Shaqlane (Migration)

[2019] AATA 3446

Shaqlane (Migration) [2019] AATA 3446 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdiwali Ahmed Shaqlane

CASE NUMBER:  1916891

DIBP REFERENCE(S):  BCC2019/3115302

MEMBER:Russell Matheson

DATE:9 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2019 at 8:08am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – reporting and notification requirements – no criminal conduct requirement – criminal history – breaches of bail conditions – failure to report for curfew on multiple occasions – due process – natural justice – departmental interview – mental health issues – 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 for the visa on 20 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 cl.050.223.

3. On 24 June 2019, a delegate of the Minister refused to grant the visa because the delegate was not satisfied that the applicant met conditions 8401 (Report as Directed), 8506 (Notify Change of Address), 8564 (must not Engage in Criminal Conduct) and cl.050.223 of Schedule 2 to the Regulations.

4. The decision to refuse to grant the visa and the decision relating to requiring a security was made on the basis as to whether, at the time of application, the applicant has made, or would have made, a valid application for a substantive visa that can be granted in Australia. The applicant appeared before the Tribunal on 3 July 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration’s case file, the Tribunal’s case file and evidence given at the Tribunal hearing.

   ISSUE

8. The issue in this matter is whether the applicant will abide by visa conditions and meet cl.050.223 of Schedule 2 to the Regulations.

   Immigration status of the applicant

9. 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). 

10. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. 

11. The applicant’s Special Category visa (Subclass 444) was cancelled on 15 April 2019. The Tribunal is satisfied the applicant meets cl.050.211 because at the time he made his visa application he was an unlawful non-citizen.

12. Accordingly, the applicant meets cl.050.211(1).

13. The Tribunal is satisfied that the applicant meets the requirements in cl.050.211 because he 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).

14. Therefore, the applicant meets cl.050.211.

15. 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.050.221.

16. In this case, the applicant is seeking to meet cl.050.21(1). 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.

    Judicial review, merits review, s.137K revocation

17. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

18. Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b),(ba),(bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

19. On 9 May 2019 the applicant applied for merits review of a decision to cancel his Special Category (Subclass 444) visa. Therefore, the Tribunal is satisfied the applicant meets the requirements in cl.050.212(4)(b) in Schedule 2 to the Regulations.

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

20. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. 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

21. 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 (BVE), has made a valid application for a substantive visa, and will not be seeking a further BVE with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a BVE, 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).

22. The applicant does not fall within any of the exceptions in cl.050.222(2), (3), (4). The applicant was interviewed by an authorised officer on 24 June 2019. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

23. 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.

24. 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].

    Will the applicant abide by conditions if the bridging visa is granted?

25. The Tribunal has to be satisfied at the time of decision, that should a BVE be granted to Mr Shaqlane, he will abide by any conditions imposed on it. The Tribunal has assessed whether Mr Shaqlane meets the requirements as outlined in cl.050.223 of the Regulations (Abide by Conditions) and the Tribunal is satisfied, as was the delegate, that the visa conditions that should be imposed on the applicant for the grant of a BVE would include:

    ·8401 The holder must report at a time/or times at a place specified by the Minister;

    ·8506 The holder must notify the Department of any change of address; and

    ·8564 The holder must not engage in criminal conduct.

    CLAIMS AND FINDINGS

26. In considering whether Mr Shaqlane will abide by the conditions imposed on the visa, the Tribunal has considered Mr Shaqlane’s migration and criminal history.

27. In requesting a grant of the visa, both prior to and at the Tribunal hearing, the applicant provided the following information:

    Applicant’s visa history

    • On 5 May 2011 – Initially arrived onshore – Subclass 444 visa granted on arrival;
    • On 2 September 2011 – Departed Australia;
    • On 27 June 2012 – Arrived onshore – Subclass 444 visa granted on arrival;
    • On 6 June 2013 – Departed Australia;
    • On 9 June 2013 – Arrived onshore – Subclass 444 visa granted on arrival;
    • On 7 June 2015 – Departed Australia;
    • On 14 September 2015 – Arrived onshore – Subclass 444 visa granted on arrival;
    • On 4 March 2019 – A Notice of Intention to Consider Cancellation of a visa (NOICC) was sent to the applicant whilst in remand by registered post;
    • On 15 March 2019 – A response to the NOICC was received by the Department;
    • On 15 April 2019 – The Special Category visa (subclass 444) was cancelled 20 June 2019 – the applicant applied for a BVE (subclass 050).

28. The applicant also provided in his submission to the Tribunal information provided by the Magistrates Court of Queensland at Richlands to the Department in regard to his extensive criminal history. The applicant provide copies of his verdict and judgement record, probation order and community service orders for convictions determined at court on 17 June 2019.

29. The applicant was convicted of the following offences on 17 June 2019:

    ·Stealing;

    ·Wilful Damage – Restitution to be paid - $10,754.00;

    ·Stealing from person;

    ·Possession of a knife in a public place;

    ·Possess utensils or pipes for use; and

    ·Breach of bail conditions (5 convictions).

30. On 4 March 2019 an NOICC of a visa was sent to the applicant. On 15 March 2019 the applicant responded in writing to the Department. On 15 April 2019 the applicant’s Special Category visa (Subclass 444) was cancelled.

31. On 24 June 2019, a delegate of the Minister refused the applicant’s application for a BVE on the grounds that he did not believe that the applicant would abide by any conditions imposed on the visa.

32. In making the decision on Mr Shaqlane’s application for an associated BVE, the Tribunal has taken into consideration the information provided by him, information provided to the Department and his oral evidence at the tribunal hearing.

33. At the review hearing the applicant declared he was aware that his visa had been cancelled and he had received the cancellation decision.

34. The Tribunal questioned the applicant in regard to his criminal history, convictions and breaches of his bail conditions.

35. The applicant told the Tribunal that he was convicted for ‘possession of a knife in a public place’ because he had taken the knife from a friend to protect himself and that he had no intentions of trying to hurt anyone.  The applicant was subsequently searched by police in Queensland which resulted in him being charged and convicted. The applicant said that he never intended using the knife and he was not the original owner.

36. The Tribunal queried the applicant about his breach of bail conditions and exactly how and why he breached his conditions. The applicant has declared he did not report for curfew on multiple occasions at the residential address he was required to stay at due to family issues. He further stated that he was homeless at the time and living on the other side of the city and could not make the report time of 4pm because it was too far to travel. The applicant stated he had some family issues at that time and was not able to report and abide by curfew and he had been asked to leave the residential address where he was staying. The applicant has declared during the review hearing he will be residing at the same address identified on his bail condition and that he will be living with his father and other family members.

37. The applicant was informed of the conditions of the BVE, which included discretionary conditions of (8401 – Report as Directed) (8506 - Advise change of address within 2 working days) and (8564 – Must not engage in criminal conduct). The applicant was informed about condition 8401 that if the applicant cannot comply with the reporting condition set by the Department he must inform the Department why he is unable to report. The applicant was also informed about condition 8564 and how if the applicant is charged with any further offences that his bridging visa may be subjected to cancellation due to this condition.

38. The applicant was given an explanation of condition 8506 (Advise of change of address) which states the applicant will need to inform the Department of a change in residential address within two working days of moving to a new address. The applicant agreed to abide by the condition imposed.

39. The applicant was informed of the delegate’s concerns in regard to not meeting conditions 8401 and 8564, as he has previously failed to report for curfew as part of his bail conditions and has been convicted of a number of offences over a period of time. The applicant has stated he will abide by all conditions imposed by the Tribunal if he is to be granted a bridging visa.

    Visa condition 8564 – Must not engage in criminal conduct

40. The applicant has been convicted of a number of offences which include possession of a knife in a public place, stealing, wilful damage and breaching bail conditions.

41. The applicant’s representative submitted to the Tribunal that the more serious charges (Robbery and Grievous Bodily Harm) that led to the applicants visa being cancelled were withdrawn and discontinued due to the fact another offender was identified by police, however the applicant concedes that he entered a plea of guilty to other lesser charges. The Tribunal acknowledges that charges of a more serious nature were withdrawn. The representative further submits that the applicant being guilty of lesser charges are not indicative of further re-offending in Australia, as he has maintained his remorse for charges, and that he is not an unacceptable risk, given the surrounding factors that led to the charges.  He also submits the applicant has significantly integrated into the Australian community, and had formed significant ties to Australia with his family. The Tribunal accepts that the applicant is remorseful for his actions but it is not convinced pleading guilty to lesser charges demonstrates compelling evidence that he will not re-offend or that he does not pose an unacceptable risk to the community. The Tribunal accepts that his father is prepared to let the applicant live with his family at Calamvale, Qld, but there is little evidence to demonstrate that he has strong community ties in Australia other than his immediate family. The tribunal accepts that the applicant will live with and have the support of his father.

42. The Tribunal acknowledges the applicant’s response to his convictions during the review hearing for the bridging visa but the Tribunal must consider whether he will abide by the visa condition 8564. The applicant in evidence told the Tribunal that he was convicted for ‘possession of a knife in a public place’ because he had taken the knife from a friend to protect himself and that he had no intentions of trying to hurt anyone. The Tribunal may on face value accept the applicant’s explanation for carrying the knife in a public place but it also notes that the applicant was convicted of and pleaded guilty to the charge. The applicant in evidence told the Tribunal that he did not report for curfew on multiple occasions at the residential address he was required to stay at due to family issues. He further stated that he was homeless at the time and living on the other side of the city and could not make the report time of 4pm because it was too far to travel. The Tribunal accepts that the applicant may have had family issues and was homeless, and had some distance to travel to report which made it difficult to meet his bail conditions. The applicant was aware of his bail conditions and made no attempt to contact the relevant authority to make alternative arrangements. The Tribunal questioned the applicant about his conviction under the drug misuse act for possession of utensils or pipes for use and asked him if he is currently using drugs. The applicant stated that he no longer uses drugs and has no intention of using them again. The Tribunal accepts that the applicant is no longer using drugs.   

43. The Tribunal notes that the applicant pleaded guilty and has been convicted of multiple stealing, breaches of bail, wilful damage; possess utensils or pipes for use and possession of a knife in a public place offences. The Tribunal finds the offences serious in nature.

44. Having reviewed and considered the multiple offences to be serious in nature, and considering the applicant was convicted of these offences, the Tribunal is not satisfied that the applicant will comply with condition 8564 if the visa was granted.

45. Based on the evidence before it, the Tribunal is of the view that the applicant has demonstrated that he has a disregard for Australian laws and authorities. Given the applicant’s criminal history the Tribunal cannot be satisfied that he will comply with the conditions imposed on his BVE and the Tribunal considers him a risk to the Australian community. The Tribunal is not satisfied the applicant will abide with condition 8564 - not engage in criminal conduct.

    Visa condition 8401 – Report as Directed

46. The Tribunal has considered information and comments made by the applicant during the review hearing and within his application in addition to available information on Departmental files. The Tribunal considers the applicant’s multiple breaches of bail conditions which the applicant has declared were for not meeting curfew reporting conditions. The breach of bail conditions occurred over multiple dates from 13 December 2018 until 24 December 2018. The Tribunal is not satisfied the applicant was not able to meet the conditions of his curfew by making alternative arrangements. The Tribunal notes the applicant pleaded guilty with an explanation as described previously (paragraph 42). Based on the fact the applicant has displayed a history of not meeting the requirements of his bail conditions and did not make suitable alternative arrangements with the relevant authorities, the Tribunal cannot be satisfied the applicant will abide by condition 8401.

47. The applicant stated at the review hearing that he is on probation and must report to a probation officer and that he will fulfil his obligations in regard to the probation order issued by the court and that he will do his best to comply with condition 8401 (report as directed). The applicant provided a copy of the Probation Order and Community Service Order issued by the court indicating that he be released under the supervision of an authorised corrective services officer for a period of 18 month and he perform 200 hours of unpaid community service within a period of 12 months. The Tribunal accepts that the applicant is on probation and has to serve 200 hours community service in relation to his convictions. Based on the fact the applicant has displayed a history of not meeting the requirements of previous bail conditions, the Tribunal cannot be satisfied the applicant will abide by condition 8401.

    Other issues

1. The applicant’s representative submitted to the Tribunal that neither the applicant nor his representative was advised about the interview for his BVE. The representative claims that the Department failed to inform the applicant’s representative of the interview, and proceeded to inform the applicant his representative was unavailable. The representative further submitted that he complained to the Department and they contacted him and told him they would issue an apology, which has not been forthcoming to this date. The Tribunal notes that the interview notes prepared on the 24 June 2019 indicate that the applicant was questioned by the delegate at interview if he understood that he had applied for a BVE. The applicant responded that he was unsure and that he believed his agent had applied for a visa on his behalf and was not sure what type of visa he had applied for. There is little evidence that demonstrates to the Tribunal that the applicant was not afforded due process or natural justice or that he was not unable to contact his representative to attend the interview. The Tribunal notes that his representative at the review hearing is listed as his agent on the application for the BVE.  The Tribunal is of the view the applicant may have been confused in regard to his visa application. The Tribunal is satisfied the applicant was interviewed by an authorised officer of the Department under the relevant legislative requirements whilst in detention. In any case the applicant was afforded the opportunity to give evidence in the company of his representative and provide witnesses to substantiate his claims for the grant of the bridging visa at the review hearing. The applicant was also afforded the opportunity to provide any additional information to the Tribunal pre-hearing and post-hearing to substantiate his claims for the grant of the visa.

2. The applicant gave evidence that he has mental health issues (schizophrenia) and that he had a psychotic episode in November 2017 in Melbourne and was admitted to hospital. The applicant further stated that he was on medication and under the care of Queensland Health. The applicant provided a letter from Queensland Health dated 4 January 2018 stating that the applicant is currently being treated for a first episode psychotic illness. The applicant gave evidence that he is no longer taking his medication and has not sought any further treatment from a specialist for his psychotic episode illness. The applicant further stated that he wanted to be granted his bridging visa and re-start his medication in the community and live with his family. The applicant provided copies of four scripts for his medication; two dated 21 November 2017 when he was admitted to hospital and two dated 19 March 2018. The Tribunal accepts that the applicant has been treated for a psychotic episode. When questioned about his health the applicant stated that he feels alright, but he is not sleeping well and sometimes hears things. There is little evidence to demonstrate that his mental health issues were a contributing factor in relation to the offences that he has committed and seeking treatment outside would mitigate the circumstances of the applicant reoffending if granted his visa. The Tribunal accepts that the applicant would prefer to be treated for his condition outside detention and be in the care of his family. The Tribunal is of the view the applicant is able to acquire suitable medication and treatment for his medical condition in detention. The applicant stated that his medical records have been forwarded from correctional services to the detention centre and they are aware of his health issues. 

3. The applicant gave evidence that he is remorseful in regard to his criminal convictions and wants to be released from detention to work and pay the restitution order ($10,000) made by the court in relation to his wilful damage conviction. The applicant’s father gave evidence that he was trying to organise the applicant a job in the construction industry and he is prepared to help and support the applicant if he is released from detention. The Tribunal accepts the applicant would like to be released from detention for the purpose of work and paying restitution and he has the support of his family.

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. 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.

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

7. 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

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

   Russell Matheson
   Member