1822276 (Migration)

[2018] AATA 3631

1822276 (Migration) [2018] AATA 3631 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822276

MEMBER:Paul Windsor

DATE:9 August 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 09 August 2018 at 2:15pm

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant will apply for a substantive visa within the allowed time – Where the relevant timeframe has expired – Where the applicant is subject to a statutory bar – Where Protection visa application previously determined – Applicant unable to apply for a substantive visa – Bridging visas should not be used to circumvent legislative intent – Whether the applicant has a genuine intention to depart Australia – Where the applicant has expressed the desire to remain onshore – Decision affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5(9), 48A, 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223, 051.211

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 26 July 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(2) and (3).

3. The decision to refuse to grant the visa was made on 30 July 2018 and the applicant sought review of this decision by the Tribunal on 1 August 2018.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 3-8 of the Tribunal file.

4. The delegate was satisfied that the applicant met the primary criterion at cl.050.212(2) on the basis that he was making, or was the subject of acceptable arrangements to depart Australia.  The delegate was also satisfied that the applicant continued to meet this criterion at the time of decision (as required by cl.050.221).  The delegate refused to grant the visa because she was not satisfied that the applicant would abide by the conditions that would be imposed on the bridging visa and therefore found that he did not meet the requirements of cl.050.223.  The delegate indicated in her decision record that while the applicant stated in his application for a Bridging E visa that he intends to apply for a combined Partner (subclasses 820/801) visa the timeframe in which the applicant can do this had lapsed and he is now affected by a statutory bar.  Consequently, the delegate was not satisfied that the applicant met the primary criterion at cl.050.212(3)(b) relating to intending to apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

5. The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from [Ms A], who claims to be the applicant's partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the primary criteria at cl.050.212 and continues to meet the primary criteria at the time of decision, as required by cl.050.221.  For the reasons below the Tribunal finds that he does not.

   The grounds for seeking the visa - cl.050.212

9. 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.

10. In this case, the applicant is seeking to meet cl.050.212(2) or (3).  The applicant does not claim to meet any of the other alternative criteria in cl.050.212.

    Acceptable arrangements to depart Australia

11. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied, at the time of application, 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]).

12. The delegate found that the applicant met the requirements of cl.050.212(2) because, although he indicated in the application that he wished to apply for a Partner visa in Australia, he indicated at an interview with the delegate that after he was married he wished to depart as he does not like it in Australia; and that while he asked that no conditions be enforced on him, indicated that if he can get married he will have no problems going back to India.  Noting that while the applicant did not have a valid travel document and had not made any arrangements to depart, he had signed a voluntary request for removal and arrangements were being made by the Department to facilitate this, including obtaining a travel document, the delegate was satisfied that the applicant met the requirements of cl.050.212(2), even though he had made statements about pursuing further onshore visa options.

    Substantive visa application

13. 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.

14. ‘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.

15. As noted above, the delegate found that the applicant did not meet this requirement because he had not made a substantive visa application and, while he had indicated that he intended to apply for a combined Partner (subclasses 820/801) visa, the timeframe in which he could do this had elapsed and he was now affected by a statutory bar.

16. The applicant confirmed at the hearing that he has not made a valid application for a substantive visa of a kind that can be granted if he is in Australia.  In a submission to the Tribunal received on 7 August 2018 the applicant’s representative indicates that the applicant agreed to go back to India and mentioned that he has no problem going back after marrying [Ms A] because he assumed that he would have to stay in immigration detention until a decision was made on a subclass 820/801 Partner visa application, which he understood could take up to two years.[2]

    [2] See folios 33-34 of the Tribunal file.

17. Commenting on the delegate’s finding in relation to cl.050.212(3)(b), the representative indicates that the applicant did not apply for any substantive visa within the statutory limit because he thought he would have to remain in detention while the visa application was processed. The representative comments that while the timeframe to apply for a substantive visa has elapsed, s.195 of the Act allows the applicant to apply for a Bridging visa, and if he had been granted a Bridging E visa he would then have applied for a subclass 820/801 Partner visa. The representative further comments that while the delegate was not satisfied that the applicant would apply for a combined Partner visa, the applicant and [Ms A] had planned to marry on 21 July 2018 but the applicant was detained three days prior to the date of the intended marriage, on 18 July 2018. The representative requests that cl.050.212(3) be considered as well as he believes the applicant satisfies that criterion.

18. The representative has commented that at the initial stage the applicant couldn’t express what he wanted and which way to go.  He states that the applicant was scared to live in detention so preferred to leave Australia but he also didn’t want to leave ‘his partner’ and her children.  From the representative’s submission it appears that the applicant has indicated that he wishes to depart Australia so that he can obtain a Bridging E visa (on the basis of him being the subject of acceptable arrangements to depart Australia) where his real intention is not to depart Australia but to apply for a combined Partner visa and remain in Australia while that is processed.

19. The Tribunal discussed these issues with the applicant at the hearing.  He commented that he initially agreed to removal arrangements being made on his behalf because he had been advised by ‘someone’ that if he stayed in Australia he would have to stay in immigration detention.  The Tribunal discussed with the applicant the delegate’s reasons for finding that  he did not meet the requirements of cl.050.212(3)(b), pointing out that the delegate commented in her decision record that when he was detained he was informed of the timeframe within which he could apply for a substantive application from detention, and that the relevant timeframe had now elapsed; and that she had also commented that ‘It is not the intention of a Bridging Visa grant from detention to be used to circumvent visa applications as you are now affected by a statutory bar’. 

20. In this context the Tribunal discussed with the applicant the interaction between cl.050.212(3)(b) and s.195 of the Act as considered in obiter comments in Liu v MIAC.[3] In that matter, the court concluded that 050.212(3)(b) allows an applicant for a substantive visa, who is entitled to apply for such a visa, more time in which to do so by the grant of a Bridging visa. However, 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.[4] In other words, if the Bridging E visa application is lodged after the s.195 bar takes effect, then the applicant cannot satisfy cl.050.212(3)(b) unless the substantive visa application is for a Protection visa.

    [3] Liu v MIAC [2008] FMCA 725 (Wilson FM, 6 June 2008).

    [4] Liu v MIAC [2008] FMCA 725 (Wilson FM, 6 June 2008) at [55].

21. The applicant’s representative queried whether the s.195 period had expired before the date of the Bridging visa application and also commented that the applicant is not barred from making a Bridging visa application (as per s.195(2)). Noting that the applicant was detained on Wednesday 18 July 2018 and applied for the Bridging E visa on Thursday 26 July 2018 and the delegate’s comments in her decision record of 30 July 2018 that the applicant was informed of the relevant timeframe when he was detained, the Tribunal is satisfied that the Bridging E visa application was lodged after the s.195 bar took effect, and therefore the applicant cannot satisfy cl.050.212(3)(b) unless the substantive visa application is for a Protection visa. The applicant indicated at the hearing that when he was detained in 2011 he lodged a Protection visa application which was refused. As a consequence the applicant is barred under s.48A of the Act from making a further Protection visa application. In relation to the representative’s comment that s.195(2) does not bar the applicant from making a Bridging visa application, while that is the case, the case law in Liu v MIAC discussed above makes clear that if a Bridging E visa application is lodged after the s.195 bar takes effect (as occurred in this case) then the applicant cannot satisfy cl.050.212(3)(b) unless the substantive visa application is for a Protection visa. Accordingly, the Tribunal finds that the applicant does not meet cl.050.212(3).

22. Noting the issues discussed above, the Tribunal has significant doubts regarding whether the applicant met cl.050.212(2) at the time of application, despite him indicating to the delegate at an interview with her that he wished to depart after he married and him signing a voluntary request for removal resulting in the Department commencing arrangements to facilitate his departure, including obtaining a valid travel document for him.  As noted above, relevant case law establishes that the Tribunal is entitled to consider whether an applicant’s intentions are genuine when considering whether acceptable arrangements are being made to depart Australia.[5]  The Tribunal considers that it appears likely that the applicant consented to departure arrangements being progressed on his behalf in an attempt to be released from detention so that he could make a valid combined 820/801 Partner visa application and remain in Australia.  Notwithstanding this, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that, at the time of application, he met cl.050.212(2).  

    [5] Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [30].

23. The Tribunal finds that there is nothing to indicate or suggest the applicant meets any of the other alternative requirements set out in cl.050.212(3)(A)-(9).

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

24. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision.

25. Based on the representative’s submission of 7 August 2018 indicating that the applicant decided to apply for a Bridging E visa so that once he gets the visa he can apply for a combined Partner visa application in Australia, and the evidence taken at the hearing, the Tribunal finds that the applicant’s previously expressed intentions to depart Australia do not remain his genuine intentions. The representative commented that the applicant ‘was scared to live in detention for longer time so preferred to leave Australia but on the contrary he did not want to leave his partner and children’. At the hearing the applicant indicated that while he might return to India for a short period of time he did not want to return to India because people do not like him there because of his appearance; that the delegate misunderstood his comments that he intends to return to India after he marries; and that [Ms A]’s children are studying in Australia and he would like to live here with her and her children. Based on the representative’s submissions and the applicant’s evidence at the hearing, the Tribunal considers that if the applicant was granted a Bridging E visa on the basis of departure arrangements he would not depart Australia but would lodge a Combined 820/801 Partner visa application, using the Bridging visa grant to circumvent the plain legislative intent of s.195(1), to enable the applicant to be released from detention, apply for an onshore partner visa, and remain in Australia while that application was processed.

26. Accordingly, the Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl.050.212 and therefore does not meet cl.050.221.

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

28. 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

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

    Paul Windsor
    Member