BVE: obligation to explain why certain conditions would be imposed for the purpose of cl 050.223?

Federal Court. Was the Tribunal obliged to explain why certain conditions (if any) should be imposed for the purpose of cl 050.223 of Schedule 2 of the Migration Regulations 1994 (Cth), instead of merely listing such conditions in its reasons for decision? If so, was that obligation obviated if the visa applicant conceded to the Tribunal that those conditions should be imposed?

The Appellant applied for a BVE on the basis of his arrangements to depart Australia on 21 May 2022.

A delegate refused to grant a BVE because of non-satisfaction of cl 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth), which read as follows:

The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

The basis for non-satisfaction of cl 050.223 was that the delegate found that some of the 7 discretionary conditions (8101, 8207, 8401, 8506, 8510, 8512 and 8564) he/she would have imposed under cll 050.617 and 050.618 in the case of grant (out of the 15 available), would not be abided by.

On review, the Appellant stated as follows to the Tribunal in writing:

1. I make these statements in support of the review of my Bridging E visa application.

2. I seek for the grant of the Bridging Visa E on departure ground, in that I am seeking to be released in the community in order to make my own arrangements to depart Australia.

3. I accept the imposition of conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 against my Bridging E visa if granted. I understand what these conditions are and what I am required to do and not to do in order to abide by these conditions. I undertake to comply with these conditions and I do not see any issues or difficulties in complying with these conditions.

4. I do not agree with the case officer's decision that I would not abide by these conditions. I understand the case officer's concern having considered my immigration history, and say that I cannot change the past but I can promise the future.

The Tribunal stated that it would impose 7 conditions for the purpose of cl 050.223, which were the same that would have been imposed by the delegate. The only statements from the Tribunal on the imposition of any conditions were as follows:

28. The Tribunal stated as follows in its decision record affirming the visa refusal: 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].

44. In this case, cl 050.6 applies because of the potential for conditions to be set in the provision of a visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case: 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).

According to VAAN [22], cl 050.223 involves some steps by decision-makers, the fist two being:

Step 1: determining what conditions (if any) should be imposed if the BVE were to be granted;

Step 2: determining whether such conditions (if any) will be abided by

While judicial review proceedings were on foot at the Federal Circuit and Family Court (FCFCOA), the Minister notified the Appellant of his intention to remove the Appellant from Australia on 28 April 2022, before his planned departure day of 21 May 2022.

The Appellant appealed from the FCFCOA's decision dismissing his judicial review application to the Federal Court (FCA), which heard the matter on 22 April 2022.

Some of the questions to the FCA were as follows:

Question 1: Did the Appellant make a concession to the Tribunal "that there was a proper factual and legal basis for imposition of the seven conditions on the visa if granted"?

Question 2: Did the Tribunal have an obligation under s 368 of the Migration Act 1958 (Cth) to specify how or why Step 1 was taken the way it was? In other words, was the Tribunal obliged to explain why certain conditions (if any) should be imposed, instead of merely listing such conditions in its reasons for decision?

Question 3: If the answers to Questions 1 and 2 are 'yes', were [28] and [44] of the Tribunal's decision sufficient to discharge the Tribunal's obligation to give reasons under s 368?

Question 4: Cl 050.411 provided that the visa could only be granted if the visa applicant were in Australia at the time of grant. Would the appeal be rendered nugatory if the Minister, who intended to remove the Appellant from Australia while court proceedings were on foot, did so?

Question 5: If the answer to Question 4 is 'yes', was that the principal reason for the grant of an interlocutory injunction preventing the Appellant's removal in this case until the substantive matter (i.e. the appeal of the dismissal of the Appellant's judicial review application) was determined?

Question 6: If the Appellant were to be removed involuntarily before the appeal was decided, would he be prevented from applying for a subclass 309 partner visa to return to Australia as a lawful non-citizen for a period of 12 months, because of cl 309.226 and criterion 5002 of Schedule 5 of the Regulations?

Question 7: If the answer to Question 6 is 'yes', would that answer be a further reason why the interlocutory injunction should be granted?

The FCA answered those questions as follows:

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