Mittal (Migration)

[2021] AATA 3872

Mittal (Migration) [2021] AATA 3872 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prince Kumar Mittal

CASE NUMBER:  2112964

Home Affairs REFERENCE(S):               BCC2021/1779254

MEMBER:Luke Hardy

DATE:6 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2021 at 12:23pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – condition not to engage in criminal conduct and imposition of security – visa and criminal history – fines and imprisonment – dependent student visa cancelled – immigration detention – drug use and treatment – limited insight into behaviour and offending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, 050.223, Schedule 8, condition 8564

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 14 September 2021. 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, which 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.

3. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 16 September 2021 on the basis of not being satisfied that he would comply with discretionary condition 8564:” Must not engage in criminal conduct.”

4. The applicant appeared before the Tribunal on 5 October 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant will comply with discretionary condition 8564:” Must not engage in criminal conduct.” The delegate cited two other discretionary criteria but did not make findings against them in light of the findings against condition 8564. The delegate also found that no security imposed on a bridging visa would ensure that the applicant complied with conditions on the visa.

7. The applicant entered and previously resided in Australia as a dependent on his wife’s student visa. His visa was cancelled in light of repeat criminal offending. He seeks a bridging visa so that he can return to residing with his wife and pursue review of the cancellation of his visa.

8. The delegate made the following notes of the applicant’s offences and court outcomes, which the applicant confirmed at the Tribunal hearing:

   CRIMINAL HISTORY:

   18/04/2018 - Elizabeth Magistrates Court - Contravene defect notice code of practice (3) Without conviction Dismissed without penalty

   31/05/2018 - Elizabeth Magistrates Court - Basic offence: dishonestly take property without consent Without conviction Good behaviour bond $1000 2 years 75 hours community service within 12 months

   18/03/2019 - Elizabeth Magistrates Court - Application for enforcement of breached bond – Found proved

   18/03/2019 - Elizabeth Magistrates Court - Drive, sell or dispose of vehicle contrary to defect notice, Possess prescription drug (not being drug of dependence) (2) Convicted Fined $100

   14/07/2020 - Elizabeth Magistrates Court - Alter, obscure or remove a defect notice from a vehicle; Be owner of unregistered motor vehicle on a road - Convicted Fined $420

   03/11/2020 - Adelaide Magistrates Court - Application for enforcement of breached bond – Found proved

   03/11/2020 - Adelaide Magistrates Court - Basic offence: dishonestly take property without consent Convicted 5 weeks imprisonment Suspended sentence bond $500 18 months

   03/11/2020 - Adelaide Magistrates Court - Making off without payment, Have possession of a knife in a school or public place Basic offence: dishonestly take property without consent (7) Convicted 2 months 3 days imprisonment Compensation $670 Suspended sentence bond $500 18 months

9. Given these iterations of offending over an arguably short period, the Tribunal invited the applicant to provide any insights he might have into it and whether he might offend in the future. In response, the applicant said that he just fell in with bad company who led him into dependence on illicit drugs. He said his drug of dependence was heroin and that trying to find money to pay for it accounted for his stealing offences. He said he had been clear of heroin for three months. He said he had been undergoing treatment with a doctor, but provided no evidence in support of this.

10. The Tribunal expressed concern to the applicant over this apparent pattern of offending interrupted only, it might be argued, by his having been placed in Immigration Detention. In response, the applicant said he was feeling good right now and “OK not to go back [in]to bad company.”

11. The Tribunal asked the applicant if, putting aside the influence of “bad company,” he could provide more insight into his own behaviour and judgment. This proved a little difficult: generally the applicant said he was sure he would keep away from the people who misled him and never offend again.

12. Since the issue of a bond had been considered in the primary decision, the Tribunal invited the applicant to comment on the evidence of his having previously and repeatedly having acted in breach of good behaviour bonds imposed by courts. In reply, the applicant said he had breached such conditions before but would not do so again.

    Whether the applicant will abide by conditions - cl 050.223

13. 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.

14. 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].

15. The relevant condition imposed in this case is condition 8564: “Must not engage in criminal activity. His offending, notwithstanding one charge dismissal and a couple of “no conviction” verdicts from the courts, has been repetitious over a short period of two to three years. Bonds on the applicant did not prevent re-offending. His overriding insights into his behaviour throughout this period do not appear to have much depth: they essentially involve other people having led him astray and baldly insisting “that was then, this is now,” as it were. A three-month spell since the last dose of heroin seems too short a time for one to be confident that one of the evidently key motivators for the applicant’s recent offending has been eradicated or at least neutralised. The applicant concedes that his detention is a factor in his arguably short separation from bad influences, human and chemical. There is insufficient expert evidence to lead the Tribunal to be confident that the applicant has turned a significant corner, freed himself from addiction and overcome what appears to be a propensity to make short-sighted and self-destructive decisions. It is thus very hard to be satisfied on the evidence before the Tribunal, at this point in time, that the applicant will abide by condition 8564. The evidence before a decision-maker considering a similar application may be different at a later date, but the presently-constituted Tribunal has a duty to make a decision in the present matter without undue delay.

16. The Tribunal considered the applicant’s and his wife’s desire to be back together again, but this was not evidently a strong enough factor to prevent the applicant’s past offending. Overcoming heroin addiction is widely understood to take a lot of time and much therapy.

17. After giving this matter serious consideration, the Tribunal is not satisfied that the applicant will abide by condition 8564 regardless of any security that may be imposed. Accordingly, the applicant does not meet cl 050.223.

18. 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.

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

20. 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

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

    Luke Hardy
    Member