2320840 (Migration)

The Administrative Appeals Tribunal considered the case of a Vietnamese national who arrived in Australia in January 2018 and remained unlawfully until granted a bridging visa in April 2019. This bridging visa ceased in May 2021, the same month the applicant was convicted of cultivating a commercial quantity of cannabis and sentenced to imprisonment. Following his release from criminal custody in February 2023, the applicant was detained in immigration detention and subsequently lodged an application for a partner visa. A delegate had refused to grant the partner visa under s 501(1) of the Migration Act 1958 (Cth) due to character concerns, but a previous decision by the Tribunal's General Division set aside this refusal and directed that the discretion under s 501(1) not be exercised to refuse the applicant a bridging visa. The partner visa application remained under assessment by the Department at the time of this decision.

The primary legal issue before the Tribunal was whether the applicant would abide by the conditions imposed on a Subclass 050 (Bridging (General)) visa, as required by clause 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth). This clause necessitates satisfaction that the applicant will comply with any visa conditions if granted. The Tribunal also considered whether the applicant met the criteria for the visa, specifically clauses 050.212 and 050.221, which relate to having a valid substantive visa application lodged and not finally determined, and meeting the time of decision criteria, respectively.

The Tribunal found that the applicant satisfied the criteria under clauses 050.212 and 050.221, acknowledging his lodged partner visa application. In assessing clause 050.223, the Tribunal considered the applicant's past conduct, including his period of unlawful residence and work, and his criminal conviction. However, the Tribunal also took into account mitigating factors and the applicant's personal circumstances, including his relationship with his de facto partner and child, and the fact that his partner visa application was still pending. The Tribunal concluded that the applicant would abide by the conditions of a bridging visa, including discretionary conditions such as no work, no study, notification of address changes, and not engaging in criminal conduct.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant meets the criteria for a Subclass 050 (Bridging (General)) visa under clauses 050.212, 050.221, and 050.223 of Schedule 2 to the Regulations.