Mills (Migration)

[2020] AATA 5488

Mills (Migration) [2020] AATA 5488 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Iruviere Mills

CASE NUMBER:  2014999

DIBP REFERENCE(S):  BCC2020/2395133

MEMBER:Bridget Cullen

DATE:16 October 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 16 October 2020 at 11:13 am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – criminal history – recent offending – no insight or remorse for behaviour – 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 29 September 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 5 October 2020 on the basis that the applicant would not abide by discretionary conditions 8401 – Report as directed and 8564 – Do not engage in criminal conduct that the Delegate would have imposed if they had granted the visa, and as such, did not meet cl.050.223.

4. The applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Lilian Mills, the applicant’s aunt in Australia.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Yeboah, of Mulbridge Lawyers (MARN 1465058).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant would abide by the conditions imposed if granted a Bridging E (Class WE) visa.

   Whether the applicant will abide by conditions - cl.050.223

8. 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.

9. 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].

10. 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.

11. 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 (these were the conditions stated by the Delegate as to have been imposed if the applicant was granted the visa):

    -        8101 – no work - The holder must not engage in work in Australia.

    -        8207 – no study - The holder must not engage in any studies or training in Australia.

    -        8401 – report as directed - The holder must report:

    (a)       at a time or times; and

    (b)       at a place;

    specified by the Minister for the purpose.

    -        8505 – remain at specified address - The holder must continue to live at the address specified by the holder before the grant of the visa.

    -        8564 – do not engage in criminal conduct - The holder must not engage in criminal conduct.

12. The delegate was not concerned that the applicant would have issues abiding by conditions 8101, 8207 and 8506; as the applicant had the support of his aunt, who offered financial and accommodation assistance.

13. The delegate refused the visa as they were not satisfied that the applicant would meet conditions 8401 and 8564. The cause for concerns in these two conditions was the applicant’s criminal history, which the Tribunal lists below from the Delegate’s decision record, provided to the Tribunal by the applicant.

14. The applicant has outstanding charges in the ACT stemming back to December 2018 for the charge of ‘Theft/shopsteal related alleged incident’.

15. On 17 July 2019, the applicant was charged with affray, theft, attempt to commit indictable offense, theft from shop (shopsteal), commit indictable offense whilst on bail, robbery, assault by kicking, dishonesty undertake in retention of stolen goods and dishonestly receiving stolen goods. The applicant was sentenced without convicted and was released on a youth supervision order for nine months.

16. On 4 June 2020, the applicant was convicted for two counts of theft, six counts of robbery, and one count of intentionally causing injury and one count of committing an indictable offence whilst on bail. The applicant was sentenced to five months imprisonment (with time served), and an eighteen-month community order.

17. The applicant, when interviewed by the Department, attributed his charges and convictions to ‘ignorance from youth, getting involved with the wrong crowd and a misunderstanding of the actual events in question’. The delegate had formed the view that the applicant would not take personal responsibility for his actions and would blame other parties. The applicant further stated that he had changed his ways and would not associate with the group of people. However, the Delegate further noted that the applicant had an incident in detention on 27 September 2020, being found with a makeshift weapon and other incidents which were violent in nature.

18. The evidence given by the applicant’s aunt, Lillian Mills, was vague and lacked detail. She explained that she owned her own home and worked as a childcare worker, full-time. She said that she would do her best to try and make sure that that the applicant entered a program to help him with his education. She has not researched any particular programs. While the Tribunal accepts that she feels a sense of familial obligation toward the applicant, the Tribunal does not have any confidence that her intervention will be sufficient to ensure that the applicant complies with conditions. The applicant has demonstrated through his past, and very recent criminal offending, that he will not comply with a condition to not engage in criminal conduct.

19. The applicant himself had very little to say. He merely asserts that he fell in with the wrong crowd. There is nothing before the Tribunal that would suggest the applicant has any insight or remorse for his criminal offended, some of which is of a serious nature. He acknowledges that it happened, but gave no information about any mitigating circumstances. The applicant’s position is essentially that the Tribunal should have confidence on his, and his aunt’s, personal assurances. The Tribunal notes that following his most recent conviction, he was taken into immigration detention. There is therefore no evidence of his actual ability to live a law-abiding life in the community.

20. In the totality of circumstances before the Tribunal, and considering the timeframe of the applicant’s offending, the Tribunal considers his past performance is a strong indicator of his potential future performance.

21. The Tribunal does not consider that the applicant would comply with conditions, even if a security was taken. There is no information to give the Tribunal confidence on any level of the applicant’s ability to comply with conditions, and given his offending, every reason to believe that the applicant’s demonstrated poor judgment would not result in his ability to control his own conduct, even if it meant losing a security.

22. 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.

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

24. 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

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

    Bridget Cullen
    Member