1931449 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa by a Malaysian national. The applicant arrived in Australia in September 2015 on a Tourist visa, which expired in December 2015, rendering him an unlawful non-citizen. He was apprehended by the Australian Federal Police in October 2019 and subsequently applied for a Protection visa, which remained undetermined. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant would abide by any conditions imposed on a Bridging E visa, as required by clause 050.223 of the Migration Regulations 1994. This clause necessitates the Tribunal being satisfied that the applicant will comply with visa conditions. In assessing this, the Tribunal was required to consider the applicant's likely conduct, including their past immigration history, the significance and wilfulness of any breaches, the presence of mitigating circumstances, and any evidence of contrition. The Tribunal also had to consider whether a financial security, pursuant to section 269 of the Migration Act 1958, would be necessary to ensure compliance.

The Tribunal reasoned that in determining an applicant's likelihood to abide by visa conditions, their past immigration history is a relevant consideration. This includes examining previous breaches of immigration laws, the seriousness of those breaches, the intent behind them, and any mitigating factors or remorse shown. If the Tribunal is satisfied that compliance is only likely with a financial incentive, then a security decision under section 269 must be considered. Conversely, if an applicant is unlikely to comply even with a financial incentive, the occasion for imposing a security does not arise. The amount of any security should be proportionate to the conditions and the applicant's financial circumstances, aiming to secure compliance.

The Tribunal affirmed the decision under review.