Oh (Migration)

[2020] AATA 4619

Oh (Migration) [2020] AATA 4619 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Serin Oh

CASE NUMBER:  2014658

DIBP REFERENCE(S):  BCC2020/2352403

MEMBER:Alan McMurran

DATE:9 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 09 October 2020 at 1:42pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – abide by conditions – criminal offences – unlawful status – unlikely to abide by conditions – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 73

Migration Regulations 1994, r 2.20; Schedule 2, cls 050.211, 050.223, 050.224; Schedule 4, Conditions 8101, 8506, 8564

CASES

Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

The application

1. This is an application lodged on 30 September 2020 for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 September 2020. At that time Class WE contained 2 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.211, which requires that the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10) or (11), and cl. 050.223.

   The decision under review

3. The Tribunal had access to an electronic copy of the delegate’s decision with the application for review.

4. The decision set out the relevant regulatory criteria for assessment for Bridging E (class WE) applications.

5. The decision from the delegate included the following opinion:

   “I am not satisfied that you meet the requirements in clause 050.223 in Schedule 2 of the Regulations. I’m not satisfied that if the visa is granted you will comply with the conditions imposed on the visa. My reasoning is below.

   You last held a bridging visa C, granted on 26NOV 2018, associated with your EA 132 Business Talent Significant Business History Visa application. Your bridging visa C was cancelled as on 30MAR 2019 you were convicted in the Melbourne Magistrates’ Court of traffic Methyl amphetamine, possess cocaine and deal property suspected as proceeds of crime.

   After being notified of your cancellation you stayed in the community as a knowing unlawful non-citizen. I have found no evidence that you have attempted to regularise your immigration status during this time. You came into contact with the department once more by chance, after being located involuntarily by Victoria Police and referred to the Department as an unlawful non-citizen. I acknowledge that you claimed to me at interview the correspondence via email was not common practice where you are from, but the gravity of the notification to consider cancellation and the following cancellation itself warrant a response.

   The notification to cancel your bridging visa C was emailed to you on 15OCT 2019, I note that departmental records indicated you responded to this email notification. The visa cancellation itself was emailed to that same address. No evidence exists to suggest you chose to direct correspondence via another means. Yet you have made claim to not have received such notifications in the past.

   I believe that if you had not engaged with Victoria Police resulting from a minor offence than you would have continued evading the department in regard to your immigration matters.

   I am not satisfied that you would comply with conditions 8506 or 8401.

   Resulting from our interview, you stated that you had a criminal record in South Korea which resulted from taxation issues through to drug use and solicitation of sex. Having received sentencing in South Korea and served time, you came to Australia shortly after and detailed that you continued using illicit drugs and holding trafficable amounts upon arrival.

   Since onshore in Australia you have been found guilty of a number of illicit drug-related offences which include trafficking illicit drugs; possessing illicit drugs; dealing property suspected of being proceeds of crime; and state false name and address. You missed a scheduled court appearance on 30SEP 2019 to face drug-related offences which at interview you claimed you cannot explain why you skip court.

   You have provided verbal evidence at interview of being clean for the last (9) months due to both your prison sentence and held immigration detention. You claim at interview to have undertaken counselling which is ongoing and attended Alcoholics Anonymous classes as a means of rehabilitation. I cannot be satisfied that the evidenced rehabilitative measures you have outlined verbally, will outweigh my belief that you will not comply with condition 8564 in this circumstance.”

6. The decision to refuse to grant the visa was made on 28 September 2020 on the basis that the Department officer found the applicant did not meet the requirements in clause 050.223. The clause requires that the Minister is satisfied that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on the issue of the visa.

7. The delegate determined that discretionary conditions which might be imposed on the visa if granted would include conditions 8101, 8506 and 8564. Condition 8564 sets out that the applicant “must not engage in criminal conduct”.

8. The delegate went on to conclude that cl. 050.224 relating to the requirement for a security for compliance with any conditions imposed by an officer was not relevant in the circumstances, as the applicant is not required to satisfy public interest criterion 4022.

   Background

9. The applicant is a 34-year-old citizen of South Korea, who first came to Australia on a tourist Subclass 601 visa, arriving 13 April 2018.

10. The applicant applied for a Business Talent (Permanent) Subclass 132 visa on 13 July 2018, which application he withdrew on 19 October 2018. The applicant lodged a second Subclass 132 application on 23 November 2018, which is still pending consideration with the Department.

11. The applicant was charged with drug-related offences and convicted in Melbourne Magistrates’ Court on 30 March 2019 and sentenced to 3 months’ imprisonment. He was released on bail after serving 2 months. The applicant was charged in February 2020 with further drug-related offences and served another 3 months in custody. Upon his release in June 2020, he was detained by Immigration in the Melbourne Immigration Transit Accommodation centre (MITA) where he currently resides.

12. The applicant’s BVC bridging visa was cancelled by the Department on 15 October 2019, as a result of the applicant’s criminal conviction[1]. The Bridging visa cancellation has not been the subject of any review.

    Hearing

    [1] 30 March 2019

13. The applicant appeared before the Tribunal on Thursday, 8 October 2020 to give evidence and present arguments. The Tribunal also received submissions from the migration agent appearing with the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

14. The applicant was represented in relation to the review by his registered migration agent.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the Tribunal can be satisfied upon review that if a bridging visa is granted to the applicant, the applicant would abide by the conditions the Tribunal considers necessary and appropriate to impose on the visa.

17. The Tribunal has available for consideration the oral evidence obtained at hearing; the agent’s oral submissions, and the agent’s comprehensive written submissions dated 7 October 2020 which attach:

    ·signed statement from the applicant’s housemate dated 16 September 2020;

    ·the applicants Westpac bank statement showing current balance of $30,132.50;

    ·statement from the applicant’s mother translated 5 October 2020;

    ·statement (redacted) in Korean from treating psychologist, Ellie Shin;

    ·Department information request for processing Business Talent (subclass 132) visa application;

    ·media story relating to the applicant in South Korea;

    ·report from psychologist Elly Shin (English translation) dated 7 October 2020;

    ·supporting statement from Minhwa Hong, applicant’s housemate dated 6 October 2020.

    Whether the applicant will abide by conditions - cl.050.223

18. 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.

19. 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.

20. 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.

21. 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] (VAAN).

22. 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

23. The primary criteria to be satisfied at the time of application for the Bridging visa E are set out in cl. 050.21 of the regulations. The applicant must meet the criteria in 050.212 which sets out at (3) that an applicant meets the requirements of this subclause if the applicant has made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined. The applicant has made application for a Business Talent (Permanent) Subclass 132 visa which is a substantive visa of the kind referred to in (3) and which is pending at the time of this decision.

24. In this case, cl.050.611B requires that condition 8401 (report as required) must be imposed. In addition to any mandatory conditions, other conditions may be imposed.

25. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8505:  the holder must continue to live at the address specified by the applicant before the grant of the visa;

    8506:  the holder must notify Immigration at least two working days in advance of any change in the holder’s address;

    8564: the holder must not engage in criminal activity.

26. The Tribunal has proceeded to consider the likely conduct of the applicant as to compliance with these conditions and considering the evidence in light of the guidance provided in VAAN.

    Applicant’s evidence

27. The applicant gave evidence at hearing with the assistance of the interpreter. The Tribunal confirmed with the applicant and the interpreter that no problems had arisen during the interpretation. This was also confirmed in conclusion by the Korean-speaking agent appearing.

28. The applicant was asked about his visa history. The applicant said that his initial tourist visa (UD Subclass 601) was prepared and lodged for him by his travel agent in Korea. He said he could not read English and did not read the application before it was lodged. He said all he was asked for was his passport photograph. He said he had not been made aware of any conditions attaching to the visa and had not sought advice.

29. The applicant was asked if he had informed the travel agent of his drug conviction in South Korea. He said he had not been asked for that information, so he did not provide it. He said he thought the application was to enable him to enter Australia and he understood his entry would be subject to some conditions. But he did not know what they were. He was asked if it had occurred to him to find out and he responded that it had not occurred to him. He was asked if he had obtained any information from the DIBP website before arriving in Australia and he responded “no”.

30. Later in his evidence, the applicant said words to the effect that after two months in Australia and “before the three months expired”, he decided he wanted to remain in Australia permanently. The applicant was therefore aware that his temporary visa might expire after 3 months.

31. The Tribunal asked if he had deliberately withheld information about his criminal convictions from the travel agent and the Department when the tourist visa was granted. He responded that it had not occurred to him since he had not been asked about it and he had no such advice from the travel agent, who had not told him that any criminal convictions might be relevant to the grant of a visa.

32. The applicant was asked about the psychological report presented by Elly Shin. He said he had read the report and also the written submission from the representative. He was asked if the information in the report and the history outlined in the representations from the agent were correct, which he confirmed. He said he had had a lengthy phone conversation with his representative discussing the documents. Later in the hearing, the agent stated she had read through the report and the statement paragraph by paragraph in the Korean language with the applicant before submitting those documents. The applicant said he had read the psychologist’s report and, in the hearing, corrected his birthdate from 18 October 1986 to 18 October 1985, confirming he is now 34 years old.

33. The applicant was asked about the report from Ms Shin and he said he had first met her in 2019. He said his last meeting with her was a telephone conversation on Monday, 5 October 2020. He said he had seen her approximately five times in addition to the telephone conversation. He corrected his evidence saying his first consultation was in October 2018, when he sought assistance to “drop drugs”. He said he found the psychologist while living in Melbourne through searching the Internet for a Korean person trained in psychology. The applicant was asked about a “treatment plan”. The applicant said he “sees the psychologist” and has another appointment in approximately two weeks. No other details were provided, although he said he intends to continue seeing her.

34. The applicant was asked about what he had been doing in Australia since arriving in April 2018. The applicant said he had spent two months travelling around before deciding to live in Australia. He sought advice from a solicitor who recommended he apply for a business visa for permanent residency. He said he did not trust the adviser and then changed his migration agent. He said he withdrew the first application and “applied again”. He was asked the reason for doing so and he said, “I found a better agent”. When asked why he had changed agents for a third time, he said that in about March 2019, when he was charged by police, he did not have enough funds. He said this was caused by the fact he went to jail, had been robbed (in March 2019), and had lost his rented accommodation. He was asked about his current bank statement showing a credit of $30,000, and he said he had transferred funds from South Korea “this year”.

35. The Tribunal asked whether he had informed his two previous agents about his criminal history, which he confirmed saying, “I told them as it was”. He was asked if he had informed the Department which he also confirmed saying “I told them at the time”. The applicant has not produced a copy of his current permanent residency application to see what in fact has been disclosed to the Department. The Department’s file on the applicant’s current substantive visa application was not before the Tribunal and which is not being considered in this review.

36. The applicant was asked about the cancellation of his Bridging visa on 15 October 2019 when he became an unlawful non-citizen. He agreed that he had responded to the Department in October 2019 and had received the Notice of Intention to Cancel the visa. He said although he had received the Notice, he could not read it, he did not receive anything after that and was not aware the cancellation decision had been made. He said he was not made aware of that until he was detained at MITA in June 2020. The agent confirmed later in the hearing she had given advice to the applicant and explained the situation with the cancellation to him, and how it might affect his current substantive visa application.

37. The applicant was asked why he had not received the cancellation decision. He said, “it was my mistake”. He said by that time in October 2019, he had lost his accommodation, was taking drugs, had been robbed and was distracted by his health issues, his addiction and homelessness. The applicant said in 2019 he was not in a good state of health, was not working and was unable to shake his addiction. He said he had been jailed for three months on 29 March 2019 and after two months was released on bail at the end of May 2019. He said he had lodged an appeal against his conviction which was dealt with in his absence in September 2019, when he failed to appear in court. He was asked why he had not appeared for his appeal and he said he had no money and no solicitor and was in poor health. He said he was weak mentally from taking drugs and was also “scared” that even though he had been on bail, pending his appeal, that his sentence might be increased, and he would be re-imprisoned.

38. The Tribunal reminded him of the interview with the Department officer on 25 September 2020, which he recalled, where he gave an explanation about email not being a usual way to receive information in his Korean culture. In his response, the applicant said an email about the cancellation was “not what I expected” and that although he received it, he did not read it. Later in the hearing, the applicant sought to correct this evidence stating he had not received an email with notice of the cancellation at all. The Tribunal found this response to be disingenuous and was left with the impression the applicant wanted the Tribunal to accept he had no idea about the cancellation until he was placed in detention and informed by his new representative. At the end of the hearing, the representative confirmed she had advised the applicant about the circumstances of the cancellation and its possible effect on his outstanding visa application.

39. The applicant said that in relation to his appeal in October 2019 and subsequent arrest for a further offence in February 2020, he had not sought legal advice or representation.

40. The applicant was asked about whether he had intentionally failed to inform the Department about his change of address while living in Australia, the fact he had not engaged with the Department following his release from jail in June 2019, and when arrested in February 2020 when he gave the police a false name and address. He agreed that he had deliberately not provided his address as he was “scared” and wanted to avoid going back to jail and being located. He said he is currently living with some Korean people both of whom had provided references in support and stating they were willing to continue to support him in their home.

1. He said he has reconnected with his family, his mother and sister who are also willing to support him. Ms Hong has given a lengthy and sympathetic statement that she continues to support the applicant following his arrest in February 2020 and continues to visit him in the detention accommodation. The applicant said he had been living with Ms Hong and her husband for “around three months” but did not tell them while doing so that he was still taking drugs. He believes they were unaware until he was arrested in February 2020.

2. The Tribunal asked about his arrest in February 2020. The applicant said it was “a random check by police” while he was sitting in his parked car, and the police knocked on his window. He said he did not have an Australian driving licence, although held a Korean driving licence. He said he was arrested and taken into custody, charged and convicted of drug-related offences and given a one-month custodial sentence. He said at the end of March 2020, his release was delayed for two months because of COVID-19. He agreed he had spent a total of five months in criminal detention since March 2019, and immediately upon his release in June 2020, he was removed into immigration detention at MITA in Melbourne.

3. The Tribunal explained to the applicant that it must consider any mitigating circumstances which might go to reducing the severity of the facts outlined. The applicant responded saying he was nervous. He said that when he was in jail he learnt of his father’s death. He said he had promised his father he would “quit drugs” and he intended to honour the promise to his father. He said he was encouraged having reconnected with his mother and sister and that he was now attending counselling, had done so while in custody as well as attending Alcoholics Anonymous in relation to his drug taking.

4. He said he needs help to stop taking drugs. He said that he wants to quit and believes he can with the right help. He said he has started a treatment plan with the psychologist and outlined a further appointment in two weeks’ time (approximately).

5. The Tribunal said it had real concerns that the applicant might not maintain treatment once free in the community. The applicant said he was confident he will succeed because he has not had drugs since being in custody from February 2020 and continuing as at the date of hearing. He said he has money now evidenced by his Westpac bank statement, which funds came from South Korea, and he has a strong will.

6. The Tribunal asked about the length of his drug addiction which the applicant confirmed has been “going on since 2016”. He said he had been convicted in South Korea and spent one year in jail with a three-year good behaviour bond. He said he was released in 2017 before making the decision to come to Australia. He said he had provided that evidence to his representative and to the Department about his criminal conviction.

7. That evidence formally was not before the Tribunal.

8. The Tribunal reminded the applicant it was only considering the likelihood or otherwise of him complying with conditions which might be attached to his visa including the condition that he would not engage in any further criminal conduct. The Tribunal pointed out that he had not complied with Australian law in the past nor engaged with the Department. The applicant confirmed he had no dealings with the Department other than through lodgement of applications by his representatives, and his first interview with a Department officer was when he was in detention in September 2020.

9. The applicant explained it was due to the fact he was “anxious” and unclear what to do. He said “now I am very clear what to do. My family is supporting me financially and emotionally” and he intends to honour his commitment to his father about stopping drug taking. The Tribunal asked if he was aware these were very serious matters concerning his stay in Australia, not complying with Australian law, and affecting his visa application. The applicant confirmed he was aware they were serious issues and he was taking them seriously. The applicant said he had established a successful franchise business in South Korea but had lost everything because of drugs, and now needed to restart his life afresh in Australia.

10. The applicant’s representative was asked to respond to any issues arising. The representative confirmed that on her advice he understands the difficulties following his arrest and then detention by Immigration. She said that his business visa for permanent residency is quite complex and the application requires a significant amount of verifying documentation that needs to be put together to meet the Department’s request. She said it might be difficult for him to do that effectively whilst in detention. The agent has provided a copy of the Department’s standard information request for the application.

    Immigration history

11. The applicant’s immigration history has been referred to above in the evidence from hearing and set out in the representatives written submission of 7 October 2020, which is not repeated here. Suffice to point out the Tribunal accepts those submissions as to the facts which have been corroborated and confirmed by the applicant in evidence.

12. The applicant has conceded that since his arrival in Australia he has had drug-related issues resulting in criminal detention on two occasions in Melbourne for a total of five months between March 2019 and June 2020.

13. The applicant had his Bridging visa cancelled on 15 October 2019 and he became an unlawful noncitizen. He remained in the community without engaging with the Department, hiding his identity and location until he was discovered by chance in February 2020 by Victorian Police.

14. The applicant did not seek review of his visa cancellation. The Tribunal finds it is satisfied the applicant was aware from the Notice of Intention to Cancel the visa of the possibility that cancellation would follow, that he responded to the Notice, but took no further action. The Tribunal is not convinced the failure to do so was entirely due to ignorance or lack of clarity. It seems it did not occur to the applicant to have the English documents translated. The Tribunal accepts the evidence from the applicant at hearing that he was in fact “scared”, affected by his drug addiction, and in poor health as the real reasons he failed to take any further action to engage with the Department.

15. In terms of overall weight of this evidence and in the context of this Bridging visa application, the Tribunal finds these are matters going to the applicant’s conduct and which weigh against a finding the applicant is likely to comply with visa conditions in the future.

    Previous breaches and significance

16. The Tribunal is satisfied on the evidence as presented that the breaches by the applicant of Australian laws concerning criminal conduct are serious. This occurred from the day of the applicant’s arrival, where he concedes in interview with the Department officer that he was taking drugs “from the beginning” in March 2018 until his arrest in February 2020.

17. The applicant concedes that he failed to engage with the Department or advise in relation to his whereabouts and from 15 October 2019 became an unlawful non-citizen. This is also a serious issue, as but for the random check by Police, the applicant might still be secreting himself in the community with others, while continuing drug-related activity. The Tribunal places some weight on these findings, although understanding the likelihood due to cultural and language barriers, that the applicant may not fully have understood or appreciated the significance of becoming an unlawful non-citizen, and in circumstances where he neither sought nor obtained any independent advice or assistance.

18. The Tribunal places little weight on the evidence that the applicant sought assistance from the psychologist. In her report of 7 October 2020, the psychologist herself places a caveat on her summary stating the report “has been prepared based on Mr. Oh’s self-report and it was not possible to gather collaborative information from other parties. The report is not intended to provide a clinical opinion of the client’s progress, prognosis and recidivism due to the limited sessions and interactions to form adequate assessment.”

19. As a result, the Tribunal finds it can place little weight upon the psychology report as to the likely conduct of the applicant in the future. The report does not contain a detailed treatment plan and appears to depend entirely upon the voluntariness of the applicant, who in the past has utilised the services of the psychologist on an arbitrary (unplanned) basis.

    Wilfulness

20. The Tribunal finds the applicant has conceded his actions in avoiding contact with authorities such as the Melbourne court, the Police and the Department were wilful in the sense that he deliberately set out to avoid being located and/or to face consequences which he feared may have included an extended jail term. Although this did not occur, it does not prevent the actions of the applicant from themselves being “wilful”.

21. In the context of this application, and the relevant facts and circumstances outlined above, the Tribunal places significant weight on this finding and the applicant’s conduct, reflecting his willingness to breach Australian laws to suit his own purposes.

    Mitigating circumstances

22. The applicant referred in this regard to his personal conviction that he will succeed in overcoming his drug addiction. He referred to having re-established a relationship with his mother and sister, confirmed by his mother’s statement in evidence. He referred to his financial support from funds recently transferred from South Korea, and his intention to continue psychological assessment and follow treatment.

23. The Tribunal notes however that but for the random intervention of police, these events may not have occurred at all. The Tribunal finds there are no mitigating circumstances which might warrant a reasonable conclusion that the applicant’s conduct will significantly improve, that he is rehabilitated to any significant degree, and that the applicant will abide by conditions attached to the visa if issued, particularly condition 8564 that he must not engage in criminal conduct.

24. The Tribunal places some weight on this consideration.

    Contrition

25. The Tribunal accepts that the applicant feels shamed by his circumstances. The Tribunal also accepts this is a powerful concept within the applicant’s South Korean culture. The applicant has expressed his intention to redeem himself, principally because he wishes to honour his promise to his father.

26. The applicant however at no time has expressed concern for his actions as they may affect the Australian community or his otherwise flagrant disregard of Australia’s migration laws and criminal code. At the hearing, when given the opportunity to express his feelings in this regard, the applicant expressed only his intention and his promise to rehabilitate himself as he had promised his family.

27. The Tribunal finds it is unable to give significant weight to this factor.

    Future compliance and security

28. The Tribunal finds it is not satisfied in the overall circumstances of this case that on balance it is likely the applicant will abide by conditions attached to his visa.

29. The Tribunal is aware of the probative limitation in considering likely conduct or behaviour where the best available measure is against antecedent or prior conduct. The Tribunal has listened carefully to the applicant’s evidence in the hearing and accepting that he was nervous and anxious at that time. The Tribunal finds however that its concerns following the applicant’s past conduct founded on the evidence, outweigh any promising factors considered above and as outlined in VAAN, and the Tribunal’s empathy for the applicant’s current circumstances.

30. The Tribunal has considered as significant the applicant’s convictions for criminal offences which continued throughout the whole of the applicant’s stay in Australia until his arrest and then detention. The applicant’s history shows a willingness to breach Australian laws including immigration laws. The Tribunal is satisfied the applicant intentionally remained unlawfully in the community from October 2019 until his random arrest in February 2020. The applicant further breached Australian criminal law wilfully and continually for the whole of the period he was free in the community.

31. The Tribunal has taken into account that the applicant has an outstanding substantive visa application for permanent residency, noting as the representative has conceded that there are real concerns whether that application has any prospects of success, regardless of whether the applicant remains in detention or is free in the community to do whatever he may choose.

32. Having regard to all the above, the Tribunal has formed the view it is likely that the applicant will not abide by visa condition 8564. The Tribunal also finds that it does not accept the applicant will engage with the Department as and when required to do so, either in respect of reporting or advising as to any change of address details, once he is free in the community. The history shows that he has avoided contact deliberately through fear, has not attempted to contact the Department at any time other than by representatives when lodging applications, nor seek advice about doing so, and taken no steps to regularise his visa circumstances while awaiting consideration of his outstanding substantive visa application.

33. The Tribunal is further satisfied that no amount of security will act as an incentive for the applicant to comply with the conditions, assuming the applicant is able to meet any security imposed in any event.

34. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by the conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

35. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Alan McMurran
    Member