Lazenby (Migration)

[2022] AATA 1859

Lazenby (Migration) [2022] AATA 1859 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luke Bryan Lazenby

REPRESENTATIVE:  Ms Kate Bones

CASE NUMBER:  2207644

Home Affairs REFERENCE(S):               BCC2022/1784963

MEMBER:Linda Holub

DATE:8 June 2022

PLACE OF DECISION:  Sydney

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.

Statement made on 8 June 2022 at 5:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions imposed on visa and requirement of a security – no work and must not engage in criminal conduct – criminal charges and cancellation of substantive visa – application for review of cancellation of substantive visa made out of time with no jurisdiction to review, with application for judicial review in progress – delay in receiving department’s notice of intention to consider cancellation – drug use, mental health diagnosis and treatment – charges proven but applicant found not criminally responsible – conditional release and immigration detention – assessed as low risks of serious harm to others or re-offending – strong support network and offers of accommodation and work when allowed – relationship with and care for young child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 73, 116(1)(e), 189, 269
Migration Regulations 1994 (Cth), item 1305(c), Schedule 2, cls 050.212(4)(a), 050.223, Schedule 8, condition 8564
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 33(1)(c), 78

CASE
Applicant VAAN of 2001 v MIMA (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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 20 May 2022. 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 1994 (Cth) (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 25 May 2022 on the basis that the delegate was not satisfied that the applicant would comply with the conditions imposed on the visa. Specifically, the delegate was not satisfied the applicant will be able to abide by the No Work (8101) visa condition and was unable to be satisfied that the applicant “would not further engage in criminal conduct or meet the requirements of visa condition 8564 (Must Not Engage in Criminal Conduct) if granted the BVE.

4.    The applicant appeared before the Tribunal on 31 May 2022 via video from the Villawood Immigration Detention Facility (VIDF) to give evidence and present arguments. The Tribunal also received oral evidence from the parents of his former partner Ms Traci Ireland and Mr Benson Vernon.

5.    The applicant was represented in relation to the review.

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

BACKGROUND

7.    The applicant was born January 1990 in Rotorua, North Island, New Zealand. He is a New Zealand citizen and is separated.

8.    The Department’s Decision Record (which the applicant did not provide to the Tribunal sets out his migration history). The applicant first arrived in Australia 23 February 2013 as the holder of a Special Category (class TY) (subclass 444) visa that allowed him to remain lawfully in Australia until departure. The applicant travelled to Australia multiple times between 11 June 2013 and 7 April 2018 as the holder of a Special Category (class TY) (subclass 444) visa. On 23 April 2018 the applicant last arrived in Australia travelling on a Special Category (class TY) (subclass 444) visa.

9.    Departmental records indicate on 17 November 2019 the applicant was remanded into criminal custody and charged with the following offences:

1.Resist or hinder Police Officer in the execution of duty

2.Wound person with intent to cause grievous bodily harm

3.two counts of reckless wounding

1. On 3 July 2020 a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Special Category (class TY) (subclass 444) visa was issued under section 116 of the Act. On 27 August 2020 the applicant’s Special Category (class TY) (subclass 444) visa was cancelled under section 116(1)(e) of the Act, as the applicant was found to be a risk to the health, safety or good order of the Australian community, or a segment of the Australian community. As a result, the applicant became an Unlawful Non-Citizen (UNC).

2. On 16 November 2020 the applicant applied to the Administrative Appeals Tribunal for an out of time merits review of the Department’s decision to cancel his substantive visa.

3. On 25 February 2022 the applicant was released from Parklea Correctional Centre under the Mental Health Act. The applicant was subsequently located by the Australian Border Force (ABF) officers as he was known to be an unlawful non-citizen) The applicant was subsequently detained pursuant to section 189 of the Act and transferred to Villawood Immigration Detention Facility where the applicant is currently.

4. On 8 March 2022 the applicant’s merit review at the AAT was finalised with a decision of ‘no jurisdiction’ on the basis the application was lodged outside the prescribed period. On 12 April 2022 the applicant lodged an application for Judicial Review in the High Court of Australia seeking an extension of time to lodge an application to review the AAT’s migration decision. This matter is currently ongoing.

5. On 20 May 2022 while at VIDF the applicant lodged an application for a Bridging Visa E (class WE) (subclass 050) (BVE). The Detention Review Officer was informed about the lodgement of this application on 23 May 2022 as required under Item 1305(c) of the Migration Regulations. It is this BVE application that is currently under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

Whether the applicant will abide by conditions - cl.050.223

1. The issue in this case is whether the applicant will comply with the conditions of the visa.

2. 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.

3. 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].

4. 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.

5. In considering the circumstances of this case, the Tribunal considers the following conditions of relevance to the applicant and should be applied:

6. In this case, cl 050.223 applies because it is a time of decision criterion for a Bridging visa. This clause prescribes that, in addition to any mandatory conditions (8101 – No work), certain conditions may be imposed. The Tribunal considers that the following additional conditions should be imposed in the circumstances of this case:

7. (REPORT AT SPECIFIED TIME AND PLACE)

The holder must report at time or times; and at a place or in a manner specified by the Minister from time to time.

1. (NOTIFY CHANGE OF ADDRESS)

The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

1. (NO CRIMINAL CONDUCT)

The holder must not engage in criminal conduct.

1. In considering whether the applicant will comply with the conditions attached to 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 have been breached, whether there were any mitigating circumstances justifying the breach and whether he has shown any contrition for his unlawful conduct.

Information before the Department

1. In the applicant’s submission to the Department provided by the applicant’s migration representative dated 20 May 2022 outlines the applicant’s background:

   ·   He is citizen of New Zealand and has resided in Australia since 2013. He has a 7-year-old daughter born in April 2015 who currently is in the care of his mother-in-law.

   ·   He was arrested in November 2019 and remanded in custody. He was diagnosed with schizophrenia and commenced treatment.

   ·   On 20 October 2021, the District Court of NSW entered a special verdict finding of act proven but not criminally responsible. He was released on 25 February 2022, on conditions including that he resides with his mother-in-law, receive mental health treatment through Goulburn Community Mental Health Team, and abstain from illicit drug use. Copies of the court orders were provided.

   · Upon his release, the was detained at Villawood IDC. His special category (subclass 444) visa had been cancelled while he was in custody, under s 116(1)(e) of the Migration Act 1958 (the Act), on the basis that he has been charged with an offence. There was delay in the applicant receiving the notice of intention to consider cancellation, such that by the time he provided a response, the cancellation decision had already been made (without important information about his circumstances and his daughter, or the outcome of the charges). He was moved between gaols after the cancellation notice was sent. His appeal to the Administrative Appeals Tribunal (AAT) was dismissed as being made out of time.

   ·   On 11 April 2022, the applicant applied to the High Court for judicial review of the cancellation decision and AAT decision. Legal Aid NSW acts for him in that proceeding. A copy of the sealed application was provided.

2. It was submitted that the applicant satisfies the requirements for the grant of the Bridging visa on the basis of the following:

   · Schedule 2 item 050.212(4)(a) is satisfied as he has applied for judicial review of a decision in relation to a substantive visa.

   ·   if he is granted a BVE, he will abide by the conditions imposed on it. He will live with his mother-in-law and his daughter. A statement from his mother-in-law confirms that she wishes that he lives with her, that she has sufficient room in the house that she owns, and that she is able to support him financially. His father-in-law is also able to provide financial support, confirmed in his letter of support.

   ·   he is willing to report to the Department if required to. There is no basis to consider he would not do so. He is required to reside with his mother-in-law. He wishes to live there and care for his daughter.

   ·   the applicant passes the character test. There is no reason to consider refusal on this basis.

3. It was submitted after entering a special verdict, the District Court determined that the appropriate result was for the applicant to be conditionally released. Accordingly, he does not fall within s 501(7)(e) of the Act, as he was not detained in a facility or institution as a result of the verdict. The submission states there is strong basis for satisfaction that the applicant would not engage in any criminal conduct if he is released. The District Court determined he was not criminally responsible for the offences he was charged with, as he was suffering from a mental illness at the time of the incident. He has since received treatment and continues to take medication.

4. The submission points out that the District Court’s order for conditional release was made under s 33(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). That section requires that the Court must be ‘satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release’. It is significant that having considered all the evidence, the Judge Baly determined that the safety of the community did not require the applicant be detained.

5. Furthermore, the submission highlights that the conditions of the applicant’s release will ensure that he continues to receive appropriate treatment and medication. He is under the jurisdiction and supervision of the Mental Health Review Tribunal (MHRT). The MHRT Tribunal is required to conduct a review as soon as practicable after referral from the Court, and at six-month intervals thereafter (s 78 Mental Health and Cognitive Impairment Forensic Provisions Act 2020). He This applicable statutory scheme is designed to address the safety of the community. In these circumstances, there is no risk of criminal conduct or danger to the community to warrant character consideration.

6. In the submission reference is also made to letters which attest to his good character and the support made available to him which the Tribunal took into account in its deliberations.

7. In the applicant’s statement provided to the Department dated 20 May 2022 he wrote that he is a citizen of New Zealand and that he moved to Australia in 2013 because he had a job arranged in Goulburn, as a tree lopper. He stated that soon after he arrived, he met his partner and has lived in Australia since that time. They have a seven-year-old daughter who is an Australian citizen, as well as a 13-year-old who is the applicant’s stepson, also an Australian citizen.

8. In the statement the applicant talks about fatherhood and his close relationship with his daughter. The applicant wrote that his biggest motivation is to get back to his daughter and that he wants to make up for lost time with her. He outlined important activities they used to share together. He stated he speaks with his daughter several times each day and acknowledged that the separation from her has been difficult and for that reason he would never put himself into this situation again.

9. The applicant also refers to the support provided to him by his partner’s family and that he and his partner got engaged in 2018 but that after he was taken into custody the relationship ended and her mother is now caring for his daughter.

10. The applicant explained that In November 2019, he was arrested and remanded him custody. He stated that the situation arose after he started using ice with his  boss and that he had a bad reaction to the drugs and became really paranoid and had a psychotic episode. He explained that he ended up stabbing his boss and injured two other people who came to help. He stated he was still paranoid after the police arrested him and that he was scared and didn't know where he was or what was happening, and he tried to run away.

11. The applicant wrote that while he was in jail, he was diagnosed with psychosis and schizophrenia and in order to address those issues he spoke to the mental health people in jail and started talking antipsychotic medication which has helped and he has not felt paranoid for a long time now, since he started the medication. He explained that he is still taking the medication.

12. The applicant wrote about the regret he feels for what occurred and the injuries he caused as he is not a violent person. He also wrote that he would never use drugs again. He refers to the effect of ice on the brain and refers to its addictiveness.

13. The statement outlines that the District Court released him on 25 February 2022, with conditions including that he resides with his mother-in-law and that he does not go out at night unless he is with her. In addition, he is required to report to Goulburn Community Mental Health Team, he needs go to appointments, and to follow what the psychiatrist has prescribed for him and he must not use any drugs. He also explained that he needs to do regular urine tests and attend Pathways drug and alcohol counselling. He wrote that he considers those conditions are reasonable and they set appropriate boundaries that will help make sure he does not use drugs again and he knows that if he breaches the conditions, he may have to go to a forensic hospital.

14. In the statement, the applicant explained that if he is granted a Bridging visa, he will be living with the mother of his previous partner and with his daughter and that he wants to be there to take care of his daughter.

15. The applicant confirmed that he will abide by the conditions on a bridging visa and is happy to report to Immigration if needed and that he will respect a 'no work' condition because the mother of his ex-partner is able to support him financially and wants him to be back to care for his daughter.

Pre-hearing submissions

1. The Tribunal received a submission from the applicant’s migration representative dated 30 May 2022 which included evidence statements from the applicant’s father (undated) and mother (dated 27 May 2022), a copy of a payslip for Brandan Rapley and a report of forensic psychiatrist Dr Sathish Dayalan dated 13 December 2021.

2. The submission states that the applicant continues to rely on the evidence provided to the Department provided in support of the applicant’s application and states that the evidence before the Tribunal in these proceedings demonstrates that the applicant will abide by the conditions imposed on a BVE if the visa is granted. It also refers to the support letters prepared by Mr Lazenby’s parents, who indicate they are able and willing to provide him with ongoing financial support.

3. It was submitted that given the strong support network available to the applicant in the community and his demonstrated commitment to caring for his daughter, a finding can be made by the Tribunal that the applicant will not breach the conditions of his visa by engaging in paid employment to support himself.

4. It reiterates previous submissions that the applicant will comply with the condition of the BVE, that he does not engage in criminal conduct and points to the enclosed report of Dr Dalayan dated 13 December 2021, relied on by the District Court in making a Conditional Release Order (CRO) on 25 February 2022, assesses the applicant as being a low risk of serious harm to others, based on structured assessment of Mr Lazenby’s historical and clinical risk factors. It is on this basis that Dr Dalayan recommends a CRO as appropriate in the circumstances, given that ‘the indications are that the applicant will continue complying with his psychiatric treatment and rehabilitation provided he receives regular supervision.’

5. The submission states that the District Court relied on this assessment and imposed a CRO containing the specific orders proposed by Dr Dalayan, indicating the Court’s acceptance of Dr Dalayan’s assessment as to Mr Lazenby’s low risk of engaging in criminal conduct in the future subject to compliance with the CRO. It states there is no evidence to suggest that the applicant will not comply with the CRO and noted the applicant’s testimony in his statement dated 20 May 2022 as to his understanding of, and demonstrated willingness to comply with, the orders of the District Court, by living with Ms Ireland and his daughter, engaging with mental health services and drug counselling, and following all other orders of the Court and the Mental Health Review Tribunal (MHRT).

1. As previously noted by Legal Aid in submissions to the Department dated 20 May 2022 the MHRT is required to conduct a review as soon as practicable after referral from the Court, and at six-month intervals thereafter (s 78 Mental Health and Cognitive Impairment Forensic Provisions Act 2020). This applicable statutory scheme is designed to address the safety of the community. In these circumstances, there is no risk of criminal conduct or danger to the community to warrant a finding that the applicant will not comply with his visa conditions.

2. The letter of support provided by the applicant’s father states that he is fully aware of his son’s current immigration status in Australia and the current review by the AAT of his declined Bridging Visa Application by the Department of Home Affairs. He also wrote that he knows of the stipulations imposed by his court release dated 25/02/2022 and the restrictions imposed on him by the immigration department should he be released from detention while awaiting his High Court appeal of Visa cancelation.

3. The applicant’s father wrote that the very serious acts that occurred in November 2019 was a great shock and sadness to him and the applicant’s New Zealand family. He wrote of their disbelief and their concern for the devastation this has caused to the victims and their families. He stated his son is very remorseful for what he has done and has readily embraced the mental health services and ongoing support that he requires.

4. Importantly, he stated that the applicant’s Australian & New Zealand families will be constantly supporting him & his daughter to regain their close loving relationship & Luke's full return to being a constructive member of the Australian community. Additionally, he outlined the support both emotionally and financially by the parents of the applicant’s former partner including accommodation for the applicant and his daughter in Goulburn as stipulated by court order. He also referred to the applicant’s financial needs that will be catered for while he is not permitted to engage in paid employment when returned to Goulburn under conditions of a bridging visa.

5. The applicant’s father wrote that the applicant’s support network consists of the extended family of his daughter in Australia and his family in New Zealand are fully supportive of his hopes to stay in Australia to be with his daughter. For further financial support if and when required both the applicant’s mother and he will individually and collectively provide financial assistance to the applicant and his daughter from New Zealand as they have been doing since late 2019. He wrote they will continue to do this until Luke is allowed to resume work & regain his financial independence to provide for himself & daughter.

6. The applicant’s father referred to the applicant’s savings account in New Zealand containing approx. $NZ3000 which has been kept specifically to meet any financial costs when released from detention and the funds can be drawn on immediately if required. In addition, he has personally set aside a specific savings account from 2020 onwards to accumulate a fund to allow the applicant a helping hand to re-establish his life in Australia or New Zealand once his immigration status has been finalised. This account currently has over $10,000 and is available if necessary, at short notice. The applicant is also a beneficiary of a family trust that his father established shortly after he and his wife separated amicably many years ago. That trust contains a residential property in Rotorua NZ plus a bank account containing further funds. The applicant’s father wrote that in extenuating circumstances those funds could be drawn upon for Luke's benefit although it would be a last resort. He stated that he is the settling Trustee of the Lazenby family trust, and Luke's welfare would be sufficient reason to access the trust moneys.

7. In her letter, the applicant’s mother wrote she wishes to express her ongoing support for Luke financially and emotionally. She wrote of the family’s devastation by the events that took place in November 2019 including for the victims and their families. She stated that it was out of character for the applicant.

8. The applicant’s mother also attested to the support she and her former husband as well as the grandparents of his daughter and wider family members and friends are able and willing to provide the applicant.

9. A copy of a risk assessment dated 13 December 2021 was provided to the Tribunal undertaken by Dr Sathish Dayalan who is a forensic psychiatrist. In a section on risk formulation, the report states:

   “Mr Lazenby is noted to have a low to moderate loading of historical risk factors and a low loading of clinical risk factors. In his current mental state whilst in remission of his psychotic symptoms and remaining abstinent from substances, Mr Lazenby would be regarded to pose a low risk of serious harm to others. The future management variables, especially the treatment and level of supervision received following release into the community will play a significant role in influencing his future risk of violence”.

Oral evidence at hearing

1. The Tribunal took oral evidence from the applicant and discussed with him the conditions the Tribunal was considering imposing on the bridging visa.

2. At hearing the applicant explained that the pay slip provided from Brandon Rapley was provided in support of the claims made in Mr Rapley’s letter of 18 May 2022 that he is “willing to keep standing by Luke and help him every step of the way till these issues are resolved weather (sic) it means financial or a place to stay”. The applicant explained that Mr Rappley is his ex-partner’s brother-in-law.

3. The Tribunal discussed with the applicant the conditions that had been set by the District Court for his conditional release. The Tribunal explained to him that to some extent his compliance with those conditions can provide some reassurance to the Tribunal that he will comply with the conditions that the Tribunal is considering applying to his visa.

4. The Tribunal referred to the delegate’s decision in which the delegate had noted that the applicant had not provided any evidence of current psychiatric or medical reports to corroborate claims that he is compliant with prescribed medication and that he attends counselling. The Tribunal explained that while he has provided significant evidence in relation to the financial support, he is able to harness, the lack of evidence referred to by the delegate does appear to be critical in the Tribunal’s own consideration. The Tribunal acknowledged that in view of his detention, it may be difficult to comply with the District Court conditions.

5. In relation to the mediation that has been prescribed to him the applicant told the Tribunal that every evening he attends the nurses’ station where it is dispensed to him. The Tribunal discussed with him the possibility of him providing evidence of that. The applicant stated that he takes the medication once and that he had already requested evidence of his compliance with his medication regime. The applicant’s migration representative explained that generally speaking obtaining evidence from the health provider at the detention facility can be a lengthy process and, in her experience, may not be achievable in the timeframe for the decision.

6. The applicant told the Tribunal that it is not possible for him to do the urine testing while in detention but has no problem doing the testing.

7. In relation to access to counselling while he is in detention, the applicant explained that he has had two meetings. He stated that he has had one meeting with a psychiatrist about a about a week or two ago which was essentially explaining what had occurred and about his situation and the other meeting was about the arrangements regarding his supervision by the Mental Health Review Tribunal. The Tribunal was told that he has a meeting with the Tribunal arranged for 9 June 2022. He stated there had been some delay because they thought he had returned to New Zealand.

8. The applicant’s migration representative in oral submissions explained to the Tribunal that it was her understanding that given the resourcing of counselling services at the Villawood Immigration Detention Facility, it was her understanding that there had been some staffing changes which may also impact on the applicant’s ability to gain access to counselling.

9. It was agreed that the applicant and his representative would continue their attempts to obtain evidence of the applicant’s compliance with prescribed medication and in relation to his access and/or lack of access to counselling while in detention.

10. The applicant stated that he has no problem abiding by the no criminal conduct condition but is unsure of its relevance as he has no criminal charges against him and does not have any criminal contacts or any association with criminals. Acknowledging that he had one driving office the applicant stated that he has always been a functioning member of society who has always worked and looked after his family. It was his contention that the condition should not apply to him.

11. On this point the applicant’s migration representative made oral submissions that the applicant had referred to the District Court outcome which found that the applicant had not been criminally responsible and also noted that the applicant did not have a criminal record prior to that event nor since. She stated that it is understood given the seriousness of what occurred why the Department and now the Tribunal is considering the No Criminal Conduct condition.

12. The applicant stated he has once or twice daily contact with his daughter using Facetime and she has visited him on several occasions when family members have brought her for a visit. He stated that he is trying to have as much connection with her as possible to remain connected to her and her life.

13. In discussing the No Work condition, the Tribunal referred to the letter of support provided by the applicant’s father and noted that he wrote that copies of statements in regard to the applicant’s accounts can be provided in support of the claims. The Tribunal requested they be provided as soon as possible.

14. The Tribunal asked the applicant to elaborate on the offers of support from family members. He stated that financial support offered to him is on an ongoing basis. He stated that everyone is willing to chip in. He stated that his former partner’s mother is there to support him and provide a roof over his head and other family members have indicated their support for him.

15. The applicant stated that he is not aware of the whereabouts of his former partner.

Oral evidence provided by Mr Bensen

1. The witness stated that the applicant is like a son to him. He stated they first met about 10 years ago after which the started dating his daughter. He stated that he has not spoken to his daughter for a while. He stated that she had some problems following the applicant being held on remand.

2. The witness told the Tribunal that his offer to support the applicant stands as long as it is needed by the applicant. He stated they offer him a good home to live in and a roof over his head. He stated that he has a nice four-bedroom home in the country. He stated that while he and his former wife are no longer together, they still get along well. As grandparents they are concerned for their granddaughter and that concern is extended to the applicant as they want him to be available to their granddaughter as her father.

3. The witness told the Tribunal that he is fully aware of the situation that led to the applicant’s arrest and charges. He stated that he can attest to it being out of character for the applicant.

4. In relation to the Must Not in Engage in Criminal Conduct condition under consideration by the Tribunal and previously applied by the Department, the witness stated that he does not condone what happened and he would not like to see anyone in that condition. He stated that he is not involved in any criminal activity. He stated that he lives and works in Goulburn and for him to put his name to anything is a big thing. He stated that he only recalls ever providing three references. He explained he runs a small earth moving busines and is self-employed and therefore would not want to jeopardise his reputation putting his name to someone that might be a problem. In his view the applicant has learnt his lesson and he feels sure the applicant will not associate with the people who provided the drugs nor with any other criminal

5. When asked if he wished to provide any other evidence the witness stated that most people who were in a similar situation to the applicant following their release would have packed their bags and left the country. He stated that the applicant has shown he is prepared to stay in Villawood and go through the legal processes to be with his daughter. He stated that not many people would do that. He stated the applicant is a good bloke and is good with the family and good with children. He stated the applicant has the support of his own family and the witness’s family. He stated that not many families would be willing to support an ex-partner and be willing to go out on a limb and invite him to live in their home for as long it will take to resolve the situation he is faced with.

6. In relation to financial matters, the witness stated that the applicant will have everything he needs – a good home, a warm house and his food will be provided. He will be able to join in family activities and take care of his daughter (especially in the absence of her mother).

7. The applicant’s former partner’s mother also gave oral evidence. She stated that she will stand by the applicant for the long term. She stated that she understands that his High Court application could take two or three years and she has no problem supporting the applicant during that time. She stated that she will be there for the long term. She stated that she has a five-bedroom house and that she works and earns enough to support him.

8. The witness also stated that she is aware of the applicant’s District Court conditions and will ensure that he abides by them. She said she will do whatever is required to assist in his recovery and she has this responsibility under the District Court conditions and has no problem with undertaking this role. The witness stated that she herself is well supported in doing so. She referred to her mother who supports and helps her, as well as her former partner (Mr Bensen) who is very good to her and who also wants the applicant home and is prepared to be part of the support arrangements. She also referred to her youngest daughter and her partner as well as the applicant’s own parent.

9. The witness stated that the applicant is a great guy and has been part of the family since 2013. She stated that he deserves a second chance, and she is willing to give it to him. She stated that his young daughter is beautiful and that he talks to her every day.

10. In relation to her daughter, she gave evidence that she struggled to cope when the applicant was detained, and they broke up. She stated that unfortunately she has little to do with the family since then which is very hard on the applicant’s daughter. She stated that he has lost a lot of time with his daughter and is trying to make up for it.

11. The witness also referred to the framework she will provide the applicant. She stated that she has rules at home. She stated that he won’t be lounging around doing nothing. She stated that her expectation is that he will help around the house and be taking responsibility for the care of his daughter including being involved with her schooling and helping her with her homework. She stated that he has good values, and she feels sure he will not end up in the same situation.

Oral submissions by the applicant’s migration representative

1. The applicant’s migration representative made oral submissions reinforcing the evidence that the applicant has strong family support, that he is at low risk in engaging in criminal activities and she referenced the forensic psychiatrist report in support of her oral submissions. The representative referred to the assessment of risk undertaken into account by the District Court in its conditional release order (referred to above).

Post hearing submissions

1. At the end of the hearing the Tribunal discussed with the applicant post hearing submissions it was seeking, including in relation to the financial support available to him as well any evidence he is able to obtain regarding his compliance with his medications and counselling. In view of the potential difficulties to obtain some of the information during his detention the Tribunal explained to the applicant that in such detention cases, the Tribunal has seven working days after the day on which the review application is received in which to make a decision the applicant has provided consent to a longer period,

2. The applicant agreed to provide such consent and in discussion it was agreed that the applicant would provide submissions by 8 June 2022 with the Tribunal making its decision on the same day. It was also agreed that written consent would be provided by applicant by 1 June 2022.

3. On 1 June 2022 the Tribunal received an email on behalf of the applicant from his migration representative stating that the email constitutes written consent on behalf of Mr Lazenby for the Tribunal to make a decision by Wednesday 8 June 2022 regarding his review matter.

4. Attached to the email were copies of bank statements in respect of:

   ·the applicant showing his savings in a Westpac bank account, and

   ·the applicant’s father in relation to an account called Luke’s Savings. It is annotated as an account held by the applicant’s father in relation to savings for the applicant, consistent with pre-hearing submissions.

5. On 8 June 2022 the Tribunal again received an email on behalf of the applicant from his migration representative. It refers to the discussion at the hearing during which the Tribunal requested that the applicant obtain evidence of his compliance with medication and counselling.  The email states that the records received from the service provider at the Villawood Immigration Detention Centre do not contain a daily record of medication administration, so the applicant is unable to provide that evidence to the Tribunal. However, the Tribunal was provided with:

   ·Notes from a recent mental health consultation conducted with Dr David Lienert (psychiatrist) dated 19 May 2022, and

   ·A list of current medications prescribed to the applicant, including ‘Amisulpride Tablets 200mg’.

6. The submission states that “relevantly the notes from Dr Leinert’s consultation with the applicant state that he is ‘[t]olerating Amisulpride – he states he is in actual fact taking it at night as sleeps in’”. The notes from Dr Lienert ongoing psychiatric supervision and do not include any concerns or non-compliance with his medication.

Findings

1. As noted above, cl 050.223 applies because it is a time of decision criterion for a Bridging visa it applies in this case. The Tribunal considers that the following conditions should be imposed in this case:

   8101    (NO WORK)

   8401    (REPORT AT SPECIFIED TIME AND PLACE)

   8506    (NOTIFY CHANGE OF ADDRESS)

   8564    (NO CRIMINAL CONDUCT)

2. The Tribunal is satisfied based on the written, oral and documentary evidence before it that the applicant will abide by the conditions specified. The oral evidence presented by the applicant’s former partner’s parents (who grandparents of his daughter) was clearly heartfelt and generous.

3. The Tribunal was satisfied that the grandparents understood that the support may potentially be required for some years, depending on the progress of the applicant’s High Court application. They impressed the Tribunal with their clarity regarding their acceptance of the applicant into the family, why and how they are prepared to support him and in the case of the former partner’s mother, the support network around her to enable her to support the applicant. This gave the Tribunal some confidence that she and the family understood the potential impact the responsibilities may have on her.

1. Furthermore, the Tribunal put significant weight on the evidence presented regarding the structure that will be in place and the responsibilities the applicant will have which satisfied the Tribunal that he will not engage in criminal conduct. The Tribunal took into account the evidence of the applicant’s former partner’s father outlined to the Tribunal in relation to his reputation and standing in his local town he has lived his whole life which is particularly important in the context of his running a small business on which he is reliant. The Tribunal considers it significant that he does want to jeopardise that in any way by supporting someone engaging in criminal conduct.

2. While the Tribunal has taken into account the seriousness of the offences the applicant was charged with, the Tribunal also put weight on his applicant’s oral evidence supported by District Court documents regarding his conditional release and its determination that he was not criminally responsible for the offences with which he was charged as a result of him suffering from a mental illness.

3. While the Tribunal’s findings above relate to all four conditions, in relation to the mandatory No Work condition, the Tribunal has specifically had regard to the evidence that the applicant’s former partner’s mother who is committed to providing accommodation for the applicant and his daughter and supporting him financially together with her former husband as well as the applicant’s parents. In addition, the Tribunal has had regard to the documentary evidence regarding the applicant’s access to funds and also the commitments made by other family.

4. The medical evidence provided post-hearing although not as extensive as the Tribunal had hoped provides further evidentiary basis that the applicant is doing whatever he can to comply with the regime set for him by the District Court. Combined with the assessment of risk by the forensic psychiatrist  provides the Tribunal with the confidence for it to be satisfied that the applicant will comply with the conditions of the Bridging visa.

5. For the reasons set out, the Tribunal is satisfied the applicant meets the requirements of cl.050.223.

6. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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.

Linda Holub
Member