2212912 (Migration) - [2022] AATA 3774

2212912 (Migration) [2022] AATA 3774 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2212912
MEMBER:Paul Windsor
DATE:13 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.223 of Schedule 2 to the Regulations; and
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8207, 8401 and 8506 will be imposed if the visa is granted; and
·to require a security of $100,000 for compliance with the conditions.

Statement made on 13 September 2022 at 3:26 pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant is now making acceptable arrangements to depart Australia – extremely poor immigration history – Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted with a security of $100,000 – decision under review remitted
LEGISLATION
Migration Act 1958, ss 73, 116, 189
Migration Regulations 1994, Schedule 2, cls 050.223, 050.212
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 section 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).
The applicant applied for the visa on 25 August 2022. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate found the applicant met the time of application criteria at cl.050.212 because he was satisfied the applicant has applied for judicial review of a decision in relation to a substantive visa of a kind that can be granted if the applicant is in Australia, and the judicial proceedings have not been completed (cl.050.212 (3A)). The delegate noted that on 13 July 2022 the applicant commenced judicial review proceedings in the Federal Court of Australia in relation to the refusal of a Combined partner (UK 820/ BS 810) visa application. On the basis of the evidence before the Tribunal, the Tribunal is also satisfied that, at the time of application, the applicant had applied for judicial review of a decision in relation to a substantive visa, and the judicial proceedings had not been completed.
Relevantly to this matter, the primary criteria include cl 050.223 which requires the Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions imposed on it.
The decision to refuse to grant the visa was made on 31 August 2022 on the basis that the delegate was not satisfied the applicant would abide by the relevant visa conditions.
The applicant appeared before the Tribunal by video-conference from the Melbourne Immigration Transit Accommodation (MITA) on 9 September 2022 to give evidence and present arguments. In accordance with advice in the review application, the Tribunal also sought to take oral evidence by telephone from the applicant’s wife, Mrs [A]. Three unsuccessful attempts were made to contact [Mrs A] (at 11:53 am, 12:00 noon 1:32 pm). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the start of the hearing the Tribunal advised the applicant that there is a non-disclosure certificate under s 376 of the Act on the Departmental file in relation to his case. The Tribunal observed that the certificate advises the Tribunal that disclosure of information in a document contained in the file would be contrary to the public interest because it would ‘disclose, or enable a person to ascertain the existence or identity of, a confidential source of information’. The Tribunal commented that it did not consider the document in question was provided in-confidence, noting that that it was not stamped as such but rather was classified ‘Sensitivity: None’, and was simply advice from the Department’s Victorian Detention Review Officer (DRO) to the delegate advising him that the applicant had made an application for a Bridging E visa; that this had been allocated to him for his consideration, and noting some administrative requirements to be followed. The Tribunal commented that there were no matters in the document that would cause the Tribunal to draw adverse inferences relevant to the matter under review. The applicant indicated that he had no comments or queries regarding the certificate or document.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant, if granted the Bridging E visa, would comply with the conditions imposed on the visa.
At the Tribunal hearing the applicant confirmed his immigration history and other matters as set out in the delegate’s decision record (a copy of which he provided to the Tribunal). These matters are summarised as follows:
·The applicant first arrived in Australia on [date] November 2007, under the identity of [Name 1], on a Visitor visa, which enabled him to remain for a three month stay.
·He did not depart before his visa ceased, but became an unlawful non-citizen on 26 February 2008. He resided in the community and made no attempts to approach Australian immigration authorities to regularise his immigration status.
·He was detained on 4 August 2011, nearly three and a half years’ later, after he came to the attention of and was stopped by Victoria Police. As an unlawful non-citizen he was detained under s 189(1) of the Act and transferred to an immigration detention facility.
·On 19 August 2011 he was voluntarily removed from Australia to Malaysia. He was subject to a three year exclusion period from re-entering Australia under Public Interest Criterion 4014.
·On [date] December 2011, just over four months later, the applicant returned to Australia under a new identity, [Name 2] (his current identity) on a Visitor visa.
·On 28 February 2012 he made an application onshore for a Student visa, which was granted on 3 April 2012. He did not study, however, as he was only interested in the work rights that came with the student visa.
·On 14 April 2014 he made a protection visa application and was granted an associated Bridging A visa.
·On 8 May 2014 the applicant’s Student visa was cancelled, ceasing his Bridging A visa resulting in a subsequent grant of a Bridging E visa in relation to his Protection visa application.
·On 7 December 2014 his Protection visa application was refused. This decision was affirmed by the Tribunal on 21 June 2016.
·Less than a month later, on 15 July 2016, the applicant made the Combined Partner (UK 820/BS 801) visa application. This was refused on 25 July 2016 on the grounds that relevant schedule 3 requirements were not met. On 12 March 2020, the matter was remitted by the Tribunal for reconsideration.
·On 9 Dec 2019, his Bridging E visa was cancelled due to non-compliance with the no work condition (condition 8101). This decision was affirmed by the Tribunal on 19 December 2019 and the applicant was again taken into immigration detention. He has remained in immigration detention since that time.
·On 12 November 2020, the applicant’s remitted Combined Partner Visa application was refused on genuineness grounds. This decision was affirmed by the Tribunal on 24 August 2021.
·On 20 September 2021, the applicant sought judicial review of the Tribunal’s decision. This was finalised by the Federal Circuit and Family Court of Australia (FCFCA) as a Minister’s win [in] June 2022.
·On 13 July 2022, the applicant sought judicial review at the Federal Court of Australia (FCA) in relation to the decision to refuse his Combined Partner visa application.
·On 25 August the applicant made the Bridging E visa application. At an interview with the delegate held on 30 August 2022, the applicant admitted that, after he was voluntarily removed from Australia in August 2011, while he knew he had a three year exclusion period from returning to Australia, he acted on the advice of an ‘agent’ to change his name so that he could return to Australia a few months later. He also admitted that he did not study at all after he was granted a two year student visa in April 2012, as his intention was to work, not to study.
When asked if this is an accurate summary of his immigration history, the applicant indicated it was, commenting that he admits that he knew he had a three year exclusion period when he returned to Australia in December 2011, and that he never intended to study but only wished to work in Australia when he obtained a Student visa in April 2012.
The Tribunal observed that the applicant indicated in his application for a Bridging E visa that he was seeking the visa because he has commenced judicial proceedings (the FCA matter lodged on 13 July 2022) and those proceedings have not been completed (questions 9 and 12 refer). At question 15 of the application (Additional information), however, he indicated that he intends to withdraw his application to the FCA and would like a 28 day bridging visa to help him and his wife make arrangements to depart Melbourne and go to Malaysia. The applicant stated that he intends to lodge an offshore application for possible future return to Australia. The applicant commented that he is seeking a Bridging E visa for a period of 2-4 weeks to make arrangements to depart Australia.
The Tribunal queried why, if that was his intention, he had not withdrawn his application for judicial review prior to applying for the Bridging E visa. The applicant stated that, because he does not have good English language skills, a roommate is assisting him to prepare advice to the court regarding withdrawing the application.
Following the hearing, the applicant submitted a copy of a Notice of Discontinuance, dated 12 September 2022, in relation to his application for judicial review with the FCA.
The Tribunal asked the applicant if he has a valid Malaysian passport. He indicated he does not. When asked why he did not renew his passport, the applicant said he was told by staff at the Malaysian Consulate that they could only issue him with a temporary travel document because he was a Bridging E visa holder.
The Tribunal asked the applicant why he could not have the Department make arrangements for his voluntary removal to Malaysia, as occurred in 2011. The applicant said he wishes to return to Malaysia with his wife, who has mental health issues, and if he is removed by the Department it will have an adverse impact on her. He said if granted a Bridging E visa for a 2-4 week period he would use that time to buy air tickets, organise a temporary Malaysian passport for himself and a Malaysian visa for his wife. When asked, he indicated that, in the first instance, he would seek a three month tourist visa for [Mrs A].
Observing that he has been in immigration detention since 19 December 2019, nearly two years and nine months now, the Tribunal asked about [Mrs A]’s living and care arrangements over that time. The applicant said she lives with her son in her own [home], but commented that they do not have a good relationship. He stated that her son works and is not at home often. He indicated that she also has two boarders, although one left recently. He said the remaining boarder also works and has a boyfriend so is also not home often. The applicant said his wife has been seeing a psychiatrist who said her circumstances are getting worse. Following the hearing, the applicant submitted copies of statements from [Mrs A]’s psychiatrist and psychologist verifying his comments regarding her mental health concerns.
When asked, the applicant said his intention is that, after his wife has spent some time living with him in Malaysia, he will make another application for a Partner visa. The Tribunal observed that the previous application had been refused by the Department as the relationship was found to be non-genuine, a decision that had been affirmed by the Tribunal and in relation to which he had unsuccessfully sought judicial review. The applicant indicated he understood that there was no guarantee a further application would be successful, commenting that he has an agent who has counselled him that that is the case. He added that the issue with the previous application was that he had an affair with a third party, but she is now married and has a child. He said he wants to be able to spend time living with [Mrs A] in Malaysia to prove that their relationship is genuine.
Whether the applicant continues to satisfy the time of application criterion – cl.050.221
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. On the basis of his evidence before the Tribunal, the Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211. In relation to cl.050.212, the Tribunal notes that, as a consequence of his having withdrawn his application for judicial review at the FCA, the applicant no longer satisfies cl.050.212 (3A). The Tribunal is satisfied, however, that the applicant now meets cl.050.212(2), as the Tribuanl is satisfied that he is now making acceptable arrangements to depart Australia. The applicant therefore meets cl.050.221.
In reaching this conclusion, while the Tribuanl notes the applicant currently does not have a valid travel document and has not purchased an airline ticket to depart Australia, the Tribunal is satisfied that his mindset has shifted and he is now focused on making arrangements so that he can depart Australia with [Mrs A] within a four week period. The Tribuanl accepts that the applicant wishes to assist [Mrs A] to obtain a Malaysian visa, to obtain a temporary Malaysian travel document for himself, airline tickets for both of them and to settle his affairs in Australia from within the community, and that this is desirable given the long period of time the applicant has spent in Australia, and [Mrs A]’s mental health concerns and consequent inability to make arrangements by herself.
Whether the applicant will abide by conditions - cl 050.223
Clause 050.223 requires 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.
As discussed at the hearing, the Tribunal considers that the following conditions should be imposed in the circumstances of this case:
·8101 – The holder must not engage in work in Australia.
·8207 – The holder must not engage in studies or training.
·8401 – The holder must report (a) at a time or times and (b) at a place specified by the Minister for the purpose.
·8506 – The holder must notify immigration at least 2 working days in advance of any change in the holder’s address.
The Tribunal asked the applicant how he would support himself without working if he was granted a Bridging E visa. He said he and [Mrs A] have sufficient money to support themselves. He stated that, since June 2020, his sister in Malaysia has transferred AUD1050 each month for [Mrs A]’s daily living expenses. He acknowledged that is not enough to meet all her expenses and that is why she has rented-out two rooms of her home to boarders. He said they then use their savings, which amount to approximately AUD40,000 in a joint bank account, to pay other, larger bills.
The Tribuanl observed that the applicant’s immigration history is extremely poor, including a very poor history of adhering to no work conditions and in relation to having obtained a Student visa with the sole intention of working, likely more than the permissible 20 hours per week, rather than undertaking any study. The applicant stressed that he would have no need to work if he was only in the community for up to four weeks before departing Australia.
The Tribunal acknowledged that would be the case, and also acknowledged that, given his past lack of any interest in studying, it has no concerns that he would breach the ‘no study’ condition (8207). The Tribunal commented that its main residual concern is that he would change his mind and not leave Australia within four weeks as he has stated, but would disappear into the community as an unlawful non-citizen as he had in the past, in breach of conditions 8401 and 8506, and then work illegally. The applicant commented that the delegate doubted they had sufficient money but his family has been supportive of them financially and he would not need to work while he remained in Australia before he and [Mrs A] go to live together in Malaysia. He indicated that [Mrs A] had also taken a loan for AUD750,000 against her property, which is valued at AUD 2 million. He also added that, because of [Mrs A]’s mental health issues he does not want to make another mistake.
The Tribunal commented that, where the Tribunal is not satisfied that an applicant will abide by conditions imposed on the visa if granted, it must also consider whether the conditions would be complied with if a security was taken. The Tribuanl observed that the delegate, having taken into account his immigration history, had not considered it appropriate to request a security in the applicant’s case. The Tribunal commented that a security will not be requested if the decision maker is not satisfied the applicant will comply with the conditions, regardless of any security that may be imposed.
The Tribunal asked the applicant what amount of security could be put up in his case. He stated that he could put up AUD100,000. When asked where that money would come from, the applicant said his sister had transferred AUD70,000 into the joint account he has with [Mrs A], of which there is AUD 40,000 remaining. He said they have AUD750,000 from the loan taken against [Mrs A]’s property which they are using for future living expenses. He indicated they have put a deposit on an apartment in [Suburb 1] and meet the loan repayments (currently AUD 3,400 per month) from the amount advanced. He indicated the longer term plan is to sell the house, pay off the apartment, repay the loan and still have a surplus of funds so they have no worries in the future. He indicated that the some of the money for his security would come from this loan. He insisted that he would not want to lose AUD100,000 (which he stated is the equivalent of 300,000 Malaysian ringgit) and so would follow the conditions of a Bridging E visa if granted, would not run away, and would not work in breach of a no work condition again. He added that, after nearly three years in immigration detention, he deeply realises how important it is to abide by the relevant laws. He stressed he only needs a short time to organise a Malaysian visa for his wife and hopes to have the opportunity to come back to Australia properly.

In relation to the Tribunal not being able to contact [Mrs A] by telephone, the applicant commented that he expected that might be the case because her mental health situation is getting worse and she is forgetful and sometimes disappears without forewarning and they lose contact because she forgets where she is. He indicated that she is now [age] and is not good with technology and, while she can now use a mobile phone, she sometimes does not hear it ring. He said she does not drive and has a long walk to the shops. As noted above, these assertions are verified by the statements from [Mrs A]’s psychiatrist and psychologist regarding her mental health concerns.
While acknowledging that the applicant has shown some remorse for his past breaches of immigration law, having considered the applicant’s extremely poor immigration history as outlined above, the Tribunal is not satisfied that the applicant would comply with the conditions imposed on his visa (with the exception of condition 8207) without a significant financial incentive to do so. The Tribunal finds that the applicant showed a complete disregard for Australian immigration law over an extended period of time.
Having considered the applicant’s evidence that he would be prepared to put up a security of $100,000, a sum of money that he would not wish to lose, the Tribunal is satisfied that the applicant would comply with conditions if a security was obtained. The Tribunal finds that a security of $100,000 would be an appropriate amount to secure compliance with the relevant conditions, having regard to the conditions that must be complied with and the particular circumstances of the applicant, including his financial position.
On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl.050.223.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl.050.223 of Schedule 2 to the Regulations; and
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8207, 8401 and 8506 will be imposed if the visa is granted; and
·to require a security of $100,000 for compliance with the conditions.
Paul Windsor
Member