2506422 (Migration) - [2025] ARTA 477

2506422 (MIGRATION) [2025] ARTA 477 (26 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2506422
Tribunal:General Member N Goetz
Place:Melbourne
Date:  26 February 2025
Decision:The Tribunal affirms the decision dated 12 February 2025 under review.

Statement made on 26 February 2025 at 1:07pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – charged with criminal offences – had made an application for Ministerial intervention – wilfully acting in breach of the conditions of visa – not satisfied that the applicant will abide by conditions 8101, 8401 and 8564 imposed on the visa if granted – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 48
Migration Regulations 1994, Schedule 2, r 2.25, cls 050.211, 050.223, Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (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 merits review of a decision made under s 73 of the Migration Act 1958 (Cth) (the Migration Act) by a delegate of the respondent who refused to grant the applicant a Bridging E (Class WE) visa.
The Department file reference is [deleted].
The applicant was not represented in the review.
The respondent is taken to be a non - participating party in the review under s 348A of the Migration Act.
Background, procedural history and criteria for the visa
According to the bridging visa application form, the applicant is a male citizen of Vanuatu presently located in Australia.
Substantive visa application history
On 11 February 2020 the applicant was offshore and granted a Temporary Work (International Relations) (subclass 403) visa to come to Australia.
On [date] February 2020 the applicant arrived in Australia holding this visa which was valid until [date] July 2020.
On 22 July 2020 the applicant was onshore and applied for a Temporary activity visa (subclass 408) visa.
On 27 July 2020 the Temporary activity visa (subclass 408) visa was granted which was valid until 22 July 2021.
On 30 September 2021 the applicant applied for a protection visa. On 19 June 2024 a delegate refused to grant the applicant the protection visa.
Bridging visa application history
Between 23 July 2020 and 27 July 2020 the applicant held a bridging visa. The bridging visa ceased when the applicant was granted the Temporary activity visa (subclass 408) visa.
Between 24 August 2021 and 22 November 2021 the applicant held a bridging visa.
Between 22 October 2021 and 14 March 2023 the applicant held a bridging visa.
Between 14 March 2021 and 24 April 2023 the applicant held a bridging visa.
From 24 March 2023, the applicant became an unlawful non-citizen in Australia.
Criteria for the grant of the visa
On 4 February 2025 the applicant applied for the bridging visa that is the subject of the review. At the time the visa application was lodged. Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the grant of the subclasses are contained in Part 050 and 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 12 February 2025 the delegate refused to grant the visa, finding that the applicant did not satisfy cl 050.223 or cl 051.211. These clauses provided the following:
050.223
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.
051.211
The applicant is an eligible non - citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).
On 19 February 2025 the review application was lodged with the Tribunal.
On 21 February 2025 the Tribunal wrote to the applicant and invited him to appear at a hearing scheduled for 10am on 26 February 2025 occurring via MS Teams which the Tribunal determined was appropriate in all the circumstances.
On 26 February 2025 the hearing commenced and concluded.
CONSIDERATION AND CONCLUSION
The issue in the review is whether the applicant satisfies cl 050.223 or cl 051.211 of Schedule 2 to the Migration Regulations.
If the Tribunal finds the applicant satisfies either of these clauses, the correct or preferable decision is to set aside the decision refusing to grant the applicant bridging visa and remit the visa application for reconsideration.
If the Tribunal finds the applicant does not satisfy both of those clauses, the correct or preferable decision is to affirm the decision under review.
The Tribunal considered all the material on the Department file relevant to whether the applicant satisfies the criteria for the grant of the bridging visa.
The Tribunal considered all the material on the Tribunal file relevant to whether the applicant satisfies the criteria for the grant of the bridging visa, including the oral evidence and submissions made at the hearing.
For the following reasons, the correct or preferable decision is to affirm the decision under review.
Consideration of evidence
According to the bridging visa application form, the applicant is a male citizen of Vanuatu was born was on [date] in [Vanuatu], and that he was presently located in Australia. He provided a passport issued in his name on [date] 2021 by the authority of Vanuatu in support of his identity and citizenship. He detailed that he is in immigration detention.
The applicant detailed that he was seeking the bridging visa in association with ‘Ministerial Intervention.’ The applicant detailed that he was seeking permission to work. He detailed that he made a request to the Minister to intervene in his case on 25 November 2024.
The applicant provided a copy of a request by the applicant to Minister under s 48B of the Migration Act to lift the s 48A bar of the Migration Act. The applicant claimed that he will be physically harmed or killed in Vanuatu and is seeking protection in Australia.
Included with the request to the Minister were the following documents:
· A letter dated 25 November 2024 from [Mr A] of Vanuatu, identifying that he is a chief of particular communities in Vanuatu and was writing in support of the protection visa made by the applicant due to his family issues in Vanuatu.
· A letter dated 28 January 2025 from the office of the commander of [a] Police Patrol in [a] Province of the Vanuatu Police Force advising that the applicant’s father came to the police seeking assistance to seek assistance to ensure safety of the applicant. The letter detailed that the applicant had been involved with issues with [Ms B] of [a] village in Vanuatu and that if the applicant arrived at the airport in Vanuatu, the family of [Ms B] may do something to him. The letter was issued for the applicant to extend his stay in Australia due to a risk assessment and suggested the applicant remain in Australia until the situation cools down so the applicant can return to Vanuatu.
There is no evidence that the request to the Minister has been finalised at the day the Tribunal is making a decision on the review.
The applicant wrote in the bridging visa application form that he had been in an immigration detention centre since [November] 2024 following his release from prison where he had been imprisoned from [May] 2024 to [November] 2024. The applicant detailed that he had gained many certificates during his time in detention so he could be an active working member of society and needed a work permit while waiting for the outcome of his request to the Minister. The applicant further wrote that he served his time and accepted the consequence of his actions and needed to support himself in the community. He wrote that he complied and done personal work to better himself to be a lawful resident in Australia.
He declared that he had been charged with criminal offences. He detailed offences dated [in] May 2024 for intentionally caused bodily injuries, make threats to kill, and assault. He detailed that he was the subject of a domestic violence order for offences dated [May] 2024 which related to a domestic issue that escalated and resulted in imprisonment.
The Victorian criminal history report demonstrates that:
· On [date] November 2024 at [Court 1] the applicant was sentenced to a total effective sentence of 193 imprisonment for intentionally cause injury and make threat to kill.
· On [date] August 2021 at [Court 2] the applicant was sentenced to a fine for recklessly cause injury.
The criminal background check demonstrates that in addition to these offences, on 27 August 2020 the applicant was issued an infringement notice for failing to wear a face covering.
The criminal history report and the criminal background check noted other offences for which the applicant had been charged but had not proceeded. The Tribunal has disregarded any offending that was not proceeded with.
The criminal background check also demonstrates that on 6 August 2024 the applicant was issued with a domestic violence order which is valid until 6 August 2027. The check detailed the conditions that are imposed on the domestic violence order.
He declared in the form that he had overstayed his visa. He detailed that he applied for visas and was not aware of the outcomes and had been blind sighted but was doing his best to rectify the situation.
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.
As the applicant is in immigration detention, and s 48A of the Migration Act applies to the applicant because his protection visa application has been refused, the applicant cannot make a further application for a protection visa while he remains in Australia, and he has requested that the Minister intervene to lift the prohibition contained in s 48A of the Migration Act to enable him to make a further application for a protection visa, cl 050.211(5B) applies to him.
In circumstances where the applicant was an unlawful non-citizen for the period after the protection visa was finally determined until the time of the request to the Minister, cl 050.615A provides the following conditions to be imposed on the bridging visa if granted:
· Condition 8101 must be imposed unless condition 8116 is imposed.
· Condition 8116, 8201, 8401, 8505, 8506, 8507, 8508, 8511, 8512 and 8548 may be imposed.
In addition, cl 050.618 provides that in addition to any other condition imposed, the following condition may be imposed:
· Condition 8564.
The delegate decision record details that the delegate considered the imposition of Condition 8101, 8207, 8506 and 8564 on the bridging visa if granted to be appropriate in the circumstances. These conditions require the following:
·     8101:        The holder must not engage in work in Australia
·     8207:        The holder must not engage in any studies or training in Australia
·     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.
The Tribunal considers those conditions should be imposed on the bridging visa in the event that it is granted.
The applicant participated in an interview with the delegate on 11 February 2025 by delegate. A completed interview template detailing the questions asked and responses given by the applicant records what was said at the interview, and the responses are detailed in the decision record.
At the hearing, the Tribunal went through the conditions that would be imposed on the bridging visa and the applicant agreed to comply with them, however he also said that he needed to work after being released from immigration detention to support his family in Vanuatu. This was consistent with his declaration in the bridging visa application form that he was seeking permission to work.
Concerning the offending for which the applicant was sentenced to a fine on 3 August 2021, the applicant said that he kicked a fellow worker at a farm because that worker had damaged a vehicle and the employer said that all employees would be responsible for the costs of the repairs. The applicant said he was stressed and acted in anger because he was receiving little money from his employment and would therefore have no money if the applicant was required to pay for the damage to the vehicle.
Concerning the offending for which the applicant was sentenced [in] November 2024, the applicant said that the victim was his girlfriend at the time, [Ms B], concerning whose family in Vanuatu the request to the Minister had been made. He claimed that people were drunk and it was alleged that he had pushed her down the stairs but the applicant pleaded guilty get released. The applicant said he could not remember assaulting her but accepted what was claimed to have happened even through [Ms B] had pre-existing injuries which he attributed to her former partner. He was unsure the precise nature of the facts to which he pleaded guilty.
Concerning the circumstances of the offending on 27 August 2020 he told the Tribunal that he had moved his mask to the side of his face to speak to his father on the telephone while arranging a transfer of funds to his father in Vanuatu because his voice was muffled but he stood 5 metres away from people while doing so because of COVID. When asked why he had to speak to his father on the phone in public instead of making a telephone call at home, the applicant said that his father needed the account information.
The Tribunal asked the applicant how it could have confidence that he would comply with conditions when he had disregarded a requirement to wear a mask and had committed violence offences again after being sentenced for an earlier violent offence. The applicant said that he was apologetic and had learned from his mistakes while in prison and had undertaken various courses, such as a behavioural change programme and alcohol courses and that he had paid his fines and done his prison time to be a better person.
Despite agreeing to comply with the conditions attached to the bridging visa, the applicant said that he needed the bridging visa to work in Australia while the request to the Minister is being considered and needed to send money to family in Vanuatu. The Tribunal queried how the applicant would comply with Condition 8101 in those circumstances. The applicant said that he would financially support himself upon release from immigration detention because he had people in the community and some money in his account which should last for a week before he started working.
The delegate interview notes indicate that the delegate and the applicant had a discussion about conditions that were imposed on the Temporary activity visa (subclass 408) visa was granted on 27 July 2020 and suggested that the applicant had breached Condition 8107 because that required the applicant to work for his sponsoring employer. The applicant had told the delegate that he left his employer because of a wages dispute. The Tribunal asked the applicant what he did, assuming that was the case, to remedy his migration situation because he was no longer complying with his visa conditions. The applicant spoke about working elsewhere and applying for another Temporary activity visa (subclass 408) visa, but there is no record of him doing so.
The Tribunal noted that the applicant had been granted bridging visas on 22 October 2021 and 14 March 2023 and that those bridging visas had Condition 8101 attached to them. The applicant said that he had been working during this time but had been granted work rights. There is no evidence to corroborate this claim. The applicant said that it was the agent who was responsible for getting him work rights.
Concerning the question about whether the applicant was an eligible non-citizen for the purpose of cl 051.211, the applicant confirmed that he entered Australia holding a passport in the usual way visa holders enter Australia.
Findings and reasons
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.
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.
The Tribunal was not persuaded that the applicant will comply with all conditions attached to the bridging visa if granted. The Tribunal comes to the conclusion for the following reasons.
First, in both his written and oral evidence, it is clear that the applicant claims that he wishes to work if released into the community. This is despite being prohibited from doing so. The applicant made several references about needing to financially support his family in Vanuatu and also stated that he would start working about a week after being released from immigration detention.
Second, the applicant has a demonstrated history of working despite being prohibited from doing so from 21 October 2021. He told the delegate about working at a farm in 2023 and told the Tribunal about his employment during the period of time leading up to his imprisonment. The Tribunal is not persuaded that the applicant genuinely believed he had a right to work, because the applicant provided no documentation from the Department to demonstrate that he had been granted work rights. The Tribunal is not persuaded that an ‘agent’ is responsible for a misunderstanding about whether or not the applicant was permitted to work. The Tribunal’s assessment is that the applicant was prepared to ignore the prohibition on working because he needs money to send to his family in Vanuatu.
Third, the fact that the applicant left his employment over a dispute about wages, but did not do anything to remedy the situation demonstrates that the applicant is indifferent to visa conditions. The Tribunal finds that the applicant would have been aware of the requirements for him to continue to hold a Temporary activity visa (subclass 408) visa requiring him to be employed with his sponsored employer. In circumstances where he was no longer employed, the applicant was clearly in breach of the visa conditions.
Fourth, the evidence is that the applicant has been granted bridging visas but has continued to work, despite not being permitted to do so. The Tribunal is not satisfied that the applicant was unaware that he was prohibited from doing so. No evidence from an ‘agent’ or correspondence from the Department was provided to demonstrate that the applicant had any permission to work on the bridging visas. The Tribunal determines that the applicant decided to work despite being prohibited from doing so because he needs to support family in Vanuatu.

Given the applicants demonstrated work history and intention to work on release from immigration detention, the Tribunal determines that the applicant will not comply with Condition 8101 if granted the bridging visa.
The Tribunal assesses that the applicants willingness to work despite Condition 8101 displays a willingness to disregard visa conditions.
On that basis, the Tribunal is not satisfied that the applicant will comply with Condition 8207 or 8506 because the applicant has a willingness to disregard visa conditions if he sees a need to do so.
Concerning whether the applicant will comply with Condition 8564, the Tribunal takes into account that there have been three demonstrated breaches of laws by the applicant. He disregarded the requirement to wear a mask, assaulted a fellow employee and assaulted his then girlfriend. The applicant says that he has learned from his mistakes, but it is curious to the Tribunal that the applicant would not have learned that it was wrong to assault someone when he was first sentenced for violent offending.
The Tribunal is prepared to accept that the applicant has undertaken courses in prison to address his offending behaviour, as that is a common occurrence for prisoners. However, the repeated breaches of laws provide the Tribunal with no confidence that the applicant would not engage in future criminal conduct if released on the bridging visa notwithstanding the fact that he has completed courses while in prison.
On this basis, the Tribunal is not satisfied that the applicant will comply with Condition 8564.
Eligible non-citizen – cl 051.211
Clause 051.211 requires the applicant to be an eligible non-citizen as provided by subregulation 2.20(7), (8), (9), (10) or (11) of the Migration Regulations.
Subregulation 2.20(7), (8), (9) and (10) require the applicant to have been refused immigration clearance or bypassed immigration clearance and came to the attention of Immigration as an unlawful non-citizen within 45 days of entering Australia.
The evidence is that the applicant entered Australia lawfully through the grant of a Temporary Work (International Relations) (subclass 403) visa on 13 February 2020. Consequently, he was not refused immigration clearance or bypassed immigration clearance.
Therefore, the applicant is not an eligible non-citizen as provided by sub regulation 2.20(7), (8), (9), or (10).
Subregulation 2.20(11) requires the applicant to be a member of the same family unit as a non-citizen to whom subregulation 2.20(10) applies. There is no evidence the applicant is a member of the same family unit as a non-citizen to whom subregulation 2.20(10) applies.
Therefore, the applicant is not an eligible non-citizen as provided by subregulation 2.20(11).
As the applicant is not an eligible non-citizen in any subregulation contained in cl 051.211, it follows that the applicant fails to satisfy cl 051.211.
CONCLUSION
For these reasons, the applicant does not satisfy cl 050.223 for the grant of a Subclass 050 (Bridging (General)) visa.
For these reasons, the applicant does not satisfy cl 051.211 for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.
DECISION
The Tribunal affirms the decision dated 12 February 2025 under review.
Date(s) of hearing: 26 February 2025