2120028 (Migration) - [2022] AATA 384

2120028 (Migration) [2022] AATA 384 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2120028
MEMBER:James Silva
DATE:19 January 2022
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 19 January 2022 at 9:21am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – primary criteria – application for a substantive visa – stated intention of seeking a Medical Treatment visa after the grant of the bridging visa – purpose, utility and scope of cl.050.212(3)(b) – whether circumventing legislative intent of s.195 – absence of a clear restriction – abide by conditions imposed – no work requirement – migration history – personal and family circumstances – applicant’s future intention – security bond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 73, 189, 194, 195, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212, 050.221, 050.223, 050.617; Schedule 8, Conditions 8101, 8401, 8506
CASES
Chen v MIMIA [2001] FCA 285
Gyongyos v Minister for Immigration and Anor [2017] FCCA 537
Lin v MIMIA [2001] FCA 283
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

The applicant is a female citizen of China (PRC) [approximate age], who first arrived in Australia in December 2007, as the holder of a visitor visa. She most recently held a bridging visa, which expired on 19 January 2021. On 7 September 2021, Australian Border Force (ABF) officials located the applicant and detained her under s.189 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for a Bridging E (Class WE) visa on 20 December 2021. On 23 December 2021, the delegate of the Minister for Home Affairs made a decision to refuse to grant the visa under s.73 of the Act. This is an application for review of that decision.
Class WE contains two visa 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 1994 (Cth) (the Regulations). Relevantly to this matter, cl.050.212 requires that an applicant meets one of the alternative grounds set out in cl.050.212(2)-(9) at the time of application (referred to as the ‘primary criteria’). They must also continue to meet cl.050.212 at the time of decision. Also, cl.050.223 requires that, if a bridging visa is granted, the applicant will abide by any conditions imposed on it
The delegate refused to grant the visa on the basis that they were not satisfied that the applicant met cl.050.212(3) (‘application for a substantive visa’), cl.050.212(2) (‘departure grounds’), or any of the other primary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E, at the time of application and at the time of decision. The applicant claims to meet cl.050.212(3)(b), on the basis of her stated intention to apply for a medical treatment visa, following the grant of a bridging visa.
Given the Tribunal’s conclusion that the applicant meets cl.050.212 on the basis of cl.050.212(3)(b), it proceeds to consider the conditions that should attach to the bridging visa, if granted, and whether she would comply with the conditions.
Evidence and Background
The Tribunal has before it the following relevant material (not exhaustive):
§ The bridging visa application lodged online on 20 December 2021. Attached to this was a submission from the applicant’s representative [Ms A], and an undated ‘personal statement’ from the applicant.
§ The delegate’s decision record of 23 December 2021, which the applicant provided with the review application. This addresses the primary criteria and some information about the applicant’s activities in Australia. Attached to it is a detailed migration history.
§ The review application lodged on 26 December 2021.
§ The applicant’s submission to the Tribunal dated 5 January 2022, with attachments (including in the consolidated list below).
§ Identity and supporting documents provided to the Department and the Tribunal, indicating that the applicant has formally changed her name in Australia to [Alias 1], but continues to use the name [applicant name] in relation to the PRC authorities.
§ A submission from the applicant’s newly appointed representative, [Ms A], dated 10 January 2022.
§ Post-hearing submission dated 12 January 2022 with the opinion from barrister [Mr B] on the interpretation of cl.050.212(3)(b).
§ On 12 January 2022, [Ms A] advised the Tribunal that the applicant would be prepared to post a security of $,5000 to $10,000, as security to ensure her compliance with the conditions imposed on a Bridging E visa, if granted.
The Department file includes other material relating to the applicant’s prior applications and migration history. These include an ABF document ‘Field Operation Located Person Interview’ dated 7 September 2021, and a Detention Client Interview – Part C, dated 18 November 2021, which the Tribunal drew on in a s.359A letter, for comment and response at interview. Other documents, not directly relevant to this review include an earlier bridging visa application dated 16 January 2020, ABF ‘Illegal Worker Warning Notices’ dated 20 January 2020, concerning the applicant and another person; an associated infringement notice dated 6 September 2021; a request for Ministerial intervention made on 15 September 2021; and an accompanying statutory declaration dated 14 September 2021. There are also documents relating to a company [Company 1], which operates as [Business 1].
The applicant appeared before the Tribunal to give evidence and present arguments on 11 January 2020. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages, although the applicant is proficient in English and used it frequently.
On 6 January 2022, the Tribunal sent to the applicant a letter under s.359A of the Act, inviting her comments/response to potentially adverse information, at an interview immediately before the hearing (which was originally scheduled for 7 January 2022. The information concerned the applicant’s statements (from her initial detention on 7 September 2021) about her intentions to apply for a visa, and the fact that she had made a Ministerial intervention request on 15 September 2021 and that it was finalised on 29 September 2021. Following the rescheduling of the hearing, the Tribunal sent a fresh s.359A invitation, for comment/response immediately before the rescheduled hearing on 11 January 2021. On that day, the applicant acknowledged the letter, and opted not to provide any comment/response at interview. The substance of the letter formed part of the discussions at hearing.
The applicant was assisted during the primary application by [Ms C], of [Law Firm 1], and [Ms A] made a written submission on 20 December 2021. In her review application form, the applicant stated that she did not have a representative or authorised recipient. However, on 6 January 2022, the Tribunal received advice that the applicant had appointed [Ms A] as the lawyer representing her in this matter.
On 7 January 2022, the representative requested the Tribunal to issues summonses to the Department of Home Affair and to IHMS[1], for documents relating to an assault of the application on 30 December 2021. The request stated that the documents are relevant to the application as ‘they support the grant of a BVE’. In a follow-up email, [Ms A] stated that the documents are relevant to the visa grant because they relate to the applicant’s health and safety in detention; to the conditions that should attach to a bridging visa, if granted; and to an assessment of the applicant’s compliance with such conditions. The Tribunal declined to issue the summonses. It took into account that the applicant had already provided medical evidence relating to an ongoing health issue. As discussed at hearing, on 10 January 2022, an ABF officer confirmed that the applicant had been involved in an altercation [in] December 202, had suffered a minor scrape to her [Body Part 1], was treated by medical staff and then transferred to hotel quarantine. The applicant provided photographs showing an abrasion below her [Body Part 1] that appear consistent with this account and a cut on her inner lip which may also have arisen from this altercation. Relevantly, the officer stated that there were no health issues affecting the applicant’s ability to participate in a hearing.
[1] International Health and Medical Services
The Tribunal is satisfied, and finds, that the applicant suffers an ongoing medical condition (which results in [Condition 1]), she has had recent weight loss, she was involved in an altercation in detention, she suffered some minor injuries; there is no ongoing threat to her safety and she was able to participate effectively at the hearing. In these circumstances, and given the requirement to complete applications for Bridging E visas in a timely manner, the Tribunal did not consider the issuing of summonses for documents relating to the altercation to be necessary or appropriate. In particular, it did not consider that they were relevant to the conduct of the hearing or review, to the conditions that would attach to a bridging visa, or the applicant’s future compliance with such conditions.
At hearing, the applicant confirmed that she was able to participate in the discussion, although she referred to some ongoing pain associated with her medical condition. The Tribunal noted this and indicated its willingness to accommodate this during the discussion.
The hearing focused on whether the applicant can meet the primary criteria for the grant of the visa. There was also discussion on the conditions that would apply to the visa, and the applicant’s compliance with these. The Tribunal records some of the relevant points in the discussion below.
Background
The applicant is a [age] year old woman from China. She first arrived in Australia in December 2007, as a visitor. She has held various visitor and student visas, a temporary graduate visa, and bridging visas. She also remained in Australia unlawfully, from June 2019 to January 2020, and again from January to September 2021.
The applicant most recently lived in [Town 1], South Australia. She told the Tribunal that she shared a house with her ex-partner, [Mr D], who still lives there, and who is her business partner.
The applicant and her representative have submitted medical evidence that the applicant suffers a condition which required hospitalisation in December 2019 (six days in hospital with severe symptoms of [Condition 1]) and in August 2020 (two days), and related treatment in early 2021. The documents state that she has received further treatment since her immigration detention in September 2021, including admission to [Hospital 1] in late October 2021. The applicant has a specialist appointment on 25 January 2022. The applicant claims to have lost significant weight in detention, and that her medical condition has become more serious.
The applicant was involved in an altercation in an immigration detention centre on 30 December 2021, and has now been transferred to hotel accommodation. As discussed at hearing, a Department officer advised the Tribunal that the applicant suffered a scrape to her [Body Part 1], that she received medical attention, and was transferred to hotel quarantine. There were no factors that affected her ability to participate in the Tribunal hearing.
CONSIDERATION AND ASSESSMENT
Primary criteria: cl.050.221
As noted above, at the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
On the online bridging visa E application form, the applicant indicated that she ‘intends to apply for a subclass 602 medical treatment visa to allow her to undergo surgery before she departs Australia’. The accompanying submission and the applicant’s statements confirm that she seeks to meet cl.050.212(3).
Substantive visa application: cl.050.212(3)
Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined (cl.050.212(3)(a)), or the Minister is satisfied that the applicant will apply for such a visa within a prescribed period (cl.050.212(3)(b)). ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s 5(1) of the Act.
Subclause 050.212(3)(a): The applicant has not claimed, and there is nothing to suggest, that she has made a valid application for a relevant substantive visa, and that the application has not been finally determined. She therefore does not meet cl.050.212(3)(a).
Subclause 050.212(3)(b): As noted above, the applicant has indicated her intention to apply for a substantive visa, namely a medical treatment visa. Cl.050.212(3)(b) reads: ‘the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, a substantive visa of a kind that can be granted if the applicant is in Australia’.
The Tribunal accepts for the purpose of this decision that, at the time of applying for this visa on 20 December 2021, the applicant intended to apply for a medical treatment visa (on the basis that she would apply for the visa after the grant of the bridging visa). It takes into account the information provided on the bridging visa application form, the applicant’s earlier statement at an interview on 18 November 2021, and documentation that she has provided, relating to: (a) a recurrent health issue since December 2019 which has resulted in periods of hospitalisation and which likely requires surgery; and (b) a recent assault in immigration detention. Having accepted that the applicant intends to apply for a medical treatment visa, it is unnecessary for the Tribunal to consider the materials that the applicant intends to rely on or the prospects of its success.
Section 195: Limits on a detainee’s ability to apply for a visa
Section 195 provides that a detainee may apply for a visa within 2 working days of compliance with s.194, or, if the detainee has informed an officer in writing of their intention to apply, a further 5 working days. A detainee who does not apply within these time periods may not apply for a visa, other than a bridging or protection visa.
In the present case, the applicant was detained on 7 September 2021. The Department file indicates that also on 7 September 2021, an officer informed the applicant of her rights, including handing to her a VIN (Very Important Notice, Form 1423) with information about applying for visas and the relevant time frames.[2] The applicant does not dispute this. The Tribunal is satisfied on the available material that there was compliance with s.194 of the Act.
[2] The Tribunal drew on the ABF’s ‘Field Operation Located Person Interview’ record, dated 7 September 2021, and put this information to the applicant pursuant to s.359A of the Act.
Accordingly, the applicant was able to apply for a visa (other than a bridging or protection visa) within 2 working days of 7 September 2021; there is no evidence that she gave written notice of her intention to do so within a further 5 working days. From 10 September 2021, she may apply only for a bridging visa or a protection visa. Section 195(2) allows the applicant to make the application that is subject to this review (the issue is whether in this case she meets the primary criteria for the visa grant).
Section 195 and subclause 050.212(3)(b)
As noted above, the applicant claims that she meets cl.050.212(3)(b) as she intends to apply for a medical treatment visa. She acknowledges that, as a detainee who is subject to s.195, she cannot apply for the visa now. However, she claims that if granted the Bridging visa E, she will no longer be subject to s.195 and can then proceed with her application; and that this intention meets the requirements of cl.050.212(3)(b).
The delegate, in the decision under review, briefly reasoned that as the applicant is subject to the bar in s.195, she is unable to meet cl.050.212(3).
In her submission of 5 January 2022, the applicant noted that the delegate failed to take into account that the current application is for a bridging visa, and she intends to apply for a medical treatment visa once the bridging visa is granted.
In a letter of 7 January 2022[3], the Tribunal summarised obiter comments made by Wilson FM in Liu v MIAC[4] in the following terms:
In a 2008 case, the [Court] considered that cl.050.212(3)(b) allows an applicant for a substantive visa, who is entitled to apply for such a visa, to obtain a bridging visa to gain more time to make the application. It opined that to grant an applicant a bridging visa under s.195(2), so that they could be released from detention and then make a substantive visa application, would circumvent the effect of s.195(1) and be contrary to the Parliament’s intention. This means that, if the time limit set out in s.195 has passed, an applicant in detention cannot meet cl.050.212(3)(b) unless the substantive visa application is for a protection visa.
[3] The letter was pursuant to s.359A of the Act, addressing information she had provided at different points in time about her intentions.
[4] Liu v MIAC [2008] FMCA 725.
The Tribunal has received substantive submissions on the interpretation of cl.050.212(3)(b), the obiter comments in Liu, and their relevance to the current case. These included a detailed written submission from the representative on 10 January 2022, oral comments at hearing, and a post-hearing submission of 12 January 2022, attacded to which were comments from barrister [Mr B]. [Mr B] addressed a number of key legal points, which overlap with [Ms A]’s submissions. These are, in summary.
§ Wilson FM’s comments were obiter, made with reference to a fact situation that differs from that in the present case, and therefore not binding on the Tribunal.
§ The interpretation of cl.050.212(3)(b) is ‘plainly wrong’. Contrary to Wilson FM’s comments, cl.050.212(3)(b) does not imply that an applicant has at the time of applying (for the bridging visa) a current ability to apply for a relevant substantive visa. All it requires is that the applicant has an intention to apply for a visa, and that the visa can be granted in Australia (even if only after the bridging visa grant).
§ Wilson FM’s comments about ‘circumventing’ s.195 are misconceived. [Mr B] contends that there is no tension between being granted a bridging visa, ceasing to be a detainee and then applying for a substantive visa. He appears to draw a distinction between avoiding the application of s.195(1), deliberately, on the one hand, and ‘circumvention’, on the other.
- [Mr B] sees the purpose of s.195 as curtailing the scope for detainees to lodge repeat or vexatious applications, and that it is relevant to ‘the administration of detention’. In his words, there are ‘narrow parameters’ for detainees to leave detention. He observes that even the holders of Bridging E visas are limited in the substantive visas for which they can apply.
§ [Mr B] concludes that the applicant can apply for a BVE: ‘for the express purpose of seeking to be a detainee, at which point 195(1) does not apply. There is no circumvention of s.195(1); it is merely the contemplated working of the system.’

[Ms A] made some further comments in her submission of 7 January 2022 and at hearing. These are, in summary:
§ The Tribunal must, in interpreting the regulations and assessing the case, take into account the significance of an applicant’s detention (‘deprivation of liberty’), and consider the entirety of their circumstances. The submission of 10 January 2022 states, for example, that the interpretation of cl.050.212(3)(b) should not be subject to a ‘blanket’ approach. In paragraph 34, it observes that ‘such discretion was not explored’ in the delegate’s decision of 23 December 2021. In the submission and at hearing, [Ms A] alluded to factors that the Tribunal should take into account, including that the applicant’s former migration agent did not advise her to apply for a medical treatment visa within the timeframe (but instead requested Ministerial intervention on her behalf); the applicant’s health concerns (which she characterised as having deteriorated significantly); and a recent assault in immigration detention. [Ms A] also appeared to suggest that it was appropriate to consider the primary criteria and the applicant’s compliance with visa conditions (cl.050.223) holistically.
§ [Ms A] wrote that the obiter comments in Liu on s.195 inadvertently conflated s.195(1) and s.195(2), suggesting that these are ‘two separate provisions that relate to an application for a substantive visa application and an application for a bridging visa’.
§ The submission drew attention to a more recent decision in in Gyongyos v Minister for Immigration and Anor[5], noting that the Federal Circuit Court ‘indicates that the findings in Liu “appear[s] of limited relevance”’. The submission contends that Liu is therefore no longer a leading authority. The Tribunal notes that, in fact, the Court’s comments in Gyongyos at [17] were questioning the relevance of Wilson FM’s obiter comments to the facts in that particular case. It therefore has no bearing on the Tribunal’s consideration of Wilson FM’s comments, or the issues at hand.
§ The submission states at paragraph 37, that ‘it has been the experience of our office for Bridging Visa Es to be granted to allow applications to apply for partner visas and therefore, we submit that such an approach should be taken when assessing [this] application’. At hearing, [Ms A] confirmed her understanding that Department officers grant Bridging visas to applicants in similar circumstances but could not substantiate this or confirm that the grants were based on applicants having met cl.050.212(3)(b) after the s.195 time limits had passed.
[5] [2017] FCCA 537, 22 March 2017
The Tribunal has considered these points carefully and concluded that the applicant cannot satisfy cl.050.212(3)(b) on the basis of her stated intention of seeking a medical treatment visa, even though she is currently subject to s.195. Its reasons follow:
§ The criteria set out in cl.050.212 are prescriptive, and do not afford the Tribunal any general discretion to take into account other factors, such as those advanced by [Ms A].
§ The Tribunal agrees that Wilson FM’s comments in Liu v MIAC were obiter, and are therefore not binding on it. They nonetheless merit close consideration.
§ The Tribunal accepts that the legislative intent of s.195 is to provide strict time limits within which detainees can apply for visas, and that the grant of a bridging visa under s.195(2) to allow a detainee subject to s.195(1) to apply for a relevant substantive visa would appear to undermine s.195. The issue is whether s.195 and cl.050.212(3)(b), as worded, give legislative effect to such intent.
§ Meaning of cl.050.212(3)(b): In Liu[6], Wilson FM noted at [54] the Minister’s submission that ‘subclause 050.212(3)(b) seems to require, as a condition of satisfaction, that a substantive visa could be granted to the applicant at the time of his application for a bridging visa. The use of the words “of a kind that can be granted” uses the present tense, namely at a time the application is made for a bridging visa.’ [Mr B] contends that this is ‘plainly wrong. There is no such implication’. The Tribunal makes the following observations:
-   In Liu at [53], Wilson FM noted the wording in cl.050.212(3)(b) ‘within a period allowed by the Minister for the purpose’. He commented that the use of the past tense suggests that an applicant must demonstrate ‘that he is within time to apply for a [spouse] visa if he is released from detention’, i.e. that they are not affected by s.195. In the Tribunal’s view, the phrase ‘within a period allowed by the Minister for the purpose’ appears in a clause that is forward looking, i.e. that the Minister may stipulate a period within which an applicant must apply for the substantive visa (eg. through the duration of the Bridging E visa or conditions imposed on it). The Department’s policy[7] refers in this context to condition 8508 (‘the holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified…for the purpose’.)
-   In Liu at [54], Wilson FM addresses the phrase in cl. 050.212(3)(b) requiring the applicant to intend to apply for a ‘substantive visa of a kind that can be granted if the applicant is in Australia’. He notes that the present tense suggests that the detainee must have an existing right – at the time of the bridging visa application - to make the substantive visa application. In the Tribunal’s view, this phrase defines the category of visa that comes into question, i.e. whether the Schedule 2 criteria for each visa subclass require the applicant to be in Australia or not in Australia. These words do not expressly require that, at the time of making the bridging visa application (and seeking to meet cl.050.212(3)(b)), the detainee must be entitled to make the substantive visa application. Although the Department’s policy is not binding on the Tribunal, it appears to reflect a similar view: ‘In assessing 050.212(3)(b), officers are to assess the likelihood of the non-citizen being able to make a substantive visa application within a reasonable period specified by the decision maker’, i.e. without any reference to s.195.
§ Effect of s.195: The Tribunal now addresses the interaction between cl.050.212(3)(b) and s.195, in light of Wilson FM’s comments at [55]. He noted the clear intention of Parliament to place strict time limits within which detainees can apply for visas, as per s.195(1), with limited exceptions for bridging visas and protection visas, as per s.195(2). The Tribunal notes Wilson FM’s view that to allow applicants who are subject to s.195 to meet cl.050.212(3)(b) on the basis of a future intention to apply for a substantive visa grant would be to ‘circumvent’ the plain legislative intent of s.195; and [Mr B]’s counter-view that this is ‘merely the contemplating working of the system.’ [sic] As noted above, the Tribunal shares Wilson FM’s view about the intent of s.195, but questions whether the current wording of s.195 and cl.050.212(3)(b) gives effect to that intent.
§ The observations regarding the purpose and utility of cl.050.212(3)(b), and the impact of differing interpretations on the operation of s.195 are instructive.
-   Wilson FM observed in Liu at [55] that cl.050.212(3)(b) has utility, in that it allows ‘an applicant for a substantive visa, who is then entitled to apply for such a visa, more time in which to do so by the grant of a bridging visa.’ He goes on to cite examples of why such time may be needed, such as gathering documents. On this view, cl.050.212(3)(b) would clearly apply to detainees making protection visa applications (under s.195(2); applicants who are still within the s.195 time limits (2 working days or, if requested, a further 5 working days); and somewhat less certainly, for detainees who indicated, within the time limits set out in s.195, an intention to apply for a visa, but rely on the Minister granting them more time to make the application.
- [Mr B]’s contends that the purpose of s.195 is to regulate detention administration, to avoid repeat or vexatious applications made by detainees (whilst they are in detention) and that, in any event, Bridging E visa holders are limited in the visas they can apply for. In other words, an interpretation of cl.050.212(3)(b) that permits detainees subject to s.195 to obtain a Bridging E visa on the basis of a future visa application does not of itself undermine the purpose of s.195. The Tribunal notes that the Department’s policy lends some support for this view. It identifies factors to consider in determining whether an applicant can make a valid application, including any statutory limitations, previous visa conditions and access to funds for fees, but conspicuously does not mention s.195 as a bar to satisfying cl.050.212(3)(b).
- In sum, the differing views on the purpose, utility and scope of cl.050.212(3)(b), and its interaction with s.195, do not provide unambiguous support for one or other interpretation of the subclause, and are therefore of limited assistance.
[6] Supra 4, [54]
[7] PAM3: Act - Compliance and Case Resolution - Program visas - Bridging E visas
Overall, the Tribunal concludes that the terms of cl.050.212(3)(b) itself and consideration of its interaction with s.195 do not clearly require that a detainee who is subject to s.195 can only meet cl.050.212(3)(b) on the basis of an intention to apply for a bridging visa or a protection visa, notwithstanding the legislative intent of s.195. In the absence of such a clear restriction, the Tribunal agrees with [Ms A] and [Mr B] that the preferred interpretation of cl.050.212(3)(b) is that it can be met by a detainee who is subject to s.195, and who intends to apply for a substantive visa within the terms set out in cl.050.212(3)(b), even if they can only act on that intention after they cease to be detainees subject to s.195.
The Tribunal is satisfied, on the available material, that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, a substantive visa of a kind that can be granted if the applicant is in Australia, namely a medical treatment visa. She therefore meets cl.050.212(3)(b) and cl.050.212(3).
Other primary criteria
Having found that the applicant meets cl.050.212(3)(b), it is unnecessary for the Tribunal to determine whether she also meets other subclauses of cl.050.212(2)-(9). Nonetheless, the Tribunal addresses some of these briefly, as they were subject to exchanges during the course of this review.
There was some discussion at hearing as to whether she meets cl.050.212(2), which requires that the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
The applicant’s current position is that she would be prepared to depart Australia after receiving adequate medical treatment. This stated intention is therefore contingent on her receiving medical treatment in Australia for the condition identified in the documents she provided, or treatment for any other medical issues; and on her satisfaction as to the adequacy of the treatment. There is no evidence that she is currently making or is the subject of acceptable arrangements to depart Australia. [Ms A] noted that it would be open to the Tribunal to be satisfied that the applicant meets this ground, and to impose relevant conditions on the Bridging E visa. However, in the Tribunal’s view, the evidence does not support any conclusion that the applicant is making arrangements to depart Australia; these considerations do not displace the Tribunal’s concerns. It finds that she does not meet cl.050.212(2).
As noted in the Tribunal’s s359A letter, and accepted by the applicant, she requested the Minister to intervene in her case on 15 September 2021, and the request was finalised as ‘not referred’ on 29 September 2021. There is no evidence that the applicant has any ongoing request to the Minister, let alone a first request, of any kind (such as a request to determine that s.48A of the Act does not apply, to substitute a more favourable decision following a visa refusal or cancellation, or under relevant sections of the Act). The Minister has also not substituted a decision, in effect to grant him a visa, under relevant sections of the Act. The Tribunal is therefore not satisfied that the applicant meets the requirements on the grounds of a Ministerial intervention request. The applicant therefore does not meet cl.050.212)(5B), (6), (6AA) or (6B).
There is no claim or evidence that the applicant meets any of the other primary criteria.
Whether the applicant will abide by conditions - cl 050.223
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.
In determining the conditions to apply to a bridging visa, if granted, cl.050.617 applies in this case. The Tribunal considers that the following conditions should be imposed on a bridging visa, if granted:
8101     The holder must not engage in work in Australia.
8401     The holder must report:
(a)      at a time or times; and
(b)      at a place;
specified by the Minister for the purpose.
8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
In assessing the applicant’s compliance with such conditions, the Tribunal takes into account her migration history, her personal and family circumstances, and her future intentions.
Migration History
As noted in the delegate’s decision record and the attached chronology, the applicant’s migration history is, in summary:
§ She arrived in Australia [in] December 2007, holding a visitor visa. She held various visitor and student visas up to 7 September 2015 (as well as a temporary graduate visa from September 2012 to April 2013); a student visa from 16 February 2017 to 16 March 2017; and a visitor visa from 6 April to 26 June 2017.
§ Her most recent return to Australia was [in] April 2016, when she held a student visa.
§ From 19 June 2017 to 24 June 2018, the applicant held various bridging visas associated with her applications for visitor visas (and merits review of their refusal). She did not hold a visa, and was an unlawful non-citizen, from 25 June 2019 to 15 January 2020.
§ Following a brief detention in mid-January 2020, the applicant held successive Bridging E visas, on departure grounds, from 16 January 2020 to 19 January 2021. She remained in Australia unlawfully after this period, until her location and detention on 7 September 2021. She is currently in hotel quarantine, arranged by [named] Immigration Detention Centre.
The applicant addressed her migration history, particularly the times she was without a visa, at hearing.
§ The applicant has expressed her regret at having failed to comply with Australian migration law. She mentioned several mitigating factors. In relation to the period mid-2019 to early 2020, she said that she did not have a representative at the time and thought that she had lodged an appeal. By way of background, [in] 2019, the AAT (differently constituted) affirmed the decision to refuse to grant the applicant another visitor visa (her fifth one). The applicant appears to state that she thought that she had sought judicial review of that decision and was therefore unaware of her status.
§ In relation to the successive grants of Bridging E visas, on departure grounds, from January 2020 to January 2021, the applicant explained that there had been a delay in the issuance of her PRC passport (she provided a copy of a passport issued [in] 2021); the COVID pandemic had disrupted flights; and she had felt anxious and confused about her future. The submission of 10 January 2022 refers, in a similar vein, to the applicant having felt depressed and withdrawn.
§ She acknowledged that ABF officers had warned her in January 2020 about working illegally, but noted that from that time, she held a number of bridging visas with work permission. As for the period after January 2021, when she remained in Australia without a visa or permission to work, she said that it was ‘complicated’. She had felt driven to work, for personal satisfaction and rewards, and had overlooked that she was not permitted to do so.
The Tribunal considers that, even allowing for some degree of personal stress or uncertainty, the applicant’s migration history suggests that she is determined to remain in Australia, even in disregard of Australian migration law.
Personal and family circumstances
The applicant stated at hearing that, prior to her immigration detention, she shared accommodation with her ex-partner, [Mr D], in [Town 1];and continues to operate a business with him. Although she was unsure of [Mr D]’s exact migration status, she believes that he has applied for a [permanent] visa and may be looking to switch to an ‘investment visa’. [Ms A] opined that this may be a reference to a state-nominated skilled regional visa.
The delegate’s decision record summarised the applicant’s role in the business as follows: ‘[The applicant] is the sole director, secretary and shareholder of the business registered under the name [Company 1] (ASIC registration provided) and was responsible for management, bookkeeping, stocktaking, recruitment and staff training.’ The decision record notes the applicant’s statement of 14 September 2021 estimating the company’s earnings for 2018/2019 at $928,322. The applicant confirmed to the Tribunal that the business name is [Business 1], and it operates a [restaurant] in [Town 2] named [Restaurant 1]. [Mr D] works there as a chef.
The Tribunal considers these business arrangements relevant to its assessment. They suggest that the applicant has a degree of drive, personal organisation and business acumen that casts doubt on her claim that she overlooked her migration status. They suggest instead a resolve to remain in Australia, and a disregard of migration law.
The applicant has an Australian citizen sister, [Ms E], who lives in [Suburb 1], South Australia. In a letter of support dated 18 December 2021, the sister stated that she is an [Occupation 1] with an income of approximately $76,000 per year and lives alone in a two-bedroom apartment.
The applicant and [Ms A] have highlighted that the applicant has significant health issues, and provided a range of medical evidence. These are, in sum:
§ The applicant has suffered bouts of severe [Condition 1] requiring hospitalisation, for six days in November/December 2019 and two days in August 2020. The underlying complaint, which involves bleeding and associated pain, was subject to further investigation and treatment in October 2020, and January and March 2021. The medical evidence notes indicate that there is limited scope for non-surgical treatment due to the complexity of her case.
§ The applicant detailed her further treatment in immigration detention, which included an overnight stay in hospital in late October 2021 as a result of heavy bleeding. Following an ultrasound scan in November 2021, she has a specialist appointment on 25 January 2022.
§ The applicant and [Ms A] highlighted that the applicant’s health has deteriorated in detention, with more severe [Condition 1], weight loss and some loss of hair. As she noted at hearing, she also suffers from associated pain at certain times. In the course of explaining her migration history, and in her statements, the applicant also referred to anxiety and some uncertainty.
§ The applicant claims that an assault in detention on 30 December 2021 resulted in ‘sustained injuries to her mouth and limbs, as well as ‘emotional abuse by way of threats to her safety’. She provided photographs show an abrasion and bruising around a [Body Part 1], and a cut on her [Body Part 2]. As discussed at hearing, a Department officer confirmed that the applicant had been involved in an altercation, she had suffered a scrape to her [Body Part 1], and had been transferred from the detention centre to hotel quarantine.
§ The applicant also claims that the assault has caused her emotional stress, particularly in light of her ongoing health issues.

The Tribunal accepts that the applicant has a number of medical issues, and that she was involved in a fight in late December 2021. As discussed at hearing, the Tribunal gives appropriate weight to these factors – without requiring further material from the Department or IHMS – in assessing the applicant’s future compliance with visa conditions. It notes, however, that the specialist appointment on 25 January 2022 will likely yield further information about the applicant’s medical requirements in the near future, including the prospect of surgery, the recovery process and any related health issues.
The applicant’s future intentions
The applicant told the Tribunal that she proposes living with her sister in [Suburb 1], some [distance] from [Town 1]. She emphasised that her current priority is to focus on her health – both the treatment of the condition that causes severe [Condition 1] and improving her overall wellbeing following a period in immigration detention. She stated emphatically, in her personal written statement and at hearing, that she wants to concentrate on her recovery to ensure that she has the option of having children in the future; and that she is highly motivated to avoid any repeat of being in immigration detention.
The Tribunal accepts that the applicant will first deal with her health issues, although it appears that the forthcoming specialist appointment next week will give critical information about her future needs.
The Tribunal accepts that the applicant’s sister [Ms E], has offered her accommodation in Adelaide, meals and other support; and that her sister appears to have the financial means and housing to deliver on this.
At the same time, it is apparent that the applicant remains involved in the business with her ex-partner [Mr D]. In her written statement, she wrote that she has ‘already started taking steps to safely hand over [her] business, including: transferring the title of the busines to another person or entity (most likely to my sister or ex-partner); finalise all trade debtor and creditors; notifications to supplies; closure of bank accounts; change of licence title with relevant government departments (eg. liquor licence of the business) and eventually deregister [herself] as director’.
At hearing, the applicant said that she has negotiated with her ex-partner for him to take over the business. Asked for details of these arrangements, she said that they had agreed by telephone to engage an independent valuer to determine a price and will then engage a commercial lawyer to make arrangements, including transfer of the title. She said these talks had begun shortly after her immigration detention. She also mentioned that she may transfer title to her sister. She thought that her share in the restaurant would be worth some $80,000 to $100,000.
The Tribunal is sceptical of these arrangements, taking the following into account:
§ The applicant has invested considerable time, effort and money, and applied her skills and business acumen, in establishing this business, i.e. the restaurant and its corporate structure. This does not sit well with the purpose of the visitor, student and bridging visas that she has held in Australia. Rather, her investment and business activity suggests a strong motivation for her to remain in Australia for economic purposes.
§ The applicant’s continued involvement in the business - including after the onset of her health problems and during periods when she has not held any visa - also points to her level of commitment, and at least to some extent, the nature of her work there (including managerial responsibilities).
§ The applicant’s mooted transfer of the business to [Mr D] or her sister, both people with whom she has an obvious familial and/or business relationship, raises questions about whether she genuinely intends to distance herself from the business. Although she claims to have discussed these matters with [Mr D] since her detention (in September 2021), it appears that they have not progressed beyond an in-principle agreement to get a valuation of the business.
§ The Tribunal’s concerns are reinforced by the applicant’s statement at hearing that she expects to have to go to [Town 1], at least briefly, for discussions with [Mr D] and to make some handover arrangements.
The Tribunal accepts that the applicant has health issues that require prompt attention. However, the applicant’s stay in Australia since 2007, her business activities and investment, and the presence of family and/or business associates, all suggest that she is committed to remain in Australia. The Tribunal views with scepticism her stated intention of wishing to remain in Australia only to apply for a medical treatment visa and returning to China once she has received ‘adequate’ treatment. The Tribunal is concerned that, irrespective of whether the applicant receives a medical treatment visa and medical treatment, she would have strong incentives to remain in Australia; and that, if she were unable to obtain a visa to do so, she would be prepared to again remain in the community, in breach of visa conditions and unlawfully.
Condition 8101 (No Work)
The applicant claims that she will comply with condition 8101 of a Bridging E visa. As noted above, she and [Ms A] drew attention to the following factors:
§ She is completely focused on resolving her health issues.
§ Her representative has counselled her on the consequences of any non-compliance. She will be keen to avoid any return to immigration detention, as her health has suffered and she was subject to an attack on 30 December 2021.
§ She has the financial support of her sister in Adelaide, and an offer of accommodation there. As noted above, the applicant provided a letter of support from her sister, and a copy of [a] bank statement for her parents, who use a post office box address in [Suburb 2], as having deposits of just over $40,000.
As noted above, several factors cast doubt on the applicant’s future compliance with condition 8101. These include the extent of her past involvement in [Business 1], including during times when she has had related health problems and/or when she has held no visa. The applicant appears to be only in the early stages of divesting herself from the business. Her stated plans to transfer title to her ex-partner or sister strongly suggest that she will continue to have a close association with the business. She also flagged at hearing that, in any event, she would likely need to visit [Town 1] to make some arrangements and perform a handover.
Overall, the Tribunal is concerned that the applicant’s stated commitment to complying with condition 8101 is a short-term expedient, and does not genuinely reflect her plans. While it accepts that the applicant’s health condition may be an immediate priority and may also affect her capacity to work (or at least to undertake certain types of work), it also considers that at the time of this decision, she continues to have strong incentives to resume work, in breach of condition 8101, in one or other form. Taking into account her past breaches of migration law, the Tribunal is not satisfied that she will comply with condition 8101, without a security.
Compliance with other conditions
The Tribunal has also considered whether the applicant will comply with conditions 8401 and 8506. Condition 8401 requires that the visa holder must report at a time or place specified by the Minister, and condition 8506 requires that the holder must notify Immigration at least 2 working days in advance of any change in her address.
The Tribunal some concerns that the applicant will be tempted to remain in the community without a visa, undetected, if she does not obtain a medical treatment visa or other substantive visa; or has exhausted any avenues of appeal; or has completed her medical treatment. As noted above, she appears to have strong incentives to remain in Australia. The Tribunal also notes that these conditions require the applicant to actively engage with the Department, which she has a poor record of doing in the past. At the same time, the Tribunal accepts that the applicant’s future medical treatment, her links in South Australia, and her motivation to avoid immigration detention may also act as factors in favour of her compliance with these conditions.
Given the Tribunal’s lack of satisfaction in relation to condition 8101, it is not necessary for it to make firm findings in relation to the other conditions 8401 and 8506.
Security
The Tribunal has considered whether the applicant will abide by conditions 8101 (and the other conditions), if a security is required, as a financial incentive for her compliance.
After the hearing, the applicant indicated that she would be prepared to pay a bond of between $5,000 and $10,000.
The Tribunal is mindful that the amount of security should reflect what is required to secure compliance with the relevant conditions, i.e. to provide a reasonable assurance that there will be compliance, and no more. It should take into the particular circumstances of the person, in particular their financial position.[8] Department policy states that the amount of security should be sufficiently high to encourage compliance with any conditions imposed on the visa but not so high as to be beyond the applicant or guarantor’s capacity to pay.[9]
[8] Applicant VAAN of 2001 v MIMA [2002] FCA 197 at [27]. The Tribunal notes that, while these comments relate to the amount of security to be requested, the same considerations apply when assessing whether a particular sum is sufficient to act as a financial incentive for compliance.
[9] PAM 3 Compliance and Case Resolution – Program visas – PAM – Bridging E visas – BVE 050 securities – Authorised officer requires a security (re-issued 19/11/16).
In the present case, the Tribunal notes that the applicant has no current regular income (although it does not know the financial arrangements regarding [Business 1] at [Town 2]), and that she may face medical bills (although the extent of these may become apparent only in the near future). Relevantly, however, she has a significant business investment, and has provided evidence of support from her sister and her parents (whose [bank] account had a balance of over $40,000 in November 2021). In these circumstances, the Tribunal considers the offered bond of $5,000 to $10,000 to be very modest.
At the time of this decision – particularly given that the applicant’s continued involvement in the business, and pending the specialist’s advice on her future medical treatment - the Tribunal is not satisfied that a bond of $5,000 or $10,000 will act as a financial incentive for the applicant to comply with condition 8101.
The Tribunal therefore finds that she does not meet cl.050.223.
Other considerations
The Tribunal has given careful consideration to the applicant’s ongoing medical condition, the minor injuries arising from the recent altercation, her reported weight loss, and the psychological strain arising from these mattes and her ongoing detention, insofar as these are relevant to her eligibility for a bridging visa (in particular, her compliance with visa conditions). Broader questions about her wellbeing and best interests lie outside the scope of this review, and may be appropriate for consideration in the context of any future request for Ministerial intervention.
Conclusion
For the above reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
James Silva
Member
ATTACHMENT: RELEVANT LAW
Class WE visas contains two subclasses: Subclasses 050 and 051. In the present case, the applicant seeks 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).
The primary criteria for the grant of a subclass 050 visa include subclause 050.212. This states that, at the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
Substantive visa application
The applicant meets subclause 050.212(3) if s/he has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.
Acceptable arrangements to depart Australia
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
Judicial review, merits review, s.137K revocation
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
Subclause 050.212(4) is met if:
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or
(aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or
(bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or
(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b), (ba) or (bb); or
(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.
Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.
Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
Consequential cancellation (review/revocation of primary cancellation)
Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).
Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).
Court declaration / review of citizenship decision
Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.
Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.
Ministerial intervention
Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _
Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.
Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).
Compelling need to work
Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.
Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.
‘Compelling need to work’ is defined in r.1.03 of the Regulations as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.
Criminal Detention
Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
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.
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].
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.