2509022 (Migration) - [2025] ARTA 684

2509022 (MIGRATION) [2025] ARTA 684 (14 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2509022
Tribunal:General Member J Murphy
Place:Melbourne
Date:  14 March 2025
Decision:The Tribunal affirms the decision under review

Statement made on 14 March 2025 at 1:19pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions of visa – mandatory no-work condition – family’s financial dependence and offer of work from previous employer – no evidence provided of girlfriend’s and friends’ financial and personal support – protection visa application made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223
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 20 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.
The decision to refuse to grant the visa was made on 25 February 2025 on the basis that the delegate was not satisfied that if the visa was granted the applicant would comply with the conditions imposed on the visa, specifically not engage in work, report as directed, and notify the Department two working days in advance of any change in address.
The applicant appeared before the Tribunal on 13 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it.
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.
Division 050.6 prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. In the primary decision, the delegate indicated it would impose the same conditions that the Tribunal considers should be imposed in the circumstances of this case, namely:
·8101 – The holder must not engage in work in Australia (mandatory condition).
·8401 – The holder must report as directed.
·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address.
The Tribunal asked the applicant at hearing whether he would like to make any submissions regarding the reasonableness of the proposed conditions to which he replied he did not. The Tribunal notes that the applicant is required to abide by all conditions imposed on the visa if granted.
Condition 8101 - The holder must not engage in work in Australia
The primary decision record
As set out in the delegate’s decision, and as confirmed with the applicant at hearing, the delegate stated that at interview when asked about his intentions for arrival in Australia, the applicant responded that all his family (including brother, sister, nephews, and nieces) depend on him as he is the eldest in the family. The delegate noted the applicant’s statements at interview that he is the sole bread winner for the entire family and without any work rights, he will not be able to support them. The delegate reported the applicant telling them that he has three kids of his own to support along with his extended family. The delegate reported that the applicant said he pays for his kids’ school fees and sends money back to his family in Vanuatu. The delegate stated that the applicant has a job from a previous employer and they want the applicant to resume this work at a [workplace] located at [Address], Victoria as soon as he is released from immigration detention.
The delegate stated that they placed significant weight on the information provided by the applicant at interview and considered that it provides substantial motive for him to engage in work.
The delegate further noted that according to departmental systems on 19 February 2025 a Detention Client Interview (DCI)(Part A and C) was conducted with a departmental officer during which the applicant stated that he wanted to lodge a visa to stay in Australia to support his family in Vanuatu and that he needs to work because his family is financially dependent on him. The delegate considered that this further reinforces the applicant’s motive to work.
The delegate stated that the applicant had expressly admitted to the need to work and that the lack of work rights will affect his family in Vanuatu who are dependent on him. The delegate noted that the applicant also stated that he has no family or friends in Australia who can support him financially other than his girlfriend who resides at the [workplace], where he worked last. The applicant stated that this residence is provided to him by his employer because he works at this [workplace] most days of the week. The applicant stated that although his girlfriend works elsewhere, she assists at this [workplace] on weekends in lieu of rent. The delegate stated that they placed significant weight on this in refusing the visa as it demonstrates a high risk that the applicant would return to work for his employer if granted a visa and released from detention.
The delegate stated that as Condition 8101 is a mandatory condition that will be imposed on the applicant’s bridging visa, they were not satisfied that he would be able to resist the temptation to work based on his family needs and his admission to needing to work. The delegate noted that the applicant stated that he has worked regularly since he arrived in Australia and since becoming unlawful since November 2024. The delegate reported that the applicant mentioned that he was earning a gross wage of approximately $1000 every week and that he has been sending money back every week to support his family.
For these reasons the delegate was not satisfied that the applicant would comply with the mandatory Condition 8101 to not engage in work.
The applicant’s evidence at hearing
At hearing, the applicant confirmed that he understood the delegate’s concerns as expressed above. The Tribunal asked the applicant whether he would like to respond to the delegate’s concerns.
The applicant responded that all the issues raised by the delegate in the primary decision record are true and that he did make those statements at interview.
The applicant then queried why the Tribunal was not asking questions about his protection visa application and the claims made regarding his fear of returning to Vanuatu.
The Tribunal responded that the issue under review is whether the applicant meets the criteria for the grant of this bridging visa. The Tribunal confirmed that it did not consider that it has the power or ability to review the applicant’s protection visa refusal and as a result did not consider the applicant’s protection claims relevant to the question of whether he would abide by any conditions imposed on this bridging visa if granted.
The Tribunal again asked the applicant whether he would like to make submissions regarding his ability to comply with the condition to not engage in work if he were to be released into the community. The applicant told the Tribunal that if he were to be released, he would not work until he is again granted work rights. The Tribunal queried how he would do this when he stated that he is financially supporting a large extended family. The applicant stated that his girlfriend of three years, is financially supporting him, his children, and his extended family. The applicant submitted that his girlfriend works at a [workplace] fulltime and earns approximately $2000 per fortnight.
The Tribunal notes the applicants written submissions date 28 February 2025 which it notes reiterates the applicant’s protection claims and further states he intends to comply with immigration laws and any conditions imposed if a bridging visa were to be granted.
The Tribunal queried the statements that he will abide by regulations and laws if he were to be released in the community, given he has had difficulty doing this in the past. The applicant told the Tribunal that he did not understand his visa conditions previously, and his representative submitted that the applicant’s former agent did not provide him with the support or advice to be able to comply with the conditions of his visa.
The Tribunal told the applicant it considered that despite his issues with a former agent, that it is the responsibility of each visa holder to abide by conditions of their visa while in Australia.
The applicant’s representative made oral submissions at hearing which again outlined the applicant’s claims to protection. The Tribunal confirms that it has not considered these claims because it does not consider them relevant to the regulatory criteria for the grant of this bridging visa.
The applicant’s representative stated that it is because of the applicant’s previous agent that the applicant now finds himself in this situation and that this is also the reason that the applicant was unable to comply with visa conditions previously. The applicant’s representative submitted that the applicant is aware that if granted the visa he is unable to work and that he has his girlfriend and friends who are willing to assist financially and also provide him with emotional support.
Findings
The Tribunal has considered the applicant’s written submission prior to hearing as well as his statements presented at hearing. The Tribunal notes that when pressed for information, the applicant provided mere assertions that he would abide by any conditions imposed on the visa if granted, and this includes not engaging in work. The Tribunal notes the applicant’s admission at hearing that the statements made at interview regarding his financial responsibility for his extended family and his need to work as a result were true. The Tribunal places significant weight on the applicant’s statements in this regard and considers it is demonstrative of the applicant’s obligations and motivations to engage in work. When asked how he would practically not engage in work given he carries the financial responsibility of his extended family, the applicant told the Tribunal his girlfriend now has this responsibility. The Tribunal notes it has no documentary evidence at all to support this claim. The Tribunal has no evidence or submissions regarding the applicant’s girlfriend’s financial capacity, and no statement of support attesting to her willingness to do this, nor why she would do this for someone else’s large extended family. For these reasons, due to a lack of evidence, the Tribunal does not place any favourable weight on this claim.
The Tribunal places greater weight on the applicant’s previous statements that he needs to engage in work to support his family and remains concerned that he will need to continue to do this if he were to be released from detention. The Tribunal is not satisfied that the applicant would not be required to engage in work because it does not have any details about the financial situation of his proposed support network. Therefore, the Tribunal does not consider it has sufficient information to give any weight to the applicant’s claims that he is able to have all his (and his family’s) living expenses covered by his girlfriend for an indefinite period. For these reasons, the Tribunal is not satisfied that the applicant would not need to engage in work to support himself and his family (either in full or in part) if granted this visa.
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by a mandatory condition to be imposed on the visa if granted. Therefore, it has not gone on to consider if the applicant will abide by any remaining conditions to be imposed on the visa if granted. As a result, the Tribunal finds that 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. 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 affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Date(s) of hearing: 13 March 2025
Representative for the Applicant: Mr Davor Balder