2206509 (Migration)

[2022] AATA 5192

2206509 (Migration) [2022] AATA 5192 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2206509

MEMBER:Paul Windsor

DATE:12 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2022 at 4:38 pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – intention to apply for a partner visa – immigration history – multiple periods of unlawful residence – decision under review affirmed  

LEGISLATION

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

CASES

Chen v 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act.

2. The applicant applied for the visa on 2 May 2022. 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 1994 (Cth) (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 3 May 2022 on the basis that the applicant did not meet the requirements in clause 050.211.

4. The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing and English languages.

5. The applicant was represented in relation to the review.  Her representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the primary criteria at cl.050.212.

   The grounds for seeking the visa - cl 050.212

8. 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.

9. In this case, the applicant initially (in the application for the Bridging E visa) indicated she was seeking to meet cl 050.212(2).  She subsequently (on 7 May 2012) advised that she was seeking to meet cl 050212(3)(b).  The applicant does not claim to meet any of the other alternative criteria in cl 050.212.  For the reasons below, the Tribunal finds the applicant does not meet cl 050.212.

   Acceptable arrangements to depart Australia

10. 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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).

11. In her application the applicant indicated that she was seeking the visa because she was making arrangements to depart Australia.  She indicated that, due to the complex and strict pre-departure arrangements for China, it will take some time to comply with the requirements and wished to be released from detention to make the proper arrangements on her own.  She indicated that she had discussed the matter with her family in China and her family friend in Australia, [Friend A], and would comply with all visa conditions if granted the visa.  Included with the application was a support letter dated 2 May 2022, signed by [Friend A].  In his letter, [Friend A] indicates he would like to provide the applicant with all necessary assistance so she can be released from detention.  He indicated his address is [Address 1] while the applicant will reside at [Address 2].  He comments that the applicant has learned a good lesson after being taken into immigration detention and promises she won’t do anything similar in the future.  He states he hopes she can be released soon so she can leave Australia for China voluntarily.

12. On 7 May 2022, however, a statutory declaration by [Friend A] of the same date was submitted indicating that the applicant is his de facto partner and he would like to sponsor her for a Partner (Temporary) UK-820/Partner (Residence) BS-801 visa in Australia, and that she will make the application within a period allowed by the Minister (Tribunal).

13. Considering the above, the Tribunal finds it is clear that the applicant does not intend to make arrangements to depart Australia if she is granted the Bridging E visa.  As discussed with the applicant at the hearing, the Tribunal also notes that she has a very poor immigration history, having been an unlawful non-citizen on five occasions (once for over six years and once for over two years), since she arrived in Australia in November 2010.  Furthermore, on the two most recent occasions she was granted Bridging E visas (in August and October 2021), both on departure grounds, she did not depart Australia and again became unlawful.

14. 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).

    Substantive visa application

15. 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 allowed by the Minister for that purpose.

16. ‘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 an application being made: s 5(9) of the Act.

17. The delegate found the applicant did not meet this requirement because she did not have a current substantive visa application with the department and was not intending to lodge an application onshore.  

18. At the hearing it was claimed that the applicant had wished to make a partner visa application but was advised by a ‘solicitor’ that it was now too late to do so and that she should make a Bridging E visa application on departure grounds.  It is claimed that the ‘solicitor’ was incompetent and provided bad advice to the applicant and [Friend A].  The applicant and [Friend A] could not identify the ‘solicitor’ concerned, other than to say his name was ‘[name]’.  The Tribunal notes that [Friend A] was identified as the authorised recipient on the Bridging E visa application. There was nothing in the application and supporting documents to indicate the involvement of an Australian legal practitioner or Registered Migration Agent in the preparation of the application.

19. It is clear from the material before the Tribunal that the applicant was advised on Thursday 28 April 2022 of the implications of s 195 of the Act in relation to applying for visas (other than a bridging visa or a protection visa) while in immigration detention (that she had to make an application within two working days of that date (that is by the end of 2 May 2022) or inform an officer in writing by that date of her intention to so apply, within the next 5 working days after those 2 working days). The applicant did not make a visa application or indicate an intention to make a visa application by the end of 2 May 2022.

20. In this regard, as discussed at the hearing, the Tribunal notes the interaction between cl 050.212(3)(b) and s 195 of the Act as considered in obiter comments in Liu v MIAC.[1]  In that matter, the court commented that, for cl 050.212(3)(b) to be engaged, the Minister must have allowed for an application for a substantive visa to be made, and 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.  The court commented that the subclause should not be used as a device to be released from detention, stating that 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.[2]  

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

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

21. In this case the Tribunal considers the applicant could have advised the Department in writing of her intention to make a substantive visa application (the combined partner visa application) within the 2 working day period allowed under s 195(1) and sought an extension of time (a further 5 working days) to so apply, and made an application for a Bridging E visa, enabling her to have more time (a period allowed by the Minister) in which to make the visa application. The applicant choose not to do this, however, even though the two working day period had not expired when the Bridging E visa application was made.  At the time of the delegate’s decision on 3 May 2022, the applicant had not given any indication that she wished to make a substantive visa application.  The Tribunal finds that the applicant providing new information on 7 May 2022 indicating that she is in a de facto relationship and wishes to make a partner visa application, and therefore ‘sought’ the visa under cl 050.212(3)(b) is seeking to circumvent the plain legislative intent of s.195(1) so as to enable the applicant to be released from detention.

22. In reaching this conclusion the Tribunal has considered the assertions made at the hearing that the applicant and [Friend A] were misled by a corrupt solicitor, but finds that they willingly agreed to proceed on the basis suggested.  [Friend A] signed the ‘Support Letter’ dated 2 May 2022 included with the Bridging E visa application, which made no mention of him being in a de facto relationship with the applicant or wishing to sponsor her for an onshore partner visa.

23. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant made a protection visa application in December 2010 which was refused in July 2011, and that decision was affirmed by the Refugee Review Tribunal in November 2011.  Therefore, the applicant is barred under s 48A from making a further protection visa application (in December 2014 a request made under s 48b was finalised as ‘subsequent application not allowed’).

24. Accordingly, the applicant does not meet cl 050.212(3).

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

26. 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

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

    Paul Windsor
    Member