Cai (Migration)

Cai (Migration) [2020] AATA 3975 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yonghe Cai
CASE NUMBER:  2011341
DIBP REFERENCE(S):  Bcc2020/1846991
MEMBER:Michael Ison
DATE:20 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 20 July 2020 at 9:51am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed on visa – report at a time and place and not engage in criminal conduct – one criminal conviction and seven charges pending – breach of bail conditions – continuing police protection notice – no understanding of criminal circumstances or genuine insight or remorse – attitude to police and border force – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.223, 050.617, 050.618, Schedule 8, conditions 8401, 8564
CASE
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).
Background
The applicant is Mr Yonghe Cai, a 34 year old Chinese national who satisfied the Tribunal he also is entitled to live in New Zealand as a permanent resident. The applicant first arrived in Australia on 3 January 2015 as the holder of a Subclass 600 Visitor visa. The applicant returned to China in March 2016 and then had two further stays in Australia as the holder of Visitor visas, last arriving in Australia on 5 June 2016.
On 1 July 2016 the applicant applied for a Partner visa and was granted an associated Bridging A (Subclass 010) visa on 4 July 2016. On 9 November 2017 the applicant was granted a Partner (Subclass 820) visa, but this provisional visa ceased on 25 January 2020 when the applicant’s simultaneous application for the permanent Partner (Subclass 801) visa was refused.
On 22 February 2020 the applicant’s associated Bridging A visa ceased and the applicant became an unlawful non-citizen in Australia. On 4 June 2020 the applicant was released from prison in Queensland and immediately detained in immigration detention. At the time of this decision the applicant is being detained in Brisbane Immigration Transit Accommodation (BITA), which is an immigration detention centre.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the Bridging E (Subclass 050) visa on 3 July 2020. 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.050.223 which requires the Minister, or the Tribunal on review, to be satisfied that the applicant would abide by any conditions attached to a Bridging E visa granted to him.
The decision to refuse to grant the visa was made by a delegate of the Minister on 8 July 2020. The delegate was not satisfied that the applicant would abide by two of the conditions which the delegate decided were appropriate to attach to any Bridging E visa granted to the applicant. This meant the delegate found the applicant did not meet the requirements of cl.050.223 and for this reason the delegate refused to grant the Bridging E visa.
Tribunal hearing
The applicant appeared before the Tribunal on 17 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant appeared by video link from BITA. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal, to which the applicant responded no. The Tribunal informed the applicant that it would allow the applicant an opportunity to address the Tribunal toward the end of the hearing on any matter he felt was relevant to his review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the applicant eligible for a Bridging E visa?
In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 Bridging visa, which are set out in cl.050.2 of Schedule 2 to the Regulations.
An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212.
Immigration status of the applicant - cl.050.211
Clause 050.211 provides:
(1)The applicant is:
(a)  an unlawful non-citizen; or
(b)  the holder of a Bridging E (Class WE) visa; or
(c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2)The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
The applicant must continue to satisfy this criterion at the time of decision: cl.050.221
The Tribunal is satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
The grounds for seeking the visa - cl.050.212
At the time of the Bridging E visa application, the applicant must meet one of the alternative criteria set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations.
The applicant must continue to satisfy this criterion at the time of this 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.
Subclause 050.212(2) provides:
An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia
In relation to this requirement the delegate of the Minister found:
I am satisfied that you meet the requirements in subclause 050.212(2) in Schedule 2 of the Regulations because Departmental record show that on 03 July 2020, you made an application for a Bridging visa E (class WE) (subclass 050) visa on the basis that you are making, or are the subject of, acceptable arrangements to depart Australia.
The application states reason for applying for a Bridging visa E is “Departing Australia”. Proposed departure date: 31 July 2020.
The applicant confirmed to the Tribunal that he wishes to leave Australia to travel to New Zealand where he holds a visa granting him permanent residency. The applicant informed the Tribunal that he has sufficient funds to pay for an airplane ticket which he said his inquiries had shown would cost around AUD500. The applicant told the Tribunal his motor vehicle had been sold last week netting him, after expenses, approximately AUD8,000. The applicant did not provide any documentation to support this evidence but the Tribunal accepts that the applicant can afford to buy an airplane ticket.
The Tribunal is satisfied the applicant meets the requirements of cl. 050.212(2) because the Tribunal finds that the applicant is making acceptable arrangements to depart Australia.
The requirement to be interviewed by an authorised officer - cl.050.222
Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl.050.212(4AAA) or continues to meet cl.050.212(4AB).
The information before the Tribunal is that the applicant was interviewed by an officer authorised for the purposes of cl.050.222 in relation to this Bridging E visa application on 6 July 2020.
For these reasons, the Tribunal finds that the applicant meets cl.050.222.
Determinative issue – abide by any conditions attached to the Bridging E visa
Clause 050.223 of Schedule 2 to the Regulations states:
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
The issue in this case therefore is will the applicant abide by any conditions that would be imposed on any Bridging E visa that may be granted to him.
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 the unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16]. The Tribunal explained this to the applicant during the hearing.
If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.
The conditions that must or may, depending on the applicant’s circumstances, be imposed on a Bridging E visa are set out in cl.050.6 of Schedule 2 to the Regulations, which contains clauses 050.611 to 050.620.
In this case, cl.050.617 applies because the applicant does not meet the requirements of clauses 050.611 to 050.616A inclusive.
Clause 050.617 provides that the decision maker can impose any one or more of the following conditions on a Bridging E visa granted to a non-citizen under clause 050 of the Regulations:
·8101 – no work in Australia;
·8104 – work limitation (40 hours a fortnight);
·8116 – work limitation (only work in activity specified in a legislative instrument);
·8201 – study limitation;
·8207 – no study or training in Australia;
·8401 – report at time and place specified by the Minister;
·8402 – report to Immigration within 5 days of grant and then report weekly;
·8505 – live at the address the applicant specified before the grant of the visa;
·8506 – notify Immigration in advance of any change in address;
·8507 – pay the costs of the visa holder’s detention;
·8508 – make a valid application for a visa that can be granted in Australia;
·8510 – show Immigration a valid passport or obtain a valid passport;
·8511 – show an officer a ticket for overseas travel;
·8512 – leave Australia by the date specified by the Minister; and
·8548 – not engage in any study or training in Australia for more than 4 months.
Clause 050.618 provides that in addition to any other condition imposed, condition 8564 (not engage in criminal conduct) may also be imposed. Clauses 050.619 and 050.620 provide for the imposing of conditions in particular circumstances that are not relevant in this review.
The Tribunal considered the application of each of these visa conditions in the applicant’s circumstances.
The Tribunal considers the following conditions should be imposed on any Bridging E visa granted to the applicant:
·8101      The holder must not engage in any work in Australia;
·8207      The holder must not engage in any studies or training in Australia;
·8401      The holder must report at a time and place specified by the Minister;
·8506      The holder must notify Immigration at least 2 working days in advance of any change to the holder’s address;
·8511      The holder must provide a ticket to depart Australia by a time specified;
·8512      The holder must depart Australia by a time specified; and
·8564      The holder must not engage in criminal conduct.
These are the same conditions the delegate considered reasonable to impose in the applicant’s circumstances.
The Tribunal asked the applicant if he had any objection to any of these conditions being imposed if a Bridging E visa was granted to him. The applicant responded no and that he thinks he can comply with all conditions of any Bridging E visa granted to him and he does not think any of these conditions are unnecessary in his circumstances.
In the primary decision the delegate did not address whether the applicant would abide by conditions 8101, 8207, 8506, 8511 and 8512. The primary decisions focuses on the two conditions the delegate found the applicant would not abide by: condition 8401 report as directed and condition 8564 not engage in criminal conduct.
The Tribunal has also focused on whether the applicant would abide by these conditions in the conduct of this review.
Condition 8401 report at a time and place
In the primary decision the delegate found:
The information before the Department indicates the applicant was charged with one count of Breach of Bail Condition on 05 April 2020. The applicant’s next Court date relating to this matter is on 08 August 2020 at Southport Magistrates Court.
At the interview with a Department officer on 03 July 2020, the applicant said he was late to report to the police due to traffic jam therefore did not consider his breach of bail condition charge to be a serious matter as he would be in jail if it was. I find this indicates a disregard not only for Australian law but also for the relevant authorities, namely Queensland Police. This left me with concerns that if the Bridging visa is granted and the applicant is asked to report to Immigration (Department of Home Affairs) that the applicant may not report, I am therefore not satisfied that the applicant, when all relevant matters are considered, will comply with the reporting condition 8401.
The applicant confirmed that this matter remains before the court and his next scheduled hearing date is 8 August 2020.
The Tribunal informed the applicant that as this criminal charge remains before the court he holds a privilege against self-incrimination in relation to answering questions about the circumstances that led to that charge being filed, to the extent the answers to such questions may tend to incriminate the applicant. The Tribunal explained to the applicant what this privilege is, why it exists, how he can rely on it, what are the potential consequences if he chose to waive the privilege and that the Tribunal would not make any adverse findings against the applicant arising from his relying upon the privilege. The Tribunal explained to the applicant it is not the Tribunal’s role to determine his guilt or otherwise in relation to any criminal charges filed against him.
The applicant told the Tribunal that he understood his privilege against self-incrimination and did not wish to expressly or impliedly waive that privilege. As the applicant was not represented by a lawyer or registered migration agent, the Tribunal tried to frame its questions to the applicant in a manner that would avoid the applicant having to assert his privilege.
The Tribunal read the excerpt from the primary decision reproduced in paragraph 43 of these reasons to the applicant and invited the applicant to respond.
The applicant told the Tribunal he was required to report to the Queensland police once a week on a Wednesday between 9am and 4pm and apart from one incident has done that successfully for one year and had complied with all other conditions of his bail.
The Tribunal asked the applicant his response to the delegate’s finding that the applicant did not consider the alleged breach to be serious. The applicant responded that the police do not have evidence he breached his bail, they just put that charge against him, he has been waiting for a whole year for the police to produce their evidence and they just keeping saying – in another month, in another month, in another month and this has been going on for 14 months now.
The applicant told the Tribunal that despite the police not having any evidence they have not given up and there is nothing the applicant can do about that. The applicant told the Tribunal of a time when he was first detained in immigration detention that he was given a court date, waited in the video conference room of the detention centre from 9am to 5pm, just sitting there, but the court did not contact him.
The applicant told the Tribunal he does not know why the police are pursuing this matter and he has rung the police but they do not care about the matter. The applicant noted to the Tribunal he has been in immigration detention this time since 4 June 2020 and did not apply for a Bridging E visa straight away because he wanted to resolve his outstanding criminal charges. The applicant said as those matters had dragged on without him being informed as to what is going on, even through his own private lawyer who also says they are waiting for the evidence from the police, he decided to apply for the Bridging E visa.
The Tribunal notes the allegation that supports the breach of bail charge only arose in April 2020. The Tribunal also notes that the primary decision records that the applicant has been convicted of one criminal charge and charged with an additional seven criminal charges arising out of incidents that are alleged to have occurred on 21 and 22 May 2019. The Tribunal accepts that the applicant was referring to these charges when he gave evidence of a 14 month delay. The primary decision states the next hearing date for these charges is 28 August 2020. These other criminal charges are discussed in the Tribunal’s consideration of the applicant abiding by condition 8564 not engage in criminal conduct in these reasons.
The Tribunal asked the applicant to respond to the delegate’s finding that he had shown a disregard for Australian law and the Queensland police. The applicant responded that another condition of his bail is that he must live at a specified address on the Gold Coast. The applicant told the Tribunal the police saw him in Brisbane one day and charged him with breaching this condition, even though he is 100% living on the Gold Coast. This charge does not appear on the list of outstanding criminal charges documented in the primary decision.

The applicant rhetorically asked why is he still in immigration detention and stated that if the Queensland police have evidence against him they should produce it. The applicant told the Tribunal he keeps waiting for the police but they don’t care and he has asked his lawyer, Australian Border Force (ABF) and the police but no-one knows what is going on with the criminal charges filed against the applicant.
The applicant said that ABF had spoken to the court 40 days ago, shortly after he was detained, to find out if the applicant could leave Australia but the court has not responded and this is why the applicant has applied for the Bridging E visa. The applicant said he wants to be released from immigration detention so he can finalise his affairs, resolve the criminal charges which he described as “fix the problem” and if he is allowed, depart Australia.
The applicant told the Tribunal if he is guilty of the charges then he should be sentenced so he can serve that sentence and then be released and with the Queensland border being open during the COVID-19 global pandemic the applicant can then easily leave Australia and go to New Zealand.
The Tribunal was concerned by the applicant’s evidence about the Queensland police and his perception that they do not have evidence to support the 2019 criminal charges filed against the applicant or care about those proceedings. This evidence revealed to the Tribunal that the applicant does not respect Queensland police. The Tribunal also finds that the applicant’s evidence revealed a lack of understanding on the applicant’s part of the seriousness of the applicant breaching a condition of his bail.
The Tribunal asked the applicant directly whether he would comply with any reporting obligations the Department chose to impose on him. The applicant told the Tribunal 100% he would. The applicant gave evidence that he reported weekly to Queensland police for a year and was late only one time and even that time he was not running away. The applicant says he understands with the conviction and charges against him why the Department may not trust him, but he just wants to leave Australia and will not take any risks that may jeopardise those plans.
The Tribunal accepts that the applicant has a genuine desire to leave Australia, but the primary decision noted the applicant wants to sell his motor vehicle and a massage business he owns before he departs. As noted in paragraph 22 of these reasons, the applicant told the Tribunal he has sold his car already, which the Tribunal accepts. The applicant also told the Tribunal he has engaged a business agent and signed the paperwork to sell the massage business, on which he is still paying rent, but was closed down in 2019. The applicant told the Tribunal not to worry about the sale of that business as the applicant does not care how much money he receives for it.
What the Tribunal was trying to assess was whether the applicant would abide by condition 8401 in the time between being granted a Bridging E visa and departing Australia. The Tribunal recognises that the next hearing in relation to the 2019 criminal charges filed against the applicant is in approximately six weeks. That hearing is noted in the primary decision as a ‘mention’ hearing only, meaning those criminal charges will not be resolved at that hearing.
The Tribunal is prepared to give the applicant some benefit of the doubt that his assertions the police do not have any evidence against him in relation to the 2019 criminal charges may be the product of the applicant’s frustration with what he perceives to be the lack of progress with, and lack of information about, those charges filed in 2019.
However, overall the applicant’s evidence caused the Tribunal significant concern that the applicant not only does not respect Queensland police and ABF but that he has some antipathy toward both. For this reason the Tribunal is not confident that the applicant has sufficient respect for Australian law and authorities to give the Tribunal confidence that the applicant will comply with condition 8401 if he is granted a Bridging E visa.
The Tribunal finds that the applicant will not abide by condition 8401.
Condition 8564 Not engage in criminal conduct
The primary decision records the applicant’s known criminal history and outstanding charges as follows:
The information received from the authorities
The Queensland Police Service (QPS) has advised that you have been charged/convicted with the following offences against the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) and the Criminal Code 1899 (Qld) (CC)
Finalised Offences
DFVPA s 178(2) Contravention of police protection notice (on 5/04/2020) – Conviction Recorded. Sentenced Imprisonment: 9MO To be suspended for 12MO after serving: 7W Concurrent.
Outstanding Offences
·CC s355 Deprivation of liberty - unlawfully detain/confine (on 21 May 2019) – Next Appearance: Mention Southport Magistrates Court: 28/08/2020 09:00
·CC s355 Deprivation of liberty - unlawfully detain/confine (on 21 May 2019) - Next Appearance: Mention Southport Magistrates Court: 28/08/2020 09:00
·DFVPA s178(2) Contravention of police protection notice (On or about 22/05/2019) - Next Appearance: Mention, Southport Magistrates Court: 28/08/2020 09:00
·CC s335 Common assault (on 21 May 2019) - Next Appearance: Mention, Southport Magistrates Court: 28/08/2020 09:00
·CCs469(1) Wilful damage (on 21 May 2019) - Next Appearance: Mention, Southport Magistrates Court: 28/08/2020 09:00
·CC s335 Common assault (on 21 May 2019) - Next Appearance: Mention, Southport Magistrates Court: 28/08/2020 09:00
·CC s335 Common assault (on 21 May 2019) - Next Appearance, Mention, Southport Magistrates Court: 28/08/2020 09:00
·BA 29(1) Breach of Bail Condition (On 05/04/2020) - Next Appearance, Mention at Southport Magistrates Court: 28/08/2020 09:00
Offences committed or transmitted to a Higher Court
CC s315A(1 )(A) and (B)(I) Choking, suffocation, strangulation - domestic relationship (on 21 May 2019)
The applicant told the Tribunal that he thinks the choking, suffocation and strangulation charge has been withdrawn but that he does not have any paperwork to support that. The applicant said his lawyer is waiting on some documents from the court.
The Tribunal asked the applicant about the circumstances of the charge that he was convicted of and spent 49 days in prison for. The applicant told the Tribunal he had already pleaded guilty to that charge and has served his time. The Tribunal asked the applicant to explain what occurred that led to him being charged. The applicant said he was drinking alcohol at home and had an argument with his girlfriend which a neighbour heard. The neighbour called the police who attended and “mentioned this and that”.
The Tribunal asked the applicant to explain what occurred during the argument. The applicant said he threw beer bottles and had already pleaded guilty to that and already served his sentence for that. The Tribunal asked the applicant if he threw the beer bottles at his girlfriend. The applicant said no. The Tribunal asked how many bottles the applicant threw. The applicant replied one or two. The Tribunal asked what size were the bottles, 375ml bottles or 750ml bottles. The applicant told the Tribunal he did not throw beer bottles but threw a cup or a bowl, he thought it was a bowl.
The Tribunal asked the applicant why he told the Tribunal he threw beer bottles if he did not. The applicant said he could not remember why he said beer bottles, but he had pleaded guilty because it was the Australian law and he just wants to leave Australia.
The Tribunal asked the applicant if he threw the cup at or near his girlfriend. The applicant replied no.
The Tribunal asked the applicant whether there was any touching or contact between he and his girlfriend during the argument and whether his girlfriend was injured or not. The applicant answered no to both questions and said he just remembered having an argument and throwing a bowl and that’s it.
The Tribunal noted to the applicant that a sentence of nine months’ imprisonment suspended for 12 months after the has concurrently served seven weeks imprisonment seems to the Tribunal to be a very significant sentence arising from what the applicant claims was just a verbal argument. The applicant told the Tribunal that at the time the police said the applicant had done a list of things and he didn’t understand it and pleaded guilty because he didn’t care if the allegations were correct or not he just wanted to serve his sentence as he thought he would be allowed to leave Australia once he was released from prison, but he is still here.
The Tribunal did not find the applicant’s evidence in this regard very convincing. The Tribunal does not accept that the applicant would receive the sentence he did for what he claims was just a verbal argument with his girlfriend at the time. The Tribunal formed the view that the applicant was not being candid with the Tribunal in this aspect of his evidence and was reluctant to tell the Tribunal what occurred that led to such a significant sentence.
The Tribunal’s finding about the applicant’s lack of candour in this regard causes the Tribunal great concern that the applicant does not have genuine insight into or remorse for that offending. This diminishes the weight the Tribunal has given to the applicant’s evidence that he will not re-offend if granted a Bridging E visa and that he will just leave Australia.
The primary decision records that the 2019 criminal charges filed against the applicant arose in the following circumstances:
Relevantly, it is alleged that on 21 May 2019 the Queensland Police Service (QPS) officers attended your residence in Broadbeach Waters where you were found to be intoxicated. It is alleged that you were drinking alcohol during the day when in the afternoon, you attempted to leave the residence in your motor vehicle with your infant child. It is alleged that you picked up the infant child and whilst standing beside the motor vehicle you threw the infant child across the driver and front passenger seat. It is alleged that your father and spouse intervened by entering the car through the rear seat and taking the infant child and returning the child to the residence. After returning to the residence it is alleged that you picked up the child again and also picked up an axe and damaged property within the residence. It is alleged that your father attempted to restrain you which resulted in both of you falling. Once on the ground your spouse removed the infant child from the altercation. It is alleged that you then straddled your father whilst on the ground and placed your hands around his neck and began to squeeze. It is alleged that your spouse, holding the infant child, has run away to another part of the house. It is alleged that you had forced your spouse and child into one of the bedrooms and did not allow them to leave for a period of time. QPS then arrived, detained you and removed you from the residence.
Immediately following the incident, QPS issued a Police Protection Notice (PPN) that named you as the respondent and your spouse, your child and your father as the protected persons. The PPN featured 11 conditions intended to control your behaviour towards the protected persons.
It is then alleged that on 22 May 2019 you attempted to contact your spouse 48 times in contravention of the PPN.
As the applicant has a privilege against self-incrimination and these charges remain before the courts the Tribunal did not ask the applicant about these circumstances. The Tribunal makes no adverse findings and draws no adverse inferences against the applicant in relation to these alleged circumstances or in relation to any of the unresolved criminal charges. In the Tribunal’s view, at the time of this decision these matters remain allegations only.
The Tribunal read the following excerpt from the primary decision to the applicant:
During your interview, you have declared you have no intention with living with your now ex-wife and son in Broadbeach QLD if you are released from detention. Whilst I have taken this statement into consideration, I cannot be satisfied you will uphold the Police Protection Notice and not reside with these people as you have previously breached the order set by Queensland Police.
The Tribunal invited the applicant to respond to the finding of the delegate. The applicant told the Tribunal that the delegate has wronged him completely and he has not contacted his ex-wife or son. The applicant told the Tribunal that a Police Protection Notice (PPN) remains in place which names his ex-wife, son and his own parents as protected persons. The applicant said he can visit his son but has to apply to do so and that because he does not have a visa he knows he must leave Australia. The applicant said the PPN is for five years and has been in place for 18 months or so already. The applicant told the Tribunal he hopes that in three to five years’ time he might apply for a visa to return to Australia or maybe his ex-wife can bring his son overseas.
The applicant was able recite the main conditions of the PPN, indicating to the Tribunal he has a good understanding of the obligations that the PPN imposes upon him.
The applicant told the Tribunal that the ABF told him they had spoken to Queensland police and the police said if the applicant left Australia the outstanding criminal charges against him would be dropped. The applicant told the Tribunal that he does not have any documents to support this evidence.
The Tribunal noted that in the applicant’s application for the Bridging E visa, he answered no to two questions asking whether he had ever been charged with any offence that is currently awaiting legal action and whether he had ever been convicted of an offence in any country. The Tribunal noted the applicant had told it during the hearing that he had both a criminal conviction and outstanding criminal charges and asked the applicant why he answered no to these questions in his visa application.
The applicant responded that at the time he probably didn’t understand these questions because he was applying for the visa online using his mobile telephone while in immigration detention. The applicant said he did not have access to a computer in detention and the writing on his phone was very small and his English is not so good so this resulted in him answering no, but he told the Department straight away that he has criminal charges pending.
This evidence caused the Tribunal concern that the applicant does not fully understand or appreciate the nature of his criminal conviction and the outstanding criminal charges, which further diminishes the Tribunal’s limited confidence in the applicant not re-offending if he is granted a Bridging E visa.
Due to the applicant’s lack of candour about the circumstances of his criminal conviction and imprisonment, his lack of insight into his offending and his lack of understanding of the nature of his criminal conviction and outstanding criminal charges the Tribunal finds that if the applicant is granted a Bridging E visa the Tribunal does not accept the applicant’s evidence that he will not engage in criminal conduct. For these reasons the Tribunal finds that the applicant will not abide by condition 8564.
Other matters
The applicant told the Tribunal in his closing evidence that he has been complying with the law in Australia for a long time now and has waited for the court for a long time and waited for the ABF for a long time. The applicant said he would like someone to tell him what is going on with his outstanding criminal charges and even if he is not granted a Bridging E visa if he simply knows how long it will be before he is able to leave Australia he will be happy.
The applicant told the Tribunal he does not want to damage the Australian community or take the risk of staying in Australia and wants to leave Australia. The applicant said if he is granted a Bridging E visa he will fix the problem (his outstanding criminal charges), he has sufficient money to leave Australia, he has a lawyer to fix the problem and has an agent to sell his massage business.
The applicant said the ABF had told him early in his detention that he would be sent home soon but then he was given no date or further information and this led him to eventually applying for the Bridging E visa that is the subject of this review. The applicant said he understood the ABF’s concerns about his situation but he is 100% telling the Tribunal the truth. The applicant concluded that he is really disappointed that no-one can help him and that he is still in Australia.
The Tribunal has taken this evidence into consideration in these reasons for the Tribunal’s decision.
Conclusion
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions 8401 and 8564 imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.
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.
Michael Ison
Senior Member

[2020] AATA 3975

20 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction