2507382 (Migration)
[2025] ARTA 480
•6 March 2025
2507382 (Migration) [2025] ARTA 480 (6 March 2025)
Decision and Reasons for Decision
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2507382
Tribunal: General Member E Rutherford
Place: Adelaide
Date: 6 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
Statement made on 06 March 2025 at 2:44pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – criminal convictions – failure to depart Australia – failure to appear for bail acknowledgement – assurances concerning visa conditions – decision under review set aside
LEGISLATION
Migration Act 1958, s s73, 195, 367
Migration Regulations 1994, Schedule 2, cls 050.223, 050.613, 050.618, 051.211; Schedule 8CASES
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 16 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). Relevantly to this matter, the primary criteria include cl 050.223, which requires satisfaction that the applicant will abide by any conditions imposed on a bridging visa, if granted.
The decision to refuse to grant the visa was made on 19 February 2025 on the basis that the delegate was not satisfied that the applicant would comply with the following conditions:
·8101 (no work)
·8401 (report as directed)
·8506 (notify change of address)
·8564 (must not engage in criminal conduct)
The applicant appeared before the Tribunal on 4 March 2025 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
BACKGROUND
The applicant arrived in Australia [in] February 2020 on a Student (subclass 500) visa. His visa was cancelled on 1 December 2022 for non-compliance with visa condition 8202(2)(a), which required his enrolment in a full-time course. The applicant remained in the community without a visa until 31 October 2024, when he was located by the Australian Border Force after being granted bail for driving offences. He has been in immigration detention since that date.
The Tribunal has been made aware of the following criminal convictions and sentences imposed upon the applicant during his time in Australia:
[January] 2023 Possess prohibited drug Fined $300
[October] 2023 Four counts of assault
occasioning actual bodily harm (DV)
Fail to appear in accordance with bail acknowledgement
18 month Community Correction Order
[December]
2024
Never licensed person drive vehicle on road
Drive with middle range PCA
Fined $1050, disqualified for driving for three months
Placed on alcohol interlock program for 12 months
There is mention on the applicant’s file of other charges which may have been laid, and I cannot identify with certainty if the above convictions are complete or correct, as I do not have access to any information other than the delegate’s summation of the applicant’s criminal convictions.
On 6 November 2024, the applicant applied for a Bridging E visa on the basis that he would be departing Australia. The Department refused the visa application, but the Tribunal (differently constituted) remitted his case back to the Department with the direction that he met the criteria. The Department refused his visa on different grounds on 26 November 2024, and the applicant did not apply for merits review of that decision.
On 16 February 2025, the applicant applied for a Protection (subclass 866) visa, and by doing so, also applied for a Bridging E visa, being the visa application now under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Tribunal is satisfied that the applicant will comply with conditions imposed on the visa.
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].
The Tribunal may be satisfied that an applicant would abide by the conditions with or without the imposition of a security. 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.1 No class of persons has been specified by the Minister by legislative instrument to have condition 8116 imposed, meaning that condition 8101 (no work) must be imposed. The clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. Clause 050.618 permits condition 8564 to be imposed in addition to any other conditions imposed by other provisions. The delegate considered that they would impose the following conditions in addition to 8101:
·8207 (no study)
·8401 (must report as directed)
·8506 (must notify change of address 2 working days in advance of any change to holders address)
·8564 (must not engage in criminal conduct)
I consider that the conditions considered by the delegate are appropriate and should be imposed in the circumstances of this case.
Condition 8101 – the holder must not engage in work in Australia
The applicant provided the Tribunal with a written submission prior to the hearing in which he referred to his strong familial ties within Australia, and people who would be willing to support him. Previously, he stated to the Department that he had savings, and a brother and cousins who could provide financial support. He has previously indicated to the Tribunal that he would live with a female friend, and he has also stated to the Department that he could live with cousins.
At the hearing on 4 March 2025 the applicant identified five sources from which he could derive sufficient support to live in the community without work rights.
First, the applicant said that he had approximately $3,000 in savings. I requested that he provide evidence by way of a bank statement or screenshot of these savings, and he indicated that he would be able to.
Second, the applicant stated that his parents in [Country 1] would be willing to send money. He surmised that they could send up to $10,000 if he really needed. I discussed with the applicant evidence he previously gave the Tribunal that his parents suffered financial hardship, and he indicated this occurred after the pandemic, but was no longer the case. I also discussed his evidence at the previous Tribunal hearing that his parents were angry with him. He agreed that they were a bit mad, but they were willing to support him regardless.
Third, the applicant said that his brother would be willing to support him. His brother lives in Perth, and works part time as [occupation 1] while studying. The applicant said that his brother earns around $300 per week, and that his rent is $200 per week. His brother assured him that he would be able to help him. During the hearing, we attempted to call the applicant’s brother, but his mobile phone was switched off. I requested that the applicant ask his brother to provide a letter or email to the Tribunal confirming his willingness to support the applicant, including the ways in which he would support him and for how long.
1 Legislative Instrument IMMI 15/026 made 1 May 2015 specifies any person granted a Bridging E visa under s 195A of the Act.
Fourth, the applicant said that his cousin [Cousin A] is willing to let the applicant live rent free at his house in [Suburb 1]. He said that his cousin works in [City 1], so is usually not at home. The applicant does not currently have [Cousin A’s] phone number but indicated that he could also obtain a letter from [Cousin A] to confirm the support he is able and willing to provide.
Fifth, the applicant said that he would be able to sell his car. Since the previous Tribunal hearing, the applicant’s friend has recovered his car from where it was parked, and it is now in Sydney. The applicant said that he had paid $5,000 for the car but is unsure of how much he would be able to get from selling it now. We discussed the fact that the applicant is now subject to a requirement to participate in the alcohol interlock program, and whether he would be able to pay for the program. The applicant indicated that if he is unable to work he would not need a car, and would not be likely to spend the funds required ($2,200 - $2,500) to have it installed.
Following the hearing, the Tribunal received an email from the applicant’s brother, confirming his commitment to assist the applicant transition back into the community. Due to the operation of s 367 of the Act, it was necessary for me to make a decision in the applicant’s review without waiting to receive the other supporting documents discussed, and I acknowledge the difficulties the applicant may have had obtaining documents while in detention. I have decided to proceed without waiting further for the documents we discussed during the hearing.
I am satisfied that the applicant has a number of sources of financial and other supports that would enable him to reside in the Australian community without work rights. He acknowledged that this could be for a significant period while his protection visa application is processed, including any possible review through the Tribunal. The applicant said that he has found private representation for his protection visa application, and that the cost of representation would be delayed until he is in a position to pay for it.
The applicant stated that he was ignorant of many things when he previously worked in Australia without a visa. He said that now he is in detention, he plans to ensure that he does not make any further mistakes in future that would lead to him being detained again. I found the applicant’s evidence in this respect to have been genuinely given. I accept that his previous failure to comply with the condition on his Student visa arose out of financial hardship caused by the pandemic, and is not an indicator of his current attitude towards compliance with migration laws. I consider that almost five months in detention has served as a very serious lesson in the importance of abiding with his visa conditions, and I am satisfied that he would now comply with condition 8101 upon release.
Condition 8207 – the holder must not engage in any studies or training in Australia
The applicant has not indicated any desire to conduct further study or training in Australia, though he did previously tell the Tribunal that he would study upon his return to [Country 1].
At the hearing, I informed the applicant that, if I were to remit his matter to the Department, I would likely recommend that condition 8207 be imposed. The applicant did not raise any concern with this, and agreed that he would comply with the condition.
I am satisfied that the applicant would abide by condition 8207 if granted a Bridging E visa.
Condition 8401 – the holder 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
The applicant gave an assurance to me that he would comply with this condition if imposed on a Bridging E visa.
I asked the applicant to explain the circumstances of a conviction received in October 2023 for one count of failing to appear in accordance with a bail acknowledgement. He said that he didn’t report to the court on that occasion because he was scared and thought he would go to gaol if he went to court. He acknowledged that this was not the right thing to do and said that it was because he had never been through the legal system previously. The applicant said that he pleaded guilty to the charge.
I am satisfied that the applicant understands the seriousness of failing to report to the Department if required to do so, and I find that he would comply with condition 8401 upon release from detention.
Condition 8506 – the holder must notify Immigration at least 2 working days in advance of any change in the holder’s address
I explained to the applicant the requirement to notify the Department of any address he proposed to move to, two days prior to moving. The applicant indicated that he understood, and that he would comply with this condition.
I am satisfied that the applicant would comply with condition 8506 upon his release from detention.
Condition 8564 – the holder must not engage in criminal conduct
The applicant stated that he had been very affected by his time in detention and was motivated to ensure that he did not break any laws in future. He said that he had made enquiries with counsellors through a drug and alcohol agency, and that he would provide the Tribunal with details of the service as soon as possible.
I am satisfied that his most serious charges, being four counts of assault occasioning bodily harm took place under unique circumstances involving his discovery of his cousin and girlfriend engaging in intimate relations, which are unlikely to be repeated. I do not consider they demonstrate that the applicant has any particular propensity towards violence. I am also satisfied that his driving offences took place under circumstances involving the consumption of alcohol.
The applicant gave evidence of his intention to ensure that he does not return to drinking to excess by replacing the habit with other, healthier habits like playing sport. The applicant acknowledged that he felt much better now, having been forced to abstain from alcohol consumption by his detention, and he did not wish to resume drinking in future. The applicant also stated that he would talk to family and friends to counter any stressors that he might experience from being unable to work and having reduced mobility upon his release from detention.
I have considered the fact that the applicant has pleaded guilty to each of the offences he has been convicted of. He has been sentenced only to fines, which indicates that the offending has been on the lower end of seriousness. I have also considered the fact that the applicant would only be able to drive if he obtains an interlock device. He has indicated that he is unlikely to pay for the device, and so I do not consider it likely that the applicant would be driving a car. Some of the criminal matters involved driving a truck for work, which the applicant will not be permitted to do either with the no work condition, or while subject to the alcohol interlock program.
I impressed upon the applicant the serious ramifications that any future offending may have on his ability to remain in the Australian community, and I am satisfied that the applicant understands these.
I am satisfied that the applicant will comply with condition 8564 upon release from detention.
CONCLUSION
On the evidence before me, I am satisfied that the applicant will abide by conditions imposed on the visa if granted. I am satisfied that he would do so without the imposition of security. Therefore, the applicant meets cl 050.223.
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.
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that 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
Date(s) of hearing: 4 March 2025 Representative for the Applicant: N/A
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