2311203 (Migration)

[2023] AATA 4877

2311203 (Migration) [2023] AATA 4877 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Craig Byram Chung

CASE NUMBER:  2311203

MEMBER:Linda Holub

DATE:7 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 7 August 2023 at 1:10pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – report as directed – notify change of address – reliance of agent – depart by date specified – immigration history – false claims in protection visa application – no criminal conduct requirement – criminal history – vague responses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8401, 8506, 8512, 8564

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

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 21 July 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051.

3. 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 050.223.

4.    The decision to refuse to grant the visa was made on 26 July 2023 on the basis that the delegate was not satisfied that the applicant would abide by the discretionary conditions of:

·8401 – Must report as directed

·8506 – Must notify change of address two working days in advance of any change to holder’s address

·8512 – Depart by date specified

·8564 - Must not engage in criminal conduct.

5.    The applicant appeared before the Tribunal on 3 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s boyfiend. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.    The applicant was represented in relation to the review.

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

BACKGROUND

8.    The applicant was born in [year]. She is a citizen of China.

9.    The Department’s Decision Record (which the applicant provided to the Tribunal) sets out her visa and migration history. The applicant first arrived in Australia [in] May 2017 as the holder of a Tourist (FA 600) visa that allowed her to remain in Australia [until] February 2018. The applicant departed Australia on this visa [in] June 2017 before last re-entering Australia [in] November 2017.

1. On 13 February 2018 she lodged an application for a Protection (XA 866) visa and was granted an associated Bridging visa A (BVA). On 21 June 2022 the Protection visa application was refused, and the applicant did not seek review of this decision at the Tribunal.

2. On 26 July 2022 the applicant Bridging visa A ceased and she became an unlawful non-citizen (UNC).

3. [In] February 2023 the applicant was remanded into criminal custody for the following offences:

   a.Stalk / Intimidate Intend Fear Physical Etc Harm (Domestic)-T2

   b.Destroy or Damage Property <=$2000 (DV)-T2

   c.Destroy / Damage Property In Company <=$2000 (DV)-T2

   d.Common Assault (DV)T-2

   e.2 x Armed W/I Commit Indicatable Offence -T1

   f.Contravene Prohibition / Restriction in AVO (Domestic).

4. [In] July 2023 the applicant was convicted and directed to enter into a Community Correction Order for six months pursuant to Section 8 of the Crimes (Sentencing Procedure) Act 1999, commencing on [date] July 2023, a new AVO was also issued against the applicant on this date for a period of two years. The applicant was also directed to pay a penalty of $1092 by 11 August 2023.

5. Upon being released from criminal custody [in] July 2023 the applicant was subsequently detained pursuant to section 189 of the Act and transferred to [an Immigration Detention Centre], where the applicant remains.

Current application

1. On 21 July 2023 the applicant lodged an online application for a Bridging E visa. The Detention Review Officer was informed about the lodgement of the application on 24 July 2023 as required under Item 1305(3)(c) of the Migration Regulations. The Department refused the application 26 July 2023. On 27 July 2023 the applicant sought review of the Department’s decision at the Tribunal. It is this BVE application that is currently under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant will abide by the conditions of the visa.

Whether the applicant will abide by conditions - cl 050.223

1. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

2. 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].

3. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

4. In considering the circumstances of this case, the Tribunal considers the following discretionary conditions of relevance to the applicant and should be applied:

   ·8401 – Must report as directed

   ·8506 – Must notify change of address two working days in advance of any change to holders address

   ·8512 – Depart by date specified

   ·8564 - Must not engage in criminal conduct.

5. It is my view that these are the appropriate conditions given the applicant’s lack of compliance with previous visa conditions and given her previous criminal history.

Information before the Department 

1. At the time of lodgement, the applicant did not provide any additional documents to the Department tin support of the application. On 25 July 2023 she provided a copy of [a] travel itinerary, issued 25 July 2023. The itinerary shows a flight booked from Sydney to Guangzhou, and Guangzhou to [City 1] departing [in] August 2023 in the name of the applicant.

Evidence before the Tribunal

1. At the time of lodgement, the applicant provided to the Tribunal:

   ·A Statutory Declaration of [Mr A], dated 27 July 2023 with ID attached, stating he has known the applicant for more than five years, and that he will apply for personal leave to take care of the applicant upon her released from [immigration detention], until her departure to China.

   ·A further copy of [the] travel itinerary issued 25 July 2023, and previously provided to the Department.

2. On 2 and 3 August 2023, the Tribunal received further submissions on behalf of the applicant including:

   ·A statement from her migration representative.

   ·A copy of the Bridging visa application form submitted to the Department, as well as the Department’s Decision Record and notification letter.

   ·Further copies of the time to lodgement documents referred to a paragraph 23.

3. The submission states that [Mr A], has signed a statutory declaration advising that he is prepared to act as a good character guarantor for the applicant. It states he is a person of good character and standing and that the applicant is of low risk of failing to meet her obligations under the proposed conditions if the visa was granted

4. In relation to condition 8401 Must report as directed, the submission states that when the applicant was interviewed by the Departmental officer, she gave no indication that she did not intend to report as directed. It states the decision makes no reference to this condition in the reasons for refusal. It was submitted that there is no evidence relied upon by the delegated that the applicant will not report as directed and that her community support and relationships will assist her to ensure she complies with condition 8401.

5. The submission states that if the applicant is granted a Bridging Visa, she intends to reside for the short period of time until her departure date, with her boyfriend, [Mr A]. She has a booked and paid for an airline ticket for travel [in] August 2023. If there are other times at which she must report, she is willing to abide by the condition if imposed.

6. In relation to condition 8506 Must notify change of address, it was submitted the applicant will reside with [Mr A] at [address provided]. It was submitted she has no intention, means or desire to move from that address during the relatively short period that she would reside in the community prior to her departure [in] August 2023.

7. The submission states that the applicant’s previous failure to notify the Department of her change of address was inadvertent and partly due to her lack of English language skills and she now understands the importance of abiding by condition 8506 and intends to satisfy that condition.

8. In relation to condition 8512 Depart by Date Specified, the submission refers to the applicant’s interview with the delegated decision maker, and that when she was asked about the arrangements she had made for departure, that at that time she had not located her passport. The submission states that since the date of the interview, the applicant’s legal representatives liaised with her former landlord. Her belongings have been retrieved and handed to her boyfriend, [Mr A]. This includes her original Chinese passport, number [specified].

9. The submission states that whilst in [Immigration] Detention Centre, it was difficult for the applicant to make travel arrangements for travel to China as required. Since the date of the interview, [the applicant]’s boyfriend has booked and paid for a single journey air ticket for [the applicant] travelling to China [in] August 2023 and refers to attached airline confirmation. Furthermore, the submission states that [Mr A], intends to travel to China to support the applicant and is awaiting the outcome of the review before committing funds to travel and applying for a Chinese visa.

10. In relation to condition 8564 Must not engage in criminal conduct, it was states that during the applicant’s interview with the Department, she openly acknowledged and was transparent in the disclosures of her convictions. It states that the applicant was convicted of offences relating to a dispute with her former house mate and while she acknowledges the seriousness of the offences, the context of the offences indicate that she is not at risk of reoffending. All of her belongings have been removed from the property at which she formerly resided, and she has no reason to return to that address or to make any contact with the former housemate.

11. The submission states that the applicant has completed a Community Corrections Order and has been of good behaviour and character during that period. Furthermore, she has been of good behaviour while in immigration custody. It states that it would be unfair to punish her any further beyond the sentence imposed by the Court by refusing a visa on the basis that she has a conviction. It repeats that if she is released on the Bridging visa, the visa applicant has committed to residing with her boyfriend, [Mr A], until the specified date of departure. [Mr A] is a reputable and well-known member of the community who is committed to supporting the applicant to ensure she is not at risk of reoffending.

12. It was further submitted that on the basis the applicant has personal support, is remorseful of her previous behaviour, has no reason to attend the location of her previous offending and will be accompanied by her boyfriend for the duration of her release until departure, and that she is not at risk of reoffending.

Oral evidence provided

1. The applicant confirmed her date of birth, citizenship and migration history at the start of the hearing.

2. The applicant stated that she came to Australia because it is a friendly and beautiful country, and she spent her time ‘hanging out with friends and doing things’. She stated she went to Melbourne and Perth.

3. In relation to her Protection visa application the applicant stated that at that time she was deceived by a bad migration agent. She stated that she had wanted to apply for a Student visa. She stated that the basis of her protection claims were in relation to Falun Gong. She stated that she was never been a practitioner of Falun Gong.

4. The applicant stated that she did not depart when her application was refused because she had already met [Mr A] and she really likes Australia. She stated she did not know that her visa was refused because she trusted her agent and when she was put in detention, she did not know her visa was cancelled.

5. I put it to the applicant that this implies to me that she paid no regard to her migration status. I told her that it appears that she is prepared to flout Australia’s migration laws, and this raises concerns about her paying any attention to the conditions of her Bridging visa.

6. The visa applicant responded that she did not disregard Australia’s laws. She stated that she was always asking her visa agent about her visa status. She stated that as a Chinese citizen she doesn’t know about Australia’s migration requirements and that it is very complex, so she was totally reliant on her migration agent. She said she realised that the first one was not good, so she went to a second agent and was asking him about her visa status last May. She stated that she had intended to return to China. I told the applicant that visa holders are responsible for their visa status and information provided to the Department. She responded that she now knows that and will comply with all the conditions.

7. In relation to how she met [Mr A], her explanation was very vague, and it took me some time to understand it in broad terms their meeting. She claimed they met at a café in or near [location]. Her friend [Ms B] worked at café, and she had coffee with he friend and met [Mr A]. [Ms B] and [Mr A] knew each other. She stated that it may have been in 2018, possibly in autumn.

8. The visa applicant stated that she and [Mr A] are like boyfriend and girlfriend and that they have been in such a relationship since 2019 from what she can remember. When asked to be more specific about the timing, she stated that she thinks it was from about September when she returned from Melbourne. She said that she's having trouble recalling the details because she is on many different medications incluidng for anxiety and depression. When asked to outline the medications she is on she responded that in the detention centre they give her sleeping pills and pain relief.

9. The applicant stated that she and [Mr A] communicate through WeChat when they message each other and even when they have a conversation although she has some basic English. They use the Wechat application if there is something they don’t understand.

10. The applicant stated that [Mr A] plans to visit her in China. She stated that she has not seen her family so several years and many things have happened since then. She really wants to see her family but was unable to return earlier because her passport had expired, and the pandemic struck.

11. The applicant stated that she did not seek any assistance from [Mr A] in relation to any migration matters because her migration agent kept telling her that everything was in order. She stated that she did not receive the Department’s refusal desicion in relation to her Protection visa application and therefore was unable to share this with [Mr A]. As to whether [Mr A] knew she had applied for protection, she responded that she only told him she was holding a Bridging visa.

12. The applicant stated that she had worked as a cleaner and that while she held a Bridging visa A (subclass 010) she had work rights.

13. The applicant stated that her parents, her brother, sister and nieces reside in China and that she intends to return to her home [City 1], Hunan Province.

14. In discussing the visa conditions, the applicant gave the following evidence:

15. The applicant stated that she will stay with [Mr A] and that he has supported her in the past, even when she was sick. She stated that she needs some time to take care of some personal matters, like banking. She stated that she did not know that she owes the Australian government money until her lawyer told her and she has taxes to pay. She stated that she doesn’t have much money but does not want to leave behind any debts. She stated that she promises she will never disobey any Australia law.

    Must report as directed (8401)

16. I told the applicant that although the delegate made no negative finding in relation to this condition, I must consider her compliance. She stated that she understands that if the Department requires her to report she must do so and that she will not be breach any conditions.

    Must notify change of address two working days in advance of any change to holder’s address (8506)

17. I told the applicant that looking at the Department’s Decision Record on this issue, her history was not good. She responded that she trusted her agent too much and that she won’t breach and won’t repeat her mistakes.

    Depart by date specified (8512)

18. The applicant claimed that she has notified her family of her return to China next week. She stated that [Mr A] will apply for a visa and depending on how long he can have off, he will possibly stay in China two weeks but might stay longer if he likes China. She wants to spend time with her parents and as her father’s health has deteriorated, she is keen to see them.

    Must not engage in criminal conduct (8564)

19. In relation to condition 8564 Must not engage in criminal behaviour, the applicant stated that she will never do anything like that again. I asked her to tell me the circumstances. She stated that her flat mate locked the door on her, so she took a knife to pry open the door. She stated that she did not set out to harm anyone. She stated that it was her anxiety that led to the situation but that in prison she has complied with every instruction. She stated that she knows her mistake. When asked what mistake, she stated that she was threatened. She stated that when the police were there, she could not remember anyone’s number and that she didn’t understand the Australian law and she will never do it again and that she has always been a law-abiding citizen.

20. I explained to her that her answer was not helpful in me understanding what occurred. She stated that she only had a legal aid lawyer and he told her to plead guilty, so she did so. She couldn’t believe it was happening to her. I asked her if she was saying that even though she was convicted of these offences, she did not commit them. She responded that she realised that she was at fault, but she had only wanted to use the knife to open the door. She realises that she shouldn’t be that impulsive.

1. I put it to the applicant that her responses explaining the convictions has been very vague and that makes me concerned that she will not comply. I explained to her that she seemed to be saying that that she only pleaded guilty because of the Legal aid advice. I told her I would ask her one more time what the circumstances were that led to the conviction. I explained that it was important for me to get a better understanding so I can assess the likelihood of complying with the condition and her evidence so far did not really explain to me the circumstances of what had occurred. She responded that in the future, she will never hurt anyone or destroy anyone’s property and that she will follow every Australian law and even regulation. This incident made her realise she must do that.

Evidence provided by witness

1. The witness described the relationship between him and the applicant as ‘better than friends’. When asked when the relationship started, he responded that it was possibly a few years ago, or four years ago. When asked if he could be more specific, he stated that they met around 2018 or 2019. When asked if he could remember a month or time of year, he stated that he does not know. He stated that they met in a café through a friend called [Ms B]. He stated that he believes it was in [location]. He used to be a regular there.

2. I asked when he became aware that the applicant was in Australia unlawfully, he responded that when she got out of prison, she had money to extend her visa. He stated that maybe it was in 2022. He stated that he was not aware that she didn’t hold a visa.

3. The witness stated he and the applicant communicate through WeChat because early on she didn’t speak very much English. He stated that initially when they were together, they would use a lot of hand signals, a bit of talking and a bit of WeChat.

4. The witness stated after the applicant returns to China, he plans to visit at the end of the year possibly around November. He stated that in the first instance he's considering staying for two months.

5. In discussing the conditions that would be imposed on the applicant’s visa the witness stated that he will financially support her for the time she is in Australia. He stated he has supported her for some years except when she was incarcerated. He stated he is comfortable that she will comply with Conditions 8401 and 8506 and that in relation to Condition 8512 – Depart by date specified, he stated that she definitely will depart on [date] August 2023. He stated he can assure she will comply with Condition 8564 - Must not engage in criminal conduct.

6. In relation to the applicant’s previous criminal record, the witness stated that there were two incidents – one last year and one on 25 February of this year. He stated that he only became aware of the incidents after the event. He stated that the circumstances related to $3,500 taken off the visa applicant to renew her visa and she wanted her money back. The applicant asked him to help her get money back. He stated there was was never intent to do any damage.

Concerns put to the applicant

1. I put a number of concerns to the applicant. I told her that I had heard what she said about the circumstances of her Protection visa application and that I am concerned because it shows me she is prepared to provide false information in relation to one visa type and may be prepared to do the same thing in relation to another visa type. The applicant responded that she did not do so. She stated her migration agent had lodged a Protection visa application on her behalf. She now realises that it is wrong even if she is reliant on an agent.

2. I explained to her I was concerned that she was very vague about the situation that led to her criminal charges. I told her that I had already put my concern to her about her vagueness and that I had heard her response but then I have residual concerns in relation to her evidence. The applicant responded that she would never hurt someone again and she will comply with Australian laws, and she will never be in breach of her visit conditions.

3. I put it to the applicant that I also have concerns about the different descriptions provided by her and her witness in regard to the nature of their relationship. I told her that she had stated that she and [Mr A] were boyfriend and girlfriend but on the other hand he described them as being ‘better than friends’. She responded that maybe they have different opinions. She stated that she thinks of him as her boyfriend and when she was sick, he was the only one that helped, and he also helped her at other times. She stated that she treats him as her boyfriend.

4. I referred to the applicant’s Bridging visa application which states she intends lodging a Partner visa application but that neither she nor the witness had made mention of this in their oral evidence. The applicant responded that when she was about to be released, she was talking to some staff person and told them about her relationship with [Mr A]. She stated there was no interpreter involved at the time and the person only spoke Cantonese and she only speaks Mandarin. She stated that she had never said she wanted to apply for a Partner visa. She stated that she thought they were having a conversation and then she was asked to sign a form. I put to her that it would have been obvious to her that this information from the conversation was being put into a form. She responded that on the second day she was transferred to [immigration detention centre] and was given the document. She reiterated that she never said she would be applying for a Partner visa. I asked her to confirm the date she arrived at the [Immigration] Detention Centre. She responded that it was on the evening of 14 July 2023. I put it to her that her application for the Bridging visa was 21 July 2023, which implies it was prepared when she was at the detention centre. She responded that she never talked to anyone after 14 July 2023.

5. There was a short exchange with the applicant’s migration representative in relation to whether I had been referring to an offshore or onshore partner visa application. For the sake of clarity, I asked the applicant if she intends to apply for a Partner visa when she returns to China. She responded that she does not and added that she was not thinking about that now because all she wants is to go back to China. When she said that I could obtain the recordings from that conversation, I explained to her that that is not my role and that I must weigh up the evidence submitted and the oral evidence at hearing.

6. The applicant stated that she wants another chance and that she will comply with the conditions of the visa, and she will not repeat the previous mistakes. She wants the visa to return to China to see her parents and prior to that she wants to close her account and pay her debts and spend some time with [Mr A]

Oral submissions by representative

1. The applicant’s representative made oral submissions that the different language used by the applicant and [Mr A] to describe the relationship between them was likely as a result of different languages that they're comfortable to use.

2. He stated that the applicant is very well aware of the likely visa conditions. She understands she used an unscrupulous agent in the past but now has a better understanding of her responsibilities. He stated that she understands and acknowledges the seriousness of her past behaviour.

3. The applicant’s representative stated the person who filed the AVO against the applicant no longer resides in Australia. He submitted that the risk of her reoffending is very, very low and should be seen in the context of the specific circumstances that arose at the time.

4. He stated that [Mr A] is very credible and prepared to guarantee that the applicant will abide by the conditions of her visa and will stay with him for the short period she in in Australia.

5. The Tribunal was asked to make an expedited decision in the circumstances.

Findings

1. I have a number of concerns in relation to the likelihood of the applicant’s abiding by one of the identified conditions. In this regard I have taken account of her past immigration history, her past intention to remain in Australia permanently (as evidenced by her application for a Protection) and her criminal history.

2. I am also concerned that the applicant made false claims in order to obtain a Protection visa and that she remained in Australia unlawfully following the Department’s refusal decision until she was remanded in custody. I have taken into account her explanation that she had an unscrupulous migration agent who was somehow involved in the false claims that she submitted in her Protection visa application and that he did not keep her aware of her migration status. I'm prepared to accept that such situations arise but regardless, visa holders are obliged to ensure they comply with their visa conditions and applicants for any visa are responsible for the information that they submit in an application, even if they engage the assistance of a migration agent.

3. I am also concerned that the applicant’s evidence regarding the circumstances of her previous criminal charges was very vague and did not give me a very clear idea of what arose. While it appears that they were situation-specific and may not be directly pertinent to her future compliance of the no criminal conduct condition it was difficult to accept her proclamations of future compliance with the conditions when she was not forthcoming in describing what had previously occurred. Her evidence and that of [Mr A]’s was different and although I do not have concerns that it was inconsistent, I am concerned that I was unable to obtain a clear understanding of the situation that gave rise to the applicant’s criminal conviction. Her evidence gave the appearance that she was hiding something. I am further concerned that when I explained to the applicant that I had found her response unhelpful and gave her another opportunity to elaborate and provide further details she did not do so.

4. I am also concerned that both she and [Mr A]’s evidence in regard to their relationship and the timing of it was in parts inconsistence and vague. While the circumstances of their relationship are not specifically pertinent to my desicion, it is concerning when applicants and their witnesses appear to be obfuscating and raises possible credibility issues.

5. I also have concerns regarding the reference to the applicant’s intention to submit a Partner visa subclass 309 application upon her return to China in her Bridging visa application and her denial of this in her oral evidence at hearing. Despite attempts to clarify why there was such a reference in the application I was unable to obtain clarity. Her response about the issue were not illuminating but it was very apparent from her oral evidence that she has no intention of applying for a Partner visa in the future. I reiterate my view about an applicant's responsibility in regard to information contained in visa applications, although I appreciate some particular complexities given that the applicant was in the [Immigration] Detention Centre at the time of application.

6. Despite these concerns, I am prepared to accept on the basis of support that [Mr A] has indicated that he will provide that she will comply with the mandatory No work condition (8101) as well as conditions Must report as directed (8401), Must notify change of address (8506), and Must not engage in criminal conduct (8564). I accept the consistent oral evidence that [Mr A] has supported her financially in the past and is prepared to do so again until her departure. I also have regard to the fact that he understands her compliance obligations with those conditions and prepared to assist her. I accept the oral submissions that the criminal conduct was situation-specific and am prepared to accept that the applicant does not have a criminal record and that she has a greater appreciation of the seriousness of the situation that arose and the implications for her.

7. However, I am concerned that the applicant may not meet Condition 8512 – Depart by date specified. In this regard I have put weight on the fact that the applicant gave evidence that she became unlawful following the decision on her Protection visa application because she had met [Mr A] and that she said a number of times in her oral evidence that she wishes to spend more time with [Mr A] before she departs Australia and that she needs time to settle her debts, pay taxes and close her bank account. When I put my concern to her that there was likely to be only one day between my desicion and her current departure date, she indicated that would be enough time. It is not clear to me how that is possible, nor did she provide any indication how she would get these tasks completed and no submissions were made about any plans for her to finalise those matters in a prompt manner. I note that the applicant stressed a number of times that she is keen to return to China and to spend time with family members particularly her parents. Despite this and given her past migration history of seeking to migrate to Australia permanently, that fact she has not complied with conditions of previous visa and her criminal history, I have some residual concerns about her intention to depart Australia. On that basis, I am not satisfied the applicant will abide by Condition 8512 – Depart by date specified.

8. I note that the delegate found that no amount of security will act as an incentive for her to abide by the conditions if one could be provided. The delegate also noted that clause 050.224 does not apply to her situation because an authorised officer has not required that a security be lodged.

9. In my consideration of whether a security bond will act as an incentive for the visa applicant to abide by visa conditions, based on the evidence before me and given my concerns regarding the vagueness of some of the oral evidence, the applicant’s expressed desire to spend more time with [Mr A] and to undertake a number of administrative process such as paying debts, taxes and closing her bank account, her previous non-compliance with visa conditions and her criminal history, I find that a security bond well not act as an incentive for her to abide by the visa conditions.

10. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl 050.223.

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

12. 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.

Linda Holub
Member