2001156 (Migration)

[2020] AATA 633

2001156 (Migration) [2020] AATA 633 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001156

MEMBER:Nathan Goetz

DATE:29 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2020 at 5:30pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal charges – dishonest conduct suggested applicant would re-offend if granted visa – unlawful in Australia for almost 10 years – previously failed to notify Department of address change – did not attempt to regularise migration status – disregard for Australia’s migration laws – Tribunal not satisfied applicant will abide by visa conditions – decision under review affirmed

LEGISLATION
Bail Act 2013 (NSW), s 19
Crimes Act 1900 (NSW), ss 129E(1)(b), 192J
Migration Act 1958 (Cth), ss 73, 189(1), 269, 359AA
Migration Regulations 1994, Schedule 2, cls 050.211, 050.223, Schedule 8, Conditions 8401, 8506, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD
Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa on 17 January 2020. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 21 January 2020 on the basis that the delegate was not satisfied that the applicant would abide by the conditions imposed on a bridging visa.

4. The applicant applied to the Tribunal on 23 January 2020 for a review of the refusal decision. The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.

5. The Tribunal also received oral evidence from [Ms A] who was a friend of the applicant.

6. The Tribunal has considered the relevant contents of the Department file, the Tribunal file and the oral evidence presented to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a [age] old [man] who is a citizen of Sri Lanka.

9. He first and last arrived in Australia [in] March 2006 as the holder of a student visa. The visa was valid until 3 April 2007 and was subject to several conditions including 8101 (No work). On 6 April 2006 the applicant was granted a further student visa and visa condition 8101 was varied to condition 8105 (Work limitation). This visa remained valid until 3 April 2007.

10. On 3 April 2007 the applicant lodged an application for another student visa and was granted an associated bridging visa. On 17 May 2007 the applicant was granted the student visa and this was valid until 30 September 2009.

11. The applicant’s student visa ceased on 30 September 2009. The applicant did not present to the Department to regularise his immigration status, lodge any further visa application or depart Australia. Consequently, the applicant became an unlawful non-citizen.

12. [In] July 2019 the applicant was charged with criminal offences and remanded into police custody.

13. According to the Court Attendance Notice and Fact Sheet, the applicant has been charged with [a number of] counts of dealing with information to commit/facilitate the commission of a indictable offence under s.192J of the Crimes Act 1900 (NSW) and three counts of dishonestly obtaining a financial advantage under s.129E(1)(b) of the Crimes Act 1900 (NSW).

14. According to the Fact Sheet, the applicant registered a business known as [Business 1] [in] October 2009. The business was registered as a [specified] service. The registration of the company was cancelled [in] December 2014. The company’s ABN is [specified].

15. Victim 1 operates a [specified] service and obtains subcontracting [services] from larger companies. Once work has been completed, Victim 1 would invoice the larger company for the work.

16. In early 2015 Victim 1 met the applicant. The applicant told Victim 1 that he could provide contracting services to Victim 1’s company. Months later, the applicant told Victim 1 that he had obtained [specified] services from [Business 2]. The applicant’s company subcontracted the [services] to the victim’s company. At the end of every month, Victim 1 invoiced the applicant for the work completed. This totalled $[a sum of money].

17. On 5 April 2015 the applicant provided [Business 2] with an invoice from the applicant’s company. The ABN on the invoice was registered to Victim 1’s company, but the bank account details were those of the applicant’s company. This was repeated on a further two invoices. The applicant provided a further five invoices to [Business 2] but this time the company name on the invoices was changed to the name of Victim 1’s company.

18. Victim 1 has received $[a certain amount of money] for completed work with an amount outstanding being $[a larger amount of money].

19. [Business 2] conducted checks on the ABN provided by the applicant was identified as being invalid. The applicant provided public liability certificates and WorkCover documents under the name of Victim 1’s company [Business 2] and advised the business that this was his new company. [Business 2] advised the applicant to list this on the invoices as the applicant was still using his previous company name.

20. At no time did the applicant have permission from Victim 1 to use the ABN for Victim 1’s company. The applicant used this information for the purpose of facilitating the offence of fraud.

21. Police believe that the applicant has intentionally used the ABN of Victim 1’s company to invoice [Business 2] to avoid paying tax and to facilitate a deception.

22. Victim 2 owns a [specified] company. In September 2017 Victim 2 received a phone call from the applicant who offered to provide subcontracting work to Victim 2 which was accepted. The applicant provided purchase orders (sub-contracting details) with the name of his company being that of Victim 1. Victim 2 carried out work and invoice the applicant through his company (name withheld) Holdings. Victim 2 did not receive any payment for the work.

23. The applicant used the company name of Victim 1 without permission and used this to facilitate fraud. Victim 2 obtained a debt collector to obtain the outstanding payment through the [Named] Local Court (small claims division) whereby Victim’s 1 company was ordered to pay the outstanding costs.

24. In June 2019 Victim 1 applied for [finance] for his company which was rejected. After making enquiries. Victim 1 was told about the judgment debt from the Local Court. Victim 1 attended [Named] Police Station and reported the matter.

25. About [a certain time] [in] July 2019, police arrested the defendant. He participated in an electronic recorded interview where he made full admissions to the offences, stating that he had bills to pay which is why he did not fulfil payments to Victims 1 and 2. In relation to using the details of Victim 1’s company, he said that he did not want to register an ABN as he was an unlawful non-citizen. The applicant admitted to using (name withheld) Holdings without authority to do so.

26. Investigators identified a large number of emails which included invoices, company documents and a website in the name of which police believe that the applicant created in order to facilitate fraud offences. Checks conducted on the ABN of (name withheld) Holdings revealed it to be registered to Company A which deals with [specified] treatments. Police spoke to an employee from Company A who confirmed that the applicant was never employed with the company and was not authorised to use the company details.

27. Investigators also identified a number of documents and emails regarding Company B. Police contacted the owner of this business who stated that he was contacted by the applicant in February 2019 after Company B advised on [website]. The owner was shown an a number of documents for Company B, including tax invoices for work done and a certificate of currency. The owner stated that he did not recognise or carry out the work as detailed in the tax invoices but recognised the certificate of currency as he had provided that to the applicant when he was arranging services.

28. In May 2019 Company C was contacted by the applicant requesting their [services]. Company C obtained purchase orders from the applicant and completed [services]. Company C invoiced the defendant and he failed to make payments for the services. The applicant contacted Company C who said that they were not happy with their service and he invoiced Company C for fixing up their poor [service] with work carried out by [another company].

29. This matter is ongoing and currently listed at [Named] Local Court [in] February 2020.

30. The applicant was released on bail [in] August 2018 and was detained under s.189(1) of the Act because he was an unlawful non-citizen. He was transferred to an immigration detention centre and remains in detention.

31. On 11 August 2019 the applicant lodged a protection visa application. According to the delegate decision, the associated bridging visa was refused on 21 August 2019. The applicant claims that this bridging visa was not refused but in fact withdrawn by him because he had medical conditions and was being treated in immigration detention. Whether a bridging visa was previously withdrawn by the applicant or refused is not a factor that is relevant to the Tribunal’s determination of whether the applicant will comply with bridging visa conditions.

32. A delegate refused to grant the applicant a protection visa on 21 August 2019. The applicant applied to the Tribunal for a review of the refusal decision and the Tribunal affirmed the refusal decision on 11 December 2019. On 10 January 2020 the applicant filed an application for judicial review and this matter is ongoing, with a first court date being  [at] the Federal Circuit Court in Sydney. On the basis that the applicant has applied for judicial review of a decision relating to a substantive visa, the Tribunal is satisfied that the applicant meets cl.050.211(3A) which allows the applicant to be granted a bridging visa, subject to the below:

    Whether the applicant will abide by conditions - cl.050.223

33. 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.

34. 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].

35. As the applicant meets cl.050.211(3A), both clauses 050.612A and 050.614 may be applicable. However, cl.050.612A will only be applicable if cl.050.614 does not apply.

36. The applied for judicial review of a decision to refuse to grant a protection visa. This means that cl.050.614 is applicable because this clause relates to judicial review proceedings where a person has applied for a protection visa: cl.050.614(1)(a).

37. This clause provides that the decision maker may impose the following conditions on the bridging visa:

38. Any 1 or more of conditions 8104, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548 may be imposed: cl.050.614(2)

39. However, that clause also provides that if conditions 8101 or 8116 were imposed on the last visa held by the applicant, the Tribunal must impose those conditions on the bridging visa. The last visa held by the applicant did not impose these conditions, which results in those conditions not being mandatory: cl.050.614(1). However, those conditions are also not discretionary because those conditions are not mentioned in cl.050.614(2).

40. Cl.050.618 also provides that condition 8564 may be imposed in addition to any other condition imposed by another provision of Division 050.6

41. 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 the 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].

42. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

43. When determining the applicable conditions to be imposed on the bridging visa, the Tribunal considers that the following conditions are appropriate:

    8207: The holder must not engage in any studies or training in Australia. 

    This condition is appropriate because the applicant has lodged a protection visa application which has been refused, and is therefore unable to apply for a student visa while in the migration zone per s.48 of the Act and r.212 of the Regulations.

    8401: This condition requires the applicant to report to the Department as directed.

    This condition is appropriate because the applicant has previously been an unlawful non-citizen in Australia for approximately 10 years.

    8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

    This condition is appropriate because the applicant has previously been an unlawful non-citizen in Australia for approximately 10 years.

    8564: The holder must not engage in criminal conduct.

    This condition is appropriate because the applicant has been charged with criminal offences.

    FINDINGS AND REASONS

44. At the start of the Tribunal hearing, the applicant indicated that he understood the conditions which the Tribunal was considering and that he would comply by them.

45. The applicant had previously advised the delegate that he had friends and family who would provide financial support to him to meet his living expenses. This evidence was obviously provided because there was some concern that condition 8101 would be imposed on a bridging visa. As a result of this, the Tribunal wrote to the applicant to obtain more information about who the people were that could provide him with financial support, and his previous employment history. The applicant provided a chronology of his employment history in Australia, and provided a statutory declaration from [Ms A] which confirmed that she would provide financial assistance for the applicant to meet his living expenses. She wrote that she would allow the applicant to reside at her address. Ms [A] also attended the Tribunal hearing to give oral evidence. The applicant also provided a letter from his mother in Sri Lanka indicating that she would financially support the applicant. On the day of the hearing, the Tribunal was also provided with a letter from [Mr B] who identified himself as a family friend. This letter also indicated that the applicant would receive financial assistance and had the offer of accommodation with Mr [B].

46. However, as noted previously, there is no power for condition 8101 to be imposed on a bridging visa in the applicant’s circumstances. Therefore, the Tribunal disregards any consideration as to whether the applicant will work on a bridging visa to meet his living expenses, or receive financial support from friends and family to meet those expenses. The Tribunal accepts that the applicant will have the financial support of friends and places to reside if he is released from immigration detention, but this evidence is irrelevant to whether the applicant will comply with the other bridging visa conditions.

47. The applicant had also provided the Tribunal with a medical report concerning his health. He did not claim that his medical condition would act as an incentive to comply with conditions, but told the Tribunal that he provided this to explain why he had withdrawn his previous application for a bridging visa. As the Tribunal explained to the applicant, whether he had previously been refused a bridging visa or withdrawn a bridging visa application was not relevant to the Tribunal’s task of assessing whether the applicant would abide by conditions.

48. The applicant provided the following oral evidence to the Tribunal which were relevant in determining whether he would comply with the conditions that would be imposed on his bridging visa.

    8401 and 8506

49. In response to a written request from the Tribunal for the applicant to provide his complete residential history in Australia, the applicant provided the following addresses where he lived during the course of his student visa:

    ·     [Address 1]

    ·     [Address 2]

    ·     [Address 3]

50. Nothing that the applicant was on a student visa until September 2009, the Tribunal put to him under s.359AA of the Act that department records showed that he had never advised the department that he was residing at [Address 3] between 2008 and the end of his student visa. This was relevant because it demonstrated to the Tribunal that the applicant had not complied with his obligation to advise the department of proposed residential addresses in the past, and suggested to the Tribunal that the applicant would continue to do so in the future. It also undermined his assertion in his written statement to the Tribunal on 22 January 2020 that he had ‘followed all directions given to me’ including the requirement ‘8506, change of address’.

51. The applicant responded that he was not aware that he was required as a condition of his previous student visa to notify the Department of his change of address. He told the Tribunal that his migration agent helped him to obtain the student visa, and did not advise him of the requirement to notify the Department of any change of residential address.

52. The Tribunal has considered this response but is not persuaded by it. The Tribunal has a number of concerns about this oral evidence. First, the applicant had applied for the 8101 condition to be removed from his student visa. The Tribunal struggles to accept that the applicant knew about some conditions on his student visa, but was unaware of others. Second, this oral evidence is in contrast to the applicant’s written statement to the Tribunal that he had previously advised the Department of all of his address changes when he was on a student visa.

1. Further, and again adopting the procedure under s.359AA of the Act, the Tribunal put to the applicant the difficulty it had in accepting his explanation that the failure to update his previous address was due to his migration agent. In the Field Operation – Located Person Interview on 1 August 2019 (when the applicant was taken into immigration detention), he answered ‘No’ to Question 3 of B5 when he was asked ‘Have you ever used a migration agent or authorised recipient?’ The ‘system result’ as detailed in the Located Person Interview is also a ‘No’ to that question. This suggested to the Tribunal that the applicant had not in fact used a migration agent previously in connection with his visa, and that his explanation as to why he failed to update the Department concerning his address change should be rejected.

2. The applicant responded to this by saying that he did not think he had a migration agent at the time as he was unclear. His migration agent was in Sri Lanka and he thought that the question only referred to migration agents in Australia. Later the applicant told the Tribunal that the migration agent in question, who he identified as [Mr C], was actually in Brisbane but that he met the agent in Sri Lanka. He identified that he lived at the migration agent’s house when he initially came to Australia as detailed in chronology of his residential history that he provided to the Tribunal. In the Tribunal’s view, this undermines the applicant’s explanation as to why he said that he had never used a migration agent or authorised recipient ‘in Australia’ because this person was in Australia (at least at some point).

3. The Tribunal is not satisfied with the applicant’s explanation as to why he did not advise the Department of his change of address to [Address 3]. This was an address he lived at during the currency of his student visa being and he failed to notify the department of this change. The Tribunal does not accept that the applicant had a migration agent acting for him at that time. The question asked by the official was clear. If the applicant previously used a migration agent as he claimed, he would have told the official of this. The Tribunal is satisfied that the applicant fabricated the existence of a migration agent as a means to explain why the Department was not updated with the address change. Further, the Tribunal is satisfied that the applicant’s written statement to suggest that he had always updated the Department with his prior address changes undermines his claim that he did not know he needed to do so, and was done in the mistaken belief that the Tribunal would not check the list of addresses that the applicant had previously provided to the Department.

4. As the applicant has demonstrated a failure to previously comply with condition 8506, the Tribunal is not satisfied that the applicant will not do so again if granted a bridging visa.

5. The Tribunal is not satisfied that the applicant will comply with condition 8506.

6. The Tribunal also discussed with the applicant the fact that he had been unlawful from the end of his student visa and was detained by police [in] July 2019, and that there had been no attempt on his part to regularise his migration status in Australia until after he had been intercepted by authorities. He regularised his status by applying for a protection visa.

7. The lack of the applicant engaging with the Department from the end of his student visa in September 2009, until he had been detained by the authorities in July 2019, suggested to the Tribunal that the applicant would have remained unlawful in the community but for his interception by authorities.

8. The applicant’s oral evidence to the Tribunal about his migration history was very concerning. He told the Tribunal that after his student visa ceased on 30 September 2009, he did not know what to do. As he was an unlawful non-citizen, the Tribunal queried why the applicant did not depart Australia as required. The applicant again repeated that he did not know what else to do. He then told the Tribunal by that time he had been in Australia for around four years and that Australia was a better country than Sri Lanka. He did not go to the Department to regularise his migration status because he had seen a lawyer in Brisbane prior to his student visa expiring and was advised that he would be sent back to Sri Lanka because any further visa application was likely to be rejected. Given this evidence, the Tribunal asked the applicant would he would do in the event that his application for judicial review in the Federal Circuit Court was unsuccessful, as he would be required (subject to him exhausting his appeal rights) to return to Sri Lanka. The applicant said that in those circumstances, he would return to Sri Lanka. He indicated that his mother was in danger because she had been threatened and that would be an incentive to return home to Sri Lanka in the event that he was required to do so.

9. As noted to the applicant, this evidence is contradictory. On one hand, he stated that the reason he did not return to Sri Lanka at the end of his student visa was because Australia was a better country than Sri Lanka and he did not want to return there. Yet, he now says that he will return to Sri Lanka in the event of his judicial review proceedings failing, and that the threats against his mother would act as an incentive to do so. Yet he has not returned despite those threats which are a present incentive. The Tribunal expresses no view about whether the applicant will be successful in his judicial review proceedings, but is satisfied that any compliance with condition 8401 will cease in the event that he is required to report to the Department within the operational 35 day period for a bridging visa following a hypothetical refusal from the Federal Circuit Court. In the Tribunal’s view, any potential compliance with 8401 would only occur while the applicant had ongoing proceedings and would cease if those proceedings finalised. When considering the applicant’s migration history, and the fact that he was unlawful in Australia for almost 10 years, the Tribunal is satisfied that the applicant will not voluntarily return to Sri Lanka, and that if the Department direct him to report to arrange this in the event that his judicial review proceedings are not successful, he will not do so.

10. The Tribunal notes the contents of the applicant’s written statement that he had made no attempt to hide himself in the community, where the applicant cited his previous domestic flights within Australia, the possession of a Queensland driver licence, a mobile phone number that he had for 12 years, and rental agreements in his name. At the hearing, the applicant again said that he had made no attempts to hide in the community. The applicant misunderstood what is meant by the term ‘concealing himself’ in the community as expressed in the delegate decision. This term meant concealing himself from the Department, as he had not engaged with them to regularise his migration status. The Tribunal does not accept that travel on domestic flights, and possession of various documents in his name means that the applicant has not concealed himself from the Department.

11. The applicant’s previous conduct demonstrates to the Tribunal that the applicant has wilful disregard for Australia’s migration laws. There is nothing before the Tribunal that is persuasive to suggest that his attitude towards his obligations has changed.

12. The Tribunal is not satisfied that the applicant will comply with condition 8401.

    8207

13. The applicant was asked whether he had any plans to study on his bridging visa. The applicant indicated that he would not study as he would be prohibited from doing so.

14. The Tribunal was concerned about what the applicant had told the official in the Located Person Interview on 1 August 2019 as it appeared to contradict this evidence. In that interview, the applicant was asked whether he intended to apply for an Australian visa, and he answered in the affirmative. He told the official that he wanted to apply for a student visa and that he wanted to study information technology.

15. The Tribunal adopted s.359AA of the Act because this evidence suggested to the Tribunal that he would in fact engage in studies or training while on the bridging visa, which would be a breach of condition 8207. The applicant told the Tribunal the reason he said this to the official was because he did not know what to say. He was asked by the official what visa he wanted, and as he had previously been on a student visa and did not know of any other visas, he thought he may like to complete further study in Australia. The Tribunal is not persuaded by this response. Condition 8207 does not concern itself with a particular type of visa. It is possible for a person to engage in study or training without being on a student visa. The Tribunal does not accept the applicant’s explanations for why he told the official that he would like to study information technology, and is satisfied that if the applicant was released on a bridging visa, he would do so. If the applicant had no intention to engage in study or training, he would not have told the official his intention to do so.

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

    8564

17. In response to a written request from the Tribunal, the applicant provided the Tribunal with a letter from his lawyer concerning his criminal matters. He did not provide the Tribunal with the Police Fact Sheet and Charges as requested. The Tribunal was able to obtain those directly from the [Police] Force. At the hearing, the applicant indicated to the Tribunal that his lawyer had sent that material to the Tribunal. The Tribunal has not received that documentation at the time of the hearing, and proceeded at the hearing on the basis that the Charges (read Court Attendance Notice) and Police Fact Sheet were evidence not obtained from the applicant. A check of the Tribunal records indicates that the Court Attendance Notice and Police Fact Sheet have since been received from the applicant.

18. The letter from his lawyer was addressed to the [Police] Force and proposed a resolution of the criminal case against the applicant, offering a plea of guilty to Charges 1 (with the facts of Charges 2 to be merged with Charge 1), a plea of guilty to Charge 4, a plea of guilty to Charge 6 and a plea of guilty to Charge 7, with the remaining charges withdrawn.

19. Utilising s.359AA, the Tribunal put to the applicant that reading the Police Facts Sheet demonstrated a case of sophisticated dishonest conduct and this suggested to the Tribunal that he would re-offend if he was granted a bridging visa, and therefore he would not be able to comply with condition 8564.

20. In response, the applicant told the Tribunal that he never committed offences previously, and that he would not reoffend because these offences were committed because the applicant did not have a visa in Australia and could not obtain an ABN while he was an unlawful non-citizen. If released on a bridging visa, he would not face a similar situation again because he would no longer be unlawful. He then told the Tribunal that the offending against him had not yet been determined by a court so therefore he had no criminal history. As pointed out to him by the Tribunal, the applicant had indicated to the prosecution authorities that he was prepared to plead guilty to some of the charges and those charges related to dealing with information with an intention to commit or facilitate the commission of an indictable offence. In the Tribunal’s view, the charges to which the applicant will be pleading guilty are serious, and as noted in the details of the offences in the Court Attendance Notice, cover a period of offending between April 2015 and June 2019.

21. While the Tribunal is prepared to accept that the offending occurred as a result of the applicant’s unlawful status in Australia, this does not excuse his behaviour. The applicant’s offending to which he will be pleading guilty demonstrates an indifferent approach to criminal offending and a willingness by the applicant to do whatever he wants if he feels justified in doing so, including engaging in dishonest conduct that is criminal. The Tribunal is not satisfied that the applicant is a reformed character. The Tribunal cannot be satisfied that if the applicant was released on a bridging visa, he will not engage in criminal conduct.

22. The applicant has been granted bail by the Local Court [regarding] the criminal proceedings. The court has accordingly been satisfied that the applicant is not an unacceptable risk that he will fail to appear on the criminal proceedings, commit a serious offence, endanger victims, individuals or the community, or interfere with witnesses: s.19 Bail Act 2013 (NSW). However, that is a completely different test to the one faced by the Tribunal. The Tribunal needs to be satisfied that the applicant will comply with the condition to not engage in criminal conduct, not that he is acceptable risk of engaging in criminal conduct to justify his release from detention.

23. Given all of the above, the Tribunal is not satisfied that the applicant will comply with condition 8564.

    CONCLUSION

24. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Accordingly, the issue of whether a security would act as an incentive for the applicant to comply with conditions does not arise.

25. Therefore, the applicant does not meet cl.050.223. He will not comply with conditions.

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

27. 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

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

    Nathan Goetz
    Member