Kamboj (Migration)

[2020] AATA 2436

Kamboj (Migration) [2020] AATA 2436 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saurabh Kamboj

CASE NUMBER:  2010119

DIBP REFERENCE(S):  BCC2020/1556272

MEMBER:Ann Duffield

DATE:23 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 23 June 2020 at 5.17pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – convicted of child sex offences – possession of child abuse material – reckless disregard and disdain for Australian law – unwillingness to accept responsibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Condition 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

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 15 May 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.

3. The decision to refuse to grant the was made on 16 June 2020 on the basis that the applicant would not abide by any conditions placed on the applicant’s visa should one be granted.

4. The applicant appeared before the Tribunal on 23 June 2020 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, although that person did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a bridging visa be affirmed.

   BACKGROUND

7. The applicant, through his adviser, provided the Tribunal with a copy of the delegate’s decision along with his application for review. The Tribunal also put to the applicant a copy of a s.376 certificate used by the Department of Home Affairs to protect third party information. That information relates to the applicant’s criminal conviction which has already been put to him by the department and recorded in the delegate’s decision. The Tribunal sought the applicant’s comments on the validity of the certificate. The Tribunal finds the certificate valid even though the information that it covers is already recorded in the delegate’s decision which the applicant provided to the Tribunal, and which it put to him again during the hearing.

8. The applicant is a citizen of India born on 13 January 2000. He first arrived in Australia on a student visa 7 August 2018. He was arrested for several counts of stalk/intimidate/intend fear, physical etc in relation to a child and also possess child abuse material in around November 2018. He was issued with an AVO in relation to the child in around March 2019 and convicted of the charges in around July 2019.  His student visa was cancelled in around February 2020 for non-compliance and he has lodged an application with the AAT for a review of that decision which has not yet been heard.

9. The applicant was sentenced to a 6-month Intensive Correction Order commencing on 31 July 2019 for the stalking offences and received a Community Correction Order for 12 months in relation to the child abuse material. The applicant’s offences also resulted in him being subject to “A Child Protection Register” for eight years. The applicant confirmed this information with the Tribunal during the hearing.

10. During the applicant’s interview with the delegate he was asked to comment on his conviction and denied the charges claiming that the child pornography material was automatically downloaded when it was sent by other members of a chat group he participates in. Despite the fact that he has a Correction order still current until July 2020, an Apprehended Violence Order valid until March 2024 an that he will be on the Child Protection Register until 2027, the applicant claimed that his corrections order had finished, and he was unsure of any other court orders.

11. The delegate concluded that despite being convicted of an extremely serious crime involving a minor child he appeared unaware of the requirements and orders to which he is currently bound.

12. The delegate found that the applicant showed a concerning lack of regard for Australian Law and a more serious concern about the applicant’s ability to refrain from engaging in further criminal conduct, his dismissive statements about his criminal convictions and his lack of remorse.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant would abide by the conditions placed on any visa that he may be granted.

    Whether the applicant will abide by conditions - cl.050.223

14. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

15. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

16. 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 not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

17. In this case, cl.050.6 applies. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:

    a.8101 – the visa holder is not permitted to work

    b.8401 – the visa holder is required to report as directed – no evidence that he hasn’t -

    c.8506 – the delegate is required to notify the department of any change of address 2 days prior to any such change

    d.8510 -  show a valid passport

    e.8564 – not engage in criminal conduct

18. The Tribunal received a submission dated 22 June 2020 from the applicant through his adviser prior to the scheduled hearing. The adviser also sent the Tribunal a copy of the AVO against the applicant which is currently in force.

19. In that submission the applicant states that he was unable to complete the course of study for which he was enrolled as his knowledge of English was insufficient. He then claimed to have told his Migration Agent of these difficulties and was advised to enrol in a different course. The applicant states that he was “totally unaware of the conditions” of his visa, claiming he had a student visa and could do any course in Australia.

20. The applicant states, in relation to his convictions that he never harmed any girl in the train but the girl complained and when the police came to his house they found pornographic material on his phone. The applicant states he had no money to hire a solicitor to represent him in court. The applicant was represented instead by NSW Legal Aid. He claims he was totally disoriented and did not understand anything about the law of the length of time associated with the AVO.

21. The applicant when on to blame his then migration agent for not properly preparing a response to the department’s notice of intention to consider cancelling his student visa and didn’t know about the class of visa to apply for.

22. The applicant submits that he should be granted a Bridging Visa because he was not aware that the AVO order was for eight years (its for five years, which the applicant corrected during the hearing) when he went to the District Court to reduce the conditions and terms of sentencing. The district court did not consider reducing the AVO because it was not raised in the court because the applicant’s solicitor did not go to the court. The applicant claims that he had no knowledge of the AVO until it was brought to his attention by the department. He claims he then rang the Burwood Court and obtained a copy of the AVO. The applicant states that he is “totally unaware of legal requirements” he only knows that if he breaches any conditions he will go to jail.

23. The applicant states that he has never tried to contact the defendant at any time and no record that he has breached the conditions of his AVO. He claims that he will accept all the conditions of the department for the grant of a bridging visa.

24. During the Tribunal hearing the applicant told the Tribunal, in response to questioning, that he was being financially supported by his parents and his brother. He told the Tribunal that his parents were unaware of his situation as he hoped that he would be released from detention on a bridging visa that allowed him to keep studying. He said that he was afraid to tell them as he was convinced that they would hurt themselves and that his younger sister would have no one to look after her. He said that he would tell them when the time was right. Prior to his detention he was working twenty hours a week at a car wash and more recently at NBN.

25. The Tribunal can understand why the applicant may not wish to tell his parents about his convictions and the nature of the convictions. However, the Tribunal does not accept that it is because he is afraid they will harm themselves, If this was, indeed, his reasoning, its difficult for the Tribunal to see when there would be a “right time” for the applicant to disclose his situation to them. Rather, in the Tribunal’s mind this demonstrates that he is continuing to avoid responsibility in relation to his actions and the fact that they were of a very serious criminal nature involving children.

26. The applicant told the Tribunal that he is currently required to inform the police of his movements, including his change of address and where he is working. He told the Tribunal that the police have visited his home and checked his phone and computer. There is no evidence before the Tribunal that he has not complied with the requirements of the Child Protection Register. He is not required to report to any other authority at the moment. The applicant also has a live application for the cancellation of his student visa and has said that he hopes to regain his student visa and wishes to be able to conduct the review outside of detention.

27. The applicant has stated that he has a current passport valid for ten years from the date of issue, which the Tribunal has assumed was issued prior to his arrival in Australia in 2018.

28. In relation specifically to the question of whether he would not engage in criminal conduct as a condition of any visa that was granted, the Tribunal asked whether he was aware that his conduct towards the young girl and the collection of child abuse material were criminal offences in Australia. The Tribunal put to the applicant that if it was not satisfied that he understood the laws of this country or was committed to finding out what they were, then it may form a view that he will continue to commit crimes.  The applicant told the Tribunal that the materials on his phone were automatically download from a WhatsApp group that he was part of, and he didn’t know about that material until the police showed him. The Tribunal asked the applicant who the members of the group were, and he said that some of them were friends however there were others that were included without his knowledge.

29. The Tribunal pressed the applicant as to how it was possible that he did not know that a group of which he was a member, and with whom he communicated, had downloaded visual imagery without his knowledge. The applicant told the Tribunal that he had tried several times to delete the video and images but he couldn’t. The fact that he first denied knowing about the material and then claimed that he tried to delete it, strongly suggests to the Tribunal that the applicant’s account of this incident is contrived. It seems to the Tribunal that the applicant knew that those videos and material were on his phone prior to the police locating them and that he is being untruthful about the totality of the incident. This attitude and the applicant’s unwillingness to accept responsibility and show any genuine remorse does not suggest to the Tribunal that he will not continue to engage in criminal activity, either knowingly or unknowingly.

30. The applicant has admitted, when pressed, that he acknowledges the seriousness of the crimes he committed but has nevertheless continued to apportion blame to others.

31. Having considered and weighed the matters carefully, the Tribunal makes the following findings.

32. The applicant has demonstrated a reckless disregard and disdain for Australian law on multiple occasions. For example he has blamed others for his stated lack of understanding of the circumstances, firstly of his student visa cancellation, then of his subsequent response to that; he denies the child sex offences stating that he didn’t know the “girl’s age”; he first of all denied to the Tribunal any knowledge of the child abuse material on his phone then claimed he tried to delete it,  and he has blamed the failure of his various agents to represent him properly in court.

33. The applicant is, in the Tribunals mind, at serious risk of committing other crimes. The crimes for which he has been convicted are at the more serious end of the spectrum and include children and the possession of child abuse material.

34. The Tribunal finds that these behaviours and his attitude towards his obligations to the law, and his disregard for the conditions of his previous visa conditions strongly point to the applicant not abiding by any conditions that may be placed on his visa.

35. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

    CONCLUSION

36. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

37. 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

38. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Ann Duffield
    Senior Member