2111563 (Migration)

This matter concerned an application for review of a decision to refuse to grant a Bridging E (Class WE) visa to a citizen of India. The applicant's previous student visa had been cancelled due to a criminal conviction. The applicant was an unlawful non-citizen at the time of the application and had lodged an application for a Protection visa, which was subject to judicial review. The Tribunal was required to determine whether the applicant would abide by visa conditions if a Bridging E visa were granted.

The central legal issue before the Tribunal was whether the applicant satisfied clause 050.223 of the Migration Regulations 1994, which requires the Tribunal to be satisfied that the applicant will abide by any conditions imposed on a Bridging E visa. This assessment involved considering the applicant's likely conduct, including their immigration history, the significance and wilfulness of any previous breaches of migration laws, the presence of mitigating circumstances, and any evidence of contrition. The Tribunal also had to consider the conditions that could be imposed on such a visa, as outlined in clause 050.613.

The Tribunal reasoned that while the applicant met the basic criteria for a Bridging E visa as an unlawful non-citizen with an ongoing substantive visa application and judicial review, the critical factor was their compliance with visa conditions. The decision to refuse the visa was based on the Department's concern that the applicant would not abide by a condition requiring them not to engage in criminal conduct, stemming from their prior criminal conviction. The Tribunal noted that while there were no prior breaches of immigration laws before the student visa cancellation, that cancellation itself followed the criminal conviction and a breach of a New South Wales law. The Tribunal concluded that the Department was not satisfied that imposing security would prevent the applicant from breaching a condition against criminal behaviour.

Ultimately, the Tribunal affirmed the decision under review. The Tribunal was not satisfied that the applicant would abide by the conditions that could be imposed on a Bridging E visa, and therefore, clause 050.223 was not met.