2317630 (Migration)

[2023] AATA 3963

2317630 (Migration) [2023] AATA 3963 (9 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317630

MEMBER:Brendan Darcy

DATE:9 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 09 November 2023 at 9:15am

CATCHWORDS  
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal history – an unlawful non-citizen – substance abuse – Tribunal does not accept that the applicant will not breach the ‘no work’ condition 8101– not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 46A, 73, 137, 189, 195A, 359AA, 376,
Migration Regulations 1994, r 2.25; Schedule 2, cls 050.211, 050.212, 050.223, 050.221

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 25 October 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 cls 050.212, 050.221, 050.222 and 050.223.

3. The decision to refuse to grant the visa was made on 30 October 2023 on the basis that the applicant will not uphold the conditions imposed on his visa pursuant to cl 050.223.

4. Via video conference, the applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background: the applicant’s immigration and criminal history

6. The applicant was born in the Islamic Republic of Iran (Iran) on [date] and is a citizen of Iran.

7. On [date] June 2013, the applicant arrived as an irregular maritime arrival and was transferred to [Immigration Detention Centre 1]. [In] June 2013 the applicant was transferred to [Immigration Detention Centre 2]; and then, [in] July 2013, the applicant was transferred to [Immigration Detention Centre 3].

8. On 22 July 2013 the Minister intervened under s 195A and granted the applicant a Bridging Visa E (BVE), and he was subsequently released from immigration detention [in] July 2013 as a holder of a Humanitarian Stay (Temporary) (UJ 449) visa which expired on 30 July 2013. (The applicant was also granted a BVE on the same day until 23 July 2014.)

9. On 24 July 2014 the applicant became an unlawful non-citizen and remained in the community without holding a valid visa until 13 December 2016.

10. On 18 April 2016, the Minister intervened under s 46A of the Act, and lifted the bar to allow the applicant to validly apply for a temporary protection visa (TPV) or a safe haven enterprise visa (SHEV).

11. On 14 December 2016, the applicant was granted a further BVE on the grounds he will apply for a temporary protection visa as per cl 050.212(3)(b) of the Regulations up to and including 14 April 2017. However, the applicant did not lodge such a visa application within the validity period of this BVE.

12. On 19 July 2017 the applicant was granted a further BVE on the grounds that he will apply for a SHEV as per cl 050.212(3)(b) of the Regulations before 2 October 2017.

13. On 22 September 2017, the applicant lodged a SHEV application and was granted an associated BVE on 28 September 2017.

14. [In] May 2020, the applicant was sentenced without conviction by the [named] Magistrates’ Court for the following offences and issued a 12-month Community Corrections Order that commenced on the same day:

    ·Burglary

    ·Theft

    ·Enter Intersection Red Traffic Arrow

    ·Drive Whilst Disqualified

    ·Fail Comply Direction of Authorised Officer

    ·Go Equipped To Steal/Cheat

    ·Possess Methylamphetamine

    ·Failure To Stop Vehicle on Police Direction

    ·Dangerous Driving While Pursued by Police

15. On 3 May 2021, the Minister’s delegate refused the applicant’s SHEV application, and this refusal decision was affirmed by the Immigration Assessment Authority (IAA) on 31 May 2021.

16. [In] June 2021, the applicant was convicted by [named] Magistrates’ Court for the following offences and sentenced to 31 days, time served, and issued an 18-month Community Corrections Order:

    ·Burglary

    ·Theft

    ·Dishonest Take In Retention of Stolen Goods

    ·Commit Indictable Offence Whilst on Bail

    ·Go Equipped to Steal/Cheat

    ·Contravene Community Corrections Order

17. On 5 July 2021, the applicant’s associated BVE ceased. The applicant subsequently became an unlawful non-citizen from 6 July 2021 until 10 January 2022.

18. [In] December 2021, the applicant was convicted for the following offences by [named] Magistrates’ Court and served with an aggregate sentence of 90 days’ imprisonment, 12-month Community Corrections Order and fined an aggregate amount of AUD 500:

    ·Burglary (3 counts)

    ·Theft (2 counts)

    ·Intentionally Damage Property

    ·Obtain Property by Deception (2 counts)

    ·Commit Indictable Offence Whilst on Bail (3 counts)

    ·Dishonest Assist in Retention of Stolen Goods

    ·Contravene a Conduct Condition of bail

    ·Go Equipped to Steal/Cheat

    ·Possess Methylamphetamine

    ·Use a Carriage Service to Harass

    ·Contravene Community Corrections Order (issued [date]/06/2021)

19. On 11 January 2022, the applicant was granted a further BVE under reg 2.25 by the Australian Border Force until 31 January 2022 while the applicant was in criminal custody at [Prison 1].

20. The applicant was released from [Prison 1] into the community on 13 January 2022 whilst holding this BVE. This BVE had the following conditions on it: 8564 – Must Not Engage in Criminal Conduct. This BVE expired on 31 January 2022 and on 1 February 2022, the applicant became an unlawful non-citizen in Australia.

21. On 12 February 2022, the applicant was charged with the following offences and bailed to appear in court on 14 February 2022:

    ·Theft From Shop

    ·Negligently Deal with Proceeds of Crime

    ·Possess Controlled Weapon Without Excuse

22. [In] October 2022 the applicant was convicted for the following offences by the [named] Magistrates’ Court and served an aggregate sentence of 2 months’ imprisonment and fined AUD 750:

    ·Handle/Receive/Retention of Stolen Goods

    ·Commit Indictable Offence Whilst on Bail

    ·Without Authority/Excuse Enter Private Place

    ·Burglary (2 counts)

    ·Theft (2 counts)

    ·Dishonest Take In Retention of Stolen Goods

    ·Go Equipped to Steal/Cheat

    ·Possess Controlled Weapon Without Excuse (3 counts)

    ·Contravene Community Corrections Order (issued [date]/12/21)

23. On 30 October 2022, the applicant was detained under s 189(1) upon release from criminal custody at [Prison 1] and transferred to Melbourne Immigration Transit Accommodation (MITA).

24. On 12 January 2023, the applicant applied to have the abovementioned IAA decision judicially reviewed by the Federal Circuit and Family Court. At the time of writing this judicial appeal has not been finalised.

25. On 23 January 2023, the applicant lodged a BVE application and then withdrew the application on 24 January 2023 because the applicant had been admitted to hospital.

26. On 7 February 2023, the applicant lodged a further BVE application which was rejected by the Department. It is this application that is under review in this matter after the applicant applied to have the Department’s decision reviewed by the Tribunal on 1 November 2023.

27. (According to the delegate’s decision record, there were further charges by Victoria Police against the applicant on 25 April 2022, which were yet to be determined by a court. The charges included: Commit Indictable Offence Whilst on Bail; and Obtain Property by Deception. At the hearing, the applicant claimed these charges were dropped in 2022. The Tribunal accepts the applicant’s account and places no weight on these charges in this decision.)

    Evidence provided to the Tribunal

28. On 3 November 2023, the Tribunal received an email with a number of medical and insurance documents attached. These documents indicate that the applicant’s spouse had been recently hospitalised for [surgery] in September 2023 and that she had lodged an accident insurance claim in the same month. During the hearing, the applicant explained that the accident insurance claim would ensure the applicant’s spouse would be recently compensated for around 6 weeks’ loss of income (about AUD 800 per week) and that his wife would then have sufficiently convalesced to return to work and earn a sufficient income for both the applicant and his spouse.

29. On 6 November 2023, the Tribunal received a number of medical documents by the health provider available at MITA. They outlined the applicant’s mental health symptoms and treatments.

    Adverse information during the scheduled hearing

30. Prior to the scheduled hearing, the Tribunal provided a copy of a non-disclosure certificate to the applicant. The certificate was issued under s 376 of the Act on the basis that it contained specific documents and information pertaining to the applicant’s Departmental file.

31. Signed by an authorised delegate within the Department on 1 November 2023, the certificate states that disclosure of the material could be contrary to the public interest as it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance; 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 or 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 applicant.

32. At the scheduled hearing on 6 November 2023, the Tribunal explained to the applicant that it was going to put information to him as required by the Act’s adverse information powers. The Tribunal explained to the applicant that it has examined the non-disclosure certificate and it appeared to be validly issued, subject to his comment. The Tribunal provided the clear particulars of the information the subject of non-disclosure, stating that there were numerous email exchanges between officials of the Department of Home Affairs and officials of other agencies about the applicant’s interview with the Department, about his time served in prison and his criminal history as relevant information to those officials in assessing whether this bridging visa application should be granted. The names and contact details of officials are largely redacted but some personal particulars could be discerned. Two particular documents outlined the applicant’s charges and convictions in some detail. The Tribunal pointed out that the applicant’s criminal history and penalties have been outlined in detail to him in the delegate’s decision record. Nonetheless, the information would be relevant to the review if relied upon in affirming the decision under review, namely, whether the applicant will uphold the conditions to be imposed on this visa. The other material in the information about email exchanges and the identities of officials that are subject to non-disclosure would not be relevant in considering whether it would be the reason, or part of the reason, for affirming the decision that is under review.

33. The applicant asked for further explanation about the particulars of the information and the reasons it was subject to a non-disclosure certificate. The Tribunal explained the primary foci of the certificate was to protect the confidential details of officials and to protect the effectiveness of law-and-order methods undertaken by the authorities, should the applicant lodge a Freedom of Information request of his departmental file. The applicant then acknowledged he understood the information and said he did not have any comments or seek any further time to provide comment.

34. The Tribunal is satisfied that it discharged its duties to the applicant under s 359AA of the Act whereby it gave the applicant clear particulars of the information subject to the non-disclosure certificate and the reasons it considered would be the reason, or part of the reason, for affirming the decision that is under review. It is further satisfied that the applicant, as far as is reasonably practicable, understood why the information is relevant, was invited to comment on the information and was advised he may seek additional time to comment.

35. As explained in the hearing, the Tribunal found no relevance in the personal details of and email exchanges between officials but there was much relevance in the applicant’s criminal history, with which he was otherwise very familiar, and which he provided comment upon throughout the hearing.

    FINDINGS

    Immigration status of the applicant – cl 050.211

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

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

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

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

38. Noting that the delegate’s decision was favourable in this regard, the Tribunal is satisfied that the applicant meets cl 050.211 at the time of application.

    The grounds for seeking the visa – cl 050.212

39. 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.

40. In this case, the applicant is seeking to meet cl 050.212(4) in Schedule 2 to the Regulations. 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, merits review, s 137K revocation

41. Clause 050.212(4) is met if:

    Judicial review – substantive visa decision (other than refusal)

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refusal of the visa); or

    Visa cancellation – merits review/s 137K revocation

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb)

    Judicial review – validity of a law

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

42. Because on 12 January 2023, the applicant lodged an application for judicial review of a decision to refuse him a Subclass XE 790 protection visa (following merits review) at the Federal Circuit and Family Court, at the time of application, the requirements in cl 050.212(4) are met by the applicant.

43. Accordingly, the applicant meets cl 050.212.

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

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

45. Noting that the delegate’s decision was favourable in this regard, the Tribunal is satisfied that the applicant meets cl 050.211 at the time of making this decision.

46. Because the judicial review is ongoing at the time of writing this decision, the applicant also meets cl 050.212 at the time of making this decision.

47. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and cl 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 Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, 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. Based on the material before the Tribunal, the applicant had been interviewed by an authorised officer in relation to this visa application on 27 October 2023.

50. Accordingly, the applicant meets cl 050.222.

    Whether the applicant will abide by conditions – cl 050.223

51. 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.

52. 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 migration 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].

53. In the delegate’s decision, the following mandatory and discretionary conditions to be imposed on the applicant’s bridging visa were considered:

    ·8101 (No work condition)

    ·8401 (Report as directed)

    ·8506 (Notify change of address)

    ·8564 (Not engage in criminal conduct)

1. These are the conditions considered in this decision.

2. Condition 8101 (Must Not Engage in Work in Australia): In the decision record, the applicant stated he will reside with his wife, [Ms A], and that his wife was in a position to financially support both of them.

3. (The applicant claimed the marriage to have been solemnised by Islamic custom and that he had lived with [Ms A] for over 12 months before his incarceration. However, it is not a formally registered marriage. The applicant also stated he did not have any children and that his spouse no longer has any caring responsibilities of [children] from a previous relationship.)

4. At the hearing, the applicant said he had no one else to financially rely upon. Relying on the medical and accident insurance documents pertaining to [Ms A], the applicant claimed she had sufficient income compensation and would return to full-time work to support herself and the applicant should the visa be granted. The Tribunal noted from the accident insurance documents that compensation was for 6 or so weeks and that after that it would run out. This, in combination with the low income [Ms A] will be foreseeably earning, invited the question whether such a low income between two people would not incentivise the applicant to breach the ‘no work’ 8101 condition. The applicant was adamant it was sufficient.

5. [Ms A] did not attend the hearing as a witness or provide a statement. Nonetheless the submitted evidence indicated to the Tribunal that [Ms A] provided the relevant information to the Department, indicating she is supportive of the applicant’s bridging visa application. The Tribunal accepts the applicant’s spouse has the capacity to work full time but her income-earning potential cannot be characterised as middle or high.

6. Given the rising cost of living and the applicant’s spouse as a low-income earner, the Tribunal found these responses to these issues about financial capacity to be unsatisfactory and unconvincing. The Tribunal is not satisfied the financial capacity of his spouse will be an adequate standard of living whereby the applicant would not find himself in the community and would be incentivised to breach condition 8101.

7. Overall, the applicant’s evidence failed to demonstrate that he had sufficient financial support from his spouse whereby he will not have a strong desire or likelihood of breaching condition 8101 while his judicial review is considered. Accordingly, the Tribunal does not accept that the applicant will not breach the ‘no work’ condition 8101 if it were imposed on his visa.

8. Condition 8401 (Report as directed) and Condition 8506 (Notify change of address): During the hearing, the Tribunal discussed these conditions to be imposed on his bridging visa as related. It was noted the applicant’s criminal history indicated several breached bail conditions and a lack of compliance with community service orders in lieu of being imprisoned. This, the Tribunal asked, might indicate the applicant would not report as directed or update any changes of address.

9. The applicant provided a general response that the offending which led to his multiple convictions was induced by his illicit drug use and addiction. He claimed he had used his time in immigration detention to undertake awareness courses in anger management and drug and alcohol awareness. His submissions included certificates of attendance. The applicant had been undertaking counselling and taking antidepressants for depressive mental health symptoms. The medical evidence also supported this claim. He explained that his spiral into criminal offending and drugs had been connected to his parents’ ailing health back in Iran and his uncertain migration status. The applicant added that his relationship with [Ms A] strongly incentivised him to rehabilitate to reject his earlier experiences with drug addiction and criminal activities and to spurn the associates who had encouraged his destructive and criminal behaviour in the past.

10. The evidence is supportive of the applicant attending coursework to address his history of offending and drug use and that his mental health symptoms are being treated while he has been in immigration detention for the past 12 or so months. The Tribunal accepts the applicant has made rehabilitative progress and that he genuinely wants to advance his life in the community in a prosocial and constructive manner.

11. Many years of research show that substance use disorders are complex, chronic and treatable medical conditions that involve changes in the brains of the afflicted. When someone tries to stop using drugs, the strong associations between drugs and related cues and new or ongoing experiences of stress may lead them to experience cravings and use drugs again. Returning to use after stopping, or relapse, is not uncommon. And like addiction itself, it’s not a sign of weakness. However, while drugs can change the brain, treatments – and time – can change it too. The good news for the applicant is that people can heal from an addiction – especially when they obtain the support, they need to relieve withdrawal symptoms, navigate triggers and make positive changes.[1]

    [1] ‘Why are Drugs so Hard to Quit?’, National Institute on Drug Abuse, <>

    However, in the context of his extensive offending, his non-compliance with bail conditions and correction orders and the typical challenges habitual drug users have with substance abuse, the Tribunal requires a good deal more information to support the contention that the applicant has reached a degree of insight, treatment and recovery whereby it can confidently place sufficient weight on the applicant’s capacity to uphold conditions 8401 and 8506.

12. Overall, the Tribunal is not confident that should this visa be granted, the applicant will comply with conditions 8401 and 8506.

13. Condition 8564 (Not engage in criminal conduct): The Tribunal notes that the delegate cannot overlook the fact that the applicant disregarded Australia’s law by engaging in criminal conduct and that he has serious concerns about the applicant’s ability to refrain from engaging in multiple criminal conduct over a four-year period.

14. During the Tribunal’s hearing, the applicant expressed regret for his offending. As mentioned above, he stated that he would never repeat such behaviour as he ‘had learnt my lesson’, and he wanted another chance to contribute meaningfully to society by avoiding drugs and ‘bad company’.

15. Based on the similar reasons mentioned about conditions 8401 and 8506, the Tribunal requires a good deal more evidence of rehabilitative progress before it can confidently accept the applicant would not breach condition 8564.

16. In this matter, it is not just the applicant’s history of non-compliance with earlier conditions imposed on earlier bridging visas that has troubled the Tribunal, as it did the delegate. His criminal offending, while not at the more serious end of public consternation, was extensive and relatively recent. Despite lighter penalties providing him the opportunity to deter him from reoffending, the applicant’s offending was becoming more frequent and more serious, which included convictions involving controlled weapons. (The Tribunal notes that he claimed he did not have any controlled weapons and he was advised to admit guilt. However, the applicant has not appealed this decision and the Tribunal cannot look behind a criminal conviction upheld by a judicial officer). In summary the Tribunal is not satisfied he has sufficient rehabilitative insight into his mental health conditions or drug use or the seriousness of his criminal offending.

17. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by condition 8564 imposed on the visa if granted.

18. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by all of the conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

    Security

19. 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].

20. 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].

21. In this case, not only will the applicant struggle to fund any amount nominated for security, it is the Tribunal’s assessment that the applicant’s rehabilitation from drug abuse had not sufficiently progressed and he lacks sufficient financial capacity. Accordingly, no incentive for compliance towards upholding conditions imposed on the applicant will be sufficient.

22. Therefore cl 050.224 is not applicable.

    Summary

23. Having found that the applicant meets the requirements cl 050.212, cl 050.221 and cl 050.222, the Tribunal has considered all the available evidence, both individually and cumulatively, in relation to cl 050.223.

24. In this decision, the Tribunal has formed the view that the applicant, while he has made progress in rehabilitation from drug abuse, neither has the sufficient financial support in the community nor reached an adequate level of insight into his serious criminal offending whereby he will not work in the community, report as directed or engage in criminal conduct if he is released from immigration detention as a holder of a bridging visa with conditions imposed on it.

25. For the reasons and evidence above, cumulatively considered, the Tribunal is not satisfied that the applicant would abide by any of the conditions imposed on his visa. Accordingly, the applicant does not satisfy cl 050.223.

26. The applicant should be aware that if the Tribunal is unable to be satisfied that he cannot abide by one of the conditions to be imposed on him, the Tribunal cannot find that the applicant meets cl 050.223.

27. As mentioned above, no incentive for compliance towards upholding conditions imposed on the applicant will be sufficient. Therefore cl 050.224 is not applicable.

28. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

29. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Brendan Darcy
    Member