2208417 (Migration)

2208417 (Migration) [2022] AATA 3216 (17 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2208417
MEMBER:Nathan Goetz
DATE:17 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify the applicant must not be published by the Tribunal.
The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about the applicant’s previous protection visa application (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 17 June 2022 at 4:28pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – residential history in Australia – failure to advise the Department of change in address – work history in Australia – past non-compliance with conditions – previous bridging visa applications – previous protection visa application – criminal history – facts which supported the findings of guilt – failing to answer bail – deliberately or a wilfully blind approach to migration obligations – eligible non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 48B, 73, 360
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cl 050.223, 050.615A, 051.211; Schedule 8, Conditions 8101, 8207, 8401, 8506, 8564
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant identifies as a male citizen of Nigeria presently located in Australia.
[In] November 2016 the applicant first and last arrived in Australia holding a visitor visa that had been granted on 29 September 2016. That visa ceased [in] February 2017.
On [date] February 2017 the applicant applied for a protection visa. On 30 September 2019 a delegate refused to grant the protection visa. On 30 October 2019 the applicant applied to the Tribunal for review of the refusal decision. On 11 March 2020 the Tribunal finalised the review application by finding that it did not have jurisdiction to review the refusal decision in AAT case 1930890.
On 27 February 2017 the applicant applied for a bridging visa. On 1 March 2017 the applicant was granted a bridging visa that was valid until 28 August 2019. On that date, a delegate cancelled the bridging visa. On 6 September 2019 the applicant applied to the Tribunal for review of the cancellation decision. On 20 September 2019 the applicant was granted a bridging visa on the basis of the review application. On 5 March 2020 the Tribunal finalised the review application by finding that it did not have jurisdiction to review the cancellation decision in AAT case 1925249. On 16 April 2020 the bridging visa ceased, and the applicant became an unlawful non-citizen.
[In] August 2019 the applicant was convicted and sentenced to a 2-year conditional release order for charges of stalk/intimidate intend physical harm and common assault.
[In] September 2019 the applicant was convicted and sentenced to a 2-year conditional release order for charges of common assault and armed with intent to commit an indictable offence.
On 1 May 2020 the applicant applied for a bridging visa. On 14 May 2020 the applicant was granted a bridging visa on the basis that he was making, or the subject of, acceptable arrangements to depart Australia. On 24 June 2020 that bridging visa ceased.
On 3 July 2020 the applicant applied for a bridging visa. On 6 July 2020 the applicant was granted a bridging visa on the basis that he was making, or the subject of, acceptable arrangements to depart Australia. On 9 September 2020 that bridging visa ceased.
On 15 September 2020 the applicant applied for a bridging visa. On 18 September 2020 the applicant was granted a bridging visa on the basis that he was making, or the subject of, acceptable arrangements to depart Australia. On 3 November 2020 that bridging visa ceased.
On 5 November 2020 the applicant applied for a bridging visa. On 10 November 2020 the applicant was granted a bridging visa on the basis that he was making, or the subject of, acceptable arrangements to depart Australia. On 7 December 2020 that bridging visa ceased.
On 15 January 2021 the applicant applied for a bridging visa. On 18 January 2021 the applicant was granted a bridging visa on the basis that he was making, or the subject of, acceptable arrangements to depart Australia. On 12 February 2021 that bridging visa ceased.
On 8 March 2021 the applicant applied for a bridging visa. On 9 August 2021 the applicant was granted a bridging visa on the basis that the applicant was in criminal detention and no criminal justice stay certificate or warrant had been issued. On 2 September 2021 that bridging visa ceased and the applicant became an unlawful non-citizen.
On 31 October 2021 upon the applicant’s release from criminal detention he was detained by the Australian Border Force and placed into immigration detention as an unlawful non-citizen.
On 17 November 2021 the applicant applied for a bridging visa. On 24 November 2021 a delegate determined that the visa application was invalid.
On 17 November 2021 the applicant’s conviction for charges of intentionally sexually touching a child (for which he was convicted and sentenced [in] May 2021) was quashed.
On 19 November 2021 the applicant applied for a bridging visa. On 24 November 2021 a delegate refused to grant the bridging visa. On 26 November 2021 the applicant applied to the Tribunal for review of the refusal decision. On 7 December 2021 the Tribunal affirmed the decision to refuse to grant the bridging visa in AAT case 2117724.
On 4 June 2022 the applicant applied for the bridging visa that is the subject of the review application. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for these two subclasses are contained in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 6 June 2020 the applicant applied to the Minister under s 48B of the Act for a determination that s 48A of the Act did not apply to him. An email provided by the applicant shows that the request was made on 4 June 2020 at the time he applied for the bridging visa. Broadly speaking, s 48A of the Act prohibits a person who has had a protection visa refused from making another protection visa application while in the applicant remains in Australia.
On 8 June 2022 the delegate refused to grant the bridging visa on the basis that the applicant did not meet cl 050.223 or cl 051.211 of Schedule 2 of the Regulations.
On 9 June 2022 the applicant applied to the Tribunal for review of the refusal decision.
On 10 June 2022 the Tribunal wrote to the applicant under s 360 of the Act and invited him to appear at a Tribunal hearing commencing at 10:30am on 16 June 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it was unable to make a decision that was favourable to the applicant on the basis of the material it had.
On 16 June 2022 the applicant appeared at the Tribunal hearing. The applicant appeared by audio-visual link from an immigration detention centre. The Tribunal was satisfied that an audio-visual hearing was appropriate in all the circumstances.
In the review application form, the applicant requested that the Tribunal obtain oral evidence from a person named ‘[Alias 1].’ From the other information it is clear that this person is [Ms A], who the applicant identified as his de facto partner. The Tribunal wrote to the applicant and advised that before the Tribunal would consider this request, that person would need to provide the Tribunal with a written statement of the evidence she proposed to give. The Tribunal directed that the written statement be provided to the Tribunal by 4pm 15 June 2022, being the day before the scheduled Tribunal hearing. The applicant did not provide that written statement. As the applicant did not provide the written statement as directed, the Tribunal determined to not take oral evidence from the witness.
criteria for the bridging visa
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. 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.
In this case, cl 050.615A applies because the applicant has applied to the Minister under s 48B of the Act to lift the s 48A bar, and because he was an unlawful non-citizen for all or parts of the period after the application for the substantive visa was finally determined until the time, he made the request of the Minister.
This clause prescribes that, Condition 8101 must be imposed unless condition 8116 is imposed. There is no power to impose Condition 8116 because the applicant is not in a class of persons prescribed by the Minister by legislative instrument for the purpose of that subclause: cl 050.615A(3). This clause also provides that any one or more of the following conditions may be imposed: 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548.
Additionally, cl 050.618 applies because this provides that Condition 8564 may be imposed in addition to any other condition imposed by another provision of the Division.
The Tribunal considered that the following conditions should be imposed in the circumstances of this case:
·8101: The holder must not engage in work in Australia. This condition must be imposed because it is mandatory.
·8207: The holder must not engage in any studies or training in Australia. This condition should be imposed because a bridging visa should not be used as an alternative to a student visa.
·8401: The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified by the Minister from time to time. This condition should be imposed because it will ensure the orderly management of non-citizens in the community.
·8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address. This condition should be imposed because it will ensure the orderly management of non-citizens in the community.
·8564: The holder must not engage in criminal conduct. This condition should be imposed because it is reasonable to expect that non-citizens do not engage in criminal conduct during their time in Australia.
At the Tribunal hearing, the Tribunal told the applicant the conditions that it considered appropriate to impose on the bridging visa and noted that they were the same conditions considered by the delegate. At the Tribunal hearing, the applicant told the Tribunal that he agreed to comply with those conditions.
Eligible non-citizen – cl 051.211
Clause 051.211 is met if, at the time of application:
The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).
The applicant must continue to satisfy this criterion at the time of decision: cl 051.221.
CONSIDERATION
The issue in this case is whether the applicant satisfies either cl 050.223 or cl 051.211 of Schedule 2 of the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Will the applicant abide by conditions - cl 050.223?
The applicant is eligible for the grant of the bridging visa because he is an unlawful non-citizen and not an ‘eligible non-citizen’ as required by cl 050.211 of Schedule 2 of the Regulations. He has grounds to seek the visa because he has applied to the Minister to exercise powers under s 48B of the Act as required by cl 050.212(5B) of Schedule 2 of the Regulations.
The question then turns to whether the applicant would abide by the conditions which would be imposed on the bridging visa if granted.
The applicant told the Tribunal hearing that he was in a de facto relationship with [Ms A], a female born on [date]. They knew each other as friends prior to commencing a relationship in April/May 2021. They sometimes stayed at each other’s homes in [Suburb 1], but they never lived together as they maintained separate residences.
Residential history in Australia
He told the Tribunal that he entered into criminal detention around May 2021 and remained there until October or September 2021. From there, he went into criminal detention and remains there to date. He told the Tribunal that prior to going into criminal detention in May 2021, he lived at [Address 1], [Suburb 1] and had lived there from the start of 2021. He described this as shared accommodation. He paid $250 per fortnight and he paid this from funds from bottle recycling and from friends who made up the difference when he had a shortfall.
Noting that the applicant told the Tribunal that he lived at [Address 1], [Suburb 1] from the start of January 2021, the Tribunal raised with the applicant that he never advised the Department that he resided there. The Tribunal noted to the applicant that he was granted bridging visas on 10 November 2020 and again on 15 January 2021, and each of these bridging visas had attached condition 8506. According to the Department records, the applicant’s residential history in Australia is as follows:
·     From 9 March 2017 until 7 September 2019, the applicant lived at [Address 2] NSW
·     From 7 September 2019 until 20 September 2019, the applicant lived at [Address 3] NSW
·     20 September 2019 until 15 September 2020, the applicant lived at [Address 4] NSW
·     15 September 2020 to 15 January 2021, the applicant lived at [Address 5] NSW
·     15 January 2021 to 8 March 2021, the applicant resided at [Address 6], [Suburb 2] NSW
·     8 March 2021 to 15 June 2021, the applicant resided at [Address 7], [Suburb 3] NSW
·     From 15 June 2021 to 14 October 2021, the applicant was in the custody of NSW Corrective Services
·     From 14 October 2021 to 3 November 2021, the applicant resided at [Address 8] NSW
·     From 3 November 2021 to present, the applicant was detained at [an] Immigration Detention Centre.
From the above, it appeared that from January 2021 until the applicant was taken into criminal detention, he resided initially at [Address 5] from 15 September 2021, an address in [Suburb 2] from 15 January 2021, and an address in [Suburb 3] from March 2021. The applicant disputed that he ever lived in [Suburb 2]. The Tribunal notes that the Department records do not indicate how the Department was advised of this address. In any event, the applicant told the Tribunal hearing that he did not advise the Department that he lived in [Address 1], [Suburb 1] from January 2021 because he updated his address with the ‘Service NSW app’ and assumed that the Department would be made aware of this change. He said that he had never contacted the Department to advise of any change of address. The Department records corroborate this view, as the residential history source is cited as addresses provided by the applicant in various visa application forms submitted to the Department.
The Tribunal considered the applicant’s explanation about why he did not advise the Department that he commenced living in [Address 1], [Suburb 1] from January 2021 but is not persuaded by that explanation. The Tribunal is satisfied that the applicant’s failure to advise the Department directly of a change in his residential address demonstrates an indifference to his migration obligations. In combination with the other concerns that the Tribunal has concerning whether the applicant will abide by conditions which would attach to the bridging visa, it concludes that the applicant has an indifferent approach to any obligations imposed upon him.
Work history in Australia
In the telephone interview with the delegate on 7 June 2022 the applicant said that since he arrived in Australia he worked as a [Occupation 1] for roughly four years before he left the employment due to personal matters. He told the Tribunal that he started working in March or April 2017. He told the delegate that he supported himself by collecting recyclables and selling them to pay for rent and that he was provided food by [Ms A]. In the same interview, the applicant advised that if he was granted a bridging visa, he would not need to work because [Ms A] would provide the applicant with accommodation at [Address 9], [Suburb 1] and would not need to work because of this. He repeated this assertion at the Tribunal hearing.
At the Tribunal hearing, the Tribunal discussed with the applicant that [Ms A] had not provided a written statement as directed. There was no evidence to corroborate the applicant’s assertion that [Ms A] would provide accommodation to him. The applicant responded that he did not receive the Tribunal’s letter and that [Ms A] had provided a written letter on those terms at the previous Tribunal hearing. The Tribunal understands that to mean the Tribunal hearing where the Tribunal affirmed the refusal decision in AAT case 2117724. The applicant said that he still had a copy of that letter on his telephone.
The Tribunal is not satisfied in the absence of a current letter from [Ms A] to corroborate the claimed support she would offer the applicant which would mean that he had no need to work that any weight can be given to the applicant’s assertion of this support. It was for this reason that the Tribunal wrote to the applicant and asked for a statement of the evidence she proposed to give the Tribunal. The applicant did not provide that letter.
Applicant’s concession in the bridging visa application form that he had not previously complied with conditions attached to a visa, and discussion about visitor visa application
The Tribunal noted to the applicant in the bridging visa application form he declared that he had previously overstayed an Australian visa. The applicant put that he ‘previously overstayed’ in Australia ‘on a bridging E visa.’ The Tribunal asked the applicant how it could have any confidence that he would now comply with bridging visa conditions given that he had not done so in the past. The applicant told the Tribunal hearing that at the time he did not comply with the conditions of his past Bridging E visa he was not thinking straight, and everything was imbalanced in his life. He alluded to his mental health being very bad at the time. He contrasted that with his life now, where he said the only problem was his migration status.

The Tribunal explored with the applicant the visitor visa that he was granted on 26 September 2016 which allowed him to travel to Australia. Attached to that visa were conditions 8115, 8201 and 8503. There is no evidence that the applicant did not comply with any of those conditions (noting that condition 8503 is described as a ‘no further stay condition’ but merely acts to invalid any visa application (other than a protection visa application) made onshore during an applicant’s time in Australia.
However, the Tribunal is aware from its own experience conducting merits review of decisions to refuse to grant visitor visas that the visitor visa application form contains a declaration section where applicants are required to agree to depart Australia during the period authorised for their stay on the visitor visa. The Tribunal is aware that a visitor application would be refused if an applicant did not declare in the visa application form their intention to return to their home country.
At the Tribunal hearing, the Tribunal discussed the declaration that the applicant would have made in his visitor visa application form declaring that he would depart Australia during the currency of the visitor visa and noted that he had not done so. The Tribunal asked the applicant why he would make such a declaration and then not leave Australia once he was here. The applicant told the Tribunal that when he applied to leave Nigeria and travel to Australia his intention was to return to Nigeria. However, prior to his departure from Nigeria ‘things went wrong’ and now he could not return to Nigeria because of his sexual orientation.
The Tribunal has considered the applicant’s explanation about the clear inconsistency between the declaration that he would have made in the visitor visa application form to leave Australia during the currency and the fact that he did not do so once he was in Australia. The Tribunal is prepared to give the applicant the benefit of the doubt about this, as the Tribunal is unaware of the specifics of the applicant’s protection claims. However, the fact remains that the applicant has previously ‘overstayed’ his time in Australia on a bridging E visa as declared in his bridging visa application form. The applicant had no lawful basis to remain in Australia if he did not hold a bridging visa. The applicant’s previous non-compliance with migration obligations by overstaying the period authorised to remain in Australia demonstrates that the applicant has an indifferent approach to his obligations and is prepared to ignore requirements if he desires. The Tribunal does not accept that the applicant’s claimed poor mental health state or that his life was ‘imbalanced’ is the reason the applicant overstayed the period authorised by his bridging visa.
Previous bridging visa applications granted on the basis that the applicant would depart Australia
The Tribunal noted to the applicant that he had been granted previous bridging visas by a delegate on the basis that the applicant was going to depart Australia and that he had not done so. The Tribunal reasoned that the failure of the applicant to depart Australia despite being given opportunities to do so through the grant of bridging visas may be evidence that the applicant had a strong desire to remain in Australia and would do so despite being required to depart. The applicant explained that he never wanted to leave Australia.
He said that all the bridging visas were applied for by his previous lawyer who advised him that applying for a bridging visa on the basis that he was departing Australia was the only way to regularise the applicant’s status in Australia. The applicant said he followed his former lawyer’s advice about this. If that was the case, the Tribunal was troubled by the applicant’s former lawyer providing that advice to the applicant but was more troubled by the fact that the applicant would accept that advice and instruct his former lawyer to act upon it. The applicant said he did not know anything and just obeyed his former lawyer.
The Tribunal considered the applicant’s explanations but is not persuaded by them. If the applicant was advised by his former lawyer that the only basis, he could be granted a bridging visa was if he agreed to leave Australia, the applicant did not need to accept this advice. The Tribunal finds that if the applicant was acting honestly, he would not proceed to lodge a bridging visa application on the basis that he was going to leave Australia if he had no intention of doing so. The Tribunal finds the applicant’s repeated lodgement of bridging visas on the basis that he was going to depart Australia when he had no intention of returning to Nigeria (the only country it would appear he had a right to enter) to demonstrate the applicant’s willing to say whatever he thought would give him a favourable migration outcome.
Previous protection visa application and request for the Minister to lift the s 48A bar preventing the applicant from lodging another protection visa while he is in Australia
The applicant was asked why he did not return to Nigeria when his protection visa was refused by a delegate on 30 September 2019. The applicant said that he did not know that his protection visa application had been refused. The applicant said that he only discovered this around 3 or 4 months ago when his new lawyer started acting for him.
The Tribunal found this an odd response, given that subsequent to the decision made on 30 September 2019 by a delegate to refuse to grant the protection visa, the applicant applied to the Tribunal for a review of that decision. It was further curious that the applicant made subsequent applications for bridging visas and review applications concerning some refusal decisions. The Tribunal struggled to understand how the applicant could be engaged in subsequent visa applications if he had no knowledge that his previous protection visa application was refused.
The applicant told the Tribunal that he lodged the request for the Minister to lift the s 48A bar preventing him from lodging another protection visa application because he cannot return to Nigeria. He told the Tribunal that in the event that the Minister does not lift the prohibition on him making another protection visa application, he had no other plans. He suggested he may go to another country but repeated that he cannot return to Nigeria.
The Tribunal considered the applicant’s evidence but is not persuaded that the applicant was being truthful about his claimed lack of knowledge that his previous protection visa application had been refused by the Department. That lack of knowledge is not supported by the fact that the applicant applied to the Tribunal for review of that refusal decision, or the fact that the applicant lodged several bridging visa applications subsequent to the protection visa application being refused. In is incredible to believe that the applicant would be engaged in the migration process subsequent to the protection visa refusal decision and not be aware of that decision. If it was true that the applicant was unaware that his protection visa application had been refused, then it would be reasonable to expect that all the subsequent bridging visa applications would have been applied for on the basis that the applicant had a protection visa application that had not been finally determined as provided by cl 050.212(3) of Schedule 2 of the Regulations.
Instead, the Tribunal is satisfied that the applicant ignored the decision related to the protection visa application refusal and decided that he would remain in Australia despite not being found to be owed protection obligations. The Tribunal is satisfied that this demonstrates that the applicant is prepared to ignore any requirements that he depart Australia.
Criminal history
As noted previously, the applicant has previously engaged in criminal conduct during his time in Australia.
The delegate decision record detailed the applicant’s proven criminal history but did not include the Statement of Facts relevant to those proceedings. The delegate decision summarised what the applicant said to the delegate concerning what he said happened in those two lots of offending. The Tribunal wished to know what the relevant facts were which supported the findings of guilt as outlined in the delegate decision, and the only material which could provide this would be the factual basis upon which the applicant was found guilty.
In a matter to which a person has pleaded guilty, this is relatively simple, as the Tribunal is aware from its own experience practising criminal law. The facts upon which a sentencing court will be satisfied that the applicant is guilty of the charges is the Statement of Facts provided by the prosecuting authorities. Those facts cannot be admitted without the consent of an accused person. They become an Agreed Statement of Facts upon which a court can impose a sentence. If an accused person admits guilt to charges, but disputes the facts as alleged by the prosecution, then the matter requires the prosecution to provide witnesses just like in a trial, so the sentencing judge can make relevant factual findings. This is commonly known as a ‘contested plea of guilty.’
In a matter where an accused person has pleaded not guilty, but has been found guilty after trial, the factual basis upon which findings of guilt were made can be more difficult. The only way to know the factual basis for the finding of guilt is a transcript of the trial to understand the facts put before the court and to understand whether those facts were accepted. It is difficult to place reliance on a Statement of Facts in circumstances other than a plea of guilty where the facts are admitted by an accused person.
With all that in mind, the Tribunal caused a summons to be issued to the proper officer of New South Wales Police for the ‘proven criminal history’ of the applicant and ‘the Statement of Facts’ related to that proven history. The Tribunal notes the short timeframe that was provided for the return of the summons to produce and the best endeavours of New South Wales Police to comply with that summons.
Regrettably, the first bundle of documents produced under the summons were outside the scope of the summons to produce. The Tribunal disregarded their contents.
The second bundle of documents produced under the summons related to the applicant’s proven criminal history as outlined earlier in this decision record. It did not include any Statement of Facts for the offending. The criminal record produced under the summons also disclosed that the applicant had also been found guilty [in] May 2021 at the Liverpool Local Court of a charge of failing to answer bail on 20 January 2020.
Regarding the offending for which the Liverpool Local Court [in] April 2019 sentenced the applicant to a 2-year conditional release order for offences of being armed with intent to commit an indictable offence and common assault committed on 7 January 2019, the applicant told the Tribunal that he pleaded not guilty but was found guilty after trial. The Tribunal accepts that this offending did not occur while the applicant held a visa that required him to not engage in criminal conduct per condition 8564. He told the Tribunal he represented himself. The applicant told the Tribunal his version of events. Given the applicant pleaded not guilty but was found guilty after trial, the Tribunal is unable to ascertain the factual basis upon which the applicant was found guilty without considering the Magistrate’s reasons which are not before the Tribunal. The Tribunal notes that a delegate previously summarised the Statement of Facts for this offending in the decision to cancel the applicant’s bridging visa, but the Tribunal gives those facts no weight as the Tribunal is unsure how the evidence unfolded at the trial.
Regarding the offending for which the Liverpool Local Court [in] August 2019 sentenced the applicant to a 2-year conditional release order for offences of common assault and stalk/intimidate intend fear physical harm committed on 28 May 2019, the applicant told the Tribunal that he pleaded guilty. The Tribunal accepts that this offending did not occur while the applicant held a visa that required him to not engage in criminal conduct per condition 8564. He told the Tribunal he represented himself. A delegate previously summarised the Statement of Facts for this offending in the decision to cancel the applicant’s bridging visa as follows:
There was a verbal argument with the applicant and [Ms B], who was identified as his partner. The argument happened at his residence. It was alleged that the verbal argument escalated, and the applicant threatened to punch his partner. The partner attempted to contact police, and the applicant wrestled with her causing her to be pushed over a bed. A family member overheard the alleged threats and contacted police.
The Tribunal read this summary to the applicant and asked if he pleaded guilty on that factual basis. He said he did not. He said he never touched the victim but accepted that there was a verbal argument. He said that it was not alleged at the Court that he had physically touched the complainant. The Tribunal is unsure about what was said at the Liverpool Court [in] August 2019 or the factual basis upon which the applicant pleaded guilty for the reasons previously discussed.
The Tribunal also noted to the applicant that he had been found guilty and convicted without penalty for the offence of failing to answer bail and asked why the applicant did not declare that particular offence in his bridging visa application form. The Tribunal notes that the applicant had declared the other offending in that form. The Tribunal wondered if the applicant decided to not disclose the bail offence because the applicant was aware that bail conditions may be considered like bridging visa conditions, and his failure to comply with bail conditions may suggest that he would similarly not comply with bridging visa conditions.
The applicant said that he did not declare the failure to answer bail charge because ‘no one asked him about it.’ He explained that he failed to answer bail on 20 January 2021 because he thought his court case was listed on 28 January 2021. The Tribunal notes that this offending occurred while the applicant held a bridging visa (granted on 18 January 2021) that required him to not engage in criminal conduct per condition 8564. He said he went to court on 28 January 2021 and was advised that his matter was listed on 20 January 2021 and that a warrant was issued for his arrest. He said he went to the police station immediately and had the warrant executed and he was bailed again. He said he did not see the charge of failure to answer bail as an offence. Given the past non-compliance with bail conditions, the Tribunal asked the applicant why he would not repeat this type of behaviour concerning bridging visa conditions. The applicant said that his situation is now different and at the time his mental situation was difficult.
Noting the applicant’s proven criminal history, the Tribunal asked the applicant how it could have any confidence that he would not commit criminal offending again if he was released on a bridging visa. He said that he did not have a ‘criminal mind’ and that he would rather ‘fight crime.’ He said he had a criminal history due to a ‘toxic relationship’ with his former partner.
The Tribunal considered the applicant’s criminal history in light of what the applicant said at the Tribunal hearing.
The Tribunal is satisfied that whatever the factual basis upon which the applicant was either found guilty or pleaded guilty relating to the two offences of violence, the fact remains he has two separate instances of violent offending, one instance of which involved a weapon. The fact that the applicant attributed the offending to a ‘toxic relationship’ suggested to the Tribunal that the applicant has a lack of insight into the offending and seeks to blame his conduct, either in whole or in part, on the victim. This suggested to the Tribunal that the applicant would be prepared to commit further criminal offences if he feels justified in doing so.
The Tribunal is also satisfied that the offending related to a failure to answer bail demonstrates that the applicant has previously paid little attention to requirements requiring him to do something, namely appear as directed on a certain date. When coupled with the fact that the applicant did not advise the Department that he moved to [Address 1], [Suburb 1], the Tribunal is satisfied that this demonstrates that the applicant is prepared to ignore requirements that would be imposed on a bridging visa.
The Tribunal is further satisfied that the applicant deliberately tried to hide from the Tribunal that he had a proven criminal record concerning a failure to answer bail because the bridging visa form specifically asked the applicant to detail his criminal history.
Conclusion
The Tribunal is not satisfied that the applicant would abide by conditions that would be imposed on a bridging visa for the following reasons.
Concerning all conditions generally, the Tribunal is not satisfied that the applicant will abide by conditions which may attach to the bridging visa because he has demonstrated past behaviour ignoring conditions which attach to visas. He did not contact the Department and advise that he moved address. He committed the offence of failing to answer bail while he held a bridging visa prohibiting him from engaging in criminal conduct. Similarly, he did not depart Australia when his protection visa was finally determined. He remained in Australia unlawfully and overstayed a bridging visa. The applicant has demonstrated either a deliberately or a wilfully blind approach to his migration obligations in the past. The Tribunal’s assessment of the applicant is that he will continue in his approach to his migration obligations.
Specifically turning to the requirement that the applicant must not engage in work if granted the bridging visa, the applicant claimed that he would not need to work because accommodation would be provided by [Ms A]. He provided no corroborative evidence of this. The Tribunal observes that there was claimed past financial assistance from friends and a suggestion at the delegate interview on 7 June 2022 that this assistance would again be available. There is no corroborative evidence of that. The Tribunal is not satisfied that the applicant would not have to work to meet his living expenses. Therefore, the Tribunal is not satisfied that the applicant would abide by condition 8101.
Specifically turning to the question about whether the applicant would engage in any training or studies if granted the bridging visa, the Tribunal accepts that there is no evidence that the applicant has previously engaged in any studies or training while in Australia and the applicant did not claim that he planned to do so. However, in light of the applicant’s past attitude towards his migration obligations, the Tribunal cannot be satisfied that if the applicant sees a benefit in engaging in any training or studies he will not do so, despite the prohibition. Therefore, the Tribunal is not satisfied that the applicant will comply with condition 8207.
Specifically turning to the questions of whether the applicant will report to the Department as directed and advise the Department of any change of residential address, the Tribunal is not satisfied that he will do so based on his past non-compliance with the obligation to advise the Department of his address change. Further, as the applicant has failed to leave Australia since his initial arrival, overstayed a bridging visa in the past, and lodged various bridging visa applications on the basis that he was going to depart Australia but never did so, the Tribunal is satisfied that if the applicant is directed to attend the Department for the purpose of taking him into immigration detention for removal to Nigeria, he will refuse to attend upon the Department because he refuses to leave Australia. Therefore, the Tribunal is not satisfied that the applicant will comply with conditions 8401 and 8506.

Specifically turning to the question of whether the applicant would engage in criminal conduct on the bridging visa, the Tribunal is satisfied that the applicant’s past criminal offending which involved two lots of violence and one instance of failing to comply with a condition to attend court on a specific date demonstrate that the applicant, despite his claim that he ‘does not have a criminal mind’ is prepared to engage in conduct that is against the criminal law. The Tribunal does not accept that the applicant has any insight into his offending and is not satisfied that the applicant would not repeat his proven past conduct if he felt justified in doing so. Therefore, the Tribunal is not satisfied that the applicant will comply with condition 8564.
Is the applicant an Eligible non-citizen – cl 051.211?
At the Tribunal hearing, the applicant confirmed that he was [age] years of age and that he came to Australia lawfully via the visitor visa and was cleared by Immigration upon entry to the country.
Given the age of the applicant, he does not satisfy subregulation 2.20(7) because that requires the applicant to have not turned 18 years of age. Likewise, the applicant does not satisfy subregulation 2.20(8) which requires the applicant to have turned 75 years of age.
He is therefore not an eligible non-citizen as provided by 2.20(7) or (8) for the purpose of cl 051.211 due to his age.
Given the applicant’s migration history, the applicant does not satisfy subregulation 2.20(9) or (10) because each of those require that the applicant be a person who was ‘refused immigration clearance’ or bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia. There is no evidence that the applicant is such a person.
He is therefore not an eligible non-citizen as provided by 2.20(9) or (10).
Subregulation 2.20(11) requires that the applicant be a member of the same family unit to whom subregulation 2.20(10) applies. There is no evidence that the applicant is such a person.
He is therefore not an eligible non-citizen as provided by 2.20(110.
Conclusion
As the applicant is not an eligible non-citizen as provided in the subregulations as specified in cl 051.211, he does not meet cl 051.211.
CONCLUSION
For the reasons given above, the applicant does not satisfy cl 050.223 of Schedule 2 of the Regulations. Therefore, the applicant does not satisfy the requirements for Subclasses 050.
For the reasons given above, the applicant does not satisfy cl 051.211 of Schedule 2 of the Regulations. Therefore, the applicant does not satisfy the requirements for Subclasses 051.
decision
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Nathan Goetz
Member

[2022] AATA 3216

17 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction