2503453 (Migration) - [2025] ARTA 960

2503453 (Migration) [2025] ARTA 960 (11 February 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2503453

Tribunal:General Member H Kim
Place:Sydney
Date: 11 February 2025
Decision:The Tribunal affirms the decision under review

General Member H Kim
Statement made on 11 February 2025 at 8:25AM.
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – period of unlawful residence – applicant imprisoned for drug convictions – relationship ceased – gambling addiction – decision under review affirmed
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.614, 050.618, 050.619, 051.211; Schedule 8; r 2.20
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 21 January 2025. 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 the time of decision criterion cl 050.223, that the Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
The decision to refuse to grant the visa was made on 24 January 2025 on the basis that the delegate was not satisfied that the applicant will comply with the following conditions imposed on the visa, if the visa is granted:
·Mandatory condition: 8566 – must not breach the code of behaviour
·Discretionary conditions:
o8401 – must report at the time and a place or in a manner specified by the Minister from time to time
o8506 – must notify Immigration at least 2 working days in advance of any change in the holder’s address
o8564 – must not engage in criminal conduct
The applicant appeared before the Tribunal on 7 February 2025 by video from [a named] Detention Centre to give evidence and make submissions. The applicant did not request an interpreter and he gave evidence in English. He demonstrated a competent level of English language skills. Upon his express requests, I repeated or rephrased the question to which the applicant confirmed he understood. In the circumstances of this case, I am satisfied that the applicant was afforded a reasonable opportunity to present his evidence at a hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old male citizen of Iran, who has never been married. He does not have any family in Australia. He has a close friend and workmate, ‘[Friend A]’, who lives in Sydney and is of Iranian background. He has 3-4 close friends in Adelaide including ‘[Friend B]’ who is also of Iranian background. His mother lives in Tehran, Iran.
The Department’s decision record sets out the applicant’s Australian immigration history in detail. In summary, he arrived as an Unauthorised Maritime Arrival (UMA) to Christmas Island [in] March 2013. He was subsequently released into the community in Australia upon grant of a Temporary Safe Haven (class UJ) (subclass 449) visa and a Bridging E (class WE) (subclass 050) visa [in] May 2013. He was granted 2 further Bridging E visas on 28 August 2013 and 8 August 2015, and another 3 Bridging E visas between 17 October 2016 and 7 April 2017.
On 2 August 2017, the applicant applied for a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV). On 9 August 2017, he was granted his 7^th Bridging E visa.
On 8 June 2021, the applicant’s SHEV application was refused by the Department. He applied for merits review of the Department’s refusal decision to the Immigration Assessment Authority (IAA). [In] August 2021, the IAA affirmed the Department’s decision.
[In] September 2021, the applicant applied for judicial review of the IAA decision at the Federal Circuit and Family Court of Australia (FCFCOA). [In] September 2021, his Bridging E visa ceased. He did not subsequently apply for another Bridging E or any other visas and he remained in the community as an unlawful non-citizen. His judicial review proceeding is ongoing.
The material before the Tribunal including the applicant’s Bridging E visa application of 21 January 2025 and the Department’s decision record of 24 January 2025 provide that [in] April 2023, the applicant was remanded into criminal custody having been charged with drug offences. [In] November 2024, the applicant was convicted of Take part manufacture prohibited drug >= large comm qty and Supply prohibited drug > indictable & < commercial qty -T1, and sentenced to [term] imprisonment, commencing [in] April 2023, concluding on [date], with a non-parole [period]. Upon release from criminal custody [in] January 2025, the applicant was transferred to [the detention centre] where he currently remains.
At the hearing, the applicant stated that he first lived in Adelaide when he was released into the community in 2013. He moved to Sydney in around August 2016 and lived at an address in [Suburb 1] for about 5 years in a shared house. He then lived at a granny flat in [Suburb 2] for about 1.5 years from July 2021 to end of 2022. His last address in Sydney before being criminally detained was at a house he rented in [Suburb 3] where he lived from January to April 2023 by himself.
He worked as [an occupation 1] since arriving in Sydney. He claimed that he had about AUD 19,000 saved in an Australian bank account but as the police was going to close his account, he transferred his money to [Friend B] to keep for him. He also claimed that [Friend A] holds about AUD 18,000 for the applicant from the sale of the applicant’s belongings in Sydney. If he is granted the Bridging E visa, he would like to go to Adelaide as he has more friends there, but if he must stay in Sydney, he can stay with [Friend A]. The applicant claimed that [Friend B] and [Friend A] will support him in the community.
The applicant was represented at the time of lodging his Bridging E visa application online. However, apart from the information in the visa application, neither he nor his then representative provided additional documents in support of his application. He attended an interview with the delegate on 23 January 2025. He confirmed that he was not represented by anyone before the Tribunal, he applied for the review himself online and that he did not seek legal advice from another lawyer or was assisted by anyone. He did not provide any additional documents in support of his application to the Tribunal. The applicant’s evidence at the hearing and information from the available written material before the Tribunal are referred to below where relevant.
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. 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: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [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.
As set out above, the applicant has applied for a judicial review of the IAA’s decision in respect of his SHEV application to the FCFCOA [in] September 2021 and that FCFCOA matter has not been finalised.[1] On the information before the Tribunal, I accept that the applicant has made a valid application for a substantive visa in Australia that can be granted if the applicant is in Australia, that he has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings have not been completed. Accordingly, he meets cl 050.212(3A). It follows that cls 050.614 and 050.618 apply in this case. These clauses provide that condition 8101 or 8116 apply if either applied to the last visa held by the applicant; any 1 or more of conditions 8104, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8509, 8510, 8511, 8512 and 8548 may be imposed; and in addition to any other conditions, condition 8564 may be imposed.
[1] [Citation deleted.].
The material before the Tribunal indicates that the last visa held by the applicant in this case was a Bridging E visa granted on 9 August 2017 and ceased [in] September 2021, and neither condition 8101 nor 8116 applied to this visa.[2]
[2] As recorded in the Australian Border Force Field Operation Located Person Interview notes of [dates in] December 2024 and [January] 2025.
The material before the Tribunal, as confirmed by the applicant, indicates that he has signed a Code of Behaviour in 2014 and more recently on 22 January 2025. The Code of Behaviour states, among other things, that the declarant must not disobey any Australian laws and must not take part in, or get involved in, any kind of criminal behaviour in Australia, and by signing the declaration the applicant agrees to abide by this Code of Behaviour while he is living in Australia on a Subclass 050 Bridging visa. It follows that cl 050.619 applies in this case and the mandatory condition 8566 must be imposed.
As discussed with the applicant at the hearing, I consider the mandatory condition 8566 must be imposed and the discretionary conditions 8401, 8506 and 8564 should be imposed in the circumstances of this case. These are the same conditions considered by the delegate and the conditions that were imposed on the applicant’s last held Bridging E visa. At the hearing, I explained the conditions to the applicant and asked whether he had any comments on whether or not these conditions should be imposed. The applicant confirmed that he understood the conditions and that he agrees to those conditions being imposed ‘because there is no bother’.
The applicant confirmed that he had signed a Code of Behaviour in 2014 and that he knew that it required him, among other things, to not disobey any Australian laws and not take part or get involved in any kind of criminal behaviours in Australia while living in the community.
The applicant also confirmed that he pleaded guilty to the drug offences and was convicted in November 2024. He explained the circumstances leading to his offending, which can be summarised as follows:
a)2022 was a very bad year for him because his partner of 6-7 years left him with her daughter whom he had grown to love as his own child. He was broken and lost because she told him that she only used him and didn’t love him. This was the year during which there was chaos in Iran. The applicant still didn’t have a visa in Australia. He felt lost and broken and became addicted to gambling. He would go to casino and lose money.
b)At a time when he felt he had no reason to live, he met a person who said if the applicant gets a house, the person will pay the rent. The applicant saw this person as someone who was willing to help him. He rented the [Suburb 3] house in 2023. The person did not live at the house with the applicant.
c)The applicant saw that this person was manufacturing drugs and told them that he did not want this. However, the person told the applicant he has to let them continue and tried to scare him. The applicant was still gambling at the time so when the person gave him money, he just went gambling and let them continue.
The applicant was convicted to [term] imprisonment with a non-parole [period]. The lengthy imprisonment sentence demonstrates the seriousness of the applicant’s offences. While I acknowledge that this was the applicant’s first offence and he pleaded guilty admitting to his offending, this does not refute the fact that he did disobey Australian criminal laws and did take part in criminal conduct while living in the community. The seriousness of the offences, as well as his offending while he was unlawfully resident in Australia, raises concerns about the applicant’s disregard for complying with and abiding by Australian laws. Even if I take into account the applicant’s claim that he did not know he was unlawfully residing in the community until he was taken into criminal custody, his last visa was a Bridging E visa which is not a substantive visa with a right to reside in Australia and his evidence indicates he knew he had to adhere to certain behaviours whilst living in the Australian community. His concession that he knew crime was being committed in his home, but he did not do anything because the person tried to scare him, yet he continued living in the home and continued with his gambling, raises concerns about his wilful ignorance to criminal activities.
In response to these concerns, the applicant stated that he has nothing to say and he has no excuses because at that time, he did not respect Australian laws. He repeated that he was broken, he didn’t love himself and he didn’t want to live. He admitted that he deserved to be in prison for his mistake, but he is now tougher and he wanted to show himself. He was not going to waste or lose this last chance.
I accept that admission to his past mistake indicates some contrition. However, his evidence reflected personal regret and embarrassment about his weaker self in the past and appeared to blame his personal difficulties which he claimed he could not control, as the reason for offending. In particular, his characterisation of his own actions at the time – losing the will to live due to a relationship break-up, addiction to gambling and wilful ignorance to commission of serious crimes – as circumstances he could not control and something no one can handle did not in my view demonstrate an insight into the consequences of his serious criminal offending to the Australian community. Rather, his repeated focus on personal circumstances suggested he was trying to justify his non-compliance with laws.
Whilst stating that he learnt his lesson in prison, his evidence indicated that he had not participated in rehabilitation program specific to addictions, gambling or drugs. He claimed he was depressed in prison and he sought counselling for 2-3 months in 2023. The counsellor talked to him about living better and he found exercising helped. In prison, he participated in a fitness program for 6 months, music for 6 months and digital literacy. While I acknowledge these likely helped with the applicant’s mental health and self-development, they do not in my view demonstrate an understanding of the impact of his criminal conduct on the Australian community or any increased awareness in his responsibilities to abide by laws. His evidence demonstrates that he did not proactively engage in relevant rehabilitation or education programs about his offences and compliance with laws.
In relation to my concern what’s changed now about him that would ensure his compliance with laws, the applicant spoke about life being most important and what he wants from life, enjoying life and that he shouldn’t just kill time or days because something bad happens. Not only was this response general, but it also solely focussed on his self-interest. This is similarly reflected in his response to why he applied for a bridging visa, being that he just wants to be in the community because he is tired of being inside the walls and he served his time. He claimed that his support people – his friends [Friend A] and [Friend B] – will keep him on track because they have been contacting him constantly throughout his detention. He had lied to them about his gambling and losing himself when he was going through personal difficulties, and he believed had he not lied to them, they would not let him do these ‘stupid things’. While I acknowledge his desire to live in the community and the support of his friends may be an incentive to abide by the Code of Behaviour, laws and conditions, there is no persuasive evidence before the Tribunal that he may not become ‘lost’ or ‘broken’ again when he experiences difficulties in life, lie to his friends again and fail to comply with the laws or become wilfully ignorant to criminal behaviour.
Further, his complete lack of interest and obliviousness to the progress of his judicial review and his apparent lack of responsibility in his own visa status while in community and in his own legal proceeding add to my concern about whether he will proactively take responsibility to become aware of all the laws and conditions he must abide by and comply with them. He repeated throughout the hearing that he did not know he was unlawfully residing in the community nor anything about the status of his judicial review proceeding. He last spoke with his lawyer about the judicial review in 2021 or 2022 when he paid him AUD 3,500 to apply and get his Medicare and Bridging visa back, but he could not provide the lawyer’s details. He claimed that the lawyer told he will need to wait 18 months for court and that the lawyer will contact if anything happens. As the applicant thought he held a visa and the lawyer didn’t contact him, he himself never contacted the lawyer. He was not worried because he gave his details to the lawyer and that’s how he usually does it. He claimed that he was working and everything he did was legal in 2022. Even after the criminal conviction, he had not contacted the lawyer with carriage of his FCFCOA matter because the lawyer said ‘I will do it for you’ and he is not worried.
In relation to the visa condition to notify the Department of his change in address in advance (condition 8506), the applicant claimed that he did not know he had to do this. As to the condition 8401 to report to the Minister as specified, the applicant was not sure if he had to do this. He claimed that his Adelaide lawyer did everything for him, but the lawyer was not actually a lawyer and had his licence cancelled.
When asked about the Department trying to contact the applicant in September 2021 to invite him to regularise his immigration status, the applicant’s evidence was that at the time he lived alone in [Suburb 2] and when he went to his [Suburb 1] address he found the refusal decision in his mailbox, he then contacted his lawyer and led to him finding another lawyer in Sydney to apply for judicial review. He did not seek to contact the Department himself for information or to regularise his immigration status. His evidence appeared to deflect his own responsibility, claiming he didn’t know and that he left everything to his lawyers.

Based on the applicant’s responses set out above demonstrating a clear lack of interest and responsibility in his own immigration legal proceeding that would determine his ability to remain in Australia, I am not convinced he would keep engaged in learning, understanding and complying with his legal obligations and visa conditions. His responses above also demonstrate his tendency to deflect his own responsibility to others. He stated that he now does not rely on lawyers and he can and will do everything himself, but his own evidence illustrating his somewhat ignorant past behaviour throughout the lengthy residence in the community does not persuade me that he will proactively engage with his legal obligations and abide by the strict conditions.
In light of all of the above concerns, I am not satisfied that the applicant will abide by the mandatory condition 8566. I am also not satisfied on the evidence that the applicant will abide by the discretionary conditions 8564, 8506 and 8401.
The applicant claimed that he has cash funds of about AUD 37,000 held by his friends. He claimed that he could put AUD 20,000 as security to ensure his compliance. He also claimed that his mother in Iran, who wants to see him free one more time, is an incentive for him to not do anything bad. He stated that he is not a bad person and he just did bad things. I have considered these comments, but I note that there is no corroborating evidence as to the existence of these funds. Further, while I acknowledge his evidence about his relationship with his mother as an incentive, I note that this did not prevent him from engaging in criminal conduct, not taking responsibility to be aware of his own immigration status and compliance with visa conditions. As discussed above, I note that even after being in criminal and immigration detention, his remorse appears to be focussed on self-interest, he appears to be shifting the blame on others and circumstances for his offending and non-compliance, and he is still oblivious as to the status of his judicial review proceeding nor has he proactively sought to understand his responsibility in relation to his immigration legal proceeding. Having considered the totality of the evidence before the Tribunal, I am not satisfied that any amount of security will act as an incentive for the applicant to abide by the visa conditions imposed.
On the evidence before it, the Tribunal is 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. Clause 051.211 requires that the applicant is an eligible non-citizen referred to in reg 2.20(7), (8), (9), (10) or (11). There is no information before the Tribunal that the applicant is a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations. Therefore, the applicant 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.
Date(s) of hearing: 7 February 2025