Livingston Utu (Migration)
[2019] AATA 3830
•24 June 2019
Livingston Utu (Migration) [2019] AATA 3830 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr McCann Livingston Utu
CASE NUMBER: 1915243
DIBP REFERENCE(S): BCC2018/2181463
MEMBER:Brendan Darcy
DATE:24 June 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 24 June 2019 at 1:12pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no work requirement – financially supported by adult children – no criminal conduct requirement – extensive criminal history – record of recidivism – contravention of orders – emotional and psychological condition – easily provoked or triggered into committing further criminal offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.222, 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8506, 8564
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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).
The applicant applied for the visa on 10 June 2019. 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 clauses 050.211, 050.212 and 050.222.
The decision to refuse to grant the visa was made on 12 June 2019 on the basis that the applicant will not meet requirements 050.223 as the delegate was not satisfied the applicant will abide by any conditions imposed on him, if the visa were granted.
The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments via a video-conferencing facility between the Tribunal’s Melbourne office and Yongah Hill Immigration Detention Centre in Western Australia.
The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in 26 October 1976 in American Samoa and is a citizen of New Zealand. He first entered Australia in June 2005 while holding a Class TY Subclass 444 Special Category visa.
The applicant was granted a further Subclass 444 visa on 1 June 2016. This visa was cancelled on 1 October 2018.
On 8 October 2018, the applicant was detained by Immigration officials and placed into immigration detention (where he has remained to date).
10. The applicant applied to have the cancellation decision reviewed by the Tribunal on 15 October 2018. However he was unsuccessful as the Tribunal affirmed the decision to cancel the applicant’s Subclass 444 visa. The applicant subsequently lodged for the Tribunal’s decision to be reviewed by the Federal Circuit Court on 30 November 2018.
11. On 7 January 2019, the applicant applied for a Bridging E (Class WE) visa on the grounds that a judicial review was pending. The Tribunal has a copy of the Notice and Filing and Hearing and is aware that the matter is listed for hearing on 9 August 2019.
12. However, on 18 February 2019, the applicant was issued the delegate’s decision to refuse him the visa on the basis that the delegate was not satisfied the applicant would abide by the conditions imposed on a bridging visa if it were granted.
13. The applicant validly applied to have the refused bridging visa reviewed by the Tribunal on 19 February 2019 but again the Tribunal affirmed the decision not to grant the visa on 27 February 2019.
14. The applicant invalidly applied for further bridging visas on 19 March 2019 and 25 March 2019. He validly applied for a bridging visa on 28 March 2019; however that bridging visa was refused.
15. On 10 June 2019, the applicant applied for a subsequent Subclass 050 bridging visa. At the time of application the applicant’s judicial review of a cancelled Subclass 444 visa was pending.
16. On 12 June 2019, he was again unsuccessful with the delegate refusing to grant the visa on the basis the applicant will not uphold the condition imposed on him.
17. This review before the Tribunal was validly lodged on 20 June 2019.
18. The applicant claimed to be in an ongoing spousal relationship with his wife with whom he has seven children: two adult children and five under the age of eighteen years.
Criminal history
19. The applicant has an extensive criminal history in New South Wales and Victoria involving assault, domestic violence, contravening apprehended violence orders, driving offences, damaging and destroying property; and possessing firearms and ammunition without licences.
20. The applicant has also been subject to a number of court results and penalties including fines, apprehended violence orders, community correction for over 12 months, imprisonment and a court order to destroy property without consent.
21. A list of the court dates, offences and court outcomes between 2007 and 2018 based on submitted documents to the Department and the Tribunal are attached to this decision (Attachment One).
Procedural matters
22. There were no non-disclosure notices attached to the applicant’s departmental material.
23. The applicant’s adult daughter was to provide oral evidence at the hearing. However she was unable to attend the Melbourne offices. The Tribunal asked the applicant how he would like to proceed in these circumstances; to which, the applicant responded that that he wished the Tribunal to rely on her written statements.
CONSIDERATION OF CLAIMS AND EVIDENCE
Immigration status of the applicant - cl.050.211
24. Clause 050.211 is met if, at the time of application:
(1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and
(2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17).
25. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
26. The Tribunal is satisfied that the applicant was an unlawful non-citizen at the time of application and the time of this decision.
27. Accordingly, the applicant meets cl.050.211(1).
28. The Tribunal is satisfied that the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant meets cl.050.211(2).
29. Therefore, the applicant meets cl.050.211.
The grounds for seeking the visa - cl.050.212
30. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.212.
31. In this case, the applicant is seeking to meet cl.050.212(4)(a). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.
32. Subclause 050.212(4) is met if the applicant or the Minister has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa, and the judicial review proceedings have not been completed. The applicant had appealed to a Federal court the Tribunal’s decision to affirm the decision to cancel the applicant’s Subclass 444 (Special Category) visa at the time of application. As discussed at the hearing, a court hearing on 9 August 2019 had been listed.
33. Accordingly, the applicant meets cl.050.212.
Whether the applicant continues to satisfy the time of application criteria - cl.050.221
34. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.
35. Based on the information above and with evidence to the contrary, the Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.
The requirement to be interviewed by an authorised officer - cl.050.222
36. 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).
37. It is noted that in the delegate’s decision, the delegate indicated that the applicant had been interviewed by an officer authorised for the purposes of clause 050.222(1).
38. With no evidence to the contrary, the applicant meets cl.050.222.
Whether the applicant will abide by conditions - cl.050.223
39. 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.
40. 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].
41. 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
42. In the circumstances of this case, the Tribunal considers that the following conditions would be imposed on the Bridging E visa, and notes that these were the same conditions considered by the delegate:
8101: The holder must not engage in work in Australia (No work condition) which is a mandatory condition;
8207:The holder must not engage in study in Australia (No study condition);
8401: The holder must report (a) at a time or times; and (b) at a place specified by the Minister for the purpose (Reporting condition) which is a discretionary condition;
8506:The holder must notify Immigration at least 2 working days in advance of any change in their address (Notify change of address condition) which is a discretionary condition; and
8564: The holder must not engage in criminal conduct (No criminal activity condition) which is a discretionary condition
FINDINGS AND REASONS
43. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed as the applicant does not meet clause 050.223.
44. The applicant submitted a significant amount of material for the Tribunal to consider, including statements by the applicant dated 5 February 2019, 21 May 2019 and 18 June 2019; statements and pay advice documents from his adult daughter Ms Moesha Livingston Utu, and his adult son, Mr McCann Junior Livingston Utu; a statement from Mr George Nous who will provide the applicant with a residence if he were in the community; and a number of character letters from Ms Suzie Barun and Ms Tracy Mitchell.
45. There is also a signed 'Code of Behaviour for Public Interest Criterion 4022' that the applicant signed on 24 February 2019.
46. Of particular interest to the Tribunal was a psychology report dated 3 June 2019 indicating the applicant requires to be treated medically and psychologically for Post Traumatic Stress Disorder (PTSD) as well as Major Depression Disorder and Adjustment Disorder.
47. There is also a medical referral for the applicant to be treated by an ophthalmologist and medical evidence from the IHMS who provide health services to non-citizens held in immigration detention.
8101- No Work
48. The applicant claimed that his two adult children will be able to financially support him in the community and insisted he will not work. The applicant’s adult daughter is a sole parent of the applicant’s two grandchildren. She earns only a modest income. The applicant elaborated that his adult daughter will move to live with him in Melbourne, which is customary in Samoan culture. The applicant’s adult son does not have any dependants and also earns a modest income. Despite the lack of combined earnings, the Tribunal accepts the applicant is not strongly motivated to work and that he will be in a position to care for his grandchildren while his daughter works full time while residing with her father at an address in Melbourne. It is further noted the nature of the applicant’s criminal offences are not substantially represented by acts of theft or fraud for financial gain. The Tribunal accepts the applicant is not strongly or intensely driven to earn money to meet a lifestyle he cannot afford. It is accepted that he is genuinely focused on his paternal role within his large Samoan family. In his circumstances, the combined incomes of the applicant’s adult children will cover their living expenses, cumulatively considered. Accordingly, it finds the applicant will abide with condition 8101 if it were imposed on his visa.
Condition 8207- No study condition
49. The Tribunal notes that the applicant has completed the equivalent of Year 12 in his country of birth and that he began but did not complete a trade qualification while in New Zealand. The applicant does not have any strong interests in pursuing further education or qualifications. Accordingly, it finds the applicant will abide with condition 8207 if it were imposed on his visa.
Condition 8401 - Reporting condition
50. The Tribunal notes that the applicant does not have a history of non-compliance with the migration laws of Australia. The applicant has attended all the court hearings for criminal offences for which he has been accused in the past. During the hearing, the applicant insisted he will be obedient and stay away from trouble in order to be compliant with condition 8401. On balance, the Tribunal accepts this in the context of his otherwise compliant history with Australia’s migration laws. Accordingly, it finds the applicant will abide with condition 8401 if it were imposed on his visa.
8506 – Notify change of address
51. The applicant claims that he has identified a rental address in Doveton in metropolitan Melbourne belonging to a friend of his, Mr Nous. The applicant insisted he will be compliant by notifying the Department of any change of address. The Tribunal notes that the applicant does not have a history of non-compliance with the migration laws of Australia. The applicant has attended all the court hearings for criminal offences for which he has been accused in the past. On balance, the Tribunal accepts this in the context of his otherwise compliant history with Australia’s migration laws. Accordingly, it finds the applicant will abide with condition 8506 if it were imposed on his visa.
8564 – Must not engage in criminal conduct
52. Between 2007 and 2018, the applicant has collected an elongated list of serious criminal offences against his name. In the applicant’s written statements and during the hearing, the applicant expressed his remorse for these breaches. He has provided evidence that he is a religious person who prays and that he has been well behaved while in immigration detention. The applicant has also provided a number of favourable character references to support his contention that should this bridging visa be granted he will abide with condition 8564.
53. During the hearing, the Tribunal heard that the applicant experienced trauma when he was so severely beaten by his wife’s uncles in 2014 that he was hospitalised and lost an eye. He submitted a psychologist’s report to support this as evidence of this trauma. The applicant said that he is undertaking counselling to address his feelings of antagonism, violence and self-destruction. The applicant claimed that that one of the underlying reasons for his difficulties with anger and violence has been excessive drinking of alcohol and kava (Pacific island herb with sedating effects) consumption. He also mentioned growing up in a culture where machismo (or being a macho man, as the applicant described it) was overly valued and that he had behavioural problems since he was 18 years of age after an injury to his head. However, he claimed, he has addressed these problems. The applicant claimed that he will walk away from any situation that will tempt him to commit criminal offences and that he will contact someone from his church or a mental health counsellor to assist him.
54. It is further noted that the applicant claimed that he pleaded guilty to all the offences he had been accused but claimed that he was often taking the blame on behalf of other people. In this regard, he claimed he did not commit the offence he pleaded guilty in 2007 as well as the most recent October 2018 offence involving firearms. Yet he admitted to associating with the wrong people.
55. Nonetheless he accepted that he contravened family violence orders against his wife in NSW and one against a girlfriend while in Melbourne. The applicant has been subject to bail conditions, community correction orders, and family violence orders; and he has paid finds, been imprisoned and had property confiscated. The applicant’s reoffending and contravened orders in the past are so considerable that it is difficult to foresee the applicant remaining compliant with condition 8564.
56. The applicant has consistently argued that he will not re-offend in part because he has learned from his substantial mistakes and he has improved as a person. During the hearing, the Tribunal spent time discussing the applicant’s emotional and psychological state. He emphasised that the feeling of belittlement and emasculation he experienced after the 2014 beating in which he lost his eye, especially by members of his wife’s family. He candidly said that he would feel much anger from this and he could be easily triggered into violence after this and that his behaviour was self-destructive when he moved to Victoria. The applicant has some insight into his significant psychological injuries and substance abuse which predate the 2014 incident but he has only recently begun therapeutic counselling. The applicant admitted he has not been involved in any couple’s counselling with his wife who he claims he remains in a spousal relationship but has not provided any supportive statements in the applicant’s favour. The Tribunal also finds it particularly disturbing that the applicant admitted to harming his female intimate partner after moving to Melbourne and that he had associated with criminals he claimed owned unlicensed firearms. When taking this information as a whole and noting the applicant’s psychological report which has assessed a number of mental health disorders being attached to the applicant, the Tribunal has strongly been invited to consider that the applicant does not yet have the capacity or resilience not to be easily provoked or triggered into committing further criminal offences, especially towards intimate partners or family members.
57. The Tribunal finds that the applicant is sincere in his desire to return to the community and not breach any criminal offences. His efforts to improve his anti-social and violent behaviours are genuine. It accepts he will have the support, financial and otherwise, of some family members and friends. In fact, the applicant garnered the Tribunal’s opinion that he is likeable, avuncular and amiable, despite the disquieting criminal offences recorded against his name.
58. However, based on the applicant’s own testimony and his history of criminal conduct and with particular emphasis on his mental health disorders, the Tribunal assesses that the applicant’s behavioural and psychological concerns are so deep, long-standing and worrisome that it does not have the confidence that the applicant will not criminally re-offend or be compliant with condition 8564 in the foreseeable future. The applicant would have to undertake considerable more psychological counselling and other interventions for it to be satisfied that the applicant will not further engaged in criminal conduct. For these reasons, the Tribunal finds that the applicant will not abide by condition 8564 on his bridging visa, if it were granted to him.
Summary
59. In the decision, the Tribunal is mindful that the applicant has a Federal court appeal underway and that he has familial responsibilities towards his seven children and an important role in the lives of his two grandchildren. However, the Federal court hearing is to take place in August and that is not a substantial amount of time for the applicant to experience a loss of liberty while in immigration detention. He also has a number of health and psychological matters which fortunately can be adequately addressed while in immigration detention.
60. When considering the requirements of clause 050.233 in the matter, the Tribunal has made a number of favourable decisions that the applicant is unlikely to or is not significantly motivated to breach conditions 8101, 8207, 8506, and 8401, if this visa under review were to be granted.
61. Nevertheless, the Tribunal’s concerns about the applicant’s extensive past history of criminal offences, including those involving firearms and violence towards intimate partners, are so deep that it has invited the Tribunal to consider that he is likely to re-offend. The Tribunal’s concerns have not been assuaged by the supportive letters from the applicant’s adult children or friend or by the limited counselling and psychological therapy he has undertaken. The Tribunal found the applicant has yet to develop the capacity to avoid being provoked or triggered into committing further acts of violence and breaching other criminal offences. For the reasons outlined above, the Tribunal is not satisfied the applicant will abide with condition 8564, if this visa were to be granted.
62. 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 abide by any of the conditions considered in this review, regardless of any security that may be imposed, cl.050.223 is not met.
63. When taking all the evidence into consideration, both individually and cumulatively, the Tribunal is not satisfied the applicant will be compliant with condition 8564. In making a finding that the applicant will not abide by just one (1) condition out of the five (5) discussed, the Tribunal therefore 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.
64. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. The question of a security does not arise because the Tribunal is not satisfied that any security could act as an incentive for the applicant to abide by conditions. Therefore, the applicant does not meet cl.050.223.
Conclusions
65. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
66. 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
67. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Brendan Darcy
Member
68. ATTACHMENT ONE
Offences committed by the applicant
| Court and date | Offence | Court Result |
| 8 October 2018 | Possess general category handgun without licence Possess cartridge ammunition without licence/permit | Convicted and sentenced to 28 days' imprisonment Convicted and fined $750. Orders made without consent for property to be forfeited, seized and destroyed: pen pistol, ammunition, cricket bat, round pole and coloured shirt (blue and white). |
| 14 March 2018 Melbourne Magistrates' Court | Contravene community correction order imposed on 22 September 2016 Dishonestly undertake in retention stolen goods State false name when requested Contravene family violence interim intervention order | Proven and sentenced with conviction to a Community Correction Order for 12 months Convicted and sentenced to a Community Correction Order for 12 months |
| 7 February 2018 Broadmeadows Magistrates' Court | Contravene Family Violence Intervention Order | 21 days' imprisonment concurrent. Time held in custody, 137 days, reckoned as a period of imprisonment already served under this sentence |
| 22 September 2016 Dandenong Magistrates' Court | Recklessly cause injury Contravene a conduct condition of bail | Convicted and sentenced to a Community Correction order for 12 months |
| 4 October 2015 Parramatta Local Court | Apprehended Violence order (domestic) | 12 month bond with condition to comply with current Apprehended Violence order |
| 17 August 2015 Mt Druitt Local Court | Common assault (DV) T2 | Fine $500 |
| 11 September 2009 | Use uninsured motor vehicle Use unregistered motor vehicle | Fine $50 costs Fine $50 costs |
| 26 November 2007 Liverpool Local Court | Assault occasioning actual bodily harm Common assault | Fine $400 Fine $200 costs Court costs $70 |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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