2441219 (Migration) - [2024] ARTA 861

2441219 (MIGRATION) [2024] ARTA 861 (7 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2441219
Tribunal:General Member S Aster
Place:Melbourne
Date:  7 November 2024
Decision:The Tribunal affirms the decision under review

Statement made on 07 November 2024 at 4:17pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – criminal convictions – course nearing completion – visa application deemed invalid – work placements without a valid visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 109
Migration Regulations 1994, Schedule 2, cls 050.223, 050.613, 051.211; Schedule 8
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
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 REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 16 October 2024. 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, which is outlined below.
The delegate was not satisfied that the applicant would abide by the conditions imposed on the visa and refused to grant the visa on 18 October 2024.
The applicant appeared before the Tribunal by video on 7 November 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The decision of the delegate outlines that the applicant arrived in Australia on 11 February 2022 on a Subclass 500 Student visa. On 28 February 2024, the visa was cancelled under s 109 of the Act because the applicant provided incorrect information.
On 20 March 2024, the applicant applied for protection however the application was deemed invalid. The associated bridging visa ceased on 13 May 2024.
The applicant remained in Australia from 13 May 2024 with no valid visa until he was detained [in] October 2024, when he appeared at [Court 1].
Whilst in Australia, the applicant was charged and convicted of the following offences:
·Driving with a blood alcohol exceeding 0.08g alcohol per 100 ml of blood on [a day in] August 2024.
·In an incident occurring on [a day in] September 2024:
o Failing to comply with a direction to stop.
o Driving under the influence of alcohol.
o Failing to provide personal details.
o Driving while disqualified.
On 16 October 2024, while in detention the applicant made a valid application for a Subclass 866 Protection (Class XA) visa, which is also taken to be an application for a Subclass 050 or 051 Bridging E visa. In this case, Subclass 050 is the relevant bridging visa.
The issue in this case is whether the applicant would abide by the conditions of the visa.
Whether the applicant will abide by conditions - cl 050.223
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.
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.
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.
In this case, cl 050.613A applies because the applicant has applied for a protection visa and is not covered by another relevant provision. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. Condition 8101 is mandatory in the current matter. The condition requires that the applicant not engage in work in Australia.
I consider that the following conditions should be imposed in the circumstances of this case:
·8401: The holder must report at the time or times, and at a place or in a manner specified by the Minister.
·8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.
·8564: The holder must not engage in criminal conduct.
In assessing the applicant’s likely conduct, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the 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.[1]
[1] Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].
The applicant travelled to Australia on a student visa. He commenced a Bachelor of Business Administration but transferred into a Bachelor of Community Services at Stott’s College. As outlined above, the applicant’s student visa was cancelled under s 109 of the Act on the basis that he provided incorrect information. At the hearing, the applicant advised that the Australian university where he enrolled to undertake a bachelor’s degree was unable to obtain transcripts from the educational institution where he completed a diploma in business administration in Kenya. When the Department contacted him, the applicant was also unable to obtain the correct documents within the timeframe provided. He maintained that he successfully completed the education claimed but was unable to obtain the documents because the school had since closed indefinitely. He did not apply to the Tribunal for merits review of the decision to cancel his student visa.
Despite the cancellation of his student visa, the applicant continued the course. At the date of the hearing, the applicant advised that he was close to completing the course. He would need to undertake approximately two months of mandatory work placement to be awarded the qualification.
After his student visa was cancelled, the applicant said he decided to apply for protection to stay in Australia. He alleged that he had been supported by his mother, who sent him to study in Australia to escape problems with his father. The applicant said he used a migration agent to make the application for protection. The agent provided a different email address for the applicant than the one which he supplied and failed to forward communication from the Department.
The applicant claimed he was unaware that the first protection visa application was deemed invalid and the related bridging visa had ceased until he was detained by Border Force officials. He explained that the notice granting the bridging visa said it was valid until a decision was made on the substantive visa. He said the bridging visa came with study rights but no work rights.
The decision of the delegate outlines that the applicant was interviewed by Departmental officials on 17 October 2024. The decision notes that when he was interviewed, the applicant said he had been working in Australia whilst he did not hold a valid visa. At the Tribunal hearing, the applicant said he had been doing work placements to complete his degree; he was not undertaking paid employment.
On 5 November 2024, the applicant emailed the Tribunal in advance of the hearing and advised that:
I have send email to my employer about my Visa change with no working rights. And to terminate my contract until my visa Issues are sorted out. Also, I have send email to my school Stotts College about the situation on my Visa. This is because I was remained with school placement and I'm done with school.
When I asked the applicant why he would need to resign from his employment if he were undertaking unpaid work placement, the applicant said he notified his old employer so it was clear that he would not work. The applicant was unable to provide a reasonable explanation for why he told the delegate he was working and notified the Tribunal that he had resigned from his employment.
The decision of the delegate also outlines that the applicant said he had $2,853 in his Australian bank account and no other money. He advised the delegate that his cousin, [named], would financially support him and cover the cost of his portion of the rent at the property they lived in together. No explanation for how the applicant was supporting himself while he studied and undertook unpaid work placement was noted in the decision.
In the email of 5 November 2024, the applicant advised the Tribunal that he had secured another individual who was willing to financially support him, [named].
I do not accept that the applicant was previously able to support himself without paid work in circumstances where he would require his cousin or another third party to financially support him if he were released from detention and unable to work. When considered with the applicant’s statement to the delegate and email to the Tribunal, I find that the applicant was knowingly undertaking paid employment when he had no entitlement to work under his bridging visa and when he had no valid visa. Further, I consider that he was trying to downplay his work in an attempt to appear compliant with his visa conditions.
In addition to his past non-compliance with migration laws, the applicant has been convicted of multiple offences under the Road Traffic Act 1974 (WA) and Road Traffic (Administration) Act 2008 (WA). The convictions relate to two separate incidents during which the applicant drove under the influence of alcohol. On the second occasion, the applicant did not stop when directed and did not provide personal details when required. During the hearing, I raised concern that if the applicant were granted a bridging visa, he might disappear into the community and fail to report as directed. The applicant said he understood the concern but provided an undertaking that he would not.
The applicant said that he broke up with partner of three years and was drinking a lot. He understands that his actions were wrong and wants to improve his behaviour. In his email of 5 March 2024, the applicant said he would continue with alcohol management tutorials and anger management tutorials.
The applicant has a history of non-compliance with Australian laws and failure to provide accurate information to authorities. I do not accept that he would comply with the conditions imposed on the Bridging visa.
The applicant’s criminal convictions attracted total fines of $4550. The applicant said he had not paid the fines yet but would pay them by instalments commencing 28 days after the fines were ordered. He noted that he owns a 2011 [car brand] that he can sell to help cover his costs. Even with the sale of the car, I am not satisfied that that the applicant could personally cover his living costs and pay his fines. In the absence of the ability to make any personal contribution to a security, I do not accept that the applicant would abide by the visa conditions regardless of any security.
On the evidence before me, I am not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Dates of hearing: 7 November 2024