1807174 (Migration)

[2018] AATA 1956

1807174 (Migration) [2018] AATA 1956 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807174

DIBP REFERENCE(S):  CLF2018/29180

MEMBER:Sean Baker

DATE:23 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2018 at 6:26pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unable to make a substantive visa application – Time limits had been exceeded – In detention – Long period of unlawfulness – Doubts on Genuine intention to depart Australia – Unsupportable claim – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 73,137, 194,195, 196, 359AA
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725

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 on 14 March 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 on 15 March 2018 on the basis that the applicant intended to make an application for a substantive visa (cl.050.212(3)) but that he was unable to make such an application because the time limits it s.195 had been exceeded, and therefore that the applicant did not meet cl.050.212(3). The applicant provided a copy of the delegate’s decision to the Tribunal. The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [and] his [sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant has a ground on which to be granted the bridging visa.

   The grounds for seeking the visa - cl.050.212

6. 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.

7. In this case, the applicant is seeking to meet either cl.050.212(3) or, cl.050.212(2). The applicant does not claim, nor is there evidence to suggest, he could meet any of the other alternative criteria in cl.050.212.For the reasons below, the applicant does not meetcl.050.212.

   Substantive visa application

8. Subclause 050.212(3) is met if the applicant has made, in Australia, 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, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

9. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

10. The applicant claims that he wishes to make an application for a partner visa, a substantive visa. He stated that he wishes to remain in Australia with his partner, with whom he has lodged a notice of intention to marry, and his young son. In submissions and at the hearing he has described the difficulties of being parted from his partner and that he needs to be released from detention in order to look after her and the child.

11. However, on discussing this with him it appears that the applicant is unable to make such an application. This is because of the operation of s.195 of the Act, which states:

    Section 195  Detainee may apply for visa 

    (1)  A detainee may apply for a visa:

    (a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

    (b)  if he or she informs an officer in writing within those 2 working days of his or her intention to so apply — within the next 5 working days after those 2 working days.

    (2)  A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time

12. Section 194 relevantly states:

    Section 194    Detainee to be told of consequences of detention 

    As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

    (a)  the provisions of sections 195 and 196; and

    (b)  if a visa held by the person has been cancelled under section 137J — the provisions of section 137K

13. The applicant said that he had been detained on 4 February 2018. He applied for this bridging visa on 14 March 2018, and agreed that he had not made an application for a substantive visa prior to this.

14. I asked if he had been made aware of the effect of s.195 as required by s.194. He said that he had been given some documents in Chinese and English by the detaining officer, a member of [the] Police, at [a] police station. I asked if these documents had explained that he needed to apply within 2 working days or apply for an extension. He said he had not read clearly whether the documents said this or not. I asked if he had signed the documents to indicate that he had read and understood them and he said he did not think so.

15. Later in the hearing I put to the applicant under s.359AA information on file that he had been provided with a very important notice, in simplified Chinese, which explained to him the consequences of detention and the time limits for making applications for substantive visas by the detaining officer on 4 February 2018, and that he had signed to indicate he had read and understood that notice. After a break the applicant responded that he was unaware at the material time that he had to submit an application within 2 working days. He said that the immigration officer who interviewed him said that he could apply for a partner visa but did not advise or remind him of the deadline. He therefore only applied for an interim bridging visa but it was rejected and he subsequently applied for a partner visa. He said he had not read carefully about the deadline and this had led to his failure to apply within time. He said that unfortunately his former lawyer also failed to advise him about the deadline. I noted that, given the notice was provided to him, in his language, and he had signed to say he had read and understood, this may indicate that he had been ‘made aware of’ the effect of s.195. He said that perhaps it was because he was extremely nervous at the time and failed to read it carefully. He said to make matters worse his former lawyer advised him that it was most important to bail him out first and then apply for a partner visa. His bridging visa was rejected and he therefore applied for a partner visa.

16. After I explained again the consequences of s.195, the representative asked to make submissions on a separate ground – that the applicant would depart Australia. She indicated that it did appear that the applicant would be unable to apply for a substantive visa on what had been discussed at the hearing.

17. I have carefully considered the evidence of the applicant and the information put to him under s.359AA. On the basis of the information on file and the evidence conceded by the applicant, I find that the applicant was provided with a ‘Very Important Notice’, Form 1423 in simplified Chinese by the detaining officer on 4 February 2018, which amongst other matters details the consequences of s.195. I further find that the applicant signed this notice, under text that states that he has read and understood the notice. On the basis of these findings, I find that s.194 had been complied with on 4 February 2018 insofar as s.195 was concerned. I find therefore that the period in which the applicant was able to make an application for a partner visa under s.195 started running from this time and ceased two working days after this time, and that he did not make an application for a partner visa in this time, nor seek, in writing, a 5 working day extension to this time.

18. On this basis I find that the applicant is not able to make a valid application for a partner visa, and I find that he has not done so within the time allowed by s.195.

19. Nor can it be argued that he should be granted the bridging visa in order to then be able to make an application for the partner visa. The grant of a bridging visa under s.195(2) should not be used to circumvent the plain legislative intent of s.195(1) so as to enable an applicant to be released from detention.[1]

    [1] Liu v MIAC [2008] FMCA 725 at [55].

20. I find therefore that the applicant does not satisfy cl.050.212(3), and therefore cannot satisfy cl.050.221 on this basis.

    Acceptable arrangements to depart Australia

21. 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]).

22. The applicant’s representative indicated that the applicant may wish to pursue this ground in order to be granted a bridging visa. After a break and my explaining the above to him, the applicant said he definitely intended to depart as if he was released and did anything unlawful he would not be able to come back and when he got to China he would lodge an application for a partner visa. He said he just wanted to be free in the community and guaranteed he would be law abiding and would not work. He said he just wanted to be together with his family to return to China together. He said that if he was free in the community he could freely discuss with his lawyers his future options, for example his partner visa options, as his partner is all by herself in Australia. He said that if he departed by himself escorted, his wife would find it hard to return to China with the baby, and she had to wrap up some business affairs and he wished to help her with this and then depart with her. He said that because his ultimate goal is to apply for a legitimate partner visa so he will not do anything stupid, he will definitely apply and would not overstay my bridging visa this time. He explained that his Chinese passport had expired but that he could get another one from the Chinese consulate in two weeks. He indicated that his partner had purchased tickets for their return to China on 19 April, and evidence of this was provided after the hearing.

23. I noted that even if he was able to obtain a passport and had a ticket, I remained concerned about what I could discern if whether his intentions in making any arrangements to depart were genuine. I noted that he had made a detailed submission to the Tribunal on the basis that he wished to remain in Australia and seek a permanent visa, that his son needed to have follow-up visits with the Australian paediatrician for a medical condition (and there was a letter from the Australian paediatrician also indicating this). I noted also that there were concerns over the 6-7 years he had remained unlawfully in Australia, his having admitted to working whilst unlawful, and his having told me that he had sought protection in Australia around 2010-2011 on the basis that he did not wish to return to China as he feared harm there. I explained that I was concerned that he had provided copious and detailed evidence that he intended to get into the community and apply for a visa to remain in Australia to be with his family, so I had some doubts that he was now claiming he would depart Australia.

24. He indicated that he regretted his period of unlawfulness and his working whilst unlawful. He responded that he knew that if he persisted to remain unlawfully he will never get legitimate status to live here and there was no reason why he should take this risk, because he can return to China first and apply for a partner visa through a legitimate channel. He did not wish to be an unlawful resident in Australia for the rest of his life. He said he would not be stupid and take risks this time. He said that he had applied for protection on religious grounds but the Chinese government has already relaxed certain rules and policies, he has heard from other people, so it may be ok to return but that frankly he is a bit worried, but for the sake of his family he would do his utmost to apply for a valid visa to come back to Australia.

25. His representative submitted that the applicant now realised the quickest way to remain and reunite with his family is to depart and apply offshore, and he is very keen to go to China with his wife and child, now he realises he cannot apply for a visa from detention. His intention is to stay with his family and they will remain together and depart to China. She noted that he takes responsibility for his unlawfulness but he was not given the correct advice and information from his previous migration agent which played a great part in his wrongdoings including not being truthful. She noted the statements of his sister that she would be able to give a security and that his wife would surrender her passport.

26. I have carefully considered the evidence of the applicant, his partner and his sister at the hearing. I have taken account of his written submissions and the statements from his partner, sister and brother. I have had regard to the oral submissions of his current agent.

27. I am not satisfied that the applicant does genuinely intend to depart. The focus of his submission and his evidence for much of the hearing was on being released from detention to make an onshore visa application to remain in Australia. He indicated that he wished to remain in Australia and support his partner and child. It was only when it was explained that he could not be granted the visa on the basis of making a substantive visa application from detention that he stated that he was willing to depart. I am further concerned that the applicant sought protection some time ago on the basis that he feared returning to China at that time, and I am not persuaded by huis explanation that the Chinese government has changed some rules and regulations, and I consider that this would be an additional reason for him to seek alternative means to remain in Australia and not depart.

28. I have also had regard to his past behaviour and actions in attempting to discern his genuine intention. I discussed his significant period of unlawfulness with the applicant. Whilst he displayed some contrition, he also attempted to claim that he was unaware that he was unlawful right up until the time that he was detained at the police station. I do not accept that this claim is supportable – the applicant told a confused and contradictory story about his previous migration agent having told the applicant the agent would sort out his migration situation, reassuring him, and then the applicant trying to contact the agent but not being able to get in touch with him, but paradoxically, he said that he believed during all this time that he had a legitimate basis for remaining in Australia. When it was pointed out that it appeared very strange that he would try and contact his agent, not be able to get onto him or locate his agent, but think that everything was fine, he maintained that this is what he had thought. I do not accept this. I find that the applicant was aware for at least some of the 6-7 years, that he was unlawful, and took no steps to regularise his immigration status prior to his detention (although I accept that he had lodged a notice of intention to marry on [date] January 2018, I am not persuaded or satisfied that this was solely or even partly with the intention of then lodging a partner visa.) I further find that the applicant was not truthful about his awareness of his unlawful status before the Tribunal. I further find that the applicant worked whilst unlawful, in breach of the Migration Act. This past behaviour leads me to have concerns about whether I can trust the applicant’s protestations that he will return to China as claimed, or will not seek to remain in Australia on release, either lawfully through lodging some type of visa, or unlawfully. His untruthfulness to the Tribunal causes me further concerns about whether I can trust him to tell me of his actual intentions.

29. Whilst I accept that there is some evidence that he would depart – the provision of tickets for him, his partner and child to depart on [date] April 2018 together, and the fact that he and his partner indicate they wish to remain together, whether in Australia or China, and the clear attachment between the applicant, his partner and their child which may militate against the applicant disappearing into the community, I am not satisfied that this information outweighs my concerns with the applicant’s past behaviour, his truthfulness and what I can discern of his intention to depart. Ultimately, I am not satisfied that the applicant genuinely intends to depart – there are too many significant doubts that I have about his past behaviour and remaining unlawful, his application for protection and what this may indicate of his intention and desire not to return to China, his untruthfulness about his past knowledge of his unlawful status, and his expressed intention to remain in Australia and apply for a permanent visa, that I cannot be satisfied that the applicant does intend to depart as he claims.

30. I am not satisfied that the applicant genuinely intends to depart and therefore, for these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia and he therefore does not meet cl.050.212(2), nor does he, for these reasons, meet cl.050.221 on this basis.

31. Therefore, the applicant does not meet cl.050.212.

32. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. I have found above that the applicant does not satisfy cl.050.212(2) or cl.050.212(3) and there is no suggestion nor evidence that he meets any other criterion of cl.050.212 The Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl.050.212and therefore does not meet cl.050.221.

    Conclusions

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

34. 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

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

   Sean Baker
   Member