Odhiambo (Migration) - [2025] ARTA 1746

ODHIAMBO (MIGRATION) [2025] ARTA 1746 (5 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Brian Okinyi Odhiambo
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2539574
Tribunal:General Member R Da Costa
Place:Sydney
Date:  5 August 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 05 August 2025 at 11:31am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abidance by conditions – student visa cancelled, period as unlawful non-citizen and immigration detention – application made in conjunction with application for partner visa – criminal convictions, alcohol treatment and behavioural change courses – supporting statements from partner and others – working without right – financial support from partner and parents of both – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 73, 376(1)(a), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
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 25 July 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 the Minister to be satisfied that if the Bridging visa is granted, the applicant will abide by the conditions (if any) imposed on it.
The decision to refuse to grant the visa was made on 25 July 2025 on the basis that the delegate was not satisfied that the applicant would abide by the conditions imposed on the Bridging visa.
The applicant appeared before the Tribunal on 4 August 2025 to give evidence and present arguments. The applicant is in immigration detention in Melbourne Immigration Detention Centre and appeared using the Microsoft Teams videoconference platform (MS Teams). The Tribunal also received oral evidence via MS Teams from Ms Chelsey Hazell (the applicant’s partner) and Ms Karen Hudson (Ms Hazell’s mother).
The applicant was represented in relation to the review and his representative attended the hearing via MS Teams.
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 AND FINDINGS
Background and migration history
The applicant is a 26-year-old man from Kenya. According to information contained in the delegate’s decision and the Tribunal file, and as discussed with the applicant in the hearing, the applicant’s migration and visa history is as follows:
·15 December 2018: arrived in Australia on a Student visa
·26 May 2023: Student visa cancelled and the applicant became an unlawful non-citizen
·11 July 2025: applicant detained and transferred to immigration detention
·14 July 2025: applicant applied for a Bridging E visa which was refused
·22 July 2025: applicant applied for another Bridging E visa which is the subject of this application
·22 July 2025: applicant applied for a Combined Partner visa
·25 July 2025: Bridging E visa application refused by the delegate and applicant sought merits review of the refusal in the Tribunal
Documents before the Tribunal
The Tribunal has before it the Departmental file, which relevantly includes a copy of the transcript of the applicant’s interview with the delegate (as reflected in the delegate’s decision), internal Departmental correspondence regarding the applicant’s Bridging E visa application and valid Combined Partner visa application, as well as documents relating to his Student visa and cancellation of that visa.
The Tribunal also has before it the Tribunal file which includes the delegate’s decision and additional documents provided by the applicant in support of his application following the delegate’s refusal. Those documents relevantly include:
·Road Trauma Awareness Seminar certificate in the name of the applicant dated 24 August 2024;
·Letter dated 15 July 2025 from Australian Community Support Organisation confirming the applicant has engaged with the Forensic Counselling Program, having completed an episode of standard counselling from 21 May 2025 to 2 July 2025 in relation to his alcohol and other drug treatment goals;
·Letter dated 28 July 2025 from the applicant expressing remorse for his past conduct and his intention to take responsibility for his past actions and rebuild his life;
·Statutory Declaration dated 30 July 2025 from Chelsey Hazell, partner of the applicant, confirming her commitment to the applicant, expressing her belief in the applicant’s wish to rebuild his life and take responsibility for his past mistakes, the applicant’s determination to rectify his visa status, the support she has from her family including to ensure the applicant does not breach his visa conditions, her willingness to financially support the applicant, the emotional support the applicant provides her in respect of her Obsessive Compulsive Disorder (OCD), her commitment to making sure the applicant complies with his visa conditions and her wish to build a future with the applicant;
·Commonwealth Bank statement showing Ms Hazell has a balance of $9000 on 30 July 2025;
·Statutory Declaration dated 30 July 2025 of Gregory Soutter, step-father of Ms Hazell, who says he has met the applicant who is a fine person with a good work ethic and he and his wife can support Chelsey and the applicant in any way needed;
·Statutory Declaration dated 31 July 2025 from Allan Hazell, father of Ms Hazell, confirming he does not know about the applicant’s visa-related matters but he says his daughter and the applicant are in a genuine relationship and have ongoing support (the nature of which is unspecified, but he refers to supporting his children financially if requested) from him and his wife;
·Statutory Declaration dated 31 July 2025 of Diane Ritter (relationship to the applicant unknown) which states she has spent time with the applicant, she is willing to support the applicant (in an unspecified manner) in his endeavour to remain in Australia and she is a good judge of character;
·Letter of support (undated) from Eleanor McMullen, step-mother of Ms Hazell, stating that she has met the applicant, he is of good character and the applicant and Ms Hazell have the financial backing of Ms McMullen and Allan Hazell if required and they have the capacity to accommodate Chelsey and the applicant on their property if required. This information is repeated in a Statutory Declaration dated 31 July 2025;
·Statutory Declaration dated 31 July 2025 of Flavia Bezerra, Registered Nurse, who says she has known the applicant since December 2024, he is a nice person and valued in the community;
·Statutory Declaration of Suse Finlay, Ms Hazell’s aunt, dated 31 July 2025 stating her belief that the relationship between the applicant and Ms Hazell is genuine;
·Statutory Declaration dated 31 July 2025 of John Ritter, step-grandfather of Ms Hazell. He says he has met the applicant and liked him, he is willing to provide Ms Hazell and the applicant with free accommodation if they move to Rockhampton, Queensland, and he is keen to provide guidance to the applicant to assist him in entering a career;
·Statutory Declaration of Karen Hudson, Ms Hazell’s mother, dated 30 July 2025 saying she considers the applicant has matured and changed his lifestyle and outlook and she believes he is remorseful for his mistakes and takes responsibility for them. She and the extended family are prepared to provide support for Ms Hazell and the applicant, and she is prepared to provide financial and other support to help uphold the applicant’s visa conditions, including so he does not need to work. She values the care the applicant provides to Ms Hazell who has OCD;
·Statement of bank account balances of Ms Hudson dated 29 July 2025, showing she has ample savings in various accounts;
·Email from the applicant’s father, Simon Okech, dated 29 July 2025, entitled ‘Financial support to my son Brian’, attaching a number of bank statements dated 29 July 2025 from Stima Sacco Society Ltd and ABSA in the name of Simon Odihambo Okech, showing he has a number of bank accounts, receives a regular salary and has positive bank balances;
Whether the applicant will abide by conditions - cl 050.223
The issue in this case is whether the applicant meets 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 the 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.
In this case, cl 050.617 applies because the applicant does not meet the criteria in any of clauses 050.611 to 050.616B. This clause prescribes that any one or more of a range of specified conditions may be imposed on the visa, and cl 050.618 prescribes that in addition to any other condition imposed by another provision of the Division, condition 8564 may be imposed. The Tribunal considers that the following conditions should be imposed on the visa if it is granted, which are the same conditions the delegate considered should be imposed:
·8101: (no work) The holder must not engage in work in Australia.
·8506: (notify change of address) The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
·8564: (no criminal conduct) The holder must not engage in criminal conduct.
The Tribunal explained these conditions to the applicant in the hearing and he confirmed he understood them. The Tribunal asked the applicant how it could be confident that he would abide by the conditions if he were released on a Bridging visa. The applicant said that he agreed that the conditions were fair and he does not want to be on the wrong side of the law. He said that he has not reoffended for one and a half years, he has changed his behaviour and the Tribunal has nothing to worry about in terms of his compliance.
The Tribunal discussed the conditions individually with the applicant in the hearing, as well as other matters relating to his application. Overall, the Tribunal found the applicant to be a credible witness. The Tribunal also found Ms Hazell and Ms Hudson to be credible witnesses whose evidence provided reassurance to the Tribunal about the level of support that would be available to the applicant in the community to promote his compliance with the conditions if the visa is granted.
Condition 8101 – no work
In the hearing, the applicant gave evidence that since becoming unlawful in May 2023, he has worked on and off in construction and packing in warehouses. He has also had periods of time when he was homeless and not working. During this time, he was relying on charitable support. At the time he met Ms Hazell in September 2024, he was living in a share house and he moved in with Ms Hazell soon after they met. Initially, she supported him financially and then from February 2025 until the end of June 2025, the applicant was working building fireplaces and so he contributed to their finances.
The applicant gave evidence that he knew he had become unlawful when his visa was cancelled, but he did not know that this meant he did not have the right to work in Australia. He gave inconsistent evidence about when he found out he did not have the right to work, at one point telling the Tribunal that he found out around two weeks before he was detained while he was preparing to apply for a Partner visa, and at another point telling the Tribunal it was only when he was detained and was asked whether he was working that he was told he should not have been. While the Tribunal has some concerns about the applicant’s evidence relating to when he became aware he did not have the right to work in Australia, the question for the Tribunal is whether the applicant will abide by the ‘no work’ condition if the Bridging visa is granted.
The Tribunal discussed with the applicant the sources of financial support available to him in Australia if he is not permitted to work. He said that he would be supported by his partner, Ms Hazell, and by his family. He claims to own a Mercedes Benz car which he said he could sell, but he has not provided any evidence of ownership of a vehicle or its estimated value, so the Tribunal does not accept this.
The applicant gave evidence that Ms Hazell has her own dog walking business and she earns around $1500 to $1800 per fortnight after tax. He gave evidence that she also receives income from Centrelink. He said that Ms Hazell is prepared to support him fully if required and this is what she did after he moved in with her and before he started working in February 2025. He said that with Ms Hazell’s income, she can support their accommodation and living expenses indefinitely, as she has done in the past, and she is willing to do this. Ms Hazell’s parents also have offered to support them with accommodation and financially if required. This is reflected in the written statements provided by Ms Hazell’s family which the Tribunal takes at face value.
The applicant gave evidence that even without the support of Ms Hazell, if he does not have the right to work, his parents in Kenya are prepared to support him financially for the indefinite future via a monthly allowance. He gave evidence that his father is a flight engineer and has a good income and assets and referred to the email from his father with the attached bank statements as evidence of this. The Tribunal asked the applicant why his parents hadn’t supported him in the past and the applicant said he had not told them he was unemployed and homeless, but if he had told them he needed their support then they would have been willing to provide it. He said they are now aware of his migration situation and the other problems he has experienced since being in Australia, except for his period of homelessness. Based on the email with the bank statements, the Tribunal is prepared to accept this and finds the applicant’s parents are prepared to provide him with financial support to survive in Australia.
The Tribunal asked the applicant how he would spend his time if he were not permitted to work. He said he would take care of the jobs around the house, which Ms Hazell finds difficult because she has OCD, and he would help to take care of her. The Tribunal asked the applicant how it could be satisfied that even if he has financial support, he would not work for other reasons. He said he wants to help Ms Hazell and he does not want to do anything to make his situation worse.
In the hearing, Ms Hazell gave evidence that was consistent with that of the applicant and the written statements provided by her and her family members. She said she earns about $1700 per fortnight from her dog walking business and Centrelink. The Tribunal asked her what she would be able to do to assist the applicant to comply with the conditions of the Bridging visa if it were granted. She said that the applicant is a very positive person who is committed to his future and to their future together. She said he has taken significant steps to ensure he will make the right decisions in the future, including getting sober and going to men’s group meetings and showing remorse for his past actions. She confirmed that they are in a committed relationship, she is willing to support him indefinitely, they can afford to live on her income as they have done in the past, and her family is prepared to support them if necessary. Ms Hudson (Ms Hazell’s mother) gave evidence that she has no doubt the applicant will comply with the conditions of the Bridging visa because he does not want to risk losing his relationship with Ms Hazell and his chance for a future in Australia with her. She said that since she met the applicant, she has seen him take steps to better himself and he has been embraced by their family. She commended him for the support he provides to Ms Hazell in respect of her OCD. Ms Hudson said the applicant and Ms Hazell live a simple life and have survived in the past on Ms Hazell’s income so they would be able to do that again in the future, and they would have the financial support of Ms Hudson and Ms Hazell’s father if necessary.
Based on the oral evidence of the applicant in the hearing, the Tribunal is prepared to accept that the applicant understands the meaning of the ‘no work’ condition and that he understands the potential negative consequences for him if he does not abide by that condition, and he is motivated to avoid those negative consequences. Based on the oral and written evidence of the applicant, Ms Hazell, Ms Hudson, as well as the other written statements of support provided to the Tribunal, the Tribunal finds that the applicant has sufficient financial support available to him indefinitely in Australia such that he will not need to work in order to survive, and that he has meaningful activities with which to fill his time in the absence of being permitted to work. In all the circumstances, the Tribunal is satisfied that the applicant will comply with the ‘no work’ condition if the Bridging visa is granted.
Condition 8506 – notify change of address
In the hearing, the applicant gave evidence that he was aware his visa had been cancelled in May 2023 and that he was unlawful after that time. This is consistent with the evidence he gave to the delegate. The Tribunal asked the applicant whether he kept his contact details updated with the Department after his visa was cancelled so the Department could contact him if necessary. The applicant said he did. The Tribunal reminded him of the information contained in the delegate’s decision which says the Department had unsuccessfully tried to contact him by phone and email in July 2023, August 2024 and October 2024. The applicant clarified that his email address had remained the same but his phone number had changed and he did not update the Department with that information. The Tribunal asked him the reason for this and he said he did not have an answer. He confirmed that he has been living with Ms Hazell since September 2024 and their residence is his permanent address, and he has informed the Department of this. The Tribunal asked the applicant how it could be satisfied that if he were granted the visa he would ensure he notified the Department of any further changes to his address and contact details. He said it is his duty to do as instructed and he intends to follow the conditions, so if that is a condition then that is what he will do. He said he is a changed person and he now has a stable living situation. He is not proud of his past conduct. He has sought help for his substance abuse and has taken courses in behavioural change which has helped him immensely.

Based on the applicant’s evidence about his changed circumstances and intentions, the Tribunal is satisfied that the applicant understands the nature of the ‘notify change of address’ condition and he will comply with it if the Bridging visa is granted.
Condition 8564 – no criminal conduct
In the hearing, the applicant confirmed that he has previously been charged with, and convicted of, a number of crimes which have all been finalised except for one pending drink driving charge which will be heard on 7 October 2025. The applicant gave evidence that for the past year and a half he had undertaken counselling and received support which had helped him a great deal. He said he has not engaged in any criminal conduct since that time and assured the Tribunal he will not relapse.
While the Tribunal is very concerned about the applicant’s past criminal offending, the Tribunal considers that those events took place when the applicant was in unstable and very different personal circumstances from those which he is in now. He has expressed remorse for his past conduct, he is undertaking behavioural change courses and has received professional support, and he has expressed a clear intention to live a different and positive life and he has demonstrated that he has the capacity to do this. He is now in a relationship with Ms Hazell and the evidence shows he has strong support from her extended family who are apparently aware of his past conduct and are prepared to support him nonetheless. The Tribunal considers that the expectations and regard of Ms Hazell and her family carry considerable weight with the applicant in terms of his motivation to stay on a positive pathway. The Tribunal considers that the applicant is now in a much more stable position compared to the time when his offending took place, he has insight into his behaviour and has faced up to his errors. He is clearly benefiting from the professional support he is receiving, as well as the stability and support provided by Ms Hazell and her family and the support of his own parents, and the Tribunal does not consider that he is taking his improved circumstances for granted.
Based on all the evidence, the Tribunal is satisfied that the applicant understands the nature and significance of the ‘no criminal conduct’ condition and that he has taken meaningful steps to ensure he does not engage in such conduct again.
On the evidence before it, for the reasons set out above, the Tribunal satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the Tribunal finds that the applicant meets cl 050.223.
Non-disclosure certificate
As noted above, the Tribunal has before it the Department file relating to the refusal of the applicant’s Bridging visa. The delegate has placed restrictions on some of the material given to the Tribunal by certifying, in writing under s 376(1)(a) of the Act, that disclosure of the material would be contrary to the public interest for the reasons specified in the certificate.
The Australian courts have held that the existence of a non-disclosure certificate must be disclosed to the applicant in the review as an obligation of procedural fairness[1]. Before relying on the non-disclosure certificate, the Tribunal must consider whether it is valid. Where a certificate is validly issued under s 376 of the Act, the Tribunal may have regard to any matter contained in the document or to the information, and the Tribunal may, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant: s 376(3).
[1] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
The certificate in this case is dated 30 July 2025 and states that disclosure of the information in a number of documents on the Department file (the file numbers of which are listed in the certificate) would be contrary to the public interest because it would:
·prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance
·disclose, or enable a person to ascertain the existence or identity of, a confidential source of information
·disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods
·endanger the life or physical safety of a person
·where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant.
The certificate also states that if the Tribunal proposes to disclose to the applicant any of the documents specified in the certificate, the highlighted portions have been redacted.
The Tribunal has reviewed the documents covered by the certificate. The documents are internal Departmental emails and messages relating to the logistics of dealing with the applicant’s Bridging visa application and Partner visa application, and PRISMS[2] records relating to the applicant’s studies in Australia. While the Tribunal agrees that redaction by the delegate of names, email addresses and other personal identifiers of Departmental officers contained in the emails and PRISMS records is appropriate in accordance with the Privacy Act 1988 (Cth), the Tribunal does not consider that disclosure of the unredacted information contained in the documents would be contrary to the public interest for any of the reasons specified in the certificate, or for any other reason.
[2] Provider Registration and International Student Management Systems
As a result, prior to the hearing, the Tribunal wrote to the applicant and provided him with a copy of the certificate and a copy of the redacted documents referred to in the certificate. In the letter, the Tribunal expressed its view that the certificate is not valid and that it would discuss the documents with the applicant in the hearing.
In the hearing, the Tribunal reiterated its view to the applicant and his representative about the invalidity of the certificate. They indicated that they did not wish to make any submissions in response and agreed with the Tribunal’s view. In terms of the documents themselves, the Tribunal explained that their contents simply reiterated or confirmed information that was already before the Tribunal about the applicant’s visa history via different means, such as through the delegate’s decision, or was otherwise irrelevant to the Tribunal’s considerations, and so the Tribunal gives the documents and the information they contain no weight.
Conclusion
Given the Tribunal’s findings above, 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.
Date(s) of hearing: 4 August 2025
Representative for the Applicant: Ms Latifa Al-Haouli (MARN: 1175724)