Were (Migration)

[2021] AATA 3170

Were (Migration) [2021] AATA 3170 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamal Ibrahim Deng WERE

CASE NUMBER:  2016199

Home Affairs REFERENCE(S):               BCC2020/2491420

MEMBER:Nathan Goetz

DATE:10 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2021 at 2:58pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions of visa – breach of intervention order and imprisonment – visa history, including periods as unlawful non-citizen – no application for substantive visa made – information about previous and pending criminal charges not included in bridging visa application or oral evidence to tribunal – lack of insight into offending – change of address not notified – work while unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulation 1994 (Cth), Schedule 2, cls 050.223, 050.617, 050.618, Schedule 8, condition 8564

CASE
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).

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. On 9 November 2018 the applicant arrived in Australia holding a prospective marriage visa. On 2 August 2019 the prospective marriage visa ceased.

3. On 19 June 2020 the applicant was granted a bridging visa. On 17 July 2020 the bridging visa granted on 19 June 2020 ceased.

4. On 18 September 2020 the applicant was granted a bridging visa. On 25 September 2020 the bridging visa granted on 18 September 2020 ceased. The applicant then became an unlawful non-citizen.

5. On 29 November 2019 the applicant lodged a partner visa. On 2 December 2019 the partner visa application was finalised as invalid.

6. On 16 October 2020 the applicant applied for the bridging visa that is the subject of this Decision Record.

7. On 21 October 2020 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl.050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

8. On 3 November 2020 the applicant applied to the Tribunal to review the refusal decision.

9. On 20 July 2021 the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 10:00am on 10 August 2021. The applicant was invited to appear at a Tribunal hearing because the Tribunal had considered the information it had and was unable to make a decision favourable to the applicant.

10. On 10 August 2021 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic.

    CRITERIA FOR BRIDGING VISA

    Whether the applicant will abide by conditions – cl.050.223

11. 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.

12. 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].

13. 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.

14. In this case, cl.050.617 and cl.050.618 apply to the applicant.

15. Clause 050.617 applies when no other clause is applicable. This clause allows one or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 be imposed. Clause 050.618 applies in addition to any conditions that are imposed by any other division of cl.050.6. This allows a decision-maker to impose condition 8564.

16. The Tribunal considered that the following conditions should have been imposed:

    ·8101: The holder must not engage in work in Australia. This condition was appropriate because the applicant was an unlawful non-citizen.

    ·8207: The holder must not engage in any studies or training in Australia. This condition was appropriate because a bridging visa should not be an alternative to a student visa.

    ·8401: The holder must report: (a) at a time or times; and (b) at a place; specified by the Minister for the purpose. This condition was appropriate because the department should be permitted to require a non-citizen to present themselves to the department.

    ·8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. This condition was appropriate because the department should be kept advised of where a non-citizen lives.

    ·8564: The holder must not engage in criminal conduct. This condition was appropriate because it is reasonable to expect a non-citizen who is a guest in Australia to not commit criminal offences while in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Bridging visa application form

17. According to the form, the applicant seeks the bridging visa application on the basis that he is an applicant for a substantive visa. He had not yet applied for a substantive visa but intended to do so.

18. The applicant wrote that he came to Australia on 19 November 2018 and resided in Melbourne with his fiancé. They got married through a marriage celebrate in Melbourne, but not through the court. In May 2020 there was an argument between the applicant and his wife. This led to police intervention. The applicant’s wife was accusing the applicant of having affairs which was not correct. The matter was settled through an intervention order made by the Dandenong Magistrates’ Court.

19. After that, the applicant stayed with a friend for a while until his wife convinced him to go to Adelaide. The applicant had no income or an account and did not know any people there. His wife paid for his tickets and they went to Roxy Downs in South Australia. After some time, his wife called the police notifying them about the intervention order. There was no violence, but it was done intentionally. The applicant was jailed for 28 days for violating the intervention order.

    Department file

20. The department file contains a copy of a Warrant of Imprisonment. This warrant demonstrates that on 12 October 2020 the applicant was sentenced by the Magistrates’ Court of South Australia to 29 days imprisonment for contravention of s.31(2) of the Intervention Orders (Prevention of Abuse) Act 2009. The imprisonment date was backed to 14 September 2020, demonstrating that the applicant had been in custody since that date. 14 September 2020 was detailed as the date of the offence.

21. According to that Act, s.31(2) provides that a person who contravenes any other term of an intervention order is guilty of an offence. The maximum penalty is $10 000 or imprisonment for 2 years.

22. The department file did not contain a copy of the Statement of Facts upon which the applicant was sentenced. The Tribunal obtained a copy of the Statement of Facts which detail the following:

    South Australian Police - Statement of Facts

23. The Tribunal obtained a copy of the Statement of Facts upon which the applicant was sentenced in South Australia. The Tribunal provided a copy of the statement of facts to the applicant prior to the Tribunal hearing. The facts were as follows:

    Protected person’s version

    On Monday 14 September 2020 at Roxy Downs the applicant contravened terms of an intervention order, namely not to contact or communicate with, approach or be within 5 metres of, or go to or remain within 200m of a place where the protected person (being his wife) is living or working.

    The protected person stated that she was aware that there was an intervention order against the applicant and that the applicant cannot speak to her or attend her house.

    The protected person stated that she and the applicant were in a relationship for about four years which ended in June 2020. At the end of the relationship, the protected person reported to Victoria Police that the applicant had assaulted her, which resulted in an Intervention Order being granted. Charges in relation to this matter were pending.

    A nationally recognised intervention order was issued by Vitoria Police.

    On Friday 11 September 2020 the protected person spoke with police at the Roxby Downs Police station and confirmed that she had left Victoria to be with family/friends. She did not tell the applicant that she was leaving but he found out possibly through family.

    The protected person stated that the applicant had followed her to the airport in Melbourne in July and threatened that if she called the police, he would hurt her, and they then travelled to Roxby Downs. The protected person stated that the applicant went with her to her sister’s home in Roxby Downs where, under fear for her safety, the protected person told the applicant he could stay with her but they would not be in a relationship.

    The protected person believes that the applicant is following her because he knows that his visa is expired and he wants to stay in Australia.

    This information had been shared with police prior to Women’s Intake in Victoria.

    The protected person stated that her children (from a previous relationship) are in school in Roxby Downs and she does not want to leave unless she knows that the applicant is not able to follow her as he is good at locating her, however the protected person wants to go back to Victoria.

    The protected person stated that the applicant was living in a shed at the rear of the address in Roxby Downs. She gives him money as he has no income.

    At 5:30pm on Monday 14 September 2020 the protected person attended Roxby Downs Police Station and provided a statement to police.

    The protected person stated that she was in fear of the applicant and believes he could kill her, or her children if he was allowed to stay in Roxby Downs, especially now that she has gone to the police.

    Police version

    On Friday 11 September 2020 police at Roxby Downs Police Station received a phone call from a Women’s Intake Service worker in Victoria who advised him that she had just had a call from the protected person, who was one of her clients and had just recently moved to Roxby Downs.

    The worker stated that the protected person had advised that she had been followed from Victoria to Roxby Downs by her ex-partner. Police were advised that the protected person was afraid of the applicant and wanted to leave but was scared the applicant would find her and follow again.

    Police called the protected person and spoke with her at length, confirming the information passed to the police by the intake worker.

    On Monday 14 September 2020 the protected person contacted Roxby Downs Police Station and agreed to supply a statement in relation to the breaches of the Intervention Order. The protected person attended and made a statement. Police then attended the premises in Roxby Downs and arrested the applicant at 7:15pm. The applicant was handcuffed to the rear by police for safety.

    At 7:22pm the applicant was provided with his arrest rights at the rear of a police caged vehicle, captured on body worn video by police.

    The applicant was conveyed back to the Roxby Downs Police Station where he was charged and his was denied.

    The applicant was not interviewed due to his level of intoxication (blowing 0.180) and request for an interpreter, which it was decided not to facilitate because the applicant was intoxicated.

    Applicant’s version

    The applicant is of no fixed place of abode. The applicant was not interviewed in relation to the matter due to his level of intoxication and language barriers. He was willing to speak with the assistance of an Arabic interpreter once sober.

    Outstanding criminal charges – Victoria Police

24. The South Australian Police Statement of Facts made reference to outstanding matters in Victoria. The Tribunal became aware that the applicant had criminal charges listed on 14 August 2021 at the Dandenong Magistrates’ Court. The matters were listed for a mention hearing.

25. The Tribunal was provided with a copy of the Prosecution Summary and Charges. The Tribunal provided a copy of this material to the applicant prior to the Tribunal hearing. They are detailed as follows:

26. The applicant was charged on 5 July 2020 with one charge of intentionally damaging property contrary to s.197(1) of the Crimes Act 1958 (Vic) and one charge of unlawful assault contrary to s.23 of the Summary Offences Act 1966 (Vic). The offences were alleged to have occurred on 7 June 2020. The case number is M10862334 and it is listed at the Dandenong Magistrates’ Court on 14 October 2021. The Tribunal is aware that the maximum penalty for assault is 3 months imprisonment and the maximum penalty for intentionally damaging property is 10 yeas imprisonment. According to the prosecution summary:

    The Affected Family Member (AFM) and the applicant have been in a relationship since 2016 and currently reside together in the AFM’s home with the AFM’s three children who were not present during the incident.

    There are no current orders between the couple, and this is the first instance where police have been called for an incident between the parties.

    On Sunday 7 June 2020 the AFM and applicant were at home together. At approximately 1pm the AFM told the applicant that she did not their relationship to continue in the manner it had been, with the applicant getting drunk and arguing all the time.

    The applicant told the AFM “I am not leaving, I am your husband”’ The AFM stated “What kind of husband hurts his wife?”

    The applicant has grabbed the AFM by the neck with his left hand stating “If I want to kill you, I could right now.”

    The AFM has moved away from the applicant, grabbed her phone and moved into the kitchen. The applicant has followed and grabbed the AFM by the right arm, being it behind her back. The AFM has told the applicant he was hurting her and he let her go and the AFM has pushed the responded away.

    The applicant moved toward at the AFM again and the AFM bit the applicant on the chest. The AFM was then pushed in the chest by the applicant and the AFM fell to the ground. The applicant has then grabbed the AFM’s phone off the kitchen bench, where it was placed by the AFM and placed it in the microwave turning the microwave on. This has caused damaged to the phone. The applicant has removed the phone from the microwave after the AFM asked him why he was doing this.

    The AFM has then grabbed her phone as well as the applicant’s (phone) and went to the park across the road from her home and called the applicant’s cousin to come and collect the applicant. The AFM remained in the park until the cousin arrived.

    After returning to the house the AFM asked the applicant to leave with the cousin however the applicant refused and the AFM called 000.

    Over the course of this period the applicant consumed 1 x 750ml bottle of red wine.

    (Police) arrived and separated the parties. After (police) obtained a statement from the AFM, the applicant was the transported by (police) to the Dandenong police station for a recorded interview in relation to the unlawful assault and criminal damage.

    The applicant was released ITS (Intent to Summons). The applicant was respectful and compliant with police members.

    In regard to the charge of unlawful assault, the applicant stated that he did not place his hands around the AFM’s throat. The applicant stated that he pushed the AFM in the chest after she bit him, telling her to leave him alone.

    In regard to the charge of criminal damage, the applicant stated he put the AFM’s mobile phone in the microwave oven but did not turn it on. The applicant stated that he had no reason to put the phone in the microwave, but did it to make the AFM afraid. The applicant stated that the phone was damaged when the AFM threw the mobile phone to the ground after he handed the phone back to her and to appease the AFM for the damage she caused to her own phone and the applicant has given the AFM his phone.

    Material submitted by the applicant

27. The applicant provided the Tribunal with a letter from a person who was identified as the President of the Nuer Community in Victoria Inc. The letter was dated 27 October 2020.

28. It noted that the applicant was a financial member of that organisation and described his contribution to the organisation as excellent. It detailed the circumstances of the applicant’s arrival in Australia. He had never committed any crime in Sudan, South Sudan, Israel or Uganda. It noted that it was the first time the applicant had been jailed. The letter described the applicant as a law-abiding citizen but that there were ‘some few circumstances had happened out of his control.

29. In June 2020, ‘some few issues arose between the applicant and his wife, mainly about accusations from her that he had been having affairs with other ladies.’ Because of these accusations, ‘a disagreement happened between them and this dispute led to police intervention at the wife’s residence in Melbourne.’ The matter went to court and an intervention order was made. After that, the applicant went to live with a friend.

30. According to the applicant, he was asked by his wife to go with her to Adelaide. He did not have any money or a bank account to buy the airfares. His wife organised this. They boarded the flight together.

31. In September 2010, the applicant’s wife called the police and reported that the applicant was following her even though an intervention order was in place. The applicant tried to explain to them that it was not him who decided to go to Roxby Down, but his wife convinced him to go with her. The police informed the applicant that they could not do anything, and he would need to explain himself to the court regarding the violation of the intervention order.

32. According to the applicant, there were some reasons why the violations of the intervention order happened and reasons for non-compliance. The reasons were:

33. He was lacking an orientation about the terms of the visa due to his limited English. He did not understand that he was not allowed to travel to any state without informing Home Affairs.

34. The intervention order was a result of an argument that happened between the applicant and his wife which involved the police. The applicant claimed that he did not use any violence, but he was under his wife’s mercy in terms of accommodation, food and finance. The police asked him to leave the house and later the court intervention order stated that he had to stay away from his wife during the terms of the intervention order. The letter noted the outcome of the court case.

35. The letter detailed that the Association has taken an initiative to mediate between the applicant and his wife. The Association called the applicant and his wife separately regarding the intervention order. They both agreed to forgive each other and start a new life. This will happen at the end of the intervention order in December 2020. The applicant and his wife’s mobile numbers were provided to verify these claims.

1. The letter noted that through the mediation process, the applicant would be supported by his wife to apply for a spouse visa after December 2020. The Association would support the applicant to get employment and settle in Australia.

   Discussion at Tribunal hearing

   Did the applicant agree to abide by conditions?

2. At the Tribunal hearing, the applicant discussed the conditions it considered appropriate for the grant of the bridging visa. The Tribunal noted that the conditions were different to those considered by the delegate. The applicant said that he would abide by those conditions.

3. The Tribunal discussed various matters with the applicant, and he provided the following evidence.

   What did the applicant say concerning his residence address?

4. The applicant said he currently resides in Griffith, New South Wales. He had been living there for three weeks. He told the department about this change in his residential address a week and a half ago. The Tribunal noted that the applicant had not advised the Tribunal of that change of address and asked why he had not done so. The Tribunal notes that the applicant had previously advised the Tribunal in December 2020 that he now lived in Boronia, Victoria, which was a change from the residential address he provided in Findon, South Australia. The Tribunal also notes that it wrote to the applicant on 14 July 2021 and requested that he provide his updated residential address if it had changed. The Tribunal received no response to that request. The applicant did not tell the Tribunal why he did not update the Tribunal with his new residential address. He spoke instead of his reasons for relocating to Griffith, New South Wales and this was not meant to be permanent. Later in the Tribunal hearing, the Tribunal observed that the department records did not show that he had advised the department that he moved to Griffith, which suggested to the Tribunal that he had not in fact advised of this change of residential address as he claimed. The applicant said he completed the change of address form and had a friend lodge it for him.

   What did the applicant say about working?

5. The applicant told the Tribunal that he went to Griffith to work in fruit picking. He wanted to return to Melbourne but was unable to do so because of the lockdown. He travelled to Griffith because he saw an advertisement on television abut work there. He went there with some friends to make money to survive. Asked about his work, he said he did very little. He picked oranges but stopped because of the weather. Asked why he needed to work in Griffith, the applicant said that he was told that fruit picking did not require experience or documentation. He needed to make money to survive.

6. The Tribunal observed that the applicant had no work rights as an unlawful non-citizen. The Tribunal notes that it is an offence for an employer to employ a person in breach of a visa condition related to work rights and an offence to employ an unlawful non-citizen: s.235 of the Act and s.245AB of the Act. The applicant said he asked whether there would be any problem with the government doing this work and was told no. The Tribunal asked who it was he asked about this and he said it was a friend who had been supporting him with food and accommodation. The applicant said that he needed an income and it was unfair to expect his friend to continue to support him as he had supported him already for a long time. The Tribunal asked the applicant why he did not ask the department about whether he was allowed to work as an unlawful non-citizen. The applicant did not say why he did not ask the department, and instead said it was his fault for not doing so.

7. The Tribunal queried how the applicant was going to meet his living expenses on the bridging visa if he had no work rights. The applicant said if the government allows the applicant to work, he will do so. He wants to survive. The applicant then said when lockdown ends, he will return to Melbourne and live with his friend. He will be provided a place to stay and a meal per day.

   What did the applicant say about the purpose of applying for the bridging visa and his future intentions in Australia?

8. The applicant told the Tribunal that he had no outstanding visa applications, save for the bridging visa application that is the subject of the review application. This was curious to the Tribunal, because according to the bridging visa application form, that applicant applied for the bridging visa on the basis that he was going to apply for a substantive visa. The applicant responded to the Tribunal’s observation of the content of the bridging visa application by saying that other people completed the form on his behalf. The Tribunal notes that the bridging visa application discloses no such assistance. The applicant then said he was waiting on the Tribunal to make a decision on the bridging visa application. If it is granted, then he will apply for permanent residency in Australia. He said h was ignorant about the law.

9. The Tribunal noted that the applicant held no bridging visa and had been an unlawful non-citizen since 25 September 2020 and asked the applicant why he did not depart Australia at that time. This seemed to be the logical thing for the applicant to do seeing as he had not lodged a substantive visa application. The applicant told the Tribunal he was not sure what the Tribunal was going to do with the bridging visa application. If he does not get a bridging visa, then he will tell the department why he cannot return to South Sudan. The applicant told the Tribunal that his tribe was being targeted by other tribes. His mother and sister are refugees in another area of the country. He said his safety was at risk and he could not return.

   What did the applicant tell the Tribunal about his criminal history?

10. The Tribunal asked the applicant how it could have any confidence that he would not commit criminal offence if granted the bridging visa. The Tribunal wanted to hear this from the applicant, given that he had the outstanding criminal charges and had been previously sentenced for criminal offences. The applicant said that he was not a violent person. He loved peace. He hates violence because he came from a country where there was violence. He said respects the security of the person and the law of the country he lives in.

11. The Tribunal asked the applicant whether he had committed any breaches of Australia’s law. The applicant said no. The Tribunal asked the applicant whether he had been charged with any criminal offences. Again, the applicant answered no.

12. The Tribunal was concerned about the applicant’s oral evidence. The applicant was the one who disclosed in his bridging visa application form that he had been sentenced to 28 days imprisonment for breach of an intervention order. Further, he had submitted a letter from a community organisation which also addressed this fact. The fact that the applicant was prepared to lie at the Tribunal hearing about something that had disclosed suggested that the applicant was not aware of what he put in his bridging visa application form and he decided to take a gamble that the Tribunal was unaware of this offending. The Tribunal also suspected that the applicant took a similar gamble and hoped that the Tribunal was not aware of the outstanding charges at Dandenong Magistrates’ Court.

13. The Tribunal noted to the applicant that he had charges listed at the Dandenong Magistrate’s Court and its understanding that he had a warrant executed on him and had been bailed to appear at court. The fact that the applicant said that he had not been charged suggested that he was prepared to lie to the Tribunal if he though it would help him. The applicant said that the offence related to the person who sponsored him to come to Australia and he had not done that crime. The Tribunal asked why he told the Tribunal that he had not been charged with any crime in Australia. The applicant said it was because those charges against him are not proven.

14. The Tribunal then asked again whether the applicant had committed any crime against the law in Australia. He told the Tribunal that he had not. His only involvement and the first time he saw a police officer related to the matters which resulted in him being granted an intervention order, which the Tribunal notes was granted because of the charges at the Dandenong Magistrates’ Court. The Tribunal repeated its question again. The applicant then said he had received a fine for speeding in his wife’s car, and if that was considered a crime, then he had done this.

15. The Tribunal noted to the applicant that according to his bridging visa application form, he had been imprisoned for 28 days for breach of an intervention order. The applicant then conceded that he had been imprisoned. The Tribunal noted that it may be sceptical of anything the applicant told the Tribunal given that he had previously denied committing any criminal offence and denied being charged with any criminal offence. The Tribunal asked the applicant why he told the Tribunal this, as it was clearly not the case. The applicant then detailed the circumstances leading up to being charged. The applicant said that the protected person suggested that they travel to South Australia, and that she said no one would know about the intervention order there. The applicant said that he was ignorant of the law and that the protected person wants to send him back to South Sudan. He said that he did not understand what the protected person had planned. Again, the Tribunal asked why the applicant did not tell it that he had breached the intervention order. The applicant responded that he was stressed and could not concentrate that much.

16. The Tribunal puts its concerns to the applicant that in light of the fact that the applicant had previously committed a criminal charge, not told the Tribunal about that or his outstanding criminal charges, had remained in Australia as an unlawful non-citizen and neither departed Australia nor lodged a substantive visa application, and had claimed to update the department about his residential address when the department had no evidence that he had do so, together with his oral evidence that suggested a need for the applicant to work, the Tribunal may conclude that the applicant would not comply with conditions on the bridging visa. He Tribunal invited the applicant to respond to the Tribunal’s concerns.

17. The applicant responded that the Tribunal hearing was the first time anyone had told him what is right and what is wrong in Australia. He realised he should now go to the department and the police before he goes anything.

    FINDINGS AND REASONS

18. The issue in this case is whether the applicant meets cl.050.223. If the applicant meets cl.050.223 then the Tribunal must remit the matter back to the department with a direction that the applicant meets this criterion. If the applicant does not meet this criterion, then the Tribunal must affirm the refusal decision.

19. The Tribunal acknowledges the letter of support from the community organisation. However, that letter is suggestive of blaming the complainant for the applicant’s predicament, which concerns the Tribunal greatly. The same letter discusses assisting the applicant to obtain employment, which suggests that the organisation may be complicit in the applicant potentially breaching a bridging visa condition.

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

21. The Tribunal found the applicant to not be a credible witness. The Tribunal concludes that the applicant was prepared to tell the Tribunal whatever he thought would assist him to be granted a favourable decision.

22. The applicant’s evidence about his past criminal conduct was very concerning. He was asked on a number of occasions about whether he had committed criminal offences or had been charged. The applicant denied this until the Tribunal put the fact that he had been charged and sentenced to 28 days imprisonment for breach of an intervention order to him. The Tribunal does not accept that the reason why the applicant failed to tell the Tribunal about this was because he was stressed. Rather, the Tribunal is satisfied that the applicant did this in the belief that Tribunal was not be aware of his criminal history, and was conscious of the fact that his demonstrated criminal history may suggest that he would commit criminal offences while on the bridging visa. The applicant’s response to offer that he had been fined for speeding, instead of telling the Tribunal about being imprisoned for 28 days, satisfies the Tribunal that the applicant is calculated in the oral evidence he gives. Further, what the applicant said about the criminal history suggested that he was seeking to lay the blame for the offending on the protected person. The Tribunal found this very concerning, because it was the applicant who was prohibited from doing certain things on the intervention order. The Tribunal found the applicant’s attitude to his past criminal conduct to be very concerning and demonstrated a lack of insight into his criminal offending.

23. The Tribunal was also concerned about the fact that the applicant did not disclose his outstanding criminal charges to the Tribunal. While the Tribunal accepts that the applicant has not been found guilt of the allegations against him, the fact that the applicant lied to the Tribunal about whether he had been charged demonstrates that the applicant has a flexible approach to the truth.

24. The Tribunal needs to be satisfied that the applicant will not engage in criminal conduct if it is to grant the visa. The applicant has a demonstrated criminal history and appears to demonstrate no remorse, as evidenced by his decision to withhold that information from the Tribunal hearing and suggesting to the Tribunal when it became known that the Tribunal was aware of this criminal history that the complainant was to blame for the offending.

25. The Tribunal is not satisfied that the applicant will comply with condition 8564.

26. In terms of the willingness of the applicant to report to the department as directed, and a willingness to advise the department of any change of address, the Tribunal does not accept that he will do so for a number of reasons. First, the applicant did not update the Tribunal nor the department concerning his recent change of address. Second, the applicant demonstrated a willingness to not comply with laws through the breach of the intervention order. Third, the applicant did not lodge a substantive visa as he claimed he would in the bridging visa application form, and nor did he depart Australia, instead deciding to ignore Australia’s laws and remaining in Australia as an unlawful non-citizen. The Tribunal is not satisfied that the applicant’s past attitude towards Australian laws and his migration obligations has changed.

27. The Tribunal is not satisfied that the applicant will comply with conditions 8401 and 8506.

28. The Tribunal then considers whether the applicant would engage in any studies or training on the bridging visa. While there is no evidence that the applicant has previously engaged in any studies or training, or engaged in any studies or training when prohibited from doing so, the Tribunal is satisfied that the applicant’s past indifference to Australia’s laws and his migration obligations also applies to any prohibition that would be imposed concerning study or training. The Tribunal believes that if the applicant sees merit in engaging in studies or training, he will do so, despite being required by the bridging visa to not do so.

29. The Tribunal is not satisfied that the applicant will comply with condition 8207.

30. The Tribunal then turns its mind to the issue of whether the applicant will work on the bridging visa despite being prohibited from doing so. The Tribunal is satisfied that the answer to that question is yes. The applicant has a demonstrated need to work, as evidenced by his relocation to Griffith. The Tribunal does not accept that that need no longer exists and that he would be able to return to Melbourne to live with his friend who will provide him a room and a daily meal. That was the same situation that the applicant had prior to leaving for Griffith. Had the applicant had no need to work, he would not have relocated to Griffith. Given that the applicant was an unlawful non-citizen and has engaged in work previously, despite him not being permitted to work as an unlawful non-citizen, the Tribunal is satisfied that the applicant’s attitude to work in Australia remains the same. That is, if the applicant wants to work to meet his living expenses, he will do so regardless of the bridging visa condition prohibiting such work.

31. The Tribunal is not satisfied that the applicant will comply with condition 8101.

    CONCLUSION

32. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted.

33. Therefore, the applicant does not meet cl.050.223.

34. The issue of a security does not arise because the Tribunal is not satisfied that any security would mean that the applicant would abide by the conditions attached to the bridging visa.

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

    DECISION

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

    Nathan Goetz
    Member