Verma (Migration)

[2023] AATA 480

Verma (Migration) [2023] AATA 480 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Verma

CASE NUMBER:  2302565

Home Affairs REFERENCE(S):               BCC2023/1224214

MEMBER:Tamara Hamilton-Noy

DATE:6 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2023 at 12:52pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – study rights – not engaging in criminal conduct – applicant convicted of breaching family violence order – period of imprisonment – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5, 73, 424AA
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223, 050.611, 050.618, 051.211

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 February 2023. 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: the Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed.

3. The decision to refuse to grant the visa was made on 22 February 2023 on the basis that the delegate was not satisfied the applicant would abide by the conditions imposed.

4. The applicant appeared before the Tribunal on 2 March 2023 to give evidence and present arguments by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets cl 050.223.

7. 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.

8. In this case, the applicant is seeking to meet cl 050.212(3).  The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

9. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

10. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without an application being made: s 5(9) of the Act.

11. The delegate has found, and the Tribunal accepts, that the applicant had made an application for a student visa that was going through a merits review process before this Tribunal (differently constituted).  The Tribunal accepted the evidence given by the applicant at hearing that the matter is still before this Tribunal and has not been finally determined.  The Tribunal finds that the applicant meets cl 050.212(3).

    Whether the applicant will abide by conditions - cl 050.223

12. 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.

13. 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].

14. 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.

15. In this case, cl 050.611B applies because the applicant has made a valid application for a substantive visa that has not been finally determined.  This clause prescribes that condition 8401 must be imposed and any one or more of conditions 8101, 8104, 8201, 8207, 8505, 8506 and 8548 may be imposed.  In addition, cl 050.618 provides that in addition to any other condition imposed by another provision of the Division, condition 8564 may be imposed.

16. The Tribunal has considered the same conditions as those considered by the delegate as the conditions that should be imposed in the circumstances of this case:

    ·8101: No work

    ·8207: Not engage in study

    ·8401: Report as directed

    ·8506: Notify change of address

    ·8564: Not engage in criminal conduct

17. Condition 8101 – No work: The applicant told the Tribunal at the hearing that he had undertaken work in Australia within the restrictions allowed by his student visa, and that his father has assets in India from which the family members in Australia are able to support themselves.  The Tribunal is prepared to accept that the applicant would not work if released on a bridging visa.

18. Condition 8207 – Not engage in study: The Tribunal accepts that the applicant currently has a separate matter pending before this Tribunal relating to the cancellation of his student visa.  The applicant told the Tribunal that he is wanting to increase his knowledge before returning to India and that he has studied horticulture in Australia because his family owns a farm in India.  The Tribunal finds that one of the primary reasons for remaining in Australia is the applicant’s intention to undertake further studies and the Tribunal has doubts that the applicant would comply with a condition that he not engage in study if released on a bridging visa.

19. Condition 8401 – Report as directed: There is no evidence before the Tribunal that the applicant has previously been required to report to a police station or other organisation and failed to do so.  The Tribunal is prepared to accept that the applicant would report as directed if released on a bridging visa.

20. Condition 8506 – Notify change of address: The applicant told the Tribunal that, if released on a bridging visa, he would reside with his mother, sister, brother-in-law and his sister’s young child.  There is no evidence before the Tribunal that the applicant has previously been required to notify of change of address and has failed to do so.  The Tribunal is prepared to accept that the applicant would report as directed if released on a bridging visa.

21. Condition 8564 – Not engage in criminal conduct: The applicant gave evidence to the Tribunal that prior to being placed in immigration detention, he had spent 10 months and 15 days in custody for having a domestic violence order and making a mistake. 

22. The applicant told the Tribunal that he doesn’t have any information about his wife’s current whereabouts and doesn’t want any contact with her.  His last contact with his wife was before he went to jail, when she contacted him.  She has sent him letters in jail and has said she wants to stay with him.  The applicant told the Tribunal that he doesn’t want to live with his wife anymore as she is responsible for sending him to jail.  When asked how his wife is responsible for him being jailed, he then stated no, he is responsible and at that time he was angry and drunk, and he pleaded guilty to charges and admitted he had made a mistake.

23. The applicant told the Tribunal that is intending to apply for a divorce.  He stated he has not yet applied for a divorce as at that time his mind was not set, but he has spoken to his lawyer at Legal Aid and has been told he needs to wait 12 months after separation, which is now up.  His sister and mother have been to see the lawyer and have all of the information and his lawyer has said that once the applicant is released, they will commence divorce proceedings.

24. The Tribunal asked the applicant to describe the offences he had been jailed for and he stated he and his wife had had an argument but had had a good relationship before that.  His wife had phoned him one day to take her to the hospital for an abortion and had come to his house.  He had followed her in his car to the hospital and she phoned him and was emotional so he told her to park the car.  When they stopped their cars, his wife was shouting at him and he was shouting at her and another lady in the car was listening.  The applicant then closed the car door hard and kicked the door and went back and sat in his car.  The lady who was there called the police.  The applicant stated that in total he was charged with 12 different things, including a ‘couple of other small things’ and that there had been no proof or evidence, but the police said they would keep five charges and drop other charges.  He stated that he had breached the requirement to stay 500 metres away from his wife because she had come to his home.  He told the Tribunal that he had had no information about ‘how dangerous’ it was to have a family violence order in place in Australia and what would happen if he breached the order.

25. The Tribunal asked the applicant what the family violence order had been put in place for and he stated in response that when he and his wife were married, they were from different religions and their families were against their marriage.  His wife’s brother was very unhappy and threatened to kill himself so his wife went there, and her brother took her to the police station.  When asked whether there is still a domestic violence order in place, the applicant stated that he is not aware of it and doesn’t want to know, and then stated that he is aware he can’t go within 500 metres of his wife.  When asked how many times he had breached the domestic violence order, the applicant stated it had been three times, once when a neighbour called police, once when his wife’s brother called the police and once when another female called the police.  Once was when he sent a pizza to his wife and another time was when he met his wife to talk. 

26. The Tribunal observed that, if the applicant had breached a court order three times, it caused some doubt for the Tribunal that he would comply with conditions imposed as part of a bridging visa if he was released.  The applicant stated in response that at the time he was not aware of such things and now he hasn’t had anything to do with his wife for 11 months; before he loved her but now he is done.  He stated that he was drinking alcohol when he offended and was not using any other substances and that he had undertaken anger management and drug and alcohol programs in jail and had also been working in jail, driving a tractor.  The applicant stated that he wants to be given one chance, to increase his knowledge and to return to living with his mother.

27. At the hearing, the Tribunal put to the applicant information under s 424AA.  The Tribunal noted that the first piece of information before it was that a temporary protection order had been made in Richlands Magistrates’ Court on 14 October 2021 and that on 5 December 2021 the police had attended the applicant’s home in relation to a family violence incident.  The Tribunal also had before it information that a further domestic violence order was made in Richlands Magistrates’ Court on 9 December 2021 and there were further family violence incidents that came to the attention of police on 20 February 2022 (when the applicant attended his wife’s workplace, followed her home in the car and assaulted her), 28 February 2022 (when the applicant followed his wife in his car), 13 March 2022 (when the applicant got into his wife’s car), 24 March 2022 (when the applicant phoned his wife 18 times) and 25 March 2022 (when the applicant phoned his wife 33 times).

28. The applicant stated that he understood the information as it had been put to him.  The Tribunal observed that the information was relevant because the breaches of the domestic violence orders may cause the Tribunal to not accept that the applicant would comply with the requirement to not engage in criminal conduct if he is released on a bridging visa.  The Tribunal observed that this, subject to any comment or response the applicant made, would be the reason, or a part of the reason, for affirming the decision under review.

29. The applicant stated that he understood why the information was relevant to the Tribunal’s decision and that he wanted to comment on the information at the hearing.  He stated in response to the information that he had followed his wife because she had called him and told him to come to her workplace.  They had an argument over his wife becoming pregnant and after that he doesn’t know what happened.  When the order was first made, it was not a final order and when the final order was made, they attended court together and stood before the magistrate together.  His wife told the magistrate she wanted them to live together.  A lawyer then told him to either waste his money or to plead guilty to the charges and it would all be over in a few months.   The third time he breached the order, everything was happening because his wife had an abortion.  A witness said they had a video of him stalking and choking his wife but there was no such video.  He was receiving calls from his wife and had a pending court date and that is when he called her 18 times.  His wife had applied three times to have the domestic violence order revoked but the judge said they could not do that because it was ‘a domestic violence thing’.  The applicant stated to the Tribunal that, while in custody, his wife had sent him a lot of letters but he hasn’t replied.

30. At the hearing, the Tribunal put a second piece of information to the applicant under s 424AA. The Tribunal noted that the second piece of information was that the applicant had been sentenced to two years and two months imprisonment for charges of unlawful stalking with violence, unlawfully entering a vehicle with intent to commit an indictable offence (x2), assault occasioning bodily harm and choking/suffocation/strangulation.

31. The applicant stated he understood the information as it had been put to him.  The Tribunal stated that the information was relevant because the seriousness of the offending, and the applicant’s failure to comply with the laws in Victoria, may cause the Tribunal to not accept that the applicant would comply with the requirement to not engage in criminal conduct if he is released on a bridging visa.  The Tribunal observed that this, subject to any comment or response the applicant made, would be the reason, or a part of the reason, for affirming the decision under review.

32. The applicant stated that he understood why the information was relevant to the Tribunal’s decision and that he wanted to comment on the information at the hearing.  He stated in response to the information that he is on parole until 2022 and, if he breaches this, he will have to stay in jail until 2025.  He doesn’t want to return to jail.  He also prays every day that he doesn’t breach anything because there are gangsters in jail who ‘see these things badly’. 

33. The applicant was asked whether he wanted to say anything else to the Tribunal and he stated he won’t breach any conditions or gangsters in jail will hit him.  If he is released on a bridging visa he will increase his knowledge and spend time with his family and then will return to India.

34. The Tribunal accepts the applicant’s evidence that he has undertaken programs in jail relating to anger management and drug and alcohol use, and also accepts that there is some incentive for him to remain offence free if released on a bridging visa given the period of parole that he would be subject to, and the consequences of a breach of parole.  However, the Tribunal was concerned that the applicant minimised the seriousness of his offences when discussing his offending history with the Tribunal.  The Tribunal is also particularly concerned at the repeated breaches of a court order that led to the charges, and to the seriousness of the charges that the applicant has been sentenced for.  These suggest a disregard for an order imposed by the Magistrates’ Court and a pattern of significant family violence committed by the applicant.  Given this, the Tribunal is not satisfied the applicant would abide by this condition.

35. 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.

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

37. 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

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

    Tamara Hamilton-Noy
    Member