2306675 (Migration)

[2023] AATA 2189

2306675 (Migration) [2023] AATA 2189 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Emma Svehla

CASE NUMBER:  2306675

MEMBER:Meena Sripathy

DATE:5 June 2023

PLACE OF DECISION:  Sydney

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.

Statement made on 05 June 2023 at 4:25pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an Unlawful Non-Citizen – criminal conviction – judicial review proceeding in the Full Federal Court remains ongoing – has obtained pro bono representation – applicant will abide by conditions imposed on a bridging visa––decision under review remitted 

LEGISLATION
Migration Act 1958, ss 48, 73, 189, 367
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.221

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

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 9 May 2023. 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 12 May 2023 on the basis that the delegate was not satisfied the applicant will abide by conditions if granted the visa.

4. The applicant was initially invited to attend a hearing on 19 May 2023. This date was postponed at his request and he was subsequently invited to appear before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review.

5. In light of the request for postponement of the hearing, on 29 May 2023, the applicant gave his written agreement to extend the period by which the Tribunal must make its decision in accordance with s367(2) of the Act.

6. The issue in this case is whether the Tribunal is satisfied the applicant will abide by conditions imposed if the visa is granted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and History

8. The applicant arrived in Australia on [date] July 2017 as the holder of a Student visa that was valid until 9 March 2018. On 9 March 2018, his Student (class TU) (subclass 500) visa ceased naturally and he became an Unlawful Non-Citizen (UNC) within the Australian community for approximately 8 months. On 9 November 2018, the applicant lodged a Protection (class XA) (subclass 866) visa (PV) and on the same day was granted an associated Bridging C (class WC) (subclass 030) visa with condition 8101 (No Work).

9. He applied for and was granted several further Bridging C visas and was last granted a Bridging visa C on 30 July 2020.

10. On the 23 October 2020, the applicant was remanded into criminal custody and charged with the following criminal offences: Participate Criminal Group Contribute Criminal Activity-T2 and Cultivate Prohibited Plant>=Large Commercial Qty-Cannabis-Si.

11. On 17 November 2021, the AAT affirmed the decision to refuse the grant of a Protection visa, as a result the applicant’s associated Bridging C (class WC) (subclass 030) visa ceased on 22 December 2021 and he became an UNC once again.

12. The applicant was convicted on [date] February 2022, for Knowingly Take Part-Cultivate >=Large Commercial Qty-Cannabis-Si and sentenced to 3 years and 2 months imprisonment with non-parole period of 1 year 7 months. The applicant was released [in] May 2022 from [a] Correctional Centre, and immediately was located by the Australian Border Force (ABF) officer and was subsequently detained pursuant to section 189 of the Act and transferred to the Villawood Immigration Detention Facility (VIDF), where he currently remains.  Notes of a Located Person Interview on 22 May 2023, Detention Note MCP4 and 7 and Detention Client Interview are included in the Department file.[1]

    [1] [File numbers deleted]

13. The applicant requested on 23 May 2022 to extend the time to lodge a substantive visa but no visa applications was made during that time. He lodged an application for a Bridging visa E on 31 May 2022 which was refused on 3 June 2022, but no review was sought of this decision.

14. On 13 December 2022 the applicant commenced judicial review proceedings in the Federal Court of Australia in relation to the decision to refuse his protection visa, which was affirmed by the AAT.  Department records indicate this application was finalised as a “Minister win” on 26 April 2023. The applicant commenced a judicial review proceeding against this decision in the Full Federal Court on 4 May 2023 and this matter remains ongoing.

15. On 9 May 2023 the applicant lodged the present application for a Bridging visa E. 

16. The applicant was interviewed by the delegate on 10 May 2023 and notes of this interview are also before the Tribunal.[2] At this interview the applicant told the officer he had no savings and would not be able to support himself without working in Australia.  He was unable to provide the full name and address of any family members or the residential address he would be staying if released on a Bridging visa.

    [2] [File number deleted]

17. On 12 May 2023 the delegate refused the application.  Having regard to the information before the Department including information provided at the interview, the delegate was not satisfied the applicant would comply with visa conditions imposed on the visa.

    Evidence before the Tribunal

18. On 25 May 2023 the Tribunal wrote to the applicant and invited his comment on information which, subject to his comments or response, would be the reason, or a part of the reason, for affirming the decision under review.  The Tribunal invited his comments on information regarding his periods of unlawfulness in the past, information about his criminal conviction history and information he provided to the delegate at the interview on 10 May 2023 regarding his lack of savings and need to work, and inability to provide details of his friends or relatives on whom he could rely for support. 

19. The applicant was also invited to provide information and evidence to support the arrangements he has regarding accommodation and financial support if released from immigration detention on a Bridging visa.

20. The applicant was requested to provide his response in writing by 30 May 2023 or orally at the hearing on that same date.

21. On 29 May 2023 the Tribunal received from the applicant’s representative the following documents:

    ·Statutory Declaration from the applicant (undated) setting out details of his background and visa history, circumstances leading to his criminal charges, the criminal charges and convictions and his remorse and responsibility about that, and reasons why he would comply with visa conditions if the visa were granted.

    ·Handwritten statement from [Ms A], claimed cousin of the applicant, stating a commitment to offer the applicant accommodation while he waits for his visa. Evidence of [Ms A]’s NSW Photo Card with address is attached.

    ·Handwritten letter from [Ms B], who has known the applicant since September 2018 when they shared a unit together for one year, attesting to his moral character and honesty and offering to support him with accommodation and living expenses if required.  

22. On 30 May 2023 the Tribunal received written submissions from the applicant’s representative. The submissions noted that condition 8101 (no work) is not a mandatory condition in this case, pursuant to cl.050.614 because the applicant’s last bridging visa C did not include this condition and therefore its imposition can only be discretionary. The representative argues that it should not be imposed in this case, particularly given that his history of engagement in criminal activity was due to extreme financial hardship and therefore having permission to work would facilitate him to engage with the Department and eliminate risk of reoffending.  The representative also noted that the applicant had only one period of unlawfulness in the community (in 2018 prior to lodging his protection visa) given that in the second period of [December] 2021 to [May] 2022 he was in criminal custody.  He has two individuals in the community who are prepared to provide financial support and accommodation, who have provided written letters to the Tribunal.  The representative noted that, contrary to the delegate’s decision record, contact details for these individuals were provided to the Department and she has email confirmation of receipt.  It is submitted that in considering the applicant’s compliance with the condition not to engage in criminal conduct, consideration should be given to the circumstances of his previous offending, particularly exceptional hardship and the COVID 19 lockdowns as set out in his Statutory Declaration.  There is no evidence to suggest the applicant would not abide by condition not to engage in criminal conduct. It was his first and only offending.  It was also noted that his previous BVC was not cancelled during his criminal matter which indicates he was not at risk of further offending. He has a motivation to remain engaged with the Department now, as he has an ongoing Federal Court appeal, is legally represented and if successful in his appeal he will have his matter heard at the AAT.

    Evidence at hearing

23. The applicant confirmed his migration history, including the period of unlawfulness and subsequent bridging visas.  He confirmed he has a Federal Court review. His representative confirmed that this matter is ongoing and they are awaiting a hearing date. 

24. The Tribunal discussed with the applicant the conditions that would be imposed if the Bridging visa is granted.  It acknowledged his representative’s submission that condition 8101 is not mandatory as it did not apply to his previous bridging visa. The Tribunal indicated that it has looked again at cl.050.614 and has formed a preliminary view that because it is not mentioned in subparagraph (2) of that clause, it may not be a condition that can be imposed as a matter of discretion either. However, the remaining conditions referred to by the delegate - 8401, 8506 and 8564 are considered by the Tribunal to be appropriate. The applicant indicated that he understands these conditions and had nothing further to say on this.

25. The Tribunal asked the applicant why he came to Australia in July 2017.  He said he had a ‘big’ problem in Thailand and needed to escape and could not apply for protection from there so he came here on a student visa.  He came to study English initially.  He studied for 3 months and then stopped because he had his belongings stolen and as a result experienced financial difficulties. He made a police report about this robbery.  He tried to go back to study but it was difficult. He last studied in 2017 sometime but he cannot remember the date. After that he did not do anything. 

26. The Tribunal asked about his family.  He said he has no close family in Australia or Thailand. His parents are divorced and he has not had any contact with his father since childhood.  His mother lives in [Country 1] and has a new family. He was brought up by his maternal grandmother, and was living with her before he came to Australia. He last saw his mother when he was around [age] years old. The Tribunal asked who was his financial supporter for the student visa.  He said his ‘cousin’ [Ms A] who lives in Australia assisted him to get this visa.  She is related to him on his mother’s side. He believes her maternal grandfather and his grandmother are siblings. [Ms A] is a student in Australia he believes but he does not know what she is studying.  When asked if he ever stayed with her since coming to Australia he said he did not, but they saw each other. The Tribunal asked about his reference to her lending him $4000 previously. He confirmed that she did but she did not have a lot of money and is limited in how much she can work on her student visa so it took time to accumulate that amount of money.  She would deposit sums to his account from time to time. The Tribunal asked if his bank statement would show that.  He said it may but he is not sure he can access his bank statement from detention.

27. The Tribunal asked about the period March to November when he held no visa and whether he approached the Department.  He said he did not because he had no information and no advice at that time and was worried he may be arrested. The Tribunal put to him its concern given this substantial period he was without a visa that he may do that again in future. The applicant said he acknowledges he did the wrong thing before and will not do it again.

28. The Tribunal asked the applicant about how he came to be arrested and convicted.  He explained that it was during the COVID period and he did not have much money. He was looking for work online and found this job cleaning farms. They picked him up on 5 October and showed him around the place. He started working there.  Accommodation was provided. Later on he was told that it was unlawful work but he decided to continue because he wanted to be paid for what he had done.  The applicant then said that he had by this time already done the work and was about to be picked up and leave when the police came and arrested them. He never received any payment for the work.  The Tribunal put to the applicant, if he was not arrested by the police would he have continued to do this work. He said he had finished the job by this time so no he would not. The Tribunal put to him that the fact that he was prepared to undertake illegal work in the past may lead it to have concerns he would do that again in future. He said there was no need to worry about that as he has learned lessons from doing this and all he has been through.  He knows what he did was illegal and it was a grave wrongdoing on his part and it has had a lot of consequences for him.

29. The Tribunal asked what his plan is now if he is released. Where would he live. He said his plan is to live in the community in a good environment. If allowed to work he will work. He has supporters in the community and he will live with them and they will help him when he needs it.

30. The Tribunal asked about [Ms B].  She is a friend of his. He met her during [a] festival. He helped her when she was being pickpocketed and went to the police with her.  She is here to study also.  He does not know her date of birth, she is around [age] or [age] years old. He does not know her relationship or family status. He has never asked her.  They lived together once in Sydney, in 2018 for a few months.  This was after the incident at [the festival]. The Tribunal noted that this timeline was different to what she put in her support letter – she said they lived together for 12 months from 2018. She said the incident when he helped her occurred at [a location] in June 2019. These inconsistences may lead the Tribunal to have doubts about the truthfulness of his connection and relationship with this person. The applicant, in response said this may be a misunderstanding, she did not mean they lived together that long, they were never a couple just friends.

31. The Tribunal asked why this person would want to help him given his conviction history. He said she knows he is a good person and has a good character and therefore she is prepared to support and help him.

32. The Tribunal put to him that both these individuals are temporary residents, and appear to have limited financial capacity as they have limited work rights. In fact he has provided no evidence of their financial capacity to support him. It asked him if he knows anyone else in Australia who is a permanent resident or citizen who can vouch for him or give a security for compliance. The applicant said he does not. He knows some friends of [Ms B] who are more senior but they are also temporary residents waiting for their permanent visa and were worried about supporting him in case it affects their cases. But they can lend him money if he needs it.

33. The Tribunal asked the applicant what his plan is if his court case is unsuccessful. He said if he is sent back to Thailand he may not survive because he had problems there. 

34. The Tribunal put to him that it has issues about whether he will comply with conditions given his history of unlawfulness, lack of strong ties in the community and his history of working illegally in the past because of financial hardship.  It also has concerns he has little incentive to stay engaged with the Department if his case is unsuccessful. In response the applicant said his senior friends who have agreed to support him may suffer adverse consequences if he did the wrong thing and this is a reason he would not. The Tribunal said that it could not see what consequences there would be for them and therefore cannot see how this would satisfy the Tribunal of his compliance.

35. It asked if there was anyone who could provide a financial security to guarantee his compliance with conditions.  The applicant said he has not discussed this with his supporters but does not think they have sufficient resources to put forward a security. Regarding reporting requirements the applicant said that he has intentions to stay in Australia and start his new life here and this is why he would report. 

36. The Tribunal asked if he is in contact with his family overseas. He said he has been in contact with his mother but she has not offered any financial support or offered for him to come to her in [Country 1]. She said it is better for him to stay in Australia if he can. 

37. Regarding his illegal conduct, he said he would not do it again.  He has learned lessons. It made his life worse. He would like the opportunity to start his life again.

    Evidence from [Ms B]

38. The Tribunal tried to call the witness twice but the phone appeared to be turned off.

    Representative’s submission

39. The representative requested time to try and obtain further information and evidence from the applicant’s supporters in the community.

40. The representative submitted that in terms of his incentive to remain engaged with the Department, he is now represented and they will be advising him that it is in his best interests to comply with conditions.  If his judicial review application is ultimately unsuccessful, he will be advised to seek ministerial intervention on the basis that he never had the opportunity to have his protection claims considered. He wants the opportunity to remain in Australia and will be advised he has to remain engaged to have any chance of achieving that.  The representative pointed out that he will have to apply for a new Bridging visa after the judicial review matter and this is an opportunity to reassess the matter.  Regarding his criminal history, he has given compelling evidence of the deterrent effect of his custodial sentence. The Tribunal asked if any further documents submitted to the criminal court in the context of sentencing was available. The representative said she will try and obtain this. 

41. The applicant confirmed his agreement for the Tribunal to have additional time to make the decision in light of the request for further time to provide information.

1. The applicant reiterated his desire to be given an opportunity to improve himself and be a good person in the community, acknowledging that he has done wrong in the past.

2. On 2 June 2023 the Tribunal received the following :

   ·Copy of Offender’s Sentencing Submissions submitted by counsel on behalf of the applicant in his criminal matter dated [January] 2022.

   ·Email correspondence between the applicant’s representative and Department confirming that contact details of his community supporters were provided to the Department following the interview, contrary to the delegate’s indication in the decision record that they were not.

   ·Various documents relating to applicant’s community supporter, [Ms A], including her travel itinerary indicating that she departed Australia [date] April 2023 and is due to return to Australia on [date] June 2023; letter from [a bank] dated [June] 2023 confirming the current credit balance in her account; visa grant letter indicating she is the holder of a student visa valid to March 2026.

   ·Statutory Declaration dated 1 June 2023 by [Ms B], confirming she is on a student visa valid to September 2023; she previously lived with the applicant; her current level of earnings; her reasons for being prepared to assist him; the extent of assistance she can provide (a place to stay for 2 weeks after release, and financial support for a further 2 weeks).  A copy of her NSW photo ID card is attached.

   ·[Organisation 1] Psychological Assessment Report relating to the applicant, prepared by [a] registered psychologist, on1 July 2022 following an assessment on 22 June 2022 at VIDC

   ·Submissions from the applicant’s representative addressing the above evidence.

   FINDINGS AND REASONS

   The grounds for seeking the visa - cl 050.212

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

4. In this case, the applicant is seeking to meet cl 050.212(3A). 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.

   Judicial review – onshore substantive visa refusal

5. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

6. In his application the applicant has indicated he has an ongoing judicial review application.  The delegate’s decision record indicates that Department records confirm the applicant commenced a judicial review matter at the Full Federal Court [in] May 2023.  Accordingly, the applicant meets cl 050.212(3A).

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

7. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. At hearing the applicant confirmed his judicial review matter is pending. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221.

   Whether the applicant will abide by conditions - cl 050.223

8. 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.

9. 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].

10. 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.

11. In this case, cl 050.614 applies and indicates that conditions 8101 and 8116 are mandatory conditions if they applied to the last visa held by the applicant, and if not then any one or more of the prescribed conditions may be imposed on the applicant’s Bridging visa. The Tribunal observes that 8101 and 8116 are not included among the prescribed conditions that may be imposed for the purposes of this clause.   

12. The Tribunal notes that the delegate correctly identified that there were no mandatory conditions to be imposed, however indicated the following as discretionary conditions that would be imposed in this case: conditions 8101 (no work), 8401 (report as directed), 8207 (no study), 8506 (notify change of address) and 8564 (must not engage in criminal conduct). 

13. In their submissions, the applicant’s representative argues that, given that the applicant did not have a condition 8101 imposed on his last bridging visas, it should not be imposed upon his release on this visa, particularly given that it was extreme financial hardship previously that led to his engagement in criminal activity.  The Tribunal has considered these submissions and argument, and the terms of cl.050.614.  It is of the view that the clause, as drafted, does not permit condition 8101 to be imposed even as a discretionary condition, in circumstances where it was not imposed on the last visa held. Therefore, and having regard to the applicant’s background and history, the Tribunal considers the following conditions as appropriate in this case: 8401 (report as directed), 8207 (no study), 8506 (notify change of address) and 8564 (must not engage in criminal conduct).  These were discussed with the applicant at hearing and it is satisfied that he understands and agrees that these conditions would apply to the visa.

14. The Tribunal has considered the applicant’s immigration history as disclosed in the documents on the Department and Tribunal files and the applicant’s oral evidence.  On the basis of this evidence it finds that he arrived in Australia on [date] July 2017 as the holder of a student visa Subclass 500, valid to 9 March 2018. Departmental records, and as confirmed by him in his oral evidence at hearing, indicate that after the expiry of that visa he was without a valid visa in the community from 10 March 2018 until 9 November 2019 and again from 23 December 2021 until located by ABF upon release from criminal custody [in] May 2022 when he was taken into immigration detention.  The Tribunal accepts that at the time his bridging visa expired on 23 December 2021 he was already in criminal custody, and therefore was not without a valid visa in the community in this period.

15. The Tribunal has considered the applicant’s past visa history, and particularly the substantial  period of some 8 months he was in the community without a visa between March to November 2018 and the implication of this on whether he will stay engaged with the Department and abide by conditions 8401 (report as directed)  and 8506 (notify change of address). The applicant’s argument when this was put to him was that he acknowledges what he did in the past was wrong and he would not do that again. He indicated several times in his written and oral evidence that he has learned lessons from the serious consequences of his past actions. His representative submits that there is less risk the applicant will abscond now as he is legally represented and engaged in a judicial review process.  The representative submits that the applicant has obtained pro bono representation in this matter on the basis of an internal assessment that the matter has  reasonable prospects of success. Having now engaged with legal representation the applicant now understands that his ultimate goal of lawful residency in Australia requires him, at the very least,  to remain engaged with the Department at each stage of the process. 

16. The Tribunal accepts the applicant has an ongoing judicial review matter and has obtained pro bono representation.  If successful, his protection visa will return for merits consideration at the AAT.  If unsuccessful his representative has indicated that he will be advised about seeking Ministerial intervention on the basis that he never had an opportunity to put the merits of his protection claims forward.  The Tribunal acknowledges that each of these processes are likely to take time, and if he is not released on a bridging visa he faces the prospect of remaining in immigration detention for a substantial period of time. 

17. While the applicant has a history of overstaying his visa and failing to engage with the Department in the past, as well as a criminal conviction history, the Tribunal has also taken into consideration his evidence about the context in which his visa overstay and criminal conviction occurred and his background circumstances. It has considered his explanations and the supporting documents he has provided to the Tribunal, including the Offender Sentencing Submissions and the [Organisation 1] Psychologist report.  On the basis of this evidence, the Tribunal accepts the applicant comes from a fractured family background.  It accepts he had minimal family or community support when he arrived in Australia, and spoke little English.  It accepts his engagement in the activities that led to his criminal conviction occurred during the period of COVID lockdowns when he was under extreme financial hardship and vulnerable to take up any offer of employment. Apart from the conviction there is no evidence he had any other criminal history in Australia or Thailand.  The applicant has now been detained in criminal or immigration custody continuously since October 2020.  While not condoning his past actions and poor judgment and decisions he has made in the past, the Tribunal accepts that there have been consequences for his past actions, and it is prepared to accept his evidence that he has learned from them.  The Tribunal found his oral evidence at the hearing was candid, open and honest.  Significantly, the Tribunal observes that he was frank and open with the Tribunal about his limited connections in the community and desire to try and remain in Australia in future.  

18. The applicant has indicated that he has a cousin and a friend in the community who are prepared to offer him accommodation and financial support until he can self support by working. While noting that both these individuals are themselves temporary residents, of limited means, the Tribunal accepts, on the basis of the evidence provided, that they will offer the modest support as claimed. As the applicant will have no work restriction on his visa, he will be able to work to support himself.  While the applicant indicated that he would comply with conditions so as not to disappoint and/or jeopardise his supporters’ own visa prospects, the Tribunal is not satisfied there are any consequences of such nature for them that would ensure his compliance.  However, it gives some weight to their voluntary offers of a modest level of support.  He has not asked them to provide a financial security for him, and the Tribunal does not consider it necessary in this case. 

19. Having considered the evidence and circumstances in totality, the Tribunal is satisfied that the applicant has strong incentives to comply with conditions and remain engaged with the Department having served a significant criminal custodial sentence followed by a further year in immigration detention, and now being represented pro bono in his Federal Court appeal matter. It accepts that he is genuinely remorseful for his past wrongful actions. It accepts that his release on a bridging visa will be for the period until the judicial review is determined.  He will then have to re-apply for a further bridging visa and his circumstances and incentives can be assessed again at that time, taking into consideration his engagement during this period.

20. For all of these reasons, and on the evidence before it, the Tribunal is satisfied the applicant will abide by the identified conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.

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

    DECISION

22. 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.

    Meena Sripathy
    Member