1802648 (Migration)

[2018] AATA 830

1802648 (Migration) [2018] AATA 830 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802648

MEMBER:Denise Connolly

DATE:12 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2018 at 4:11pm

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Making acceptable arrangements to depart Australia – Irregular employment – Supporting family during wife’s employment – Applicant claims to have not been aware of visa refusal

LEGISLATION

Migration Act 1958, ss 73, 189, 359AA

Migration Regulations 1994, Schedule 2 cls 051.211, 050.212, Schedule 3

CASES

Chenv MIMIA (2001) FCA 285
Lin v MIMIA (2001) FCA 283

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 DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application 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 [in] January 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made [in] February 2018 on the basis that the delegate was not satisfied the applicant was making acceptable arrangements to depart.

4. The applicant appeared before the Tribunal on 12 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

8. In this case, the applicant is seeking to meet cl.050.212(2) as he has claimed he intends to depart Australia and return to China.

   Background

9. The applicant has provided to the Tribunal a copy of the delegate’s record and notice of decision. It contains the following information. The applicant first arrived in Australia in April 2013 as the holder of a [Student] visa. It permitted him to remain in Australia to study at [a specified] level until March 2015. Condition 8202 (continue studying) was imposed on the visa. [In] March 2014 the applicant was issued a notice of intention to consider cancellation because the delegate found he was in breach of condition 8202. The applicant responded and advised that he would be lodging a protection visa application. He had already lodged the protection visa application [earlier in] March 2014 and was granted a Bridging visa A. His Student visa was cancelled and his associated Bridging visa A ceased [in] April 2014.

10. The delegate records that [in] July 2014 the applicant presented at the Department and was granted a Bridging visa E. [Later in] July 2014 the delegate refuse the applicant’s protection visa application. This decision was affirmed by the then Refugee Review Tribunal (RRT) (differently constituted) on 5 June 2015. [In] July 2015 the applicant’s Bridging visa E ceased and he became an unlawful noncitizen. The delegate records that he did not approach the Department or depart Australia and concealed himself in the community for about 2½ years. He was located on [a date in] January 2018 by [state] police. It was established that he was an unlawful noncitizen and he was detained under s.189 of the Act.

11. [In] January 2018 the applicant made a Bridging visa E application, the subject of this review, claiming he was making acceptable arrangements to depart Australia. A copy of his passport was provided but not his actual passport. At the time of the delegate’s decision he had not presented his passport to his case manager. The applicant indicated a departure date of [a date in] March 2018 in the visa application however there was no evidence that he had purchased a ticket or made a booking. The delegate was concerned that the applicant lodged the application for the Bridging visa E merely in an attempt to be released from detention. She noted that during interviews since being located the applicant consistently indicated that he has no desire to depart Australia and that he wishes to remain in Australia to work. She formed the view that his responses to interviewing officers demonstrated that he was well aware of his immigration status although he claims that, at the time he was located, he did not know about the outcome of his appeal to the RRT. She noted that during the interview [in] January 2018 he stated that he wished to apply for a work visa. She noted he did not mention that he wished to apply for a Partner visa, offshore or onshore. She noted that in the submission provided by the representative it states that he wishes to prepare for an offshore Partner visa application sponsored by [Ms A]. She noted that this evidence had not ever been raised before. She also noted in a previous interview he stated he wished that he has a girlfriend named [Ms B], born [in year], with whom he had been in a relationship for two years, and that she is the holder of a student visa. The delegate formed the view that this inconsistency indicates that the applicant’s information in his Bridging visa application is fabricated. She formed the view that, had the applicant not been located by police, he would have not considered making arrangements to depart Australia. She was of the view his main priority is to remain in Australia to work. She found that he did not satisfy cl.050.212(2). She also indicated that, had he satisfied a time of application requirement, she would not have been satisfied that he would comply with conditions imposed on a Bridging visa E such as ‘no work’, ‘report as directed’, ‘reside at a specified address’, ‘show valid passport’, ‘depart by [a date in] March 2018’ and ‘not engage in criminal conduct’. She formed this view because the applicant had been working despite knowing that he did not have permission to work. She also noted that he indicated at an interview [in] January 2018 that he needed to work in order to support himself. She noted he had made no attempts to regularise his immigration status or to depart from Australia since becoming an unlawful noncitizen in July 2015. She was of the view that the applicant would not abide by all visa conditions imposed on a Bridging visa E in his circumstances.

12. Prior to the hearing the representative provided a written submission which the Tribunal has read carefully. It is submitted that the applicant’s migration history should not lead to adverse inferences because the applicant’s failings were unintentional, sometimes on the basis of poor advice and other times out of carelessness. The representative asserted that the applicant attended classes for almost a year (at the hearing the applicant told the Tribunal that he attended for one or two months). It is asserted the applicant was advised to make a protection visa application which he did in March 2014. It is asserted the applicant was erroneously led to believe that by making the application for protection the grant of a Bridging visa A was sufficient to maintain lawful residence in Australia, thereby negating the need to remain the holder of a student visa. The notice of intention to consider cancellation of the student visa was issued after the protection visa application was made. The applicant was unaware as a consequence of the student visa cancellation that he was not the holder of the Bridging visa A. The applicant asserts that he was advised that there would be lengthy periods of time between a protection visa application and a hearing date due to the backlog of work at the RRT. He was communicating with his then representative by postal correspondence. His address remained consistent throughout the period (even though he stayed on occasions with his partner [Ms A]). The applicant asserts he has not received correspondence from his former representative advising that his RRT appeal was unsuccessful. The representative submits that the Tribunal should give the applicant the benefit of the doubt when considering his migration history.

13. The representative also asserts that the interviewer and telephone interpreter were hostile towards the applicant during his compliance interview. It is asserted that the interpreter told him to stop lying and tell the truth. It is asserted that the applicant felt intimidated by a combination of the police and the Immigration Status Service questioning, and a seemingly hostile interpreter with whom he was not entirely confident.

14. The representative also asserts that it has been his advice that detainees can make arrangements for obtaining the necessary travel arrangements following release from detention and prior to their next reporting date with Compliance. The representative indicated that he informed the applicant that it was not necessary to purchase a ticket and that this could be arranged on his release. He questions the delegate’s adverse inference due to lack of a ticket. He indicated that the date of departure for [the date in] March was an arbitrary date assigned on the application working on instructions from the applicant that a full 28 day departure grounds visa was required before he purchased a ticket. He indicated in these circumstances that the delegate had assessed the applicant harshly.

15. The applicant has questioned the delegate’s record indicating that he stated he wanted to remain in Australia to make a work visa application. It is indicated that the applicant did not give this information at the interview. He and his partner have discussed a Partner visa application ‘but not in any time recent to the interview’. While the applicant has expressed a desire to remain in Australia to work this is not tantamount to asserting that his intention was to lodge an application for work visa. Regarding the multiple mentions of his relationship with [Ms B], the applicant argues there has been a misunderstanding and confusion with his present partner. The representative also asserts that the delegate did not consider the offer of a security bond. [Ms A] has, and continues to, offer herself as community support for the applicant, providing accommodation, financial and community support until departure.

    Hearing on 12 February 2018

16. At the hearing the Tribunal explained the requirements of the law and discussed the applicant’s migration history. It also gave the applicant an opportunity, under s.359AA, to comment on respond to information which the Tribunal may consider adverse and may rely on to affirm the decision. It explained that he could seek further time but he decided to respond at the hearing.

17. The applicant claimed that he arrived in Australia in April 2013 as the holder of a student visa. He was enrolled in a [course] at [an education provider]. He acknowledged that he did not finish the course. He indicated he only studied there for one or two months. When asked why he stopped studying after such a short period he indicated that the teaching was vague and the course was not to his standard. The Tribunal asked if he informed the Department that he had ceased studying. He acknowledged that he did not go to the Department as he claimed he was talking amongst other students who agreed with him that the course was quite bad. He indicated that they wanted to find another course and transfer to another school. He indicated that they were trying to find a good agent. He did not however transfer to another school or enrol in another course. When asked about his student visa being cancelled because of non-compliance with visa conditions, he indicated that he did not know that school attendance was a requirement. The Tribunal raised its concern that it may not accept that he was unaware of the requirements of condition 8202 as attending a course to study is the fundamental purpose of the student visa.

18. The Tribunal asked the applicant if he has been working in Australia. He denied working here. When asked how he has covered living costs he indicated that he has been supported by his parents. The Tribunal asked about how that support was provided. He indicated that when he ran out of money he told his parents and they would send money by bank transfer.

19. The Tribunal asked about the grounds on which the applicant made his protection visa application. He indicated he lodged the application in about 2014 or 2015 on the basis that his parents were Falun Gong practitioners. The Tribunal asked if these were the same parents who had been able to provide him with financial support since he travelled to Australia. He indicated they had been able to do this by selling their businesses and their properties. The Tribunal indicated to the applicant that it may question whether Falun Gong practitioners would not be restricted by the authorities in building businesses and owning properties, as it understood that the authorities treat Falun Gong practitioners harshly. The applicant then indicated that as he held a student visa he had work rights. He said that he did casual [work]. The Tribunal noted that this was inconsistent with his claim to the Tribunal that he had not worked since he came to Australia. He indicated that he did not tell the Tribunal about this work because it was not ‘official’. The Tribunal noted it had not asked him about ‘official’ work; it merely asked if he had worked in Australia.

20. The Tribunal asked the applicant about the outcome of his appeal to the RRT. He acknowledged that it was unsuccessful. When asked why he did not approach the Department after the RRT affirmed the Department’s decision in June 2015, the applicant indicated that he was not aware the RRT had made its decision. The Tribunal noted that the decision was made over 2½ years before he was located indicating that his hearing was more than 2½ years ago. When asked why he did not approach the RRT enquiring about the outcome of his application to be protected by the Australian government, he indicated that he contacted his agent who told him that the RRT would send him a letter. However after a long period he did not receive a letter. He claims he approached the agent numerous times but he was just told to wait. The Tribunal asked for the name of the agent but he could not remember; it might have been [name] and he thinks the family name was [name]. He claims that he was unaware that he has been an unlawful noncitizen since July 2015.

21. The Tribunal asked for further particulars about the applicant’s protection claims. He indicated that it was on the basis of his parents’ practice. When asked if he himself had practice Falun Gong he indicated that he was afraid of persecution and that’s why he applied for the student visa. When asked again whether he himself practiced Falun Gong he said he had learned it before. He indicated that he was practising in Australia around the time of his protection visa application. When asked if he has continued to practice he indicated that he has continued with his practice at home, if he has time.  The Tribunal asked in these circumstances why he would be willing to return to China, given the treatment Falun Gong practitioners receive from the Chinese authorities. He indicated that he now has no choice. The Tribunal raised its concern that this might mean he does not have a genuine intention to depart Australia. He indicated that that was why he applied for the Bridging visa E. He indicated that he will go back to lodge an application for a Partner visa. Also his parents are worried about him and they have in the past told him to return.

22. The Tribunal asked the applicant where he was living when he was located by the police. He indicated that he was living at [a Suburb 1 address]. He indicated he lived with his landlord, a person from Fujian Province. He paid rent of $[amount] a week. He does not live with anyone else. He has been living there since 2015. The Tribunal asked if he had informed the Department of this address. He indicated he did not go to them because he did not know the law. He changed his address with [a state government agency] and he thought this was sufficient. He acknowledged that he drives a vehicle although denies owning a car. He indicated that the car he was driving at the time that he was located was owned by his friend [named] who was in the car. When asked why he was driving he indicated that his friend did not have his driver’s licence.

23. The applicant claimed that he did not approach the Department to regularise his immigration status since his last held Bridging visa ceased because he was unaware that the RRT had affirmed the Department’s decision to refuse his protection visa application. The Tribunal indicated that given the hearing was 2½ years ago it may not accept that he was unaware that the RRT had finalised the matter and consequently his Bridging visa had ceased. He was emphatic that he contacted his migration agent. When asked if he had any evidence of this, he indicated he has since changed his telephone but he might be able to go to the telephone company and get records.

24. The Tribunal asked the applicant if he was working when he was located by police. He denied working at the time. The Tribunal noted that it was recorded that during the interview he told the interviewer that the car he was driving had been registered in his name but that in fact it belonged to his boss. The Tribunal also noted that he indicated he had been working for his boss, [undertaking specified tasks], and that he was paid $[amount] for this work. It asked about the ownership of the car he was driving. The applicant then acknowledged that the car had been registered in his name and this had been done by his boss, [Mr C]. He indicated however that he could not repay a debt to [Mr C] so he gave the car back to [Mr C] and signed the transfer papers but he is not sure who [Mr C] transferred the car to. He claimed he signed the transfer papers in 2017. The Tribunal indicated that this might be inconsistent with his earlier oral evidence that when he was located the car owner was in the car with him and he was merely driving the car because the car owner did not have his license. The applicant indicated he owed money to his boss who had the [specified business] business. He claimed however that he only worked for him when he was holding a student visa and ceased working for him in about April 2015. The Tribunal noted that the applicant was located with ‘his boss’ in the car suggesting he was still working for him. He claimed that he stopped working for him when he lodged the protection visa application and that they have since just been friends. The Tribunal asked why he stopped working. He indicated that he was not allowed to work when he made the protection visa application because he was granted a Bridging visa E with no work rights. The Tribunal asked why then it had been recorded that at the interview he had said he was working. He referred to the interpreter’s hostile attitude and thought that his evidence had been misinterpreted. The Tribunal asked why, if he had stopped working for his boss in 2015, he did not sign the transfer of the motor vehicle until 2017. The applicant repeated that the car did not belong to him. It was merely put in his name for convenience.

1. The Tribunal asked the applicant if he has provided his passport to the Department. He said he has not done this. The Tribunal asked why he has not provided it. He indicated that his passport is in his house and he did not have an opportunity to get it as his wife had only visited him last Tuesday.

2. The Tribunal asked the applicant about the information that he is in a relationship with [Ms B]. The applicant blamed the interpreter and indicated that he thought the interpreter had only asked about his first girlfriend, from when he first came to Australia. The Tribunal noted that he did not mention [Ms A] at all. He indicated that he was not given a chance to give information about his current relationship. The Tribunal asked the applicant if there is any other reason why it should not be concerned that the evidence suggests he did not mention [Ms A], or his intention to apply for a Partner visa. He indicated that he was involved with [Ms B] for a short period after he came to Australia and then they broke up. He then lodged his protection visa application. He claimed that [Ms A] knew about the RRT hearing. He acknowledged that she speaks both Mandarin and English. When asked why she did not assist him to find out about the status of his RRT appeal, he repeated that he had relied on his agent to inform him of the finalisation of that application. He indicated that he met [Ms A] in September 2015, after the RRT hearing.

3. The Tribunal noted that there was a record indicating the applicant had stated that he intended to remain in Australia and apply for work visa. It asked why the interviewer would have recorded that information. He indicated that he thought it was a reference to asking for work rights while holding a Bridging visa E.

4. The applicant confirmed that he and [Ms A] are not married. The Tribunal noted that it appeared they were not living together as he lives in [Suburb 1] with his landlord. The applicant indicated then indicated that he and [Ms A] started cohabiting in November 2017. The Tribunal asked about [Ms A’s] address. He indicated that she lives in [Suburb 2]. The Tribunal noted that the applicant had given to the Tribunal his address at [Suburb 1] and suggested that this was inconsistent with his evidence that he has been cohabiting with [Ms A]. He indicated that he started staying at her place most of the time and that he had moved most of his things to her place. Since November 2017 he would only go to [Suburb 1] sometimes.

5. The Tribunal asked the applicant if he has purchased an airline ticket. He indicated that his wife has been checking the flight schedules but he does not have a ticket. He indicated that he did not want to buy a ticket because if he has to change the date it will be very expensive. The Tribunal asked why he would change the date if he is genuinely intending to depart Australia. He indicated that he did not know when he would be able to get out of detention. The Tribunal asked why he could not depart Australia from detention. He indicated that he wished to be with his wife and children before he departs. The Tribunal indicated that this might suggest that he does not want to depart Australia and he might want to remain here with his wife and children. He said that as soon as he gets out he will need to book an airline ticket. He then said he would also need to arrange for friends to mind his wife’s children because she works two nights a week and he has been caring for them.  The Tribunal noted that this information was not provided when he was detained. He indicated he was not given time to describe his relationship with his wife and children.

6. The Tribunal explained that the applicant’s migration history and past conduct might raise concerns that if he is released from detention he will attempt to remain onshore to make a visa application rather than depart as he claims. He indicated that the first thing he will do when he is out of detention is book a ticket. He will then look after the children when his wife works. He also needs to consult his migration agent about the material required for a Partner visa application. The Tribunal noted that many people make Partner visa applications from offshore and it does not understand why he needs to be onshore, out of detention, to make inquiries about the material to be provided. He indicated that he did not know that he did not have a visa. He was staying with his wife and she was shouldering all of the expenses. They now have financial difficulties he understands that he needs about $8000 to make a Partner visa application. He thought he would save some money after the protection visa outcome. He did not realise the RRT matter had been finalised. The Tribunal asked what the applicant was intending to do if he had not been located by the police. He indicated that he was looking after his wife’s children and supporting his family.

7. The Tribunal then gave the applicant an opportunity, under s.359AA to comment on or respond to information which might be the reason or part of the reason for affirming the delegate’s decision. It explained its relevance. It explained the consequences if it relied on that information. The Tribunal noted that in an interview [in] January 2018 it is recorded that the applicant indicated that he wanted to remain in Australia and apply for a work visa. It is also recorded that he acknowledged he had been working in Australia, [undertaking specified tasks]. It is also recorded that he indicated his marital status ‘single’ but that he had a girlfriend named [Ms B], born [in year]. There is no record to indicate that he mentioned [Ms A]. It is also recorded that the applicant stated that he could not return to China because his parents are Falun Gong practitioners and that he is not willing to depart Australia.

8. The applicant chose to respond immediately. He indicated that when he was interviewed at the police station the interpreter did not give him an opportunity to talk about his relationship and work. He thought that he was only being asked about his first relationship and the first work he did when he came to Australia. He thought the interpreter had a very bad attitude. He indicated that he was waiting for about six hours in the station and his brain was blank. He denied being given an opportunity to explain his second relationship and his current situation. The Tribunal asked the applicant if he had any comment to make about the record indicating he stated he could not return to China because his parents are Falun Gong practitioners and that he was not willing to depart. He indicated the reason he came to Australia was because his parents were Falun Gong practitioners however the government did not pay him any attention. The Tribunal asked why he did not apply for a protection visa immediately. He indicated he had a student visa.

9. The Tribunal explained to the applicant the purpose of the security bond and asked if he had any submissions to make regarding such a bond. He indicated his financial situation is quite difficult and he cannot afford to provide a bond. However if a bond is needed he will discuss this with his wife.

10. The Tribunal asked, if it is the case that the applicant has essentially been living with [Ms A] since November 2017, why he did not take his passport to her place. He indicated his passport is at her place. The Tribunal indicated that this appeared to be inconsistent with his earlier evidence suggesting his passport was at his [Suburb 1] residence.

11. The Tribunal then spoke to [Ms A]. She indicated that she wants to guarantee that the applicant will depart Australia. She then said she needs him to be by her side. She understands that he did not mention her in the interview and as far as she knows it was because it was quite late and the interpreter had a bad attitude towards him. She indicated that as a consequence of this his evidence was quite messy but he did not know what to do. She indicated that she needs him to stay with her because he cares for her two daughters. However she also indicated that he will leave because he now knows his visa has expired and he wants to lodge an official visa application offshore.

12. The Tribunal asked if he had any other evidence to give before it closed the hearing. He indicated that the first thing he will do when he gets out of detention is book a ticket. Then he will find friends to look after the children. Then he will go back to China and send money to his wife and children.

13. The representative wished to make submissions. He indicated that the Tribunal should not put weight on the fact that the applicant has not yet purchased a ticket because he has 28 days from the grant of a Bridging visa E to depart and so he does not want to purchase the ticket until he knows the date of grant. Also because of the Schedule 3 requirements there is a high risk of refusal for an onshore application. His advice to the applicant has been to depart Australia and make an offshore application which is more likely to be successful. With respect to the security bond, while their financial situation is not good, the applicant and [Ms A] may be able to provide a security bond if one is required.

    Assessment of the evidence

    Acceptable arrangements to depart Australia

14. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

15. The Tribunal finds that the applicant arrived in Australia in April 2013 as the holder of a [Student] visa granted for the purpose of study for a [course] at [his education provider]. On the basis of his own oral evidence he ceased studying shortly after he commenced the course. He did not inform the Department that he had ceased studying. The Tribunal has considered the applicant’s evidence for why he did not inform the Department, in particular that he wanted to find a better course and enrol a different school however, given he has not done any study since then, it finds this quite unpersuasive. It finds his evidence that he did not know he needed to attend his course unpersuasive. The Tribunal notes that the applicant’s Student visa was then cancelled however prior to this the applicant had applied for a protection visa, claiming that his parents in China were Falun Gong practitioners. It notes that the Bridging visa A granted to him after he made his protection visa application was cancelled when his student visa was cancelled. It accepts the representative’s assertion that the applicant thought he continued to hold the Bridging visa A granted to him when he made the protection visa application. It notes he was granted a Bridging visa E when he presented to Compliance in July 2014 and held that visa until July 2015, shortly after the RRT affirmed the Department’s decision to refuse the applicant’s protection visa application.

16. The Tribunal finds that the applicant has been an unlawful noncitizen since July 2015. It has taken into account his claims that he was unaware of this status because he did not realise that his RRT matter had been finalised in June 2015. It has taken into account his assertions that he approached his agent several times to ascertain the status of that appeal. However it is not satisfied that the applicant was unaware that the RRT had finalised the review in June 2015. While it is claimed that the applicant was advised there are lengthy periods between the review application and the hearing date due to the RRT’s backlog, in this case the applicant had already had his hearing. The Tribunal is of the view that, if the applicant was genuinely seeking protection because of a fear of returning to China, he would have been anxious to ascertain the outcome of his hearing held in June 2015. The Tribunal also doubts the migration agent would have repeatedly told him to wait for the outcome of the hearing held in June 2015. The Tribunal also has some concerns that the applicant was unable to give the name of this migration agent, given he had asked this person to assist with a very serious matter, an application for protection because of fear of persecution. The Tribunal finds the applicant remained in Australia unlawfully for about 2½ years after his Bridging visa E ceased in July 2015. It is not satisfied that he was not aware of his migration status.

17. The Tribunal also has concerns about inconsistencies in the applicant’s evidence. It gave him an opportunity to comment on information that was set out in the record of interview. Most of this information was included in the delegate’s record and notice of decision which the applicant has provided to the Tribunal. The Tribunal was particularly concerned about the record that the applicant had indicated he wanted to remain in Australia and apply for a work visa, that he had been working in Australia [undertaking specified tasks], that his marriage status is single but he has a girlfriend of two years named [Ms B] born [in year], that he could not return to China because his parents are Falun Gong practitioners and that he was not willing to depart Australia. The applicant denied indicating that he wanted to apply for a work visa. He indicated that this might have been a reference to a work permit if he was granted a Bridging visa E. The Tribunal has some doubts about this because he had previously indicated that he knew he could not work if he held a Bridging visa E. The Tribunal is particularly concerned that the applicant’s evidence regarding his work here has been inconsistent. Initially he indicated to the Tribunal that he had not worked in Australia. When he subsequently admitted working in Australia and it was put to him that this was inconsistent with his earlier oral evidence he tried to overcome this problem by suggesting that he thought the Tribunal only wanted to know about his ‘official’ work. With respect to the record that he admitted at interview to working when located, the Tribunal has taken into account his assertions that the interviewer and interpreter were hostile towards him. He was emphatic in his oral evidence to the Tribunal that he had not worked in Australia since 2015. The Tribunal finds this highly unpersuasive. Having considered the evidence recorded in the notice of decision, provided to the Tribunal by the applicant, it is of the view that he was working in Australia up until he was located. The Tribunal is also of the view that the applicant’s confusing evidence about the registration of the motor vehicle he was driving when located suggests that he has not been telling the truth. While it is not assessing any Partner visa application sponsored by [Ms A] which the applicant may make, the Tribunal is of the view that there is significant doubt that he was in a relationship with [Ms A] at the time he was located. It takes into account his assertions that he thought he was only been asked about his first relationship and that he was not given an opportunity to give evidence about his current relationship. However the Tribunal is of the view that if the applicant was in a genuine relationship with [Ms A] (who he describes as his wife) at the time he was located he would not have described his marital status as single and he would have at least mentioned her in the course of the interview. He did not do this. This raises significant doubt that the applicant has been in a relationship with [Ms A] as he now claims. In any case these claims can be tested if a Partner visa application is made.

18. The Tribunal has considered the applicant’s response to concerns that the interview record indicates he had informed the interviewer that his parents were Falun Gong practitioners and because of this that he was not willing to depart Australia. The Tribunal is of the view he has not been able to provide an adequate explanation for why this would have been recorded had he not stated it, given his own protection visa application on Falun Gong grounds. The Tribunal is also of the view that it is somewhat surprising that Falun Gong practitioner would be willing to return to China given the treatment Falun Gong practitioners receive from the authorities. On this basis it accepts that the applicant did indicate he could not go back to China and he is not willing to depart Australia. This raises some doubt about the applicant’s current claims that he now has a genuine intention to depart Australia.

19. The Tribunal also has concerns regarding the applicant’s evidence about why his passport has not been presented. He initially indicated to the Tribunal that it was because his passport was in his house. The Tribunal assumed he was referring to [Suburb 1] because this was the only address he had given in his oral evidence. When he later indicated he has essentially been living with [Ms A] in [Suburb 2], the Tribunal asked him why he did not store his passport at her home. He then indicated it is at her home. The Tribunal has some concerns that the applicant has not adequately explained why he has not presented his passport.

20. The representative has explained why the applicant has not yet booked a ticket to depart Australia. The Tribunal understands that the applicant wishes to maximise his period of stay in Australia if it is the case that he is released from detention and that he does not wish to purchase an airline ticket until he knows the date of grant. It has been suggested that the applicant wishes to be released from detention because he wants an opportunity to seek advice and put together the material for a Partner visa application. The Tribunal is of the view that these things can happen while the applicant is detained. It is concerned that the applicant wishes to be released from detention to prepare evidence for a Partner visa application that might not yet exist. The Tribunal is also of the view that if the applicant had a genuine intention to depart Australia in the foreseeable future he would purchase an airline ticket. It is concerned that once he is released from detention he may change his mind and seek to remain in Australia and make a Partner visa application onshore. This concern particularly arises because of his claims that his partner needs him to look after her children because she works at night. This raises doubts that he does in fact intend to leave Australia. While the Tribunal accepts that the requirements of Schedule 3 may result in a refusal, the Tribunal is also mindful that the applicant may seek to rely on the care he provides to his wife and children to satisfy the requirements of Schedule 3.

21. Overall the Tribunal is not satisfied that the applicant does have a genuine intention to depart Australia. It is of the view his primary reason for seeking a Bridging visa E is to be released from detention to prepare evidence for a Partner visa application. It is concerned that once he is released from detention he will seek to remain in Australia to make an onshore application. It accepts he may have been given evidence by his representative to wait until he has been granted a Bridging visa E to maximise his period of stay in Australia. However given the concerns discussed above and the inconsistencies in his evidence, the Tribunal is not satisfied it can rely on the applicant’s assertions that, as soon as he is released from detention, he will book a ticket to depart Australia. It is concerned that, in the applicant’s circumstances, he does not have concrete arrangements in place for a definite departure. It is satisfied that if the applicant wishes to be advised and prepare evidence for a Partner visa application that he will be able to do this from detention and offshore, if it is the case the relationship is genuine.

1. On the basis of these findings the Tribunal is not satisfied the applicant was, at the time of application, making, or was the subject of, acceptable arrangements to depart. Nor is it satisfied that he is currently making, or the subject of, acceptable arrangements to depart.

2. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

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

4. 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

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

   Denise Connolly
   Member