2506067 (Migration) - [2025] ARTA 376

2506067 (MIGRATION) [2025] ARTA 376 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2506067
Tribunal:General Member S Collins
Place:Melbourne
Date:  4 March 2025
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; and
The Tribunal also orders the primary decision maker to indicate to the applicant that:
· conditions 8401, 8506, 8564, 8566 will be imposed if the visa is granted.

Statement made on 04 March 2025 at 12:41pm
CATCHWORDS
MIGRATION – Subclass 050 (Bridging (General)) visa – Subclass 050 (Bridging (General)) – compliance with conditions of visa – student visa cancelled and period as unlawful non-citizen – work without rights and establishment of own company – criminal charges and immigration detention – application for protection visa refused, and application for review made – financial support from friend – partner and child, and second pregnancy – no application as member of family unit of partner made – no other criminal history or aggravating circumstances – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223, Schedule 8, conditions 8101, 8564
CASE
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 11 February 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).
The decision to refuse to grant the visa was made on 14 February 2025 on the basis that the delegate was not satisfied that the applicant would meet the conditions imposed in clause 050.223, in particular, conditions 8101(no work) and 8564 (no criminal conduct).
The applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was not represented in relation to the review although a representative provided the Tribunal with submissions in writing.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will meet cl 050.223.
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].
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 not breach behaviour (8566) and the following discretionary conditions ought to be imposed on the BVE, if granted:
• 8401 Report as Directed
• 8506 Notify Change of Address
• 8564 Not Engage in Criminal Conduct.
Background
The applicant was born in [Year] in China. He completed high school and found work, mainly in [Country], as [an occupation]. He was [Age] when he arrived in Australia on a student visa. He studied English for about 6 months and then quit it because, he said at the hearing, he was struggling financially. His visa expired in July 2021.
He has a partner in Australia with whom he has a child. Their first child is about [Age]. His partner is pregnant with their next child. His partner is also from China and she is in Australia under a 485 visa.
The applicant was outside of immigration control from mid-2021. On [Day] January 2025, he was arrested by police and charged with possession of ketamine, and attempted trafficking. He said he was searched along with others, and arrested at a popular night club in China Town in the Melbourne CBD indicating that he was not targeted by, or of special interest to, the police. His first appearance in court will before the magistrates court [in] March 2025.
However, on his arrest, from [Day] January 2025, the applicant has been detained in Melbourne Immigration Transit Accommodation. On 13 January 2025, he applied for a protection visa. On 28 January 2025, the delegate refused his application for a protection visa. He set down an application to the Tribunal for a review of that decision on 4 February 2025.
On 11 February 2025, the applicant also submitted an application for a bridging visa pending the determination of his application to the Tribunal. That application was received by the department at 19:45 on the evening of 11 February 2025. Accordingly, the “within two working days” time limit did not commence until the next morning when Department officers became aware of the application in the morning of 12 February 2025. The delegate interviewed the applicant on 13 January 2025 and then made a decision rejecting the application on 14 February 2025.
Statement 21 Jan 2025
The applicant provided the department with a statement in support of his application dated 21 January 2025:
2. I entered Australia in 2018 holding a Student visa, which was cancelled in 2021. I have been unlawful in Australia since that time.
3. I have run a [Work sector] business since the end of 2019. The company name is [Company name] Pty Ltd. I am the director, secretary and the largest shareholder. For the period between end of 2019 and [January] 2025, I have financially supported myself by using the business revenues to cover rents, utilities and household expenses.
4. I was detained on [Day] January 2025, since when my business has been suspended. However, my friend [Mr A] sent $ 50,000 money transfers into my ANZ personal account on 15 January 2025 as financial support.
5. If a condition 8101 imposed on a BVE, I will abide by this condition by not working in Australia. I earlier ran a business because I did not have a visa, so there was no such condition I need to comply with. Now my friend [Mr A] gave me $50,000 as financial support, so I have funds to support my stay in Australia. Now I know that if I breach a visa condition, my BVE may be cancelled. It would be an adverse information when I make an application for a further visa to Australia in the future and it would result in my living apart from my partner and my children for an uncertain period. In addition, I have financial support from my friend [Mr A], so I do not need to worry about the finances. I do not have a reason for taking a risk of breaching this visa condition and living apart from my family for a longer period.
6. If a condition 8401 imposed on a BVE, I will abide by this condition and I will 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. I admit that I did not think seriously about my visa status and I did not find a way contacting the Department. However, my current circumstances are significantly different from my previous circumstances. Now I have a new born [child] here.
My partner is pregnant again. As what I claim above, I now do not have a reason for taking a risk of breaching this visa condition and living apart from my family for a longer period. In addition, in the BVE decision record dated 9 January 2025, the officer found I did not take the opportunity to lodge an application for a subclass 485 visa as a member of the family unit of [Ms B] and she found I “intentionally continued to reside in the community as an unlawful non-citizen”. The reason why I did not make such application is that I thought I did not meet the visa requirements because I did not hold a valid visa in Australia. I did not intentionally continue to reside in the community as an unlawful non- citizen. After my [child] was born by end of last year, I absolutely intended to regularise my visa status because I wanted to stay with my family in Australia. However, as an unlawful non-resident, I thought I was not eligible to the grant of any substantive visa.
7. If a condition 8506 imposed on a BVE, I will abide by this condition and I will notify Immigration at least 2 working days in advance of any change in my address. First, I do not remember whether I notify Immigration before I changed my address when I was holding a Student visa. However, I think the Student visa was not subject to this condition. Second, the reason why I did not notify Immigration regarding any change in my addresses is that I did not hold a visa in Australia and I did not think seriously about my visa status. But as what I claim above, my current circumstances are totally changed as my [child] was born in Australia, my partner is pregnant again and I will not take a risk of breaching this visa condition and living apart from my family for a longer period. Third, on the Protection visa application internet form, I provided all residential addresses from 2005 to 2025. It shows my intention to disclose my addresses.
8. During the interview dated 8 January 2025, I was asked by the officer whether I studied in Australia. I answered that I studied for around one year in Australia. I did study in Australia after my arrival in 2018. I did study in a language school before the course commenced. When I was asked that question, as I remember I studied in the language school for around one year, so I answered. I did provide true information according to my memory though I can’t absolutely assure my memory is correct.
9. I made an application for a BVE (subclass 050) on departure grounds on 6 January 2025.I was told by my agent I can only apply for this BVE (departure grounds) if I need to leave the detention. After I received this information from my agent, I accepted my departure as long as I could meet and take care of my partner and my [child] before I leave. This is the reason why I made an application for a BVE. I have a court hearing [in] March 2025, so I was thinking of making my departure arrangements after I attend the hearing because I did not know whether I need take further actions following the hearing.
10. However, I did not have any knowledge whether a visa condition requiring my departure within a specified timeframe will be imposed on a BVE. And I neither knew about how long a BVE will remain valid. Therefore, I was thinking of applying for a new visa for looking after my partner and my [child] for a while if I can. However, if I can’t do it because of visa conditions imposed to a BVE, I absolutely will comply with the conditions and leave Australia within timeframe.
11. During the interview, the officer did not talk regarding visa conditions will be imposed to a BVE and duration of a BVE. I stated I need to leave the detention centre because my partner is in less than 3-month pregnancy and I need to look after her. This was the true information. I also stated that I will apply for a visa after I left the centre, and if I can’t get a visa, I will take his [child] to depart Australia. This was also the true information. I did not say things to enable my release from detention. What I stated was that I will stay with my family in Australia complying with visa conditions and visa duration, and I will leave Australia if visa conditions and visa duration requires me to do so.
12. I told an ABF officer that I did a part time work at a [workplace] in 2023 during an interview on 5 January 2025. I admit that I provided incorrect information. The reason is that I was extremely nervous and afraid when I was just detained on the day, so I was out of my mind However, during the next interview and the interview on 8 January, I provided correct information that I did part time work at a [workplace] when I held a Student visa.
Interview
The applicant was interviewed by the department on 13 February 2025. These are the notes made of the applicant’s answers:
What is the court hearing regarding?
Regarding drugs, possession of drugs and they want to take me to court [in] March.
Was this the reason why you were detained because you were caught with drugs?
Yes, because at that time I bought some drugs for my own use and I was caught with drugs on me. I was caught in china town in Melbourne. I was in the KTV the police came and were doing some regular checks and I was caught.
Have you ever worked in Australia? What work / dates, employer name, pay, etc. cash in hand?
Yes I set up my business in 2020 and I have been doing that a long time and still on going. If I can get a BVE I know I cannot work and I won’t work anymore ad I don’t want to bring on any trouble on myself or my family.
Have you been working since you set up your business and since you were detained?
Yes I was working until I was detained. But I do not work I invest money into that business.
What kind of business is it?
[Work sector] business – the name is [Company name] PTY LTD
What do you mean you invested in it?
I set up a business and then I just run a business and I only receive bonus. Before the business I was working at a [workplace] for a day or 2.
…
What made you start the business? Where did you get the idea to do that?
At that time I was on my student visa and I think I was introduced to this business through my friend and then I started the business.
How much do you make from the business?
It varies it’s based on the performance over 3 months so weekly it works out to be over $1000 a week sometimes more sometimes less.
Do you have any involvement with the police since you arrived in Australia?
Prior to that I had gone to court for DV against my previous partner. That was in 2019-2020. Also have the upcoming court case in March.
At the hearing, the applicant said that he was effectively a contractor handing out [occupation] subcontracts to others. He said he did not think he was working because the work was casual and part-time.
In this case, the delegate considered the applicant’s immigration history and his criminal offending. After doing so, the delegate was not satisfied the applicant would abide by any of these conditions. The delegate had good reasons to be concerned whether the applicant would comply with any conditions on the evidence before them: the applicant does not have a good immigration history largely because there was a long period when he was living in Australia outside of immigration control; he had what appeared on the face of it to have committed serious offences; and he been employed in breach of immigration control.
As VAAN makes clear, when considering an application for a bridging visa and conditions, the question is not just what, if any, conditions should be imposed but whether the Tribunal can be 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 relevant considerations may include the applicant’s past immigration history.
The decision in this case is very much on the border line. On the one hand, the applicant has committed criminal offences and, following the expiry of his student visa in mid-2021, he has an unimpressive immigration compliance history.
On the other hand, the criminal offending does not appear to be serious. He has been charged with magistrate-court-level possession charges. There appear to be no aggravating circumstances. He has no other criminal history.
His failure to abide by immigration control following the expiry of his student visa and his employment thereafter are more concerning. The applicant explained that he did not consider himself employed as he did not earn a lot of money from this employment and it required little effort on his part. He said he felt obliged to support his partner and his new child but even so he should have regularised his immigration position rather than engaging in work in breach of immigration control.
Therefore, it is important that a friend provided him with AUD 50,000 (as the bank statements show) reducing substantially any motive to find work again in breach of immigration control and the conditions of any bridging visa.
The applicant understands that his arrest on [Day] January 2025 placed him in detention from [Day] January 2205 and that, if he is charged with other arrestable offences, he will be in detention again (in addition to criminal consequences for this offending).
The Tribunal accepts as genuine his sense of obligation to support his partner and their children and that he understands than any breaches of the conditions of any visa in the future may well mean detention and so make it difficult for him to discharge that obligation. Therefore, he is motivated to abide by any conditions.
On 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 050.223Clause 050.223 prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition should be imposed in the circumstances of this case. In addition to the mandatory condition of not breach behaviour (8566), the following discretionary conditions ought to be imposed on the BVE, if granted:
• 8401 Report as Directed
• 8506 Notify Change of Address
• 8564 Not Engage in Criminal Conduct.
Given these findings, the appropriate course is to set the decision aside and remit the visa application to the Minister to consider the remaining criteria for the visa.
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; and
The Tribunal also orders the primary decision maker to indicate to the applicant that:
· conditions 8401, 8506, 8564, 8566 will be imposed if the visa is granted
Hearing: 3 March 2025
Representative for the Applicant: Ms Xiangyue Hu