2118261 (Migration)

This matter concerns an application for a Bridging E (Class WE) visa by a male national of Tonga. The applicant arrived in Australia in August 2011 and subsequently applied for a protection visa, which was refused. Following this refusal, his associated bridging visa ceased, rendering him an unlawful non-citizen. He was later arrested, convicted of several criminal offences including assault and property damage, and served a period of imprisonment. Upon release, he was detained and has remained in immigration detention. During his detention, he made an invalid application for a partner visa and two invalid applications for bridging visas before lodging the current application for a Bridging E visa.

The primary legal issue before the Tribunal was whether it was satisfied that the applicant would comply with the conditions imposed on a Bridging E visa, as required by clause 050.223 of the Migration Regulations 1994. This clause necessitates the Tribunal to consider the applicant's likely future conduct, taking into account their past immigration history, any breaches of immigration laws, the wilfulness of those breaches, mitigating circumstances, and any contrition shown. The Tribunal considered several potential conditions that could be imposed on the visa, including prohibitions on work and study, requirements to report, notify address changes, not engage in criminal conduct, and to depart Australia.

The Tribunal reasoned that while the applicant had expressed a desire to depart Australia and his partner and children were nationals of a third country, his significant criminal history and previous breaches of immigration laws weighed heavily against a finding that he would comply with visa conditions. The Tribunal noted that the applicant had been an unlawful non-citizen on two previous occasions and had engaged in serious criminal conduct resulting in imprisonment. Despite the applicant's current detention and the fact that further criminal conduct was considered unlikely, the Tribunal was not satisfied that he would abide by the conditions of the visa. Consequently, the applicant failed to meet the requirements of clause 050.223.

The Tribunal affirmed the delegate's decision not to grant the applicant a Bridging E (Class WE) visa.