BHANDARI (Migration)

[2018] AATA 2070

BHANDARI (Migration) [2018] AATA 2070 (26 April 2018)

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Santosh BHANDARI

CASE NUMBER:  1810965

DIBP REFERENCE(S):  PNJ

MEMBER:Russell Matheson

DATE:26 April 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 26 April 2018 at 2:49pm

CATCHWORDS
Migration – Refusal – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Unlawful Non-Citizen – In detention – Student visa cancelled due to breaching condition 8202 – Failed to lodge an application for review of visa cancellation – No ongoing applications for a substantive visa, merits or judicial reviews – No intentions of making any arrangements to depart Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 73,116, 189, 347
Migration Regulations 1994, Schedule 2, Part 050, cls 051.211, 050.212, 050.221

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 (Mr Santosh Bhandari) applied for the visa on 9 April 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 and the decision relating to requiring a security was made on 11 April 2018 on the basis as to whether at the time of application the applicant has made, or would have made a valid application for a substantive visa that can be granted in Australia. The applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration case file and the Tribunal’s case file and evidence given at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant satisfies the time of application criteria and meets cl.050.212 of Schedule 2 to the Regulations.

   Does the applicant satisfy cl.050.212?

7. At the time of the visa application, the applicant must meet one of the alternative grounds set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221 of Schedule 2 to the Regulations. In this case, the applicant did not meet any of the alternatives set out in cl.050.212(2)-(9) of Schedule 2 to the Regulations.

   BACKGROUND

8. The applicant is a 23 year old citizen of Nepal who arrived in Australia on 9 July 2015 as the holder of a student visa. The applicant’s parents currently reside in Nepal. The applicant did not abide with the conditions attached to his visa resulting in the cancellation of his visa and as a result became an Unlawful Non-Citizen (UNC). On 3 March 2018 the applicant was detained by police as a UNC and was transferred to the Villawood Immigration Detention Facility (VIDF), where he currently remains.

   CLAIMS AND FINDINGS

9. The Tribunal has considered whether 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 and that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

10. The applicant arrived in Australia on 9 July 2015 as the holder of a Student Visa subclass TU 573. This student visa permitted the applicant to remain in Australia to study until August 2018  and was subject to several visa conditions including 8202 (Continue Studying) and 8105 (Work Limitation)

11. On 24 May 2017 the applicant was notified of the Intention to Consider Cancellation (NOICC) of his student visa as information held by the Department indicated that the applicant did not comply with condition 8202 which was imposed on his student visa.

12. On 1 May 2017 and 30 May 2017 the Department received responses in writing from the applicant. After considering the applicants responses the Department cancelled his student visa under 116 (1)(b) of the Act and as a result he became an Unlawful Non-Citizen (UNC).

13. The applicant did not seek review of that cancellation nor did he regularise his immigration status.

14. On 3 March 2018 nearly a year later the applicant was located by NSW Police during a tenancy dispute. He was found to be UNC after confirming his status with the Immigration Status Service (ISS). The applicant was interview by an ISS Officer and was subsequently detained pursuant to s.189 of the Act. The Applicant was transferred to the Villawood Immigration Detention Facility (VIDF), where he currently remains.

15. On 9 April 2018 the applicant lodged a Bridging Visa E (BE) application on a Form 1008 on the basis that he is an applicant for a substantive visa and that he wanted a review of the decision to cancel his substantive visa. The Form 1008 was sighted by the Detention Review Officer on the same day, as required under item 1305(3) of the Migration Regulations.

16. On the Form 1008 (additional information) the applicant stated in part that he came to Australia for a higher education at Curtin University Sydney. The applicant claims that Curtin University cancelled his course of education (COE) when it closed which in turn meant he was not holding a COE for his main Bachelor’s degree (main course of study) meaning he was breaching the conditions of his student visa. He was notified by the Department that his visa was cancelled for failing to enrol in a principle course while studying. The applicant claimed that he never had any intention to work illegally and make money. He further stated that he is a genuine student and will complete his degree. The applicant said that he hopes for a positive outcome of the bridging visa application so that he can seek a merits review of his student visa cancellation.

17. The Tribunal has taken into consideration the information provided by the applicant and the available information held by the Department and the Department file.

18. The applicant stated that he wishes to lodge a substantive visa to completer his degree in Australia. During the NOICC response the applicant stated that he intended to enrol for a course in June/July 2016 but to date there has been no evidence was provided by him of a letter of offer or a confirmation of enrolment for a registered course of study. The Tribunal finds that it the responsibility of the applicant to ensure that he maintains his visa obligations while in Australia. 

19. 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.

20. The grounds on which that the applicant is seeking the visa is cl.050.212(3)(b) and the Tribunal has to consider the likelihood of the non-citizen (applicant) being able to make a substantive visa application within a reasonable period specified by the decision maker. While the legislation does not say that it must be a valid application, it is implied, so the Tribunal has to consider whether the non-citizen (applicant) can actually make a valid application.

    Factors to consider may include:

    Item 1222 Student (Temporary) (Class TU)

    (4)  If the applicant is in Australia, the applicant must hold a substantive temporary visa (other than a substantive temporary visa specified in an instrument under paragraph (5)(c)), or must satisfy the following paragraphs:

    (a)  the applicant is not the holder of a substantive visa;

    (b)  the last substantive visa held by the applicant was:

    (i)  a student visa; or

    (ii)  a special purpose visa; or

    (iii)  a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse or de facto partner, or a dependent relative, of a diplomatic or consular representative of a foreign country;

    (c)  the application is made within 28 days after:

    (i)  the day when that last substantive visa ceased to be in effect; or

    (ii)  if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

    (A)  the day when that last substantive visa ceased to be in effect; and

    (B)  the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision;

    (d)  the applicant has not previously been granted a visa based on an application made when the applicant did not hold a substantive visa.

21. As previously mentioned, the applicant stated on the Form 1008 that he wishes to lodge a merits review to seek review of his student visa cancelation, according to s.347 of the Act.

    Section 347    Application for review of Part 5-reviewable decisions

    (1)  An application for review of a Part 5-reviewable decision must:

    (a)  be made in the approved form; and

    (b)  be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

    (c)  be accompanied by the prescribed fee (if any).

    (2)  An application for review may only be made by the non-citizen who is the subject of the primary decision.

    (3)  An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

    (4)  Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

22. Considering the factors as listed above the Tribunal finds the applicant would not meet the primary criteria to lodge a student visa application or seek review at the Tribunal of the cancellation of his visa because he remained as a UNC for more than 28 days since his last substantive visa was cancelled. The Tribunal finds that the applicant was correctly notified of the student visa cancellation decision and was given the opportunity to seek review of the decision.  The applicant failed to lodge an application for review of his visa cancellation within the required 28 day period after holding his last substantive visa.  The applicant did not seek review of the student visa cancellation whilst he was in the community nor did he lodge any substantive visa application.

23. The applicant wishes to apply for a substantive visa and seek merits review of the cancellation of his detention and the Tribunal is of the view that the purpose of this is an attempt to be released from detention. The Tribunal is of the view that the applicant has total disregard for Australia’s immigration law. 

24. There is no evidence before the Tribunal that the applicant has any ongoing applications for a substantive visa, merits or judicial reviews. Furthermore, there is no evidence before the Tribunal that the applicant would meet the primary criteria for the grant of any substantive visa. The applicant stated at the hearing that he has not lodged an application for any substantive visa prior to the hearing. The Tribunal finds that the applicant does not hold any substantive visa.

25. The applicant has not provided any evidence to the Tribunal to indicate that he is making departure arrangements or will make appropriate departure arrangements from the community. The applicant stated at the Tribunal that he has no intentions of returning to Nepal as it would bring shame to himself and his family back home. The applicant said that he wished to continue studying in Australia to fulfil his dreams and that of his family. He further stated that he was not in a financial position to return home and that he had invested a lot to come to Australia. The Tribunal finds that the applicant has no intentions of making any arrangements to depart Australia.

    FINDINGS

26. In this case, the applicant is seeking to meet cl.050.212(3)(b). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant does not meet cl.050.212.

    Acceptable arrangements to depart Australia

27. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, finds that the applicant is making 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]).

28. Based on the evidenced provided to the Tribunal by the applicant, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

    Substantive visa application

29. 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.

30. ‘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.

31. In the application for the bridging visa the applicant did not claim to meet any of the time of application requirements.  The Tribunal discussed with the applicant the time of application requirements. The applicant gave evidence that he does not have any ongoing application for a substantive visa, or merits or judicial review or any Ministerial intervention requests.  There is also no evidence that he met any of the other alternatives at the time of application.

32. Based on the evidence provided by the applicant at the hearing, the Tribunal finds the applicant has not made or would have made a valid application for a substantive visa that can be granted in Australia. Therefore the applicant does not meet cl.050.212(3).

33. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed. The applicant informed the Tribunal that he has not lodged any judicial proceedings for review of his visa cancellation. The Tribunal finds based on the evidence provided that applicant has not applied for a judicial review of a decision to review his student visa cancellation. Therefore the applicant does not meet cl.050.212(3A).

34. After considering all of the evidence the Tribunal is not satisfied that the applicant meets any of the time of application criteria in cl.050.212 of Schedule 2 to the Regulations.

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

36. 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

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

    Russell Matheson
    Member