2506453 (Migration) - [2025] ARTA 844

2506453 (MIGRATION) [2025] ARTA 844 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:TGMS
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2506453

Tribunal:General Member J Papalia
Place:Perth
Date: 4 March 2025
Decision:The Tribunal affirms the decision under review

Statement made on 04 March 2025 at 09:45am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with the visa conditions – failure to regularise immigration status – intention to apply for a substantive visa – undisclosed criminal record – period of unlawful residence – funds for the visa application charge – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 14, 31, 41, 65, 73, 74, 189, 194, 195, 338, 367
Migration Regulations 1994, Schedule 2, cls 050.211-050.213, 050.221-050.223, 050.613, 050.617; rr 2.10, 2.20, 4.27
CASES
AKW22 v Commonwealth of Australia [2023] FCAFC 71; (2023) 297 FCR 650
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
DBB16 v Commonwealth of Australia [2022] FCA 783
Liu v Minister for Immigration and Citizenship [2008] FMCA 725
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old Tongan national who seeks review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 14 February 2025 to refuse to grant him a Bridging E visa under ss 65 and 73 of the Migration Act 1958 (Cth) (Migration Act).[1] This is a “reviewable migration decision” under s 338(4)(a) of the Migration Act. Consequently, and because the applicant sought review on 20 February 2025, the Tribunal is required to make its decision on the review by 4 March 2025 absent written consent from the applicant to extend that period.[2] For the following reasons, the Tribunal has determined that the correct decision in this matter is to affirm the reviewable decision.
[1] Section 73 of the Migration Act being facilitative of any decision made to grant of a bridging visa.
[2] See Migration Act, ss 367(1); Migration Regulations 1994, reg 4.27. Monday, 3 February 2025 was a public holiday in Western Australia.
BACKGROUND
On 12 June 2017, the applicant applied for a Temporary Work (International Relations) visa with the assistance of his national government, and to work in the seasonal worker programme in Queensland for no more than 6 months.
Because the applicant had a criminal record in Tonga, consisting of bodily harm committed in May 2006, and two offences of “drunkenness” in September 2014 and March 2016, the applicant was asked by the Minister’s Department to provide an explanation. He subsequently provided an affidavit sworn 7 July 2017 in Tonga, where he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2506453 (Migration)

Details

AGLC: 2506453 (Migration) [2025] ARTA 844
Case: [2025] ARTA 844
Decision Date: 4 March 2025

CaseChat Overview and Summary

The applicant, a [an age]-year-old Tongan national, sought review of a decision by the Minister's delegate to refuse him a Bridging E visa under the Migration Act 1958 (Cth). The delegate had decided that the applicant did not meet the requirements for a bridging visa, specifically the time of application criteria in cl 050.212 to Sch 2 of the Migration Regulations. The primary issue before the Tribunal was whether the delegate's decision to refuse the applicant a bridging visa was legally sound. This required a consideration of the time of application criteria, as well as the applicant's compliance with visa conditions and likelihood to abide by them.

The Tribunal examined the documentary evidence and the applicant's testimony, which included his intention to apply for a substantive visa and his failure to regularise his immigration status. The Tribunal noted that the applicant's criminal history and period of unlawful residence were factors considered by the delegate. The Tribunal concluded that the applicant met the time of application criteria under cl 050.212(3)(b). However, the crucial question was whether the applicant would abide by the visa conditions imposed. The Tribunal had to form an opinion about the applicant's likely future conduct, taking into account factors such as breaches of migration law, the applicant's cooperation with the department, and the Government's policy of promoting engagement and achieving immigration status resolution. The Tribunal found that the applicant's history of unlawful residence and failure to comply with visa conditions did not inspire confidence that he would abide by the conditions of a bridging visa.

The Tribunal decided to affirm the delegate's decision. The Tribunal found that the delegate's decision was reasonable and legally sound, given the applicant's history of unlawful residence and failure to comply with visa conditions. The Tribunal considered the applicant's criminal history and the fact that he had not maintained contact with the department in regularising his status. The Tribunal was not persuaded that the applicant would abide by the conditions of a bridging visa. Therefore, the Tribunal affirmed the delegate's decision to refuse the applicant a Bridging E visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate refused to grant the applicant the bridging visa on the basis that the applicant did not meet the time of application criteria in cl 050.212 to Sch 2 of the Migration Regulations. The Tribunal notes that the delegate also considered the applicant’s eligibility for a Subclass 051 Bridging (Protection Visa Applicant) visa. However, the applicant has only really applied for the general Subclass 050 Bridging Visa E and could not properly meet the criteria for the Subclass 051 visa. HEARING AND EVIDENCE The Tribunal has considered documentary material in this case sourced from: ·Departmental files [number] (Temporary Work International Relations Visa File), [number] (BVE File No 1), [number] (BVE File No 2); and ·the Tribunal file for this application. The documents comprise (but are not limited to): ·Application for a Temporary Work (International Relations) visa dated 12 June 2017 (with annexures)·Affidavit made by the Applicant in support of a visa application sworn on 7 July 2017; ·Criminal History Information from the Magistrates Court of Tonga dated [in] June 2017;·Notification of grant of an international relations (subclass 403) visa dated 24 July 2017;·Application for a Bridging Visa E dated [in] September 2020;·National Police Certificate (AFP) dated [in] October 2020; ·Notification of grant of a Bridging Visa E dated 17 February 2021;·Email to the Applicant from NSW Compliance Status Resolution dated [in] May 2021;·Field Operation Located Person Interview record dated [in] January 2025;·Detention Client Interview Record dated [in] January 2025; ·Application for a Bridging Visa E dated 11 February 2025 (with annexures); ·Delegate’s record of interview dated 13 February 2025;·Delegate’s reasons for decision dated 14 February 2025 and associated notification material; ·Application for review lodged 19 February 2025 (including submission from [Ms B]); and·Applicant’s Movement Record dated 20 February 2025. The applicant appeared before the Tribunal on 27 February 2025 by audio-visual means to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages. At the Tribunal hearing, the applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[5] He was also provided an opportunity to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at the relevant considerations below. [5] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65]. The Tribunal put the relevant visa criteria to the applicant, including that the only apparent basis that he would meet cl 050.212 was on the ground set out in sub-clause (3)(b) that he would apply for a substantive visa. The applicant testified that [Ms B] applied for the visa on his behalf. He said that he was told by Home Affairs when he was detained that he could apply for either a protection visa or a partner visa. He said that he was told that he could apply for a partner visa within 7 days from [a date in] January 2025, but he did not know what to do with the paperwork he was given and that there was some delay in being provided that paperwork.

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant meets cl 050.212(3)(b). Time of decision criteria The ‘time of decision’ criteria which are relevant to this case are cls 050.221, 050.222 and 050.223. For the reasons set out at paragraphs [37] to [45] above, the Tribunal is satisfied that the applicant meets the time of application criteria. He therefore continues to satisfy those requirements at the time of the Tribunal’s decision for the purposes of cl 050.221. The applicant was interviewed by the delegate, who is authorised by the Secretary to conduct interviews of that kind, on 13 February 2025 and therefore satisfies cl 050.222(1). The determinative question then is whether cl 050.223 is met. This requires the Tribunal to consider whether the applicant will abide by the visa conditions imposed (if any). That is an opinion about the likely conduct of the applicant.[7] [7] See Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197; (2002) 70 ALD 289 at [16]. In that context, the Tribunal must first establish which mandatory conditions are attached to the visa (if any) and then consider imposing discretionary conditions by taking into account the applicant’s circumstances and the Government’s stated policy of promoting engagement with the Department and achieving immigration status resolution.[8] [8] See PAM3 – Compliance and Case Resolution – Program visas – Bridging E visas – “Whether applicant will abide by conditions”. Departmental policy[9] recommends that decision-makers consider the following factors in forming the opinion about likely future conduct and the imposition of discretionary conditions: [9] PAM3 – Compliance and Case Resolution – Program visas – Bridging E visas – “Relevant Considerations”. Decision makers need to consider such factors as whether the applicant has breached migration law balanced against the applicant's current level of cooperation with the department. This includes but is not limited to:- whether the applicant is a previous removee/deportee- whether the applicant has absconded from immigration detention or other custody- the applicant's conduct during any period of immigration detention- whether the applicant has committed breaches of migration law- the extent to which the applicant has complied with the conditions of previous bridging visa(s)- whether the applicant has had a visa cancelled on the grounds of not complying with conditions or providing false information to the department- whether the applicant has had a visa cancelled or a substantive visa application refused in Australia- whether the applicant has refused to sign or assist in obtaining travel documentation or- the strength of the applicant's ties to the Australian community.If a visa holder fails to comply with a condition attached to their visa, the visa may be liable for cancellation under s116(1)(b) - refer to PAM3: Act - Visa cancellation - General visa cancellation powers (s109, s116, s128, s134B and s140).Although any combination or number of conditions may be imposed on the grant of a BVE 050, it is policy that, as a minimum, the following conditions be imposed on the initial grant of a BVE 050:- 8101 (no work) and- 8201 (no study or training for more than 3 months) or 8207 (no study or training while in Australia) and- 8401 (must report at time and place specified by the Minister) and- 8506 (must notify the department at least 2 days in advance of any change of address).As a matter of policy the above is to especially apply (irrespective of 050.617) if the applicant has not maintained contact with the department in regularising their status and becomes unlawful by failure to maintain their immigration status. If the applicant subsequently wishes to apply to have the conditions changed they will need to demonstrate a 'compelling need to work' and/or an 'acceptable reason for delay' (protection visa applicants).If the application of conditions is discretionary care should be taken not to impose conflicting conditions (for example, 8101 and 8104, 8201 and 8207).However, this policy should not be applied arbitrarily; …

Ratio Decidendi

Legal Principle Established

The applicant is [an age]-year-old Tongan national who seeks review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 14 February 2025 to refuse to grant him a Bridging E visa under ss 65 and 73 of the Migration Act 1958 (Cth) (Migration Act).[1] This is a “reviewable migration decision” under s 338(4)(a) of the Migration Act. Consequently, and because the applicant sought review on 20 February 2025, the Tribunal is required to make its decision on the review by 4 March 2025 absent written consent from the applicant to extend that period.[2] For the following reasons, the Tribunal has determined that the correct decision in this matter is to affirm the reviewable decision. [1] Section 73 of the Migration Act being facilitative of any decision made to grant of a bridging visa. [2] See Migration Act, ss 367(1); Migration Regulations 1994, reg 4.27. Monday, 3 February 2025 was a public holiday in Western Australia. BACKGROUND On 12 June 2017, the applicant applied for a Temporary Work (International Relations) visa with the assistance of his national government, and to work in the seasonal worker programme in Queensland for no more than 6 months. Because the applicant had a criminal record in Tonga, consisting of bodily harm committed in May 2006, and two offences of “drunkenness” in September 2014 and March 2016, the applicant was asked by the Minister’s Department to provide an explanation. He subsequently provided an affidavit sworn 7 July 2017 in Tonga, where he relevantly indicated that: [2] That I am applying for working visas under the Seasonal working program in [Town 1], Queensland, Australia …[3] That I am married to one namely [[wife’s name]] with [number] children of our own. I am the provider and the only breadwinner of my family, therefore my wife is consent and agreeable for me to travel to Australia while she remains here in Tonga with our children. [4] That I have never travelled to Australia under this seasonal fruit-picking temporarily working program, however I have been acquaint with the procedures and also been informed of the every conditions if ever I breached the visa’s requirements. [explanation of criminal record][8] That I am in deep remorse and regretful of being convicted by the above mentioned offences as I understand the situation of my Criminal Records will affect my application. [9] That I am asking the Australian Immigration Attaché to grant me this opportunity to have a temporarily working visas and to vary any disturbance of my criminal records on my lodging application as I confirm on oath that I will return back to Tonga prior the expiration of my visa and I also have responsibilities towards my wife and children whom will be remaining here in Tonga while I am away. The applicant was granted the Temporary Work visa on 24 July 2017, including that he work with the identified proposed employer (sponsor) in the visa application and that “[t]he holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” (condition 8503). This visa ceased on 30 November 2017.