King (Migration)

[2020] AATA 1067

King (Migration) [2020] AATA 1067 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hylton Miharo Konu King

CASE NUMBER:  2005645

DIBP REFERENCE(S):  BCC2020/1202415

MEMBER:Linda Symons

DATE:30 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2020 at 2:41pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – reporting and notification requirements – no criminal conduct requirement – personal circumstances – past conduct – immigration history – criminal history – three domestic violence orders against the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8401, 8506, 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 to the Department of Immigration (the Department) for the visa on 17 March 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 visa was made on 20 March 2020 on the basis that the delegate was not satisfied that the applicant will abide by the conditions of the visa. The applicant appeared before the Tribunal on 30 March 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent, Mr McComber, who attended the hearing.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether the applicant satisfies the requirements of cl.050.223.

   Whether the applicant will abide by conditions - cl.050.223

7. Clause 050.223 requires that the Tribunal is satisfied, at the time of decision, that if a Bridging visa is granted to the applicant, he 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.

8. 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 his unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

9. 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.

10. In this case, cl.050.223 applies because it is a time of decision criterion for the Bridging visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8401 Report as required

    ·8506 Notify the Department at least 2 working days prior to changing address

    ·8564 Not engage in criminal conduct

11. In considering whether the applicant will comply with the conditions on the Bridging visa, the Tribunal has had regard to his personal circumstances, his financial circumstances, his immigration history, previous breaches of immigration laws, the significance of the immigration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying the breach, whether he has shown any contrition for his unlawful conduct, the evidence given by his mother and the written and oral submissions made by his migration agent.

12. In considering whether the applicant will comply with condition 8401 if granted a Bridging visa, the Tribunal has had regard to the applicant’s evidence that he is currently on bail with reporting conditions and complied with those conditions (prior to his detention). His mother gave evidence that she has driven him to the local Police Station to report on Mondays, Wednesdays and Fridays.

13. The Tribunal is of the view that reporting to the Police as required by bail conditions and the consequences for failing to do so are very different from reporting to the Department of Immigration (the Department) as required by visa conditions and the consequences for failing to do so. The Tribunal is of the view that the likelihood of the applicant complying with this condition would depend on whether he is complying with the other conditions of the visa, in particular condition 8564.

14. In considering whether the applicant will comply with condition 8506 if granted a Bridging visa, the Tribunal has had regard to the applicant’s evidence that he is currently on bail with a condition that he must reside at his mother’s home at Keperra in Queensland. His evidence is that, if granted a Bridging visa, he will reside with his mother and that she will support him financially until such time as he can find employment. His mother confirmed this in her evidence to the Tribunal.

15. The Tribunal notes that if the applicant leaves his mother’s residence and resides elsewhere, without changing his bail conditions, he would be in breach of a condition of his bail. This may provide an incentive for him to remain living at his mother’s residence if granted a Bridging visa. It is of concern to the Tribunal, however, that he has had a domestic violence order against him for the protection of his mother in the past and if this becomes an issue again he will not be able to reside with his mother. The Tribunal has concerns that this may lead to him breaching condition 8506. The Tribunal is of the view that if he does not comply with the other conditions of his visa, particularly condition 8564, it is unlikely that he will comply with this condition of the visa.

16. In considering whether the applicant will comply with condition 8564 if granted a Bridging visa, the Tribunal has had regard to his personal circumstances, his immigration history, his criminal history and his history of interactions with the Police and the Courts. The records of the Department indicate that he was granted a subclass 444 Special Category visa on 10 February 2018 and that visa was cancelled on 5 September 2019. He thereafter remained in Australia as an unlawful non-citizen. He was taken into immigration detention on 20 November 2019 and has remained in detention since then.

17. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it raised concerns that he was someone who did not respect Australia’s immigration laws and that he may not comply with the conditions of a Bridging visa if granted one. He responded that he did not know that he was supposed to contact the Department and regularise his immigration status. He stated that, if he had known, he would have done so on the date that his subclass 444 visa was cancelled. He stated that he was on bail and thought that the Department would pick him up as soon as his visa was cancelled but they did not do so. When the Tribunal pointed out that it was his responsibility to ensure that he was living in Australia lawfully, he agreed.

18. The applicant’s migration agent submitted that, if the applicant had approached the Department to regularise his immigration status, it was unlikely that he would have been issued with a Bridging E Visa and was therefore handing himself in to be detained for an indefinite period. He submitted that the Department was aware of his residential address and that he was reporting to the Police three times a week. He stated that it was not a case where he tried to run away, conceal himself or engage in acts that prevented the Department from finding him.

19. The Tribunal is not persuaded by these submissions or the applicant’s evidence that he was not aware that he was supposed to regularise his immigration status. The Tribunal is of the view that it is the applicant’s responsibility to ensure that he complies with Australia’s immigration laws. His failure to do so in the past raises concerns that he will not comply with them in the future and does not inspire any confidence in the Tribunal that he will ensure that he complies with the conditions of his visa.

20. The evidence before the Tribunal is that the applicant was found guilty of possession of a knife in 2016 or 2017 and fined. He was found guilty of possession of a dangerous drug in 2018 and fined. He was found guilty of contravene direction or requirement in 2019 and fined. His evidence is that he was not convicted in relation to these offences. He was involved in an incident in 2019 which led to him being charged with two counts of assaulting Police officers to which he has pleaded not guilty and is awaiting trial in July 2020. The evidence before the Tribunal is that between 2016 and 2019 he has had three domestic violence orders issued against him in relation to three different women one of whom is his mother and the other two being former girlfriends.

21. The applicant’s migration agent submitted that the applicant did not have a conviction recorded against him in relation to the three criminal offences for which he was fined. He disagreed with the delegate’s finding that his client’s past criminal offending had an adverse impact on members of the community. These factors may be relevant for a plea in mitigation in criminal proceedings but are not relevant to the issues before the Tribunal. The Tribunal needs to be satisfied that he will comply with the conditions of a Bridging visa if granted one.

22. The applicant’s migration agent submitted that the three domestic violence orders against the applicant were made on the basis that he consented to the orders without admissions. He submitted that the fact that the Police did not charge him with any criminal offences arising from those incidents indicates that the Police were not satisfied that he had committed a criminal offence and this cannot lead to a conclusion that he had engaged in criminal conduct. The Tribunal is not persuaded by this submission and does not accept it. The fact that the domestic violence orders were issued indicates that three different women including his own mother, over a period of several years, either sought the protection of the Police against him themselves or had someone else seek the assistance of the Police on their behalf. It also indicates that there was sufficient evidence, prima facie, for the Police or the Court to issue proceedings for his attendance before the Court. It is indicative of a pattern of unlawful behaviour.

23. The applicant’s migration agent submitted that the applicant has not been convicted of the assault charges that are pending before the Court and that it is dangerous or unlawful for an administrative decision-maker to proceed on the basis that a criminal charge is definitive evidence of guilt. He also submitted that it is dangerous for an administrative decision-maker to use a noncitizen’s decision to exercise his common-law right to silence in a manner that is adverse to him. These are matters that are relevant in criminal law proceedings. The issue for the Tribunal is whether he will comply with the conditions of a Bridging visa if granted one. The Tribunal is entitled to have regard to his past conduct (including his interactions with the Police and the Courts) and his personal circumstances when considering his likely future conduct in relation to compliance with the visa conditions.

24. Having considered all the evidence and the submissions, the Tribunal is not satisfied that the applicant will comply with the conditions of the Bridging visa. His immigration history, his criminal history and his past conduct indicates that he is not someone who respects Australia’s laws and does not inspire any confidence that he will comply with the conditions of the Bridging visa in the future.

25. The Tribunal is not satisfied that the applicant will comply with the conditions of the Bridging visa regardless of any security bond that may be imposed. The Tribunal is not satisfied that his mother has the financial capacity to pay a security bond or the authority to ensure that he complies with the conditions of a Bridging visa.

26. Accordingly, the Tribunal is not satisfied that the applicant will comply with the conditions imposed on the Bridging visa. Therefore, the Tribunal finds that the applicant does not meet the requirements of cl.050.223.

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

28. 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

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

    L. Symons

    
             

    Member