Bui (Migration)

[2021] AATA 5345

Bui (Migration) [2021] AATA 5345 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Huong Bui

CASE NUMBER:  2108165

Home Affairs REFERENCE(S):               BCC2021/1263580

MEMBER:Tim Connellan

DATE:8 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 July 2021 at 7:36pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – intention to apply for medical treatment visa – motor vehicle accident – ineligible because of no further stay condition on previous visa – previous bridging visas and unsuccessful requests to have condition waived – current intention to apply for partner visa – no valid application made within time allowed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(3)(a), 500.221, Schedule 8, condition 8503

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 18 June 2021. 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.

3. The decision to refuse to grant the visa was made on 22 June 2021 on the basis that the delegate was not satisfied the applicant met 050.212(3), because although the applicant had stated his intention was to apply for a ‘medical visa’, as his last substantive visa was subject to Condition 8503 (No further stay), he was ineligible to apply for a ‘medical visa’ onshore. The delegate also noted the applicant had previously lodged three unsuccessful requests to have condition 8503 waived.

4. The applicant appeared before the Tribunal on 2 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and Vietnamese and English languages.

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

6. In a prehearing submission, the applicant’s representative claimed the reason for the Bridging visa application was to enable the applicant to request a waiver of Condition 8503 and apply for a subclass 820 partner visa.

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 satisfies the requirements of clause 050.212 and is therefore eligible for the grant of a Bridging E (class WE) visa.

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(3) The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

11. For the reasons below, the applicant does not meet cl 050.212.

    Substantive visa application

12. 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.

13. ‘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.

14. At a comprehensive hearing lasting approximately 3 hours, the Tribunal reviewed a number of issues including the applicant’s immigration history including his previously granted Bridging visas and his three unsuccessful attempts to have condition 8503 waived. His motor vehicle accident and hospitalization and treatment and subsequent medical follow up and his marital situation and living arrangements.

15. The Tribunal granted the applicant time after the hearing to provide further evidence and subsequently received three Form 888 Statutory Declarations of support from people who claimed to be close friends of the applicant. The Tribunal noted they each contained a number of passages of unusual but identical text. e.g’ “like many other couples they fight and argue, he was shook and went to live with his best friend for a few days and came back and left again”. The fact the statements contain identical text leads the Tribunal to question the credibility of any of the statements.

16. Also provided was evidence of visits to his GP since the accident.

17. While the Tribunal has multiple concerns regarding the evidence provided, the question is whether the applicant satisfies cl.050.212(3) which states

    (3) An applicant meets the requirements of this subclause if:

    (a) 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

    (b) the Minister is satisfied that the applicant will 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.

18. With the BVE application made on 17 June 2021, the applicant stated the reason for the application was to enable him to lodge a “medical visa’. In a prehearing submission received on the morning of the hearing, 2 July 2021, the Tribunal was advised the reason for the application was “so the applicant could make a request for the waiver of Condition 8503 and apply for a Subclass 820 partner visa.

19. Given that 050.212(3)(a) requires that an applicant “HAS made…. a valid application” the fact that such an application had not been made means the applicant cannot satisfy that clause.

20. Section 195 of the Migration Act states that a person in detention has a maximum of seven working days in which to apply for a visa. Section 195(2) states that a detainee who does not apply for a visa within the time allowed may not apply for a visa, other than a bridging visa or a protection visa, after that time.

21. The applicant was detained on 17 June 2021 and did not apply for a substantive visa in the following seven days.

22. This means regardless of whether the applicant currently faces Condition 8503, he is not eligible to apply for a Medical Treatment visa or a Partner visa or for any substantive visa.

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

24. the applicant is seeking to meet cl 050.212(3) The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

25. The applicant sought to meet cl 050.212(3) The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and there is no evidence before the Tribunal that he meets any of the requirements of any other elements of clause 050.212..

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

27. 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

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

    Tim Connellan
    Member