2442839 (Migration) - [2024] ARTA 497

2442839 (MIGRATION) [2024] ARTA 497 (19 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2442839
Tribunal:General Member S Kamandi
Place:Perth
Date:  19 November 2024
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050. 223 of Schedule 2 to the Regulations;
The Tribunal also orders the primary decision maker
·to indicate to the applicant that conditions 8101, 8506, 8564. will be imposed if the visa is granted.

Statement made on 19 November 2024 at 8:06am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – student visa cancelled and period as unlawful non-citizen – criminal convictions – entered casino as self-excluded person, with friend’s passport and credit card – other charges and AVO – released from custody and taken into immigration detention – previous applications for bridging visas on departure grounds unsuccessful – application for protection visa in progress and current bridging visa applied for in conjunction – abidance by conditions of visa – no work, report as directed and no criminal conduct – financial support from parents – inconsistent evidence about work and repayment of gambling debts – accommodation, support and guidance from family friend lawyer – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 73, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(2), (3), 050.223, 050.613A, 050.618, Schedule 8, conditions 8101, 8506, 8564
CASES
Applicant VAAN of 2001 v MIMA (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 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). Class WE contain 2 subclasses: subclasses 050 and 051. The criteria for this visa are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
BACKGROUND
Visa history
The applicant is a national of China who first arrived in Australia [in] July 2018 as a holder of a Student (Class TU) (Subclass 500) visa, valid until 15 March 2024. The applicant travelled to China and returned to Australia on multiple occasions, with his last arrival [in] December 2021.
On 18 October 2023, the applicant’s student visa was cancelled under s 116 of the Act and he subsequently became unlawful.
The applicant was charged and convicted of criminal offences, in November 2023 and July 2024, referred to below. On 27 July 2024, after having been granted bail and released from criminal custody, the applicant was located by the Australian Border Force (ABF) and transported to Villawood Immigration Detention Centre (VIDC), where he has remained.
On 29 July 2024, the applicant lodged an application for a Bridging E (Class WE) visa (BVE) which was refused on 1 August 2024. The applicant applied for a review of the decision not to grant him a visa with the Administrative Appeals Tribunal (AAT), which was affirmed on 16 August 2024.
On 18 September 2024, the applicant lodged a second BVE application which was deemed invalid.
On 19 September 2024, the applicant made a third application for a BVE. That application was refused on 24 September 2024, and affirmed by the AAT on 2 October 2024.
On 3 October 2024, the applicant made an application for a Permanent Protection (Class XA) (Subclass 866) visa (protection visa) and an associated BVE application. While his protection visa application was deemed valid, his BVE application was found to be invalid.
On 27 October 2024, the applicant lodged a fifth application for a BVE which was determined to be invalid.
On 4 November 2024, the applicant made a sixth BVE application which was refused on 7 November 2024.
The applicant applied for a review of the delegate’s decision with the Administrative Review Tribunal (the Tribunal) on 11 November 2024.
The applicant was invited to appear before the Tribunal on 15 November 2024. The applicant appeared by video from VIDC in New South Wales. He was not represented. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter at the hearing. Where relevant, the applicant’s evidence given at the hearing is discussed below.
The applicant’s witnesses, his mother who joined the hearing from China and [Mr A], an Australian lawyer and a family friend of the applicant, also provided evidence in support of the applicant’s review application. Where relevant, I have referred to their evidence in the discussion below.
After the hearing, on 18 November 2024, the applicant provided the Tribunal with evidence relating to financial support that he has been receiving from his parents in China. This includes screenshots of the applicant having received regular amounts from his father in the recent years.
Criminal offences
The information before the delegate indicates that while the applicant placed himself on a list of persons ‘self-excluded’ from casino, he nonetheless entered the casino using a fraudulent credit card and a Chinese passport. He was apprehended and, on 27 November 2023, charged and convicted of ‘Exclude person enter Casino’ and fined AUD200; and ‘Goods in personal custody suspected being stolen’ and fined AUD500.
On 23 July 2024, the applicant was charged with offences of stalking and intimidating with an intent to harm and entering inclosed land/premises with no lawful excuse. On 27 July 2024, he was granted conditional bail and released from criminal custody. The delegate’s decision indicates that the applicant is the subject of an active Apprehended Violence Order (AVO).
At the hearing, in discussing the applicant’s criminal history and the circumstances that led to his detention at VIDC, the applicant confirmed that because he had a gambling problem, he placed himself on the list of persons ‘self-excluded’ from the casino. In November 2023, he wanted to go to the casino and borrowed a passport and identity documents from a friend and entered the casino. He was found out and reported to the police and detained for one day and fined.
When asked about his gambling problems, the applicant said that prior to placing himself on the excluded list, he tried to get help by accessing information online and calling a helpline, which he did not find very helpful. What caused him to rethink his addiction was when he was detained on 27 November 2023.
He stated that he did not go to any casinos nor gambled after he paid the fine and was released. The applicant stated that while he cannot guarantee that he would not enter a casino or gamble with 100 percent certainty, having come to the attention of the police made him rethink and stop gambling and that he no intention of returning to gambling in the future.
Regarding the pending offence relating to intimidation/stalking and entering premises, which he was charged with on 23 July 2024 and released on bail on 27 July 2024 (leading to his detention at VIDC), the applicant said that the offence was not because he was violent but rather related to a dispute he had with his then landlord and was based on some text messages that he had sent to his landlord trying to get his identity documents back and move to another premises. He stated that his release on bail means that he is not a violent person. When asked about the status of the matter, the applicant’s evidence was that he was due to appear before court on 13 November 2024, but because the employees at VIDC made mistakes and did not arrange for his appearance, he did not attend the hearing and that he is waiting for a new date to be confirmed.
[Mr A]’s evidence corroborated the applicant’s evidence regarding his past criminal offences. [Mr A] stated that after the applicant’s detention in July 2024, he was contacted by his parents who are good friends with the applicant’s parents in China and advised about the applicant’s circumstances. [Mr A] stated that he is a practising lawyer and has explained the charges and the offences to the applicant and the consequences of his criminal offences.
I accept that the applicant was fined in relation to having entered a casino while having placed himself on the excluded list and that he used identity documents of another person to gain entry. I accept that the applicant has been charged with the offence relating to his dispute with his then landlord, that he had breached the orders not to enter the premises, and that the while he was released on bail on 27 July 2024, the matter is still pending requiring him to attend a further hearing before the court, the date of which is not yet known.
Non-disclosure certificate
The material provided to the Tribunal by the Department includes a non-disclosure certificate issued under s 376 Of the Act. The non-disclosure certificate relates to a document from the Australian Border Force which contains information about the circumstances of the applicant having been located, details he provided at the interview, and his subsequent transfer to VIDC. The non-disclosure certificate indicates that the disclosure of this material would be contrary to the public interest as it would disclose lawful methods used by the authority to prevent, detect, or investigate breaches or evasions of law and would likely prejudice the effectiveness of those methods or a current or pending investigation.
At the hearing, I informed the applicant of the non-disclosure certificate and expressed a preliminary view that the certificate appears to be valid. I also indicated that part of the information the subject of the certificate relates to is information that the applicant provided and is aware of and that I do not consider information that he is not aware of and has not been disclosed to him to be relevant to this review nor have I relied on it in my assessment. I offered the applicant an opportunity to make comments in this regard. The applicant made no comments as to the validity of the certificate or otherwise.
While I consider that the non-disclosure certificate is valid, I have not considered the non-disclosable information relating to methods used for preventing, detecting, or investigating breaches of laws, the subject of the certificate to be relevant in this matter and have not relied upon in determining this review.
Prior BVE applications and refusal
The applicant’s prior valid BVE applications (2 applications) were made on the basis that he was making acceptable arrangements to leave Australia (subclause 050.212(2) of the Regulations). As confirmed at the hearing, during those applications, the applicant made representations that he was intending to depart Australia and had no intentions of applying for any further visas. He claimed that he wanted to be released from detention to obtain his personal belongings and would return to China as soon as the pending criminal proceedings were dropped. His BVE applications were refused on the basis that, at the time of application, the delegates were not satisfied that the applicant was the subject of acceptable arrangements to depart Australia and therefore did not meet the requirement of cl 050.212(2) of the Regulations. The applicant made applications to the AAT to review the delegates’ decisions. The AAT was also not satisfied that the applicant met cl 050.212(2) of the Regulations and affirmed the delegates’ decisions.
BVE application the subject of the current review
The applicant applied for a protection visa on 3 October 2024, after his unsuccessful BVE applications on prior occasions and referred to above.
The applicant’s protection visa application has been determined to be a valid application and has not been determined. At the hearing, the applicant stated that he had an interview regarding his protection visa application on 11 November 2024.
The applicant’s BVE application, the subject of the current review, was made on 27 October 2024.
The delegate accepted that the applicant met cl 050.212(3) of the Regulations on the basis that he has made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and the application has not been fully determined.
The issue before the delegate was whether the applicant, if granted a BVE, will abide by any conditions imposed on it.
Conditions that must or may be imposed on a BVE are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. As part of the assessment of the applicant’s circumstances, the delegate considered the mandatory condition of no work (8101) and the following discretionary conditions ought to be imposed on the BVE, if granted:
·8207 No Study
·8401 Report as Directed
·8506 Notify Change of Address
·8564 Not Engage in Criminal Conduct.
Based on a consideration of the applicant’s immigration history and criminal offending, together with the information he provided during his Departmental interviews, including an interview with a Status Resolution Officer on 5 November 2024 and an interview conducted on 27 July 2024 when the applicant was initially admitted at VIDC, the delegate was not satisfied the applicant would abide by conditions 8010 and 8564 if he was released on a BVE with those conditions attached to it.
RELEVANT LAW
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 whether the applicant would abide by the 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 any mitigating circumstances were justifying their breach and whether the applicant had shown any contrition for their unlawful conduct.[1]
[1] Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2002) 70 ALD 289 ('VAAN') [15]-[16].
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 the Tribunal is not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.
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 any security decision made under s 269 of the Act.[2] Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive, the occasion for the imposition of a security does not arise.[3]
CONSIDERATION
[2] VAAN [10].
[3] VAAN [21]-[22]; Liu v Minister for Immigration and Citizenship [2008] FMCA 725 [33], [37].
Conditions to be imposed
In this case, like the delegate I also consider that cl 050.613A applies because the applicant has applied for a Protection visa, and he is not in a class of persons specified by the Minister for the purposes of cl 050.613A(1)(b). In these circumstances, condition 8101 (that the visa holder must not engage in work in Australia) is mandatory: cl 050.613A. Clause 050.613A also prescribes that certain conditions may be imposed, including the conditions referred to in the delegate’s decision (conditions 8207, 8401 and 8505). In addition, cl.050.618 provides that, in addition to any other condition imposed by another provision of the relevant Division, condition 8564 (not engage in criminal conduct) may be imposed.
As referred to above, while the delegate indicated that conditions 8101, 8207, 8401, 8506, and 8564 were to be imposed if the applicant was granted a BVE, the delegate was not satisfied that the applicant will abide with conditions 8101 (no work) and 8564 (must not engage in criminal conduct).
The applicant has not made any submissions regarding the conditions considered by the delegate. The applicant’s evidence and submission relate to his ability and willingness to comply with conditions to be imposed, if granted a BVE.
Given my findings below, I consider that if the BVE is granted, the following conditions are to be imposed:
·8101 – The holder must not engage in work in Australia. This is a mandatory condition.
·8506 – The holder must notify the Department of change of address. This is in view of the applicant’s past disengagement with the Department regarding his visa status and unlawful status.
·8564 – The holder must not engage in criminal conduct. This is in view of the applicant’s past and pending criminal offences.
Whether the applicant will abide with conditions
In considering this issue, I have considered the applicant’s past conduct, his evidence in his BVE application and at the hearing, his mother’s and [Mr A]’s evidence at the hearing, and documentary evidence in support of his review application.
The applicant is a [Age]-year-old Chinese national who came to Australia on a student visa in 2018. At the hearing, the applicant stated that his student visa was cancelled on 18 October 2023. He claimed that while he was aware that his student visa would expire in March 2024, he was not aware that it was cancelled in October 2023 and that he only became aware of this fact when he was detained on 29 July 2024. During the hearing, the applicant’s evidence indicated that the reason he was not aware of the cancellation of his student visa was because he had failed to inform the university and the Department of the change in his contact details and therefore did not receive the notice of cancellation of his course of study or student visa.
While I am willing to accept that the applicant may not have received notice regarding the status of his enrolment at the university or his student visa cancellation in October 2023, his evidence is that he was aware that his student visa was valid until March 2024, meaning that he was well aware that if he did not apply for a further visa or depart the country, he would become unlawful. At the hearing, the applicant made references to having visited the Department’s Paramatta office in February 2024 to apply for a further student visa, which was refused. As noted at the hearing, there are no records of the applicant having lodged a further student visa which was refused or found to be invalid.
I do not accept the applicant’s evidence that he tried to apply for a further student visa in February 2024. I find that the reason the applicant remained unaware of the cancelation of his student visa in October 2023 was due to his failure to comply with his obligation to update his contact details with the Department which resulted in him having remained in Australia unlawfully since October 2023.

Regarding his family in China, the applicant has consistently claimed that his parents, successful business owners in China, have supported him financially. They have paid for his tuition as well as providing him financial support for his expenses while residing in Australia. At the hearing, the applicant stated that his sister also studied in [Country], supported by his parents, and that she has completed her studies and returned to China where she currently works. The applicant stated that in addition to his tuition fees, his parents sent him an amount of AUD5000 per month, on a regular basis, to pay for his accommodation and other expenses, and that this amount was reduced when he visited China and remained there for extensive period due to COVID-19 pandemic travel restrictions. The applicant’s mother’s evidence corroborated the applicant’s evidence in this regard. The applicant’s mother confirmed that she continues to operate a business with her husband, and they are willing to continue to provide the applicant with ongoing financial support, as they can do so given their financial circumstances.
At the hearing, I asked if the applicant had engaged in any form of employment while in Australia. The applicant said that he worked at a Chinese warehouse illegally and was paid the minimum wage in cash. The applicant said that the reason he worked was to practice English and gain social skills. Later during the hearing, with reference to having gambling problems in the past, the applicant said that he worked because he owed people money and that he has now repaid all his debts. When this inconsistency in his evidence was put to him, the applicant explained that he did not want to admit that he owed money to people to the Tribunal and that part of the reason he worked was also to improve his English language abilities.
I noted that the delegate’s decision indicates that he has provided inconsistent evidence about his financial circumstances in the past and that I was concerned that despite receiving money from his parents, he felt the need to work illegally and that this may cause me to find that he will continue to work illegally if granted a BVE. The applicant reiterated that he would not engage in any conduct that would be against his visa conditions and that the information provided to the Department, which appears to be inconsistent, was due to the manner he was questioned and how he answered the questions.
I accept that the applicant has had significant financial support from his parents in the years that he has resided in Australia. I accept that despite this financial support, he has worked in Australia and that this may have been due to his gambling activities and to earn money to repay people he owed money to.
The issue before me is whether the applicant will abide with the above-mentioned conditions, if granted a BVE.
While I have concerns about the applicant’s past conduct and disregard for Australian laws and obligations imposed on him as a visa holder in Australia, considering the applicant’s and his witnesses’ evidence at the hearing, I have concluded that the applicant will abide with the conditions that are to be imposed on his BVE.
I accept that the applicant will continue to receive adequate financial support from his parents on a regular basis, as he has in the past. I accept [Mr A]’s evidence that he has been approached by the applicant’s family to offer the applicant with guidance and support. [Mr A] has offered his support, including explaining the consequences of the applicant’s past actions and the impact that this will have on his status and outcome of his criminal offences. [Mr A] is willing to offer the applicant continued support and guidance, accommodating the applicant at his house and ensuring that he complies with conditions imposed on his visa. At the hearing, [Mr A] indicated that he will be very involved in the applicant’s financial circumstances, including monitoring his expenses, and that the applicant’s parents have agreed to provide [Mr A] with funds for any additional expenses that the applicant may incur due to his criminal proceedings or otherwise. The applicant’s mother also expressed willingness to provide the applicant with all financial needs indefinitely and that the family are in apposition to make such commitment.
Considering the evidence before me, the applicant’s circumstances has changed since prior to his detention. On release from detention, he will be residing with [Mr A], a practising lawyer, who will be offering him guidance and assistance with resolving his pending criminal matter and monitoring his financial circumstances. [Mr A] will be in contact with the applicant’s parents in China who are now aware of the applicant’s circumstances and will be providing him with any additional financial support that he may need. I accept that the applicant has not gambled since his arrest in November 2023 and has learnt from his experiences of having been fined and detained. Given the applicant’s circumstances, I am satisfied that, at the time of this decision, the applicant has no reason to engage in, and will not engage in, employment in breach of his visa condition and will comply with a no work condition.
While I have concerns about the applicant’s lack of engagement with the Department in the past, I accept that the applicant has greater understanding than he did in the past about the importance of holding a valid visa, discharging his obligations to notify the relevant authorities or institutions about his current contact details, and that a failure to do so may lead to his detention. In addition, I accept that [Mr A]’s influence and guidance will also play a role in the applicant ensuring to provide the Department with his up-to-date contact details/address. Despite his past conduct, I am satisfied that, at the time of this decision, the applicant would comply with a condition to notify the Department of changes in his address.
The applicant was released on bail in July 2024. He currently remains on bail and at the hearing, the applicant and [Mr A] gave evidence that the charges were as a result of some text messages that the applicant sent to his landlord trying to have his passport and belongings returned to him. Regardless of the circumstances that led to him committing and being charged of the offence, the fact remains that the applicant committed an offense and that a criminal matter is ongoing in relation to that offense.
Considering [Mr A]’s evidence, which I accept, I consider that the applicant has a greater understanding that he is not to engage in any criminal conduct when dealing with disputes, that he regrets his past behaviour, and that it is highly unlikely that the applicant will reoffend or engage in any further criminal activity given that he remains on bail and needs to face court regarding his criminal charges. I also consider that the applicant has a greater understanding of the consequences of his disregard for the law in Australia, given his detention and criminal conviction, and that [Mr A] has provided him with an explanation of the adverse consequences that engaging in any further unlawful activities will have on his criminal and visa status in Australia. On the evidence before me, I am satisfied that, at the time of the decision, the applicant would comply with the condition of not engaging in criminal conduct.
CONCLUSION
On the evidence before me, I am satisfied that the applicant will abide by all the conditions imposed on the BVE if granted. Therefore, the applicant meets cl 050.223.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in 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; and
The Tribunal also orders the primary decision maker to indicate to the applicant that:
·conditions 8101, 8506, 8564. will be imposed if the visa is granted.
Date of hearing: 15 November 2024