Tribunal: Member Kira Raif

The Department of Home Affairs (the Department) refused to grant the applicant a Bridging E (Class WE) visa on 9 October 2018. The applicant applied for the Bridging Visa while a review relating to his Partner Visa application was being processed.

The applicant was a national of Lebanon born in December 1987. The applicant first travelled to Australia in September 2011 on a Student visa and he has held other visas since then.

The applicant applied for a Subclass 050 visa. This visa required the AAT to consider the conditions that should be imposed on the visa[1], if any, and then be satisfied that the applicant would abide by those conditions.[2]

The conditions the AAT decided should be imposed included no criminal conduct, that the applicant not work in Australia, that he report regularly as specified by the Department and that he would continue to live at the address he specified and notify the Department of any change of address.[3]

In deciding whether the applicant would abide by these conditions, the AAT must consider matters such as the likely conduct of the applicant, which included the applicant’s past immigration history and willingness to comply with the immigration laws.[4]

The AAT reviewed the applicant’s history and circumstances and found that he had not taken his obligations under the Migration Act 1958 (the Act) seriously.

Firstly, the AAT noted that the applicant had been an unlawful non-citizen on two occasions. The applicant’s evidence was that these breaches were unintentional and due to misunderstandings. After hearing the applicant’s evidence, the AAT concluded he did not take adequate steps to acquire the information about his visa status and to ensure his compliance with immigration requirements. The AAT stated that he seemed unconcerned about his unlawful status.

Secondly, the AAT pointed to the fact that the applicant admitted that he worked while he was an unlawful non-citizen, in breach of the conditions of the Act. The applicant claimed that he was unaware of his unlawful status but in the AAT’s view, he should have been aware. The AAT found that if the applicant wanted to ensure he was compliant with his obligations under the Act, including in relation to employment, the applicant could have taken greater steps to make inquiries and to find out about his visa status.

Thirdly, the applicant was charged with offences relating to steroids after the NSW Police raided his premises. The applicant told the AAT that at some point he knew that it was illegal but decided to take the steroids anyway. The AAT found the applicant’s evidence problematic and stated that the applicant’s conduct supported the AAT’s view that the applicant had a general disregard for the law.

While the applicant submitted that he had not made any effort to change address in the past, neither had he made any effort to engage with the Department while an unlawful non-citizen. The AAT was not satisfied he would do so in the future, particularly if he was unsuccessful in his Partner visa application. The AAT was not satisfied that the applicant would report to the Department or that he would advise the Department of his address or of his change of address.

The applicant told the AAT that a security of $5,000 was available to him. In light of the concerns set out above, the AAT was not satisfied this amount of security would act as a meaningful incentive for the applicant to abide by visa conditions.

The AAT was not satisfied the applicant would comply with the set conditions and affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.

Read the full decision on AustLII.

 

[1] 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 Migration Regulations 1994

[2] Clause 050.223 of Schedule 2 to the Migration Regulations 1994

[3] See the full list at paragraph 9 of the full decision

[4] The full list of required considerations as set out by the AAT are in paragraph 6 of the full decision