2444616 (MIGRATION) - [2024] ARTA 160

2444616 (MIGRATION) [2024] ARTA 160 (6 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2444616

Tribunal:General Member M Brereton
Place:Melbourne
Date: 6 December 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.

Statement made on 06 December 2024 at 12:16pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – no work condition – period of unlawful residence and employment – reporting to the police – domestic violence charge – decision under review set aside
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.211. 050.212, 050.223, 050.613; Schedule 8, Condition 8101
CASES
Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2003) 70 ALD 289; [2003] FCAFC 73
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 18 November 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). The primary criteria relevant at the time of decision include cl 050.223.
The decision to refuse to grant the visa was made on 18 November 2024. The delegate was satisfied that the applicant met the time of application criteria at cl 050.211 and 050.212. The delegate was not satisfied at the time of decision that the applicant will comply with the mandatory no work condition (Condition 8101) and consequently, did not satisfy cl 050.223.
The applicant appeared before the Tribunal on 2 December 2024 to give evidence and present arguments. The applicant has consented to an extension of time to 6 December 2024 to complete the review.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate found that the applicant satisfied cl 050.211 and 050.212 at the time of application. The Tribunal finds that the applicant continues to satisfy those clauses at the time of this decision.
The issue in this case is whether if the bridging visa were granted to the applicant, he would abide by the conditions imposed on it. The conditions imposed by the delegate are:
a.8101, a mandatory condition that the applicant must not engage in work in Australia;
b.8207, that the applicant must not engage in any studies or training in Australia;
c.8401, that the applicant must report at the time or times and at a place or in a manner specified, orally or in writing, by the Minister from time to time;
d.8506, that the applicant must notify Immigration at least two working days in advance of any change in the holder’s address; and
e.8564, that the applicant must not engage in criminal conduct.
Whether the applicant will abide by conditions - cl 050.223
Clause 050.223 of the Regulations requires that the Tribunal be 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. 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 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 Minister for Immigration and Multicultural Affairs (2003) 70 ALD 289; [2003] FCAFC 73, [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 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 in a class of persons specified by the Minister by instrument in writing for this clause. This clause prescribes that condition 8101 must be imposed and that certain other conditions may be imposed. The delegate found that conditions 8207, 8401, 8506, and 8564 should also be imposed. The Tribunal is satisfied that these conditions are appropriate and should be imposed.
Condition 8101 – the applicant must not engage in work in Australia.
The applicant became an unlawful non-citizen in 2017 but remained in Australia until he was taken into detention. He admits that he engaged in full time work up until the COVID19 pandemic, despite knowing he was not entitled to do so. He told the Tribunal that his work slowed down because of the pandemic, and he relied on support from his family in India and friends in Australia at that time. He said that later on he was able to work a little on a casual basis, but this was only occasionally.
The Tribunal put to the applicant that he had told the delegate he had no savings or assets in Australia. The applicant confirmed that this is correct.
The Tribunal put to the applicant that he had told the Tribunal his father is missing and that this is part of the basis of his protection visa application. The Tribunal asked how the applicant’s family will be able to help support him if the father is missing. The applicant said that the family has a large farm with workers and although they are not rich, the farm can still operate without the father’s presence. The applicant said that his mother will be able to help him for up to a year and that he understands he may be able to apply for work rights in six months or so. He said that he will definitely not work if he does not have work rights.
The applicant said that he has a letter from friends in Australia who are willing to help him with accommodation and support. He did not have this letter at the time of the interview with the delegate and did not have it at the hearing but said that he will send it to the Tribunal. Following the hearing, the applicant provided the Tribunal with letters of support from persons in Australia. [Ms A] provided a character reference for the applicant, stating that she has known him for three years. [Mr B], the owner of [Business 1] in Queensland, states that he has known the applicant for five years. He states that he is willing to support the applicant financially and help provide accommodation while he is going through the visa process.
During the hearing, the Tribunal put to the applicant that he had remained in the country as an unlawful non-citizen and had worked in full time employment, despite knowing that he did not have permission to do so. The applicant conceded this and said that he understands there will be a no work condition if he is released and that he will definitely abide by it.
The Tribunal is troubled by the long term and ongoing nature of the breaches and is satisfied that these were deliberate breaches of the migration law. On the other hand, the Tribunal notes that the applicant has now been in immigration detention and is aware of the significant consequences that may flow from further breaches, including consequences for his protection visa application. He told the Tribunal that he will report to police, keep the Department informed of contact details, and consents to any measures the Department may want to use to monitor his compliance with the no work condition. He has also provided documents that support his claim to be able to access support and accommodation in Australia.
Having considered the above, the Tribunal is satisfied that, if the Bridging visa is granted, the applicant will abide by Condition 8101.
Condition 8207 – the applicant must not engage in any studies or training in Australia.
The applicant has not expressed any interest to study or train in Australia. The Tribunal is satisfied that, if a bridging visa were granted to the applicant, he will abide by Condition 8207.
Condition 8401 – the applicant must report from time to time as specified;

Condition 8506 – the applicant must notify Immigration of any change in his address.
The applicant did not engage with the Department from 2017 until he was detained in 2024. This is a period of seven years during which he was knowingly an unlawful non-citizen. When asked why he did not engage with the Department after he became unlawful, he said that he listened to people who said it was better not to. He said that if he was released, he will report to the police and/or the Department and will keep his contact details updated. The Tribunal takes into account the applicant’s openness and apparent honesty at the hearing, and his understanding that breaching these conditions may have significant consequences for him. The Tribunal is satisfied that the applicant will comply with Conditions 8401 and 8506.
Condition 8564 – the applicant must not engage in criminal conduct.
The applicant has been charged with a domestic violence offence and is the subject of a domestic violence order (DVO). He has been directed to attend training and counselling and told the Tribunal that he has been complying. He told the Tribunal that he has not been charged for any other offences in the past and that there are no outstanding police or court processes. The Tribunal has no other information before it that indicates the applicant has a criminal history or has engaged in offences other than the breaches of the Act. The Tribunal is satisfied that the applicant will comply with Condition 8564.
Conclusion
Having considered all of the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa 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 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.

Date(s) of hearing: 2 December 2024
Representative for the Applicant: None