2219046 (Migration)

[2023] AATA 815

2219046 (Migration) [2023] AATA 815 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nazim El-Bardouh

CASE NUMBER:  2219046

MEMBER:Brendan Darcy

DATE:6 January 2023

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:

· cls 050.211, 050.212, 050.221 and 050.222 of Schedule 2 to the Regulations; and

·cl 050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8207, 8401, 8506, 8508 and 8564 will be imposed if the visa is granted; and

·to require a security of 15,000 Australian dollars for compliance with the conditions.

Statement made on 06 January 2023 at 12:04am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful non-citizen – substantive visa application – abide by conditions imposed – no work requirement – reporting and notification requirements – adverse migration history – no criminal conduct requirement – drug trafficking offences – reasonable security amount – explanations for non-compliant behaviour – capacity and willingness to engage with the authorities – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8, Conditions 8101, 8207, 8401, 8508, 8522, 8564

CASES
Applicant VAAN of 2001 v MIMA (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

1. 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).

2. The applicant applied for the visa on 19 December 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). Relevantly to this matter, the primary criteria include cl 050.223.

3. The decision to refuse to grant the visa was made on 22 December 2022 on the basis that the applicant will not abide by condition to be imposed on the applicant pursuant to cl 050.223.

4. On 4 January 2023, the applicant appeared before the Tribunal, via an audio-visual link between the Tribunal’s Melbourne facilities and Melbourne Immigration Transit Accommodation (MITA), to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B] who claimed to be close friends with the applicant.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicant first arrived in Australia [in] February 2013 while holding a Class FA Subclass 601 Electronic Travel Authority (visitor) visa in the name of [Alias 1]. Under this name, the applicant claimed to be born on [Date 1] and was a national of the Hellenic Republic (Greece). The applicant travelled on a bogus or fraudulently obtained Greek passport on that false identity.

8. On 12 April 2013, the applicant lodged a Class TU Subclass 570 student visa application. The applicant was granted associated Bridging Visa A (or BVA) while the student visa application was being assessed.

9. On 8 May 2013, the applicant was granted a Subclass 570 student visa which was valid until 9 July 2014. The purpose of the student visa was to study English on a full-time basis.

10. On 23 June 2013, the applicant applied for a further Subclass 570 visa and was granted a further BVA while the application was assessed. On 20 October 2014, a delegate refused to grant the applicant a student visa and the applicant became an unlawful non-citizen after his BVA expired on 17 November 2014.

11. From 18 November 2014, the applicant remained in the community as an unlawful non-citizen for over eight years. 

12. On [date] December 2022, the applicant was arrested by Victoria Police’s Organised Crime Unit. The applicant was charged with the following offences: Traffic a drug of dependence, namely cocaine; Possess a drug of dependence, namely cocaine; Deal with property, approximately 50,000 AUD currency and luxury goods valued in excess of 100,000 AUD in total, suspected of being the proceeds of crime; Provided false name to Police ([Alias 1]); Use of false document (fraudulent passport) with the intent to induce another person, namely Victoria Roads to obtain Victorian driver’s licence.

13. On [date] December 2022, the applicant appeared before Melbourne Magistrates’ Court for the above charges. On the same day, the applicant was released on bail following an adjourned court hearing. As an unlawful non-citizen, the applicant was then detained by the Australian Border Force (ABF) under section 189 of the Act and transferred to MITA, where the applicant has remained.

14. On 19 December 2022 the Department received a Class XA Subclass 866 permanent protection visa application and an associated Bridging Visa E (BVE) application by post.

15. In the applicant’s application for protection and bridging visas, the applicant submitted a statutory declaration, dated 15 December 2022, in which he disclosed his actual identity to be [the applicant], a national of the Republic of Albania, with the claimed date of birth of [Date 2]. The statutory declaration included his claims that he is owed Australia’s protection obligations.  A copy of the applicant’s Albanian passport and other identity documents was submitted to corroborate this claim about the applicant’s national identity.  

16. On 20 December 2022, the Department invalidated this application because it did not meet item 1401 of Schedule 1 to the Regulations, because the applicant did not make an application in the manner specified by the Minister in a legislative instrument under reg 2.07(5). However, a further protection visa was lodged and received by the Department as valid on 21 December 2022.

17. An authorised officer interviewed the applicant on 21 December 2022 in relation to this BVE. A transcript of the interview is on the departmental file.

18. The application for this BVE was refused by a delegate acting on behalf of the Minister on 22 December 2022. The applicant lodged a valid application for review of this refusal decision on 23 December 2022. Copies of the delegate’s notification letter and the decision record outlining the reasons not to grant the applicant a bridging visa were attached.

    Adverse information

19. The Department attached a non-disclosure certificate to the applicant’s departmental file in accordance with s 357A of the Act. Signed and dated 23 December 2022, the certificate was issued on the basis that disclosure by the Tribunal would be contrary to the public interest because this may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods; endanger the life or physical safety of a person; and, where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant.

20. Prior to the scheduled hearing, the Tribunal provided a copy of the non-disclosure certificate to the applicant’s representative. The representative requested the information be disclosed in a redacted format.

21. The Tribunal then outlined the gist of the information without disclosing information that was contrary to the public interest in accordance with s 375A, namely criminal accusations against the applicant; a digital copy of the applicant’s bogus Greek passport and photographs of the applicant himself; correspondence between Departmental officials and other officials including whether the applicant had an earlier criminal history in the State of Victoria.

22. The Tribunal explained the relevancy of the information to its decision making. The Tribunal also mentioned that the gist of the information did not provide any additional information for the Tribunal that it would not otherwise be aware of arising from the other material before it.

23. The applicant immediately responded to the adverse information put to him, indicating he understood the information. His response was an oral iteration that he would abide by the conditions imposed on him.

24. The Tribunal is satisfied the non-disclosure certificate was issued validly. (Neither in the representative’s submission nor during the hearing did the applicant or his representative challenge the validity of the non-disclosure notice.)

    Submissions

25. The applicant’s submission for a bridging visa included:

    ·The representative’s legal submission;

    ·The appointment of representative form dated 9 December 2022;

    ·A statutory declaration dated 15 December 2022 by [Mr A] of [Suburb 1] (Victoria). [Mr A] indicated in the statutory declaration he will provide accommodation and material support to the applicant and a willingness to deposit a security for the applicant up to 15,000 AUD.

    ·Parts A, B and C of Form 866 for a protection visa application in the applicant’s name. The form is dated 13 December 2022;

    ·A copy of the applicant’s expired Albanian passport;

    ·A copy of the applicant’s Albanian issued birth certificate;

    ·A copy of the applicant’s Albanian household registration form; and

    ·A statutory declaration dated 15 December 2022 about the reasons Australia owes the applicant its protection obligations on the basis of his sexual orientation, if returned to his country of reference, Albania.

26. On 23 December 2022, the applicant’s representative submitted a pending relationship registration dated 13 September 2022 with the relevant authorities in the State of Victoria indicating the applicant and [Mr C] were in a relationship and that their ‘date of commitment’ was 21 September 2018.

27. On 2 January 2023, the applicant’s representative also provided a further legal submission, as well as (not already mentioned):

    ·A statutory declaration by [Mr B] and [Ms D] dated 2 January 2023;

    ·Photographs of the applicant attending a Chaldean baptism (undated);

    ·Copies of baptism certificates indicating the applicant is the godparent of the children of [Ms D] and [Mr B] (dated [in] May 2019 and [in] February 2021);

    ·A business bank account pertaining to [Mr B] indicating capital of 73,000 AUD.

    ·Acknowledgment letter from the Department of the applicant’s pending protection visa application validly lodged on 21 December 2022; and

    ·Confirmation of pending domestic relationship registration application lodged with Victoria’s Registry of Births Deaths and Marriages on 13 September 2022.

28. After the scheduled hearing, the Tribunal received a copy of a letter dated 4 January 2023 provided by the applicant’s criminal lawyers indicating a condition of bail was the applicant was to be released into the custody of the ABF.

29. The Tribunal also received a copy of an ASIC report regarding the registration of [Company 1] under [Trust 1] ([Mr A]’s family business); a copy of the applicant’s notice of order for bail issued by the Melbourne Magistrates’ Court; and a business statement indicating that [Mr A] family business has an opening balance of over 100,000 AUD.

30. (The Tribunal notes that the applciant’s claimed partner, [Mr C], did not attend the hearing as a witness or provide a written submission in this matter. The applciant’s representative explained that he had been instructed by the applciant’s criminal legal practitioners that for [Mr C] to so risked [Mr C] or the applicant breaching another court order. The Tribunal accepts this on face value and has not placed any weight on the lack of evidence from the applciant’s partner.)

    Immigration status of the applicant – cl 050.211

31. The Tribunal notes the delegate made a finding that the applicant did not meet cl 050.211.

32. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a BVE, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

33. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

34. At the time of lodgement, the applicant was an unlawful non-citizen and has been since November 2014. Therefore, the applicant meets cl 050.211(1).

35. The eligibility exclusions set out in Part 2 of cl 050.211 are not applicable to the applicant’s circumstances. Accordingly, the applicant meets cl 050.211(2).

36. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa – cl 050.212

37. At the time of the visa application, the applicant must meet one of the alternatives set out in cls 050.212(2)–(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

38. In this case, the applicant is seeking to meet cl 050.212(3): The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant meets cl 050.212.

    Substantive visa application

39. 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, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

40. ‘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 an application being made: s 5(9) of the Act.

41. As discussed in the hearing, the applicant did not have a valid protection visa with the Department on 19 December 2022 – the date the bridging visa was received by the Department and accepted as valid. However, it did not accept an initial protection visa application was valid. In this regard, the applicant did not meet cl 050.212(3)(a).

42. However, the Department was satisfied the applicant will apply for a substantive visa of a kind that can be granted to the applicant while he is in Australia. The Tribunal notes that on 21 December 2022 the Department received a valid application for an onshore permanent protection visa lodged by the applicant.

43. Based on the available evidence, the applicant meets cl 050.212(3)(b) at the time of application.

44. Accordingly, the applicant satisfies the criteria under cl 050.212.

    Whether the applicant continues to satisfy the time of application criteria – cl 050.221

45. Clause 050.221 requires the applicant to continue to satisfy the requirements of cls 050.211 and 050.212 at the time of decision.

46. There is no evidence that the applicant does not continue to meet the criteria under cls 050.211 and 050.212 at the time of decision.

47. The Tribunal accordingly finds that at the time of decision, the applicant continues to satisfy cls 050.211 and 050.212 and therefore meets cl 050.221.

    The requirement to be interviewed by an authorised officer – cl 050.222

48. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a BVE, has made a valid application for a substantive visa, and will not be seeking a further BVE with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a BVE, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

49. The requirements under cl 050.222 in Schedule 2 to the Regulations are met because the applicant was interviewed by an authorised officer on 21 December 2022 in relation to this BVE.

50. Accordingly, the applicant meets cl 050.222.

    Whether the applicant will abide by conditions – cl 050.223

    Finding on identity

51. The applicant travelled to Australia on a Greek passport claiming to be a Greek national.

52. Since applying for a protection visa and the bridging visa under review, the applicant has abandoned his name, date of birth and identity as a Greek national in favour of an Albanian name and nationality. The Department appears to accept the applicant’s admission to have travelled to Australia under a fake identity with a bogus passport.

53. For the purposes of this decision, the Tribunal accepts the applicant’s Albanian identity to reflect his genuine name, date of birth and nationality.

    Conditions to be imposed on the visa if granted

54. 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.

55. 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 (2002) 70 ALD 289 (VAAN) at [15]–[16].

56. As discussed in detail during the scheduled hearing, the Tribunal is considering the same visa conditions to be imposed on the applicant’s bridging visa as those considered by the Department:

    8101 NO WORK
    8207 NO STUDY
    8401 REPORT AS DIRECTED
    8506 NOTIFY NEW ADDRESS
    8508 MAKE VALID VISA APPLICATION
    8564 MUST NOT ENGAGE IN CRIMINAL CONDUCT

57. The Tribunal notes that the delegate’s decision placed considerable emphasis on the applicant’s immigration history indicating that he will not comply with conditions 8101, 8506 and 8564.  

58. Clause 050.224 does not apply to this application for review because an authorised officer has not required that a security be lodged.

59. For the following reasons, the Tribunal assesses that the applicant will not abide by three of the nominated conditions.

60. Condition 8101 (No work): The Tribunal notes that the applicant has been working as an unlawful non-citizen since 2014 and that he did not have any permission to do so for a considerable amount of time, including right up to his arrest by the Victoria Police in 2022.

1. The applicant provided written and documentary evidence that he will be provided with accommodation by [Mr A and Mr E] who reside in a residence in [Suburb 1]. During the hearing, [Mr A] augmented this claim with his oral evidence, claiming to have known the applicant for over seven years.  The witness also provided evidence that he can materially support the applicant, emphasising his capacity to run a successful family business with a reasonably high annual turnover. The applicant described his relationship with [Mr A] family as familial and his relationship with [Mr E], the family’s patriarch, as paternal.

2. The applicant also provided written and documentary evidence that he had material support from [Mr B] and his spouse. As a witness, [Mr B] reiterated his willingness to support the applicant financially so he would not breach condition 8101. The applicant provided oral evidence that he has been close to this family for over eight years.

3. Overall, the impact of this evidence has impressed the Tribunal to the extent that it accepts the strong links to these families who are willing and capable, cumulatively considered, to support the applicant while his protection visa application (and potentially a partner visa application) is fully determined. Their links appear to be more than transactional, as demonstrated by the applicant’s role of godparent to [Mr B]’s children. They also provided evidence of healthy cashflows into business accounts. The applicant claimed that he will not breach the trust of these families by breaching the no work and other conditions. The applicant has sufficiently demonstrated to the Tribunal that he genuinely values the trust and support these witnesses have placed in him. With some misgivings arising from the applicant’s past working history in Australia without any permission to do so, the Tribunal finds that the applicant and his friends have sufficiently demonstrated to it that the applicant will not work while in the community holding a bridging visa with condition 8101 attached to it.

4. With particular emphasis on the witnesses’ evidence as genuinely concerned with the wellbeing of the applicant, the Tribunal is satisfied the applicant will abide by condition 8101 if this visa is granted.

5. Condition 8207 (No study): Although the applicant had applied for student visas in the past, the Tribunal accepts the applicant has undertaken study while he was an unlawful non-citizen in the community. The applicant has little or no interest in advancing formal learning in Australia. Therefore, the Tribunal is confident the applicant will abide by condition 8207 if this visa is granted.

6. Condition 8401 (Report as directed): The Department did not make a specific finding on this condition. The purpose of this condition is to ensure the Department effectively manages the risks related to visa holders with a serious history of non-compliance. That is a reasonable condition to be imposed on the applicant who has an admitted long-term presence in Australia as a person who has been an unlawful non-citizen in Australia for more than eight years.

7. Notwithstanding any consideration of a security and in the context of the applicant’s history of non-compliance, the Tribunal does not accept the applicant will abide by condition 8401.

8. Condition 8522 (Notify address): The Department considered the declared addresses the applicant provided in his visa application for a student visa granted on 8 May 2013 with the applicant’s recent protection visa application. The Department identified the applicant provided the following addresses:

   1. [Address 1] (12/04/2013 – 23/06/2014)

   2. [Address 2] (23/06/2014 – 09/12/2022)

   3. [Address 3] (07/07/2014 – 09/12/2022)

9. However, the applicant’s protection visa application declared that the applicant had resided from December 2013 to May 2015 at [Address 4]. The delegate placed considerable weight on this discrepancy as evidence that the applicant has a history of not properly notifying the Department of changed addresses and that the applicant will not abide with condition 8522.

10. During the hearing, the applicant said that he had been wrong to provide incorrect addresses to the Department and claimed that [Address 4] had been the actual address. The applicant explained that he had been motivated by his fear of being returned to Albania where he claimed to have a well-founded fear of persecution. Even if the Tribunal were to accept the applicant holding those genuine personally held fears of returning to Albania, the applicant had ample opportunity to seek advice about his migration status since arriving in Australia or becoming an unlawful non-citizen. In that regard, the Tribunal places little weight on the applicant’s claimed reasons for providing misleading addresses and other incorrect information in any visa application and that he will notify the Department of any changed address if holding this bridging visa under review.

11. The Tribunal furthermore cannot overlook the applicant’s admitted and long-term presence in Australia as a person who has been an unlawful non-citizen in Australia for more than eight years when considering this visa condition.

12. Notwithstanding any consideration of a security and in the context of the applicant’s history of non-compliance, the Tribunal does not accept the applicant will abide by condition 8522.

13. Condition 8508 (Make valid visa application): As discussed above, the applicant has met cl 050.213(3). The evidence submitted by the representative is that the applicant has made a valid protection visa application on 21 December 2022. As the applicant has already made a valid application for a substantive visa, the Tribunal has no reason to expect that the applicant will not abide by condition 8508.

14. Condition 8564 (Must not engage in criminal conduct): In the delegate’s decision for this refused bridging visa, the Department placed considerable weight on the applicant’s possession of large sums of cash and luxury goods which were found by the Victoria Police when the applicant was apprehended, in finding the applicant will not abide by condition 8564. It also placed weight on the applicant’s behaviour of climbing onto the roof of the building where his arrest took place as someone who was evading the authorities and who was suspicious.

15. The applicant has been charged with a number of serious offences involving the trafficking of illicit drugs, presenting to the police with a false identity and attempting to obtain a driver’s licence under a false identity.

16. During the hearing, the applicant was informed by the Tribunal about his right not to incriminate himself in the oral and other evidence he provides throughout this appeal. While the applicant admitted to the Tribunal to have consumed an illicit drug for personal use, he otherwise did not accept he was guilty of the charges laid against him by the authorities in the State of Victoria.  Asked about the attempt of the applicant to evade the authorities on the day of his arrest, he claimed he did so to avoid being placed into immigration detention and then forcibly removed to Albania. The applicant complained that the authorities confiscated his money and other goods which were obtained by working or as gifts from close friends.

17. The Tribunal notes that the Melbourne Magistrates’ Court granted the applicant bail on 7 December 2022 prior to his detention under s 189 of the Act. A letter dated 4 January 2023 provided by the applicant’s criminal lawyers indicated the condition of bail was that the applicant was to be released into the custody of the ABF. The letter goes on to say that should the applicant be released into the community with a bridging visa, his lawyers will make an application on the applicant’s behalf to vary the condition of his bail at the Melbourne Magistrates’ Court.  The Magistrate’s notice of order regarding bail indicates that the risk of the applicant’s flight was addressed by releasing him into the custody of the ABF.

18. Although the applicant does not have any criminal convictions against his name, bogus or otherwise, it is not unreasonable to hold suspicions that he has associated with criminals from organised crime by virtue of the charges against him.

19. On the other hand, the applicant does not have a criminal record and there is no evidence that he has interacted with the police prior to his recent interaction. Moreover, the legal submission advanced by the applicant’s representative states the representative has been instructed by the applicant’s criminal lawyers that the applicant is unlikely to receive a custodial sentence even if he is found guilty of the relevant offences (which the Tribunal accepts at face value). That is, the applicant is likely to serve a sentence by complying with conditions while in the community for a certain amount of time without imprisonment, indicating the offending is not at the higher end of criminal concern for the courts.

20. Notwithstanding any consideration of a security and in the context of the charges against the applicant, the Tribunal does not accept the applicant will abide by condition 8522.

    Security

21. 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.

22. The delegate of the Department was not satisfied the applicant will abide by conditions, irrespective of a security bond. The Tribunal has reached an alternative conclusion for the following reasons, cumulatively considered.

23. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s 269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finkelstein J at [21]–[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

24. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

25. An amount of 15,000 AUD for security has been nominated on behalf of the applicant’s friend, [Mr A], and that [Mr A] will underwrite that security and has provided evidence that he has the capacity to do.

26. The applicant provided an explanation that he knowingly maintained a fraudulent identity and remained unlawful in the community for such a considerable amount of time because he feared interacting with the authorities which, in turn, would lead to his detention and forcible removal from Australia.  He made a similar argument about evading his arrest by the Victoria Police. The Tribunal generally considers the credibility of such claims are to be assessed more appropriately when considering protection visa claims or at criminal court. In this regard, the Tribunal has provided the applicant the benefit of the doubt that the claims hold some persuasive power as plausible explanations for his non-compliant behaviour for the purposes of reviewing this visa application. 

27. Relatedly, the Tribunal has placed notable weight on the applicant abiding conditions -if meaningfully incentivised, by his engagement with a legal practitioner to regularise his migration status, which has been the case since March 2022. In particular, there is evidence to support that the applicant was in the process of lodging a Subclass 820 partner visa application based on his de facto relationship with [Mr C], once he had arranged outstanding issues regarding his genuine identity and pending relationship registration. This indicates to the Tribunal that the applicant remorsefully but belatedly realised that his disregard for Australia’s migration laws in the past have been wrong-headed and counterproductive.

28. It has also weighed on the Tribunal’s mind that the seriousness of the claims for a current protection visa and a pending partner visa application sponsored by [Mr C] will take an inordinate amount of time. This will inevitably create an adverse impact on the applicant and the public’s resources should he be held in immigration detention for administrative purposes. These visa applications (and possible appeals) are better fully determined while the applicant is in the community, provided the applicant is suitably and meaningfully incentivised to abide by all the conditions imposed upon him as a bridging visa holder.

29. Moreover, the Tribunal has placed some favourable weight on the applicant’s lack of current criminal convictions; the likelihood he will not face a custodial sentence if convicted; and that it is appropriately open a court to subject the applicant to bail conditions commensurate with the seriousness of the criminal charges against him.

30. On the basis of the available evidence, the Tribunal accepts that, notwithstanding the applicant’s adverse migration history and the criminal charges against him, he also has more recently demonstrated a capacity and willingness to engage with authorities to regularise his migration status. The applicant has acknowledged his past unlawful behaviour and the Tribunal accepts he is genuinely reflective and remorseful about his disregard for Australia’s migration laws. Significantly, the applicant is critically supported by two families who have provided him moral and emotional support during this challenging time and have the financial capacity to assist him in his current and likely future visa application.

31. The Tribunal has taken into account the reference suggested by departmental policy and the evidence before it regarding the guarantor’s financial circumstances and capacity, as well as the seriousness of the criminal charges. Having regard to all of the above, the Tribunal considers in this case an amount of 15,000 AUD to be a reasonable security amount.

32. On the evidence before it, the Tribunal is satisfied that the applicant will abide by abovementioned conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.

33. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cls 050.211, 050.212, 050.221 and 050.222 of Schedule 2 to the Regulations; and

    ·cl 050.223 of Schedule 2 to the Regulations.

35. The Tribunal also directs the primary decision maker:

    ·to indicate to the applicant that conditions 8101, 8207, 8401, 8506, 8508 and 8564 will be imposed if the visa is granted; and

    ·to require a security of 15,000 Australian dollars for compliance with the conditions.

    Brendan Darcy
    Member