Singh (Migration) - [2024] AATA 2477

Singh (Migration) [2024] AATA 2477 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurinder Singh
CASE NUMBER:  2403166
Home Affairs REFERENCE(S):               BCC2024/1161769
MEMBER:Amanda Mendes Da Costa
DATE:19 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 19 March 2024 at 2.49pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – applicant has been convicted of significant domestic violence crimes – had made an application for Ministerial intervention – has limited financial resources – not satisfied that the applicant will comply with Condition 8101 – substance abuse – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 351
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.223, 050.613, Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 18 February 2024. 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 050.212 which provides 17 separate criteria, each of which provides a ground for the grant of a subclass 050 visa. The primary criteria for the grant of a subclass 051 visa include cl 051.211 which provides five separate criteria, each of which provides a ground for the grant of the subclass 051 visa.
The decision to refuse to grant the visa was made on 21 February 2024 on the basis that the delegate was not satisfied that the applicant met any of the criteria in cl 050.212 or cl 050.211 for the grant of a subclass 050 or subclass 051 visa, respectively.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 15 March 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, 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 conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter he considered relevant to the applicant’s review.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case to be decided by the Tribunal are:
·Whether the applicant is eligible to be granted a Bridging E visa.
·If the applicant is eligible to be granted a Bridging E visa, what conditions should be attached to the visa.
Applicant’s Immigration History
On 25 May 2009, the applicant was granted a Student (subclass TU 572) visa, arriving in Australia on that visa on 30 June 2009. The applicant commenced studies for a Diploma in Business Management and a Certificate III in Automotive Mechanical Technology.
On 15 August 2011 and 5 December 2012, the applicant was granted further subclass TU 572 visas to continue his studies onshore.
On 12 June 2013, the applicant was granted a further subclass TU 572 visa to complete his studies in Certificate IV in Automotive Mechanical Overhauling.
On 28 May 2014, the applicant was granted a Temporary Work (subclass UC 457 visa) on the basis that he was to be employed as a Motor Mechanic by Purely Prestige Automotive (the nominator). The applicant’s spouse and two children were also granted dependent visas.
On 28 May 2018, the applicant applied for an Employer Nomination Scheme (subclass ENS 185) visa and was granted an associated Bridging A (subclass 010) visa.
On 26 November 2018, the applicant’s subclass 186 visa application was refused because the nominator’s nomination application for a position for the applicant was refused on 27 September 2017.
On 18 June 2020, the applicant’s associated Bridging A Visa was cancelled by a delegate of the Minister under s 116(e)(ii) of the Act due to his criminal charges and the delegate’s concern that the applicant’s continued presence in Australia may pose a risk to his wife and children.
On 9 July 2020, the Tribunal (differently constituted) affirmed the delegate’s decision to refuse his subclass 186 visa application.
On 28 February 2023, the applicant was re-notified of his Bridging A visa cancellation because his previous notification was found to be defective following the decision of the Full Court of the Australian Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46.
On 11 May 2023, the applicant lodged a request for the Minister to intervene in his case under s 351 of the Act. This application is yet to be determined.
On 18 February 2024, the applicant lodged the current application for a Bridging E (subclass 050) visa which was refused by the delegate on 20 February 2024.
Applicant’s criminal history
On 11 April 2020 Victoria Police informed the Department that the applicant had been involved in a family violence incident between himself and his former spouse. Police officers alleged that the applicant was involved in an assault on his wife who sustained multiple injuries including a fractured eye socket and cheek bone. This assault was committed in the presence of the couple’s two children.
The police further alleged that during this incident the applicant made threats to kill his wife and used an electrical extension cord with exposed wires and a plastic toilet plunger to assault her. He also punched his wife multiple times. As a result of her injuries the applicant’s wife required hospital treatment.
The police advised the Department that this was not an isolated incident and there was a history of family violence, perpetrated by the applicant against his wife. The Tribunal notes that on 20 November 2019 charges of Recklessly Cause Injury and Unlawful Assault were withdrawn or struck out by the Magistrate’s Court at Werribee.
When interviewed by Departmental officers on 20 February 2024, the applicant disclosed that these charges were related to a family violence incident between himself and his wife.
On 13 April 2020, the applicant was charged with the following offences by Victoria Police:
·Intentionally Cause Serious Injury.
·Recklessly Cause Serious Injury.
·Intentionally Cause Injury (6 counts).
·Recklessly Cause Injury (6 counts).
·Make Threat to Kill.
On 17 September 2021, the applicant was convicted in the County Court of Victoria of the following offences:
·Recklessly Cause Injury (2 counts).
·Common Assault (2 counts).
·Intentionally Damage Property.
·Contravene Family Violence Order.
The Court sentenced the applicant to a term of imprisonment of three years with a non-parole period of two years. The Court declared that a period of 524 days had already been served by the applicant by way of pre-sentence detention.
The applicant was released from prison on 27 July 2022 when he was detained under s 189 of the Act and transferred to the Melbourne Immigration Detention Centre, where he is currently being held.
Reasons for the delegate’s decision
The delegate of the Minister in their decision to refuse the applicant a Bridging E visa found that they were not satisfied that the applicant would comply with the conditions imposed on the visa. This was based on the following:
·The seriousness of the applicant criminal offending.
·The fact that the offences committed by the applicant in April 2020 were not the only incidents of family violence on his part.
·The applicant had been involved in two incidents of violence whilst in Immigration detention.
·The substantial amount of the debt owed by the applicant to the Commonwealth and ANZ Banks which was likely to be an incentive to him working in breach of condition 8101 if the Bridging E visa was granted.
·Mr Gurwinder Singhs responsibility for financially supporting his wife, children and mother-in-law means that the financial support of the applicant is likely to be an unsustainable burden for Mr Gurwinder Singh if the applicant is living with him and his family.
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 reg 2.20(7), (8), (9), (10), (11) or (17).
The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
The Tribunal is satisfied that at the time of application:
·The applicant was an unlawful non-citizen and therefore meets cl 050.211(1).
·The applicant was not an eligible non-citizen of the kind set out in r 2.20(7), (8), (9), (10), (11) or (17) and therefore meets cl 050.211(2).
Therefore, the applicant meets cl 050.211.
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.
In this case, the applicant is seeking to meet cl 050.212(6) of Schedule 2 to the Regulations. 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.
Ministerial intervention
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act.
The Tribunal notes that on 11 May 2023 the applicant lodged a request for the Minister to intervene in his case under s351 of the Act. Accordingly, the applicant meets cl 050.212(6). _
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
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 is satisfied that the applicant’s application for Ministerial intervention is still proceeding and is yet to be determined. Accordingly, 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
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 visa with different conditions; or, the applicant is not in immigration detention, does not hold (but Intervention Order which 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); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.
The applicant was interviewed by Departmental officer (by teleconference) on 20 February 2020. During that interview, the applicant explained that his criminal convictions in 2020 related to domestic violence charges which were committed when he was using illicit drugs including Ice and marijuana and drinking alcohol. He also said that there was an incident involving his wife in 2019 when he was charged with assaulting his wife. The applicant explained that his drug and alcohol use commenced a couple of months after his subclass 186 visa application was refused.
The applicant further explained that he was not having any contact with either his wife or children because of an intervention order which ends in April 2024. He is currently prescribed anti-depressant medication to lower his cholesterol. He said that he took the anti-depressant for 12 months until February 2023 when he ceased the medication. He resumed taking the medication (when he feels depressed) in January 2024.
The applicant explained that he has not taken illicit drugs in over four years and does not intend to use them again. He said he had undertaken drug courses whilst imprisoned.
The applicant told the delegate that if his Bridging E visa was granted, he proposed living with his cousin, Mr Gurwinder Singh, and his family. He said that in addition to providing him with accommodation, his cousin was prepared to provide him with food and pay for his health care and other living expenses.
Whether the applicant will abide by conditions - cl 050.223
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.
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].
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.
If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].
In this case cl 050.613A applies because the applicant has made an application for Ministerial intervention under s 351 of the Act. This clause prescribes that in addition to any mandatory conditions, certain discretionary conditions may be imposed.
During the hearing, the Tribunal explained to the applicant that Condition 8101 [The visa holder must not engage in work in Australia] is a mandatory condition to be placed on the visa. The Tribunal advised that it considered that the following conditions are relevant to him:
·Condition 8207           Must not study.
·Condition 8506           Must notify the Department of any change of address.
·Condition 8564           Must not engage in criminal conduct.
The Tribunal further explained that:
·the Tribunal was reviewing the decision by the delegate to refuse his application for a Bridging E visa;
·the delegate was concerned that the applicant would not comply with mandatory condition 8101 and discretionary condition 8564, such that consideration of these conditions is an issue before the Tribunal, if the Tribunal considers the imposition of such conditions are necessary;
·the Tribunal was satisfied that the application had made an application for Ministerial intervention under s351 of the Act and that application had not been decided, which meets the requirements of cl 050.212(6) of Schedule 2 to the Regulations; and
·the Tribunal would consider whether the applicant would comply with any conditions the Tribunal considered reasonable to impose if the applicant was granted a Bridging E visa.
Applicant’s evidence
The applicant provided the Tribunal with a statutory declaration, affirmed by him on 13 March 2024 in which he states that he accepts that his previous criminal behaviour is unacceptable conduct by the expectations of the Australian community. He also says that he accepts responsibility for his actions, is remorseful and aims to refrain from further use of illicit drugs.
The applicant further explains that if he is granted a Bridging E visa, he will comply with any conditions attached to the visa, will live at 22 Cheviot Drive, Truganina, Victoria and will advise the Department of any change of address.
At the commencement of the hearing the applicant told the Tribunal that although he had not provided a copy of the delegate’s decision to the Tribunal, he had read the decision.
The applicant confirmed the information set out above regarding his Immigration and criminal histories. He further explained that he married his wife in India in 2008 and that the couple have two daughters aged 14 and 11 years. Whilst the applicant arrived in Australia in 2009, his wife and children travelled to Australia to join him in December 2014.
After completing his studies, the applicant was employed by Purely Prestige Automotive (the nominator) as a Motor mechanic between 2014 and 2016. During that period two other employees were granted subclass 186 visas on the basis of the nominator’s approved nominations for positions for them. The applicant said that in 2016 the nominator ceased trading and closed its business due to an outstanding debt to the Australian taxation Office. The applicant said that this was the reason for the nominator’s nomination application for the position of Motor mechanic for him had been refused on 27 September 2017 and this led to his subclass 186 visa application being refused on 26 November 2018.

The applicant told the Tribunal that following the refusal of his visa application he became concerned about the effect of the decision on himself and his family. This led him to becoming depressed and instead of seeking professional help or discussing his feelings with his family and friends, he internalized his feelings and sought to deal with them by using drugs – Ice and Cannabis. The applicant explained that he obtained the drugs from the wrong people and whilst the drugs initially made him happy, after three to four months of use he became increasingly angry at the smallest things and because of the drugs couldn’t make the right decisions. The applicant said that although he tried to hide his drug use from his wife, after a few months of use, his wife discovered that he was using Ice and Cannabis. She was very distressed about this and arranged for friends (including Gurwinder Singh) to speak to him about his drug use and the effect it was having on his behaviour. The applicant told the Tribunal that he rejected his friends’ attempts to assist him and continued to use Ice and Cannabis on a daily basis until he was arrested by police on 11 April 2020.
The Tribunal discussed with the applicant the history his criminal charges and intervention orders. The applicant became distressed when discussing his previous behaviour towards his wife and daughters and the fact that he had not had any contact with them since 11 April 2020.
The applicant explained that he had been involved in a physical altercation with his wife in 2019 which resulted in him being charged by police with Recklessly Cause Injury and Unlawful Assault. These charges were withdrawn/struck out on 20 November 2019by the Magistrates Court after his wife informed police that she no longer wished for the charges to proceed. The applicant further explained that when he was originally charged by police in 2019, a court had made an intervention order against him which order permitted him to continue residing with his wife and daughters. His wife had been prepared to have the charges against him withdrawn/struck out when he agreed to accept the assistance of their friends (including Mr Gurwinder Singh) in giving up his drug use. However, the applicant did not seek any assistance and continued his drug use.
The applicant accepted that he had behaved in a violent manner towards his wife on 11 April 2020 and that this had occurred in the presence of their children. He explained that he pleaded guilty to the charges in the County Court on 17 September 2021, which included a charge of breaching an intervention order.
The applicant explained to the Tribunal that prison had been the right place for him because he had enabled him to give up drugs which he had not used since his arrest. He said that the drug treatment courses he had attended in prison had assisted him and he had been clean for nearly four years. This is supported by certificates provided by the applicant which show that he has completed the following courses:
·Cannabis and Me (6 hours), dated 26 August 2020.
·Semi-intensive Drug and Alcohol Treatment Program (level IV)(44 hours) dated 27 April 20222.
·Ice and Me (6 hours), dated 3 September 2020.
The applicant said that he had no intention of returning to his drug use if he is released from detention on a Bridging E visa. He explained that he is now aged 38 years and does not want to return to that path again. He said he can live with Mr Gurwinder Singh and his family in Truganina, on an indefinite basis and that in addition to accommodation, Mr Singh is prepared to provide him with food, clothing, and other living expenses. The applicant further explained that Mr Singh is the owner of a successful and profitable restaurant in Geelong and has sufficient income to support the applicant. The applicant confirmed that he had discussed these proposed arrangements with Mr Gurwinder Singh who is an honest man who would prevent him from breaching any visa conditions. The applicant also said that if granted the visa, he intends to obtain legal advice regarding another application for a substantive visa which will enable him to remain in Australia.
The Tribunal asked the applicant about the current intervention order against him which ends in April 2024. The applicant said that he does not know whether his wife intends to seek an extension of the order. Although he has not had any contact with his family since April 2020, he is aware (through discussions with Mr Gurwinder Singh) that his wife and daughters are also living in Truganina, approximately one- or two-kilometres distance from Mr Singh’s home.
When the Tribunal raised its concern that he would attempt to resume contact with his family if granted a Bridging E visa, he said that although he wanted to have contact with his family, he had not telephoned his wife while in prison and Immigration detention, despite being aware of his wife’s telephone number. He further explained that he would not risk breaching the intervention order by attending his wife’s home or attempting to approach her or their daughters. He said that any breach of the order on his part would result in him being sentenced to between 3- and four-months imprisonment. The applicant said that if the Tribunal was worried about him living in the community near his wife and children, he was prepared to live with Mr Jaswinder Singh, who lives in Springvale. However, he conceded that he had not discussed any potential living arrangements with either Mr Jaswinder of Mr Lakhvinder Singh.
The Tribunal also indicated to the applicant its concern that he would find it difficult to refrain from working if granted a Bridging E visa because he would be reliant on Mr Gurwinder Singh for all financial support for an indefinite period. The applicant assured the Tribunal that he would comply with any condition requiring him to refrain from work and that Mr Gurwinder Singh, who is a very honest person, would ensure his compliance with any visa conditions.
When the Tribunal asked the applicant about whether he had completed any anger management courses whilst in prison or Immigration detention, he explained that he had completed four of seven planned counselling sessions whilst in Immigration detention and expected to complete his session within the next couple of months. He said that he had realised that counselling would assist him after an incident which occurred at the detention centre in February 2024 which is detailed in the delegate’s decision.
In response, the Tribunal noted that in his decision the delegate refers to two incidents where the applicant had been involved in physical altercations whilst in Immigration detention – on 25 July 2023 and 3 February 2024.
The Tribunal informed the applicant that the Department had provided it with a certificate issued under s 376 of the Act (dated 26 February 2024) in which the delegate certifies that the disclosure of information contained in reference numbers ADD2024/1275909, ADD2024/1275882, and ADD2024/1275792 ) would be contrary to the public interest because it may:
·disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; and
·disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods; and
·endanger the life or physical safety of a person; and
·where information was provided ‘in confidence,’ the provider of the information has not consented to the disclosure of the information to the review applicant.
The Tribunal advised the applicant that it had formed a view that the certificate was valid and that disclosure of the information (which identifies the names of other detainees and Detainee Service Officers) would be contrary to the public interest as claimed by the delegate. However, the Tribunal sought the applicant’s views and explained that it wished to hear the applicant’s account of the incidents.
The Tribunal noted that in their decision, the delegate states:
In the first incident that occurred on 25 July 2023, footage from CCTV shows a verbal exchange between yourself and another detainee that escalated into a physical altercation. The footage shows you initiated the altercation by holding onto the other detainee’s shirt. Both of you then launch punches towards one another without striking the other party.
In the second incident that occurred on 3 February 2024, footage from CCTV again shows you initiated the altercation by grabbing another detainee’s arm and collar and pushing him into a bench. You later admitted to the Serco officer that the detainee tried to push in line at the lunchroom, causing you to challenge him and push him out of the way. I note you were reprimanded for the above incidents.
In response the applicant said that he was aware of the names of the other detainees involved and conceded that he had been involved in two altercations with other detainees on the above dates. He explained that living in a detention centre is a stressful experience for a detainee, particularly in circumstances where they may be detained for several years and when they have little or no idea when that detention may end.
The applicant explained that on each occasion the other detainee had instigated the conflict but instead of standing back and reflecting on his behaviour, he had simply responded in anger. He said that in the first incident, he and the other detainee had thrown punches at each other without contact and in the second incident there had been pushing and shoving between them without any punches being thrown. The applicant further explained that the detainee involved in the first incident has since been released from detention and the that he hands the detainee involved in the second incident had resolved their difference and now ate their meals together.
The applicant told the Tribunal that he realised he had behaved inappropriately on both occasions and that his recent anger management counselling sessions had helped him to realise this and look at different and non-violent methods to approach conflict. He said he would not behave in a physically aggressive manner towards others if released from Immigration detention.
Evidence of Gurwinder, Jaswinder, and Lakhvinder Singh
Mr Gurwinder Singh provided the Tribunal with a written statement (undated) in which he states that he is an Australian citizen and the proprietor of a successful business. He further states that the applicant is an individual of exceptional character and talents, whom he has known since June 2010.
Mr Gurwinder Singh explains that he is prepared to assist the applicant if he is released from immigration detention. This assistance includes providing the applicant with accommodation, food, and financial support to live in the community.
The Tribunal was also provided with statements by Mr Jaswinder Singh and Mr Lakhvinder Singh. Both attest to the applicant’s good character and talents. They also confirm that they are prepared to provide accommodation, food, and financial assistance to the applicant if his Bridging E visa is granted.
In addition to the statutory declaration and statements from Gurwinder, Jaswinder and Lakhvinder Singh, the applicant provided the Tribunal with a General Health Summary (dated 14 March 2024) from International Health and Medical Services. In this Summary, the author notes that the applicant was seen on 13 March 2024 in the Immigration detention centre during which his mental health and substance use history was discussed. The author further notes that the applicant reported no current use of illicit substances and although he was not often angry, he was still concerned about managing his anger. The author further states that the applicant explained that his previous problems with violence occurred in the context of his use of the drug Ice. The author recommended that the applicant continue with anger management exercises and participate in anger management education.
Findings
The Tribunal has considered the applicant’s statutory declaration, counselling certificates and witness statements, together with his oral evidence at the hearing.
It accepts that he is remorseful for his previous criminal behaviour and its effect on his relationship with his wife and children. The Tribunal further accepts that the applicant has taken measures to address his Ice and Cannabis use and has recently commenced anger management counselling. The Tribunal also notes that the applicant accepts responsibility for his own violent behaviour towards his wife on more than one occasion and that he pleaded guilty to the charges on 17 September 2021.
The Tribunal notes that the offences were committed by the applicant involved the infliction of serious injury to his wife requiring her to receive hospital treatment and threats to kill. The offences were also committed in the presence of the couple’s two young children.
The Tribunal is further concerned that the offences committed constituted a breach of a previous family violence order against the applicant and although the applicant claimed during his oral evidence that he was unaware (when the offences were committed) of the existence of the order, the Tribunal notes that he pleaded guilty on 17 September 2021 to the breach of this order, which suggest a knowledge of the order prior to the breach.
Whilst the Tribunal accepts that the applicant was not convicted of the charges which were withdrawn or struck out at the Magistrate’s Court on 20 November 2019, it notes that he conceded during the hearing that he had also been involved in an incident of family violence with his wife who had been prepared to have the charges withdrawn on the basis that he assured her he would seek help for his drug use. The Tribunal notes that he did not follow through with these assurances.
Although the applicant told the Tribunal that his volent behaviour towards his wife was the result of his illicit drug use, the Tribunal notes that he has been involved in two physical altercations with other detainees whilst in immigration detention. These incidents have occurred while the applicant has been drug-free and although the Tribunal acknowledges that immigration detention can be a stressful situation for detainees, it notes that in his oral evidence, the applicant conceded that he was unable to control his anger and responded to provocation from other detainees without reflecting on his behaviour.
The Tribunal acknowledges that the applicant has recently recognised the need for him to attend anger management counselling and has attended four sessions. However, the Tribunal is concerned that applicant’s violent behaviour is not solely linked to drug use and that he has only recently commenced counselling. While the Tribunal acknowledges that the two incidents in detention did not involve the applicant in causing injury to the other detainees, it is concerned that he responded in a physical manner to his frustration and anger and on one occasion attempted to punch a detainee.
If granted a Bridging E visa, the applicant intends to live with Mr Gurwinder Singh and his family in Truganina, Victoria. The applicant also wishes to resume contact with his wife and daughters with whom he has not spoken or seen since his arrest in April 2020.
The Tribunal has considered the applicant’s assurance that he will comply with any visa condition which prohibits him from working. The Tribunal notes that he has limited financial resources and will be largely dependent on Mr Gurwinder Singh for accommodation, food and other living expenses for a potentially lengthy period of time. The Tribunal is not satisfied that the applicant will be prepared to live in such a prescribed manner, particularly as he wishes to obtain legal advice regarding further visa application. There is also no evidence before the Tribunal that Mr Gurwinder Singh is prepared to finance this additional expense.
Accordingly, the Tribunal is not satisfied that the applicant will comply with Condition 8101 if the visa is granted.
The Tribunal is further concerned that if the visa is granted, the applicant will be living in relatively proximity (and in the same suburb) as his family in circumstances where he wants to have contact with them and continues to experience difficulties in controlling his anger when faced with stressful situations. The Tribunal further notes that whilst the applicant has ceased using illicit drugs since being incarcerated, his previous drug use was daily and over a sustained period of time (i.e., two years).
The Tribunal is concerned that if he again becomes distressed or depressed about his personal circumstances (and particularly his visa status) he may resume his use of illicit substances or behave on in violent manner.
The Tribunal has considered the applicant’s offer to reside at an address other than that of Mr Gurwinder Singh if the Tribunal is concerned about him residing near his wife and children. Although the Tribunal acknowledges that the statements of Mr Jaswinder Singh and Mr Lakhvinder Singh indicate they are also prepared to support the applicant in the community it notes that the applicant has not had the same discission with them about his proposed living arrangements, as he has had with Mr Gurwinder Singh about accommodation and financial support for him on a long-term basis.
The Tribunal does not consider that the applicant has seriously considered living with either Jaswinder or Lakhvinder Singh and finds that his proposal to live with them as an alternative to Mr Gurwinder Singh (which he made during the hearing) was a response to the Tribunal’s concern about him living near his wife and children. Accordingly, the Tribunal considers that the likely residence for the applicant in the community is that of Mr Gurwinder Singh.
The Tribunal is concerned that the applicant has previously been prepared to breach a family violence order, which causes the Tribunal to doubt his preparedness to comply with visa conditions if granted a Bridging E visa, particularly if he resumes his drug use or becomes in involved in physical alterations with others.
Given its concerns regarding the applicant reoffending or resuming his illicit drug use if released from immigration detention, the Tribunal is not satisfied that he will comply with Condition 8564 if the visa is granted.
Based on the above findings, the Tribunal is also not satisfied that the applicant will comply with Condition 8506 if granted a Bridging E visa.
The Tribunal has also considered the applicant’s assurances that M Gurvinder Singh will ensure his compliance with any visa conditions. However, the Tribunal notes that the applicant has previously refused assistance from Mr Gurvinder Singh and the Tribunal is not satisfied that if the applicant chose to breach his visa conditions that Mr Gurvinder Singh would be able to prevent this from occurring.
The Tribunal is not satisfied that the applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so. Accordingly, the Tribunal finds that the occasion for the imposition of a security does not arise.
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.
Conclusion
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Amanda Mendes Da Costa
Member