the time that he has been in Australia, the significance of the Migration Laws that were breached, the wilfulness with which those laws had been breached, and whether there are any mitigating circumstances that justify the breach, and whether the applicant has shown any contrition for their unlawful conduct:  Applicant Vaan of 2001 v MIMA (Bann) (2002) 70 ALD 289 at [15-16].

33. Relevant to the Tribunal’s consideration is cl.050.612A, which prescribes that the Tribunal must impose Condition 8101 (must not engage in work) and may also impose any one or more of the Conditions in Schedule 8 of the Migration Regulations. In the circumstances of the present case, the Tribunal considers that in addition to Condition 8101, the following conditions should also be imposed:

    • Condition 8401, which requires that the visa holder must report at a time and place specified for the Minister for that purpose.
    • Condition 8207, which requires that the applicant does not undertake any study.
    • Condition 8506, which requires that the applicant must notify the Department of Immigration at least two working days in advance of any prospective change in his address.
    • Condition 8510, which requires that the within the time specified by the Minister for the purpose, the applicant must  show an officer his passport;
    • Condition 8564, which requires that the applicant must not engage in criminal conduct.

34. In considering whether the applicant will abide by the conditions of Bridging E visa if it were granted, the Tribunal has had regard to the applicant’s immigration history from the time of his arrival in Australia to his detention in March 2011.

35. The delegate was not satisfied, based on his criminal history, that the applicant would comply with condition 8564 – Not engage in criminal activity

36. The Tribunal has regard to the applicant’s Adjourned Undertaking, whereby he warrants to  be of good behaviour for the period of the Undertaking.  The Tribunal also has regard to the jury decision in the applicant’s criminal proceedings before the  County Court of Victoria, and His Honour’s character assessment of the applicant, as revealed in his sentencing comments:

    I regard it highly unlikely that you would ever offend in this manner again. In my view the circumstances are quite exceptional, and I accept that the recording of a conviction for this offence would carry with it a punishment, with its stigma and effect, well beyond what is appropriate. The full mitigating circumstances would never be appreciated beyond the recording of the offence. In my view, your behaviour was most likely just foolishness rather than anything more sinister.

37. The applicant gave evidence to the Tribunal in an honest and forthright manner and the Tribunal is satisfied, based on the evidence before it, that the applicant will abide by conditions attaching to his Bridging E visa; this will require that the applicant does not work or study, that he notifies any change of address, that he will show his passport and reports to the Department, as required.

38. The Tribunal places significant weight on the jury’s decision, on His Honour’s comments and on the terms of the applicant’s Adjourned Undertaking. The Tribunal is satisfied that the applicant will not engage in criminal activity during his remaining time in Australia.

39. The Tribunal has considered the evidence individually and cumulatively. On balance, The Tribunal has decided that in the circumstance of this case the imposition of a security is not necessary, and the Tribunal is satisfied that the applicant would comply with the conditions that are imposed on the grant of this visa.

40. The Tribunal did not consider it necessary to take evidence from the applicant’s partner, Ms. Forsaith.

    DECISION

41. 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;

    ·cl.050.221 of Schedule 2 to the Regulations; and

    ·cl.050.223 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member