2432312 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050, made by an applicant who had been released from criminal custody on parole. The delegate refused to grant the visa, finding that the applicant did not meet the criteria in clause 050.223 of the Migration Regulations 1994 because the delegate was not satisfied the applicant would abide by the condition not to engage in criminal conduct. The applicant had previously been convicted of serious criminal offences, including sexual intercourse without consent, unlawfully confining a person, and recklessly inflicting actual bodily harm, for which he received a significant period of imprisonment.

The legal issues before the court were whether the delegate erred in finding that the applicant would not abide by the condition not to engage in criminal conduct, and consequently, whether the delegate was correct in refusing to grant the Bridging E visa. The court was required to consider the applicant's criminal history, his current parole conditions, his stated intentions and plans for departure from Australia, and any evidence of rehabilitation or remorse.

The court reasoned that the delegate's satisfaction regarding the applicant's propensity to abide by visa conditions must be based on objective considerations. While acknowledging the severity of the applicant's past offending and the delegate's concerns about a lack of demonstrated compassion, the court also considered the applicant's evidence of rehabilitation, including participation in programs, his stated remorse, and his expressed desire to depart Australia. The court noted that the applicant was subject to strict parole conditions, which themselves included a prohibition on further criminal conduct and movement restrictions. The court also considered the applicant's stated willingness to cooperate with arrangements for his departure, including obtaining a new passport and arranging travel.

The court found that the delegate's decision to refuse the visa was not open to the applicant. The court determined that the applicant had provided sufficient evidence to satisfy the delegate that he would abide by the condition not to engage in criminal conduct, particularly in light of his rehabilitation efforts and the stringent parole conditions already in place. The court therefore set aside the delegate's decision and remitted the matter to the delegate to grant the visa.