Shokri Owrak (Migration)

[2022] AATA 2802

Shokri Owrak (Migration) [2022] AATA 2802 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Azhang Shokri Owrak

REPRESENTATIVE:  Ms Rachel Mason

CASE NUMBER:  2206287

HOME AFFAIRS REFERENCE(S):          BCC2022/1386821

MEMBER:Denis Dragovic

DATE:27 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.223 of Schedule 2 to the Regulations

Statement made on 27 May 2022 at 3:01pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – no criminal conduct – not breaching a code of behaviour – applicant’s criminal history – risk of recidivism – rejection of drugs – minor transgressions while in detention – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8564, 8566

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 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).

2. The applicant applied for the visa on 23 April 2022. 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.

3. The decision to refuse to grant the visa was made on 28 April 2022 on the basis that the delegate was not satisfied that the applicant would meet the conditions imposed and in particular conditions 8564 ‘Must not engage in criminal behaviour’ and 8566 ‘Do not breach behaviour’. The applicant appeared before the Tribunal on 6 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Clare Kennedy, who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. At the hearing the applicant agreed to have the oral and written information provided for the purposes of his Bridging Visa cancellation case, which was heard by the same member on the 22 April 2022, introduced as evidence to this case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is 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. In this case, cl 050.223 prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. I concur with the Minister’s delegate and consider that the following conditions should be imposed in the circumstances of this case:

    8207NO STUDY

    The holder must not engage in any studies or training in Australia.

    8401REPORT AT SPECIFIED TIME AND PLACE

    The holder must report:

    (a)at a time or times; and

    (b)at a place or in a manner;

    specified by the Minister from time to time.

    8506NOTIFY CHANGE OF ADDRESS

    The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    8564NO CRIMINAL CONDUCT

    The holder must not engage in criminal conduct.

    8566    DO NOT BREACH BEHAVIOUR

    If the person to whom the visa is granted has signed a code of behaviour that:

    (a)  has been approved by the Minister in accordance with clause 4.1 of Schedule 4; and

    (b)  when the visa is granted, is in effect in relation to that visa or another visa;

    the holder must not breach the code.

11. I am satisfied that the applicant will abide by the conditions of no study as the applicant has not expressed an intention to study nor has he in the past prior to his incarceration. Similarly, I am satisfied that the applicant will abide by the condition of reporting at a specified time and place as he will be on notice that the alternative will lead him to return to detention and in addition, with a stable home address and a partner who has already taken on the responsibility of supporting his recovery from drug addiction, this will become a routine. For the same reasons I am satisfied that the applicant will notify the Department of a change of address.

    Will the applicant abide by conditions 8564 and 8566?

12. I now turn my mind to considering the two latter conditions, namely no criminal conduct and not breaching a code of behaviour. To consider these I first turn to the applicant’s criminal history and his journey since then.

13. Detailed in the delegate’s decision is a summary of the applicant’s convictions:

    On 11 April 2017 you were convicted by Dandenong Magistrates court for the following offences and sentenced to a term of 145 days in prison;

    - Use Heroin

    - Use Methylamphetamine

    - Possess Heroin 2,

    - Possess Methylamphetamine

    - Go Equipped To Steal/Cheat

    - Deal Property Suspected Proceed Of Crime

    - Theft of a Motor Vehicle

    - Att. Burglary

    On 11 July 2017 you were convicted by Dandenong Magistrates court for the following offence and sentenced to a term of 3 months in prison;

    - Theft of a motor vehicle

    On 23 October 2017 you were convicted by Ringwood Magistrates Court for the following offences and sentenced to time served (102 days), disqualified from driving for one month and fined;

    - Forge Registration Label Auth/Req by RSA

    - Dishonesty assist in disposal stolen goods

    - Theft of a motor vehicle

    - Dishonestly receive stolen goods

14. For these criminal acts, the applicant spent 348 days in prison.

15. The applicant has expressed remorse for his criminal activity that subsequently led to his visa being cancelled. The applicant has claimed that this activity was driven by his homelessness, falling in with the wrong crowd and subsequent drug use.

16. At the hearing the applicant said that when he arrived in Australia the authorities provided limited support. He said that he received $400 fortnightly. Initially, this was enough as he could share the rent with a number of other asylum seekers but as others started to leave in their own direction the money wasn’t enough to pay rent. He said that subsequently he slowly started hanging out with bad friends. He said that in Iran he didn’t even smoke a cigarette yet in Australia he became addicted to drugs.

17. The applicant’s plight, ultimately, arose through choices that he made, which many others before him in similar circumstances did not make. I find that ultimately, he is the author of his own circumstances and this past behavour carries some weight in considering his future beahaviour.

18. On 23 October 2017 following his release from criminal detention the applicant was detained under s189(1) of the Act and taken into immigration detention.

19. The applicant has been in immigration since then, amounting to a period of nearly five years.

20. The applicant described his rehabilitation efforts and plans to ensure that he will not follow the same path as before. At the hearing he said that his plans for the future do not include any criminal offending. He added that he has experienced six years of extreme hardship (including both his criminal incarceration and immigration detention) and is going to stay true to himself and will definitely comply with his visa conditions in the future.

21. Specifically, through submissions and verbally at the hearing the applicant listed the following measures he has undertaken and would undertake to prevent any recidivism:

    ·The applicant has cut ties with his former friends who were negative influences on his behaviour and introduced him to drugs and crime.

    ·The applicant is not using illicit drugs. He is taking methadone and has been trying to reduce his dependency on methadone over time.

    ·The applicant has the emotional, financial, and psychological support of his de facto partner Ms Clare Kennedy. He intends to live with Ms Kennedy upon release from detention.

    ·The applicant has described having friends in the community who are supportive of his desire to change his lifestyle. He also has the support of Ms Clare Kennedy’s large and close-knit family.

    ·The applicant has plans to be employed by his friend Mr Serdar Yucel upon release.

    ·The applicant also has plans to eventually resume his historical trade as a painter, and also intends on starting his own business eventually.

    ·The applicant has committed to continuing to access treatment for his mental health through Foundation House and his counsellor Ms Irene Rahman and any other programs that will be beneficial to his mental health or rehabilitation.

22. It is also relevant to consider the supports the applicant has in place were he to be granted a Bridging Visa as it may affect his proclivity to breach the conditions. The Tribunal has received submissions regarding the support he will receive including:

    a.Mr Serdar Yucel: ‘I have been the source of much of Mr Owrak’s financial support through this difficult time. He is a man of good character, good faith, and much generosity and with his skills as a painter, will be able to actively contribute to the construction industry upon release, otherwise he has a job waiting at my company as mentioned previously. Azhang will be starting automatically at my business (HOT SPOT KEBABS PTY LTD) and will be supporting him financially from the start.’

    b.Ms Clare Kennedy: ‘If Azhang is released, I am willing to support him for as long as needed. I already support Azhang a lot. I wake him up early to get his medication, I try to keep him motivated while he is in detention, and I keep him having a routine. I have been helping Azhang with his English. He has spoken to me a lot about what he wants to do when he gets out, he talks to me about his goals, and I know he wants to work. I have also met some his friends who are very supportive of him. If Azhang is released, Azhang can stay with me at my house, and we can have a home together. Our comfort and healing and support will start when we live together. We have already organised that he can stay with me if he is released.’

    c.Mr Raymond Kennedy: ‘Part of our culture is supporting family. Family is not about being blood-related, it is much deeper than that. If Azhang was released, I will help him find a job, I will help him financially and I will give him all the support I can. I will support Azhang because of my love for my daughter and I will support Clare no matter what.’

    d.Mr Ian Rintoul: ‘Through my role in the Refugee Action Coalition, I can provide some direct assistance and I am in contact with many services, churches and support groups in Melbourne who are very willing to assist Azhang to find accommodation, to provide some financial support, and assistance with training and employment. We can also assist Azhang to access any medical and psychological support that he might need.’

23. In the post-hearing submission, the applicant’s lawyer submitted a summary of the protective factors working against the applicant reoffending.

    The Applicant’s age: Mr Owrak has told the Tribunal that he has become saddened by aging, and has given evidence to the Tribunal that he wishes to start a family and finish his life in a way that will honour his family;

    The Applicant’s insight and remorse: Mr Owrak has continually demonstrated remorse and insight into his past offending, addressing the circumstances that led to his offending (including drug use, unstable housing, and negative peer influences).

    The Applicant’s accommodation: Mr Owrak has plans to stay with Clare, his de facto partner, should he be released. Mr Owrak also has the support of Refugee Action Coalition in terms of housing and other social supports.

    The Applicant’s supportive partner and friends: Mr Owrak has disengaged from past negative peer influences and has support of advocates, friends, and a very supportive de facto partner, Ms Clare Kennedy, who he intends to marry in the community.

    The Applicant’s plans for financial support and/or work: Mr Owrak has plans to work with his friend Serdar and has other goals for employment should he be released and granted work rights. Should Mr Owrak not be granted work rights, he will be helping Clare with projects, be financially supported by his friend Serdar and intends on starting a family with Clare.

    The Applicant’s management of his drug addiction: Mr Owrak has completed intake for AOD counselling so that he can continue to manage his drug addiction in detention, and to be continued in the community if he is released.

    The Applicant’s engagement with counselling: Mr Owrak is continually engaging with a counsellor to manage his symptoms of past trauma in Iran and stress in detention.

    The effect of future breach of visa conditions: Mr Owrak is aware that future breaches of visa conditions will lead to visa cancellation and detention, which is a significant disincentive toward future breach of visa conditions.

24. In addition, by way of a statutory declaration the applicant’s partner, Ms Clare Kennedy submitted the following:

    Azhang is now going to get help from a Drug and Alcohol program with North & West Metro AOD Services. I am confident that I can support Azhang and help him onto the right path through our love for each other. I do not use any sort of drugs and I am confident that he will not go astray if he is released. I will commit to encouraging Azhang and supporting him to do the right thing, to access programs and making sure he attends drug and alcohol counselling sessions. I would love to see Azhang have a fresh start. Azhang and I want to start a family and have a better path for our future together. I also know that other members of my family will help with this. I believe Azhang has truly decided to change and make positive decisions. Azhang has already made changes and I have realised that he is trying to be a better person and do all the right things. I know Azhang really wants to get out of detention because detention is making him sick. I know this because I talk to Azhang every day on the phone while he is in detention.

25. Ms Kennedy’s claims are backed by email correspondence provided by the representative from Odyssey House, Alcohol and Drug Services which details that the applicant has spoken with an intake worker and is booked for a comprehensive AOD assessment for the 1 June 2022 by telephone. Following the assessment, a treatment plan will be developed.

26. Based upon the evidence provided I find that the applicant has taken the first step of recognising that he has personal agency which will allow him to avoid following the same path that led to his incarceration and detention. I also acknowledge strong support networks in place were he to leave detention. These networks appear to extend beyond just his relationship but to friendships and professional groups. I also accept that there are other protective factors as listed by the applicant’s lawyer that work strongly in favour of deterring the applicant from reoffending, not the least of which is the risk of returning to detention.

27. It should be noted that the delegate identified an 11 October 2016 Intervention Order (IVO) made against the applicant by the Department of Health and Human Services (DHHS). The allegation was of a serious sexual nature, one that would attract considerable policing resources to ensure that a comprehensive investigation was undertaken. The delegate’s decision continued on to note that on 11 May 2020 VICPOL advised the Department that no charges were made in relation to this incident and the matter is now finalised. I place no weight on this as no charges were laid.

28. With regards to the applicant’s behaviour while in detention, I note that the delegate provided a list of 13 breaches since January 2021 and that in total over the course of his nearly five years in detention he has been involved in 40 incidents. At the hearing we discussed his past behaviour as outlined in the delegate’s decision which, as it was not provided to the Tribunal, was put to the applicant under s359AA.

29. I sought further details from the detention centre regarding some of the recent incidents so as to assess the nature and severity of them. In response, a list of all of the incidents the applicant has been involved in since arriving into detention was provided. I had a detailed look at the period since the applicant claims to have ceased using drugs which is a period of fifteen months. All but one is listed as ‘minor’ (other than those involving general medical treatment for the applicant). The one that is not listed as minor is a guard’s decision to use mechanical restraints while transporting the applicant to a hospital.

30. In some of the recorded minor incidents the guards took the view that some items found in the possession of the applicant could be weapons. In response the applicant said that he is a believer in God and he swears to God that he had no intention to harm anybody or to use the items as weapons. For example, in one instance, a blade was found among his belongings, an incident which was recorded by the delegate as ‘Contraband found – improvised weapon’. In response to this being raised at the hearing the applicant said that the blade was a pencil sharpener blade only about 1cm in length (this claim is confirmed in the report) and was used to sharpen colouring pencils as he enjoyed art. I asked why he would take a blade off a sharpener instead of just using the sharpener. He said that they are not allowed to have a pencil sharpener. Before he got the blade, he would sharpen pencils on the ground outside. He said that he has loved art and drawings ever since childhood. The other ‘weapon’ was some soap found in socks within his baggage, which the guards identified as a weapon (i.e., the soap bars being a heavy item could be swung and used to hit someone). He said that he used the soap in socks as freshener to keep his clothing smelling fresh. He put them in socks so that the soap did not rub against the clothes. He said that he continues to do this but simply not putting the soap into socks any longer.

    Conclusion

31. At the hearing the applicant stated that being in detention and under threat of being sent back to Iran had created an immense amount of stress on him and has taken a toll. He acknowledged that he had started to use drugs again while in detention, but he said that he did not sell drugs or use them for profit and that he did not hurt anyone. Back in March 2021, he used drugs again and realized that he had to stop. He said that he hasn’t used drugs since then. 

1. That the applicant has not used any drugs for fifteen months and there is no evidence to dispute this is an important consideration when turning my mind to whether the applicant will breach conditions 8564 and 8566. I place considerable weight upon his rejection of drugs which had been the cause of his previous downward spiral into criminal activity.

2. While some evidence has been provided that may question the applicant’s rejection of violence, both the applicant and guard’s reasoning to explain the presence of ‘weapons’ in the applicant’s possession are logical. A small blade can be used as a weapon as can soap bars in socks. But the applicant’s answers also appear logical and were delivered in a convincing manner. While there can be a reason for misunderstanding and confusion over the applicant’s intention behind his actions, repeatedly transgressing rules by having in his possession contraband is unacceptable. Nevertheless, I place limited weight on the applicant’s repeated minor transgressions while in detention. Limited weight, as opposed to some greater weight, because of the minor nature of the transgressions.

3. The applicant stated at the hearing that, ‘All I can say on that is that I am becoming older and wiser, and I have noticed…I am at the stage of life where I am trying to make a family, get married and have a life in the future. It would be very stupid for me to get involved in such things and I am seriously making a commitment not to repeat that.’ I accept the genuineness of the applicant’s words and in turn I place considerable weight on the ongoing presence of a risk to the applicant of returning to detention was he to breach a condition. Because of the high personal cost to the applicant of his detention I find that the deterrence factor of a possible return is a strong motivator to adhere to the conditions.  

4. I note that the applicant is in detention because he had in the past breached his conditions for which I place some weight.

5. When considered collectively, overall, on the evidence before me, I am satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.

6. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

7. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

   ·cl 050.223 of Schedule 2 to the Regulations

   Denis Dragovic
   Deputy President