Sharma (Migration)

[2020] AATA 6016

Sharma (Migration) [2020] AATA 6016 (16 November 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikhil Sharma

CASE NUMBER:  2016253

DIBP REFERENCE(S):  BCC2020/2533561

MEMBER:Russell Matheson

DATE OF DECISION:  16 November 2020

DATE CORRIGENDUM

SIGNED:7 December 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words ‘For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration’ at paragraph 7 should be replaced with ‘For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.’

Russell Matheson
Member

Statement made on 07 December 2020 at 1:49pm

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikhil Sharma

CASE NUMBER:  2016253

DIBP REFERENCE(S):  BCC2020/2533561

MEMBER:Russell Matheson

DATE:16 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2020 at 11:50am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct requirement – reference letters from reputable people within the community – limited insight into the character of the applicant – previously convicted of domestic violence offences – re-offended when on a good behaviour bond with a suspended sentence – recidivist behavioural pattern – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
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) 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 26 October 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. On 2 November 2020, 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), 8207 (Not engage in study or training), 8506 (Notify Change of Address), 8510 (present a passport), 8564 (must not Engage in Criminal Conduct) and cl.050.223 of Schedule 2 to the Regulations. The delegate was not satisfied if the visa was granted the applicant would comply with the conditions imposed on the visa.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 12 November 2020 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF Claims and evidence

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 Student Subclass 500 visa was cancelled by the Department on 19 October 2020, under s.116(1)(g), r.2.43 (1) due to his criminal history. 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.

    Grounds for seeking the visa – cl.050.212

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.050.212(4)(b). 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.

17. At the time of the Bridging Visa E Application Departmental records indicate that the applicant’s Student (Temporary) (Class TU) Subclass 500 visa was cancelled by the Department on 19 October 2020 due to his criminal history. Departmental records also indicate that the applicant lodged a merits review in relation to his cancelled student visa on 22 October 2020 that is still pending.

18. Accordingly, the applicant satisfies cl.050.212(3) and cl.050.212(4)(b) and satisfies the time of application criteria in cl.050.212.

    The requirement to be interviewed by an authorised officer - cl.050.222

19. 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 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).

20. 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 2 November 2020. Accordingly, the applicant meets cl.050.222.

    Whether the applicant will abide by conditions - cl.050.223

21. 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.

22. 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?

23. The Tribunal must be satisfied at the time of decision, that should a Bridging E visa be granted to Mr Sharma, he will abide by any conditions imposed on it. The Tribunal has assessed whether Mr Sharma 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 Bridging E visa would include:

    ·8101 The holder must not work;

    ·8207 The holder must not engage in any studies or training in Australia;

    ·8401 The holder must report as directed (a) at a time or times; and (b) at a place; specified by the Minister for the purpose.

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

    ·8510 The holder must present a passport; and

    ·8564 The holder must not engage in criminal conduct.

    CLAIMS AND FINDINGS

24. In considering whether the applicant will abide by the conditions imposed on the visa, the Tribunal considered the information contained in the Department file, the Tribunal file, and the applicant’s oral evidence and the following documents provided by the applicant that include:

    ·     The applicant’s written statement;

    ·     A written statement made by the applicant’s wife;

    ·      A bail undertaking made by the applicant;

    ·     Applicant’s criminal history;

    ·     A reference letter from Canberra Punjabi Sports and Cultural Association;

    ·     A reference letter from the Chief Priest Canberra, Sri Kalikambal Devasthanam;

    ·     A reference letter from the Vice President of Canberra Sikh Association; and

    ·     A letter from the applicant’s employer.

25. The applicant gave evidence at the hearing that he will not engage in any studies or training in Australia and is prepared to report as directed (a) at a time or times; and 9b) at a place; specified by the Minister. He further sated that he will not work and would notify the Department of any change of address at least two working days in advance of any change in the holder’s address. The applicant has also presented his passport. The Tribunal accepts that if the applicant is granted his Bridging visa E, he is prepared to abide by conditions 8101, 8207, 8401, 8506 and 8510.

26. The applicant provided reference letters from four individuals known to the applicant. The Tribunal accepts that the letters are from reputable people within the community, but they have only known the applicant for a relatively short period of time, and they give limited insight into the character of the applicant. The Tribunal places little weight on the letters.

27. The applicant told the Tribunal that he has reconciled with his wife and wants to return to the matrimonial home in Canberra and start a family and he has always been a law-abiding citizen. He also provided a letter of support from his wife who states she is suffering stress due to her personal issues and studies. She further states that the incidences that have occurred are of a minor nature and the parties still love each other and that she wants to be reunited with her partner and does not want him deported. Additionally, it would have a negative impact on their relationship and their parents’ heath back in India. The Tribunal accepts that the applicant and his wife may have reconciled and wish to be reunited and the applicant’s current situation would cause some degree of anxiety to all concerned. The Tribunal cannot overlook the fact that the applicant has previously been convicted of domestic violence offences and currently has similar matters before the Court. Although the applicant considers himself to be a law-abiding citizen, he has a previous conviction and currently has matters before a Court. The Tribunal is of the view these matters are of a serious nature and may involve a custodial sentence in the future.     

    Condition 8564; the holder must not engage in criminal conduct

28. At the review hearing the Tribunal informed the applicant it had concerns as to whether he would abide by condition 8564 given that he has a criminal history in the ACT for domestic violence. The Tribunal asked the applicant what assurances he could give that he would abide by visa condition 8564 (must not engage in criminal conduct).

29. The applicant provided evidence (written and oral) that the domestic violence charges made against him escalated from minor issues that resulted in police intervention. He further stated that he was charged for common assault, chokes, suffocates and strangle another person (wife). The applicant said that he had made a mistake and is very remorseful for his actions. The Tribunal notes that the applicant has been charged for the same offences on two occasions 9 February 2019 and 2 November 2020. On 31 May 2019, the applicant was found guilty at Court and sentenced to 3 months’ imprisonment, suspended for 2 months and 29 days and placed on a good behaviour bond for 12 months. The Tribunal accepts that the applicant may be remorseful but finds the domestic violence offences he has been charged with are of a serious nature.     

30. At the hearing the Tribunal questioned the applicant if he had any outstanding court matters involving domestic violence. The applicant responded and provided documentary evidence that he was charged on 2 November 2020 with domestic violence offences and had been bailed to attend court on the 10 December 2020, pending a pre-sentencing report due by 8 December 2020. He further states that at the completion of Court proceedings he was detained and placed in detention by the ABF. The applicant provided a copy of his bail conditions that include:

    ·            Not assault, harass, threaten or intimidate (wife);

    ·            Not drink alcohol;

    ·            Not approach within 100 metres of any point of international departure; and

    ·            Surrender to Police all passports issued to the defendant and not apply for any passport.

31. The applicant gave evidence and in his written statement states that on 24 December 2019 he had an argument with his wife and his neighbours called the Police which resulted in Police intervention and statements being taken.  Based on the information provided the applicant was charged on 2 November 2020 at the Magistrates Court, Canberra with a number of offences that include: 1 x Chokes, suffocates, strangles another person and 4 x common assault. The applicant’s bail was continued subject to the same conditions as previously stated and his case was adjourned until the 10 December 2020 pending a pre-sentencing report due by 8 December 2020. The Tribunal notes the applicant was previously charged and convicted with the same offences. On 31 May 2019, the applicant was found guilty at Court and sentenced to 3 months imprisonment, suspended for 2 months and 29 days and placed on a good behaviour bond for 12 months. The Tribunal also notes the latest charges against him occurred whilst the applicant was on a good behaviour bond with a suspended sentence and the Magistrate requested a pre-sentence report.

32. The Tribunal notes a pre-sentence report is intended to give the sentencing court some understanding as to why the offender committed the offence, how the offender feels about it now, and what their background, family and work circumstances are. Using this information, the court will decide the most appropriate sentence to give the offender.

33. The applicant gave evidence at the   hearing that he would not repeat his offences and said he would give assurances in writing. He further stated that he cared for his wife and domestic violence would not occur again. The applicant has stated that he has made mistakes in the past and is apologetic and remorseful for his actions. The Tribunal is of the view despite his statements regarding his criminal history and his claimed intention not to engage in criminal conduct, cannot overlook the fact that applicant has been previously convicted of domestic violence offences of a violent nature and has re-offended when on a good behaviour bond with a suspended sentence. The Tribunal is of the view this demonstrates a recidivist behavioural pattern, the Tribunal based on the evidence provided has serious concerns for the safety and wellbeing of the applicant’s partner if the applicant is granted his BVE.

34. The Tribunal has also considered that the applicant has a merits review pending with the Administration Appeals Tribunal for his visa cancellation and that it may be some time before his matter is heard. The Tribunal has also considered the risk of harm to the Australian community in the context of the stay period and specific purposes of the visa application. On balance, the Tribunal is of the view that there is a serious and substantial issue to be addressed. The Tribunal considers the alleged offences committed to be violent in nature and demonstrate a clear lack of regard for the physical safety and emotional wellbeing of the applicant’s partner. Whilst these charges remain ongoing, the Tribunal is of the view that the applicant would continue to pose a risk to the Australian community. For this reason, the Tribunal cannot be satisfied that he would abide by condition 8564, not engage in criminal conduct.

35. When a security was discussed with the applicant (referred to at the review hearing as the payment of monies to the Department to ensure he would abide by any conditions which may be attached to his BVE), he said he would abide by all conditions imposed on the visa. The applicant informed the Tribunal that he is prepared to offer $5,000 as security. However, after considering all the evidence, the Tribunal is not satisfied that any amount of security would act as an incentive for him to abide with the BVE conditions. Therefore, the Tribunal finds that the applicant does not meet cl.050.223 of Schedule 2 to the Regulations.

36. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8564 imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

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

38. 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

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

    Russell Matheson
    Member