Dang (Migration)

[2021] AATA 3954

Dang (Migration) [2021] AATA 3954 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tran Chinh Dang

CASE NUMBER:  2113308

Home Affairs REFERENCE(S):               BCC2021/1832549

MEMBER:Phoebe Dunn

DATE:12 October 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 12 October 2021 at 11:10am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal offences, imprisonment and immigration detention – eligibility criteria – arrangements to depart Australia or making of substantive visa application – original intention to depart changed to intention to marry partner – no partner visa application made within extended time limit, or since – partner’s financial situation and applicant’s previous work without permission – no steps taken to regularise status after student visa cancelled – claim not to have understood notice about applying for substantive visa – decision under review affirmed

LEGISLATION  
Migration Act 1958 (Cth), ss 5(1), (9), 73, 194, 195(1), (2), 189, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(2), (3)(b), 050.221, Schedule 8, conditions 8101, 8401, 8506, 8508, 8564

CASE
Liu v Minister for Immigration [2008] FMCA 725

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 23 September 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(2) and cl 050.212(3).

3. The decision to refuse to grant the visa was made on 29 September 2021 on the basis that the delegate was not satisfied that the applicant would meet the requirements in cl 050.223, as the delegate was not satisfied that the applicant would abide by any conditions imposed on the visa, if granted.

4. The Tribunal received a copy of a review application from the applicant on 30 September 2021, which was accompanied by a copy of the delegate’s decision.

5. The matter was constituted to a Tribunal Member on 4 October 2021.

6. By letter dated 4 October 2021, the Tribunal wrote to the applicant via his agent inviting them to attend a hearing via videoconference on 7 October 2021.

7. On 6 October 2021, the Tribunal received submissions and supporting documents from the applicant’s agent, together with a response to the hearing invitation which included a request that the applicant’s partner and one of her children attend the hearing. The applicant’s agent provided the following supporting documentation:

   a.Photographs of various documents and screen shots purporting to demonstrate transfers of money from the applicant’s parents to the applicant’s partner.

   b.Draft partner visa application, generated 23 September 2021. The Tribunal notes that a copy of this draft application is contained on the Departmental file.

   c.Notice of intended marriage dated 16 September 2021 issued by Mr Trung Viet Noan, a Civil Marriage Celebrant, stating that he received a notice of intended marriage between Mr Tran Chinh Dang and Ms Thuy Thi Mai on 15 May 2021, and that as the one-month notice required under the Marriage Act 1961 (Cth) has been satisfied, he can solemnise the marriage any suitable day.

8. The applicant appeared before the Tribunal on 7 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thuy Thi Mai, the applicant’s partner.  The Tribunal hearing was conducted by video.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, who appeared by telephone.

9. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held in Melbourne during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference having regard to the nature of this matter and the individual circumstances of the applicant (in particular, that he was in immigration detention and would normally have participated in a hearing via videoconference due to this, regardless of the pandemic). The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments and confirmed with him at hearing that he could understand the interpreter and the Presiding Member clearly.

10. The applicant was represented in relation to the review by his lawyer and registered migration agent, Mr Max Moon.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements for the grant of a Subclass 050 Bridging Visa E.

    The hearing

13. At the hearing, the Tribunal explained the Tribunal’s role in relation to the application before it, being to review the Department’s decision to refuse to grant the applicant a Bridging Visa E. The Tribunal noted that in undertaking the review, the Tribunal first needed to be satisfied that the applicant met one or more of the eligibility criteria for the grant of the visa and if one or more were satisfied, then the Tribunal needed to be satisfied that the applicant would abide by any conditions that the Tribunal would impose on a bridging visa. The Tribunal also noted that if the Tribunal were not satisfied that the applicant would comply with the conditions, whether the imposition of a security would satisfy the Tribunal that he would.

14. The Tribunal requested that the applicant’s partner, who was appearing as a witness for the applicant, exit the hearing room while the Tribunal took evidence from the applicant.

15. The Tribunal summarised its understanding of the applicant’s immigration history to date, and the relevant dates on which he was charged and convicted of criminal offences by Victoria Police, when he was taken into and released from criminal detention and when he was taken into immigration detention.

16. The Tribunal confirmed with the applicant and his lawyer that the applicant had not yet made a substantive visa application.

17. The applicant confirmed that he had not yet applied for a substantive visa but had asked his lawyer to lodge an intention of marriage notice on 15 May 2021.  He stated that he had intended to marry his partner and make a Partner Visa (UK820) application when he was released from criminal detention, but that he was subsequently detained in Immigration detention. He stated that his lawyer had told him that if he was allowed out of detention he would be able to make an application for a Partner Visa (UK820).  The applicant’s lawyer confirmed that if the applicant was granted a Bridging Visa E, it was the applicant’s intention to marry his partner as soon as possible on release from detention and to apply for a substantive visa, being a Partner Visa (UK820), following the marriage. The applicant’s lawyer stated that he required three weeks to do so.

18. The Tribunal outlined to the applicant the threshold eligibility criteria for the grant of a Bridging Visa E contained in cl 050.212(2) to (9). The Tribunal explained that the applicant must meet one or more of those criteria at the time of application and at that time of decision, but they need not be the same criteria. The Tribunal stated that in this instance the relevant criteria included:

    a.The applicant is making acceptable arrangements to depart Australia (cl 050.212(2)); or

    b.The applicant has made a substantive visa application or will make an application within the period allowed (cl 050.212(3)).

19. The Tribunal noted from the applicant’s visa history and records that the applicant had originally stated that he intended to depart Australia and that he needed the bridging visa to enable this to occur. The Tribunal noted that the records of interview on the Departmental file show that he later stated that he did not intend to depart Australia but instead intended to apply for a Partner Visa (UK820).

20. The Tribunal explained the operation of s 194 and s 195 of the Act. The Tribunal noted that s 194 required that as soon as reasonably practicable after the applicant is detained in Immigration detention under s 189 of the Act, an officer must ensure that the applicant is made aware of the requirements of s 195 of the Act.  Section 195 of the Act provides that an applicant must apply for a substantive visa within two working days after an officer, acting in compliance with s 194 of the Act, advises the applicant of the two working day requirement, among other things.  

21. The Tribunal noted that in the applicant’s case, the evidence before the Tribunal established that the applicant was given a copy of the Form 1423 – Very Important Notice on 15 September 2021, which made the applicant aware of the two working day requirement and had signed the notice acknowledging that the applicant had understood it. The Tribunal also notes that it was discussed with the applicant during the ‘located person interview’ conducted by a Border Force officer on 15 September 2021, commencing at 11.13am.

22. The Tribunal noted that the two-working day limit can be extended by a further five working days if the applicant informs an officer in writing within the first two working days after the day on which the applicant received the Form 1423 – Very Important Notice of their intention to apply for a substantive visa.  The Tribunal noted that the evidence before it established that the applicant applied for an extension on 16 September 2021, which was granted, giving the applicant seven working days to submit a substantive visa application. The Tribunal noted that the records show that the applicant acknowledged that the applicant had seven working days after the day on which the applicant received the Form 1423 – Very Important Notice to lodge a substantive visa, ending on 27 September 2021.

23. The Tribunal noted that when the applicant lodged the Bridging Visa E application on 23 September 2021, it appeared that the applicant met this requirement, because the time period within which to lodge a substantive visa had not ended.  The Tribunal noted, however, that on the basis of the information before the Tribunal, the applicant did not appear to meet this criteria at the time of decision as no substantive visa application has been made. The Tribunal noted that the applicant is yet to make a substantive visa application and it appeared that the time to do so has since passed by operation of s 195 of the Act.

24. The Tribunal reiterated that to be granted a Bridging Visa E, the applicant must comply with the eligibility criteria in cl 050.212(2) to (9) at the time of application (cl 050.212) and at the time of decision (cl 050.221).

25. The Tribunal raised with the applicant its concerns that the applicant did not meet the eligibility criteria and outlined its reasons.

26. In response, the applicant confirmed that the officer had discussed the operation of s 194 and s 195 of the Act and that he had received the Form 1423 – Very Important Notice.  He stated that he didn’t understand ‘100%’ what it meant and thought that he could lodge the paperwork once he was released from prison and that he had discussed this with his partner.

27. The Tribunal noted that the records show that he had sought the extension of time to lodge the substantive visa application and that this had been granted, and this was evidence that he did understand the time requirements and the information in the Form 1423.  The Tribunal noted that the evidence before it indicates that the applicant met the criteria at the time of application, but not at the time of decision. In response, the applicant stated that he may seek some further advice from his lawyer about what visa he could apply for.

28. The Tribunal then put that information to the applicant formally in accordance with the requirements of s 359AA of the Act. The Tribunal invited the applicant to comment on or respond to the information or seek additional time within which to do so.

29. In response, the applicant stated that he relied on the advice from his lawyer that he could apply for the substantive visa once he was released. He stated that he signed some paperwork while in prison to facilitate this occurring. He stated that he would rely on his lawyer to respond.

30. The applicant’s lawyer stated that s 195 of the Act did not preclude the applicant from lodging the substantive visa application after the applicant is released from detention and that it was the applicant’s intention to do so as soon as possible. The applicant’s lawyer stated that the time limits in s 195 of the Act did not preclude the applicant applying for and being granted a bridging visa and subsequently applying for the partner visa once he was released from detention. The applicant’s lawyer said that this was his experience in other cases he had been involved with.  The Tribunal invited the applicant’s lawyer to make written submissions post hearing on this issue, by 8 October 2021, noting that the Tribunal was required to finalise its decision on the matter by 12 October 2021.  The Tribunal noted that, if required, the applicant’s lawyer could seek an extension of time to do so, but that this may necessitate the Tribunal requiring additional time within which to finalise its decision. The applicant’s lawyer stated that he understood and would endeavour to provide written submissions within the requested timeframe.

31. The Tribunal advised the applicant and his agent of the existence of a certificate dated 1 October 2021 issued under s 376 of the Act on the Departmental file, covering several documents comprised of internal correspondence relating to the applicant’s criminal detention and the timing of his release from criminal custody. The Tribunal explained that the s 376 certificate stated that publication of these documents would be against the public interest but that it gave the Tribunal the discretion to disclose the documents to the applicant or, in the alternative, discuss their contents with him. The Tribunal stated that it considered the certificate was valid. The Tribunal noted that it considered the information in the documents covered by the certificate to be procedural and administrative in nature, and that it did not consider the information relevant to the matters before it. The Tribunal noted that it was raising the existence of the certificate with the applicant pursuant to the Tribunal’s procedural fairness obligations but would not be placing any weight on the certificate or the information covered by it in reaching its decision and, as such, would not be disclosing the information to the applicant.

32. The Tribunal indicated that, if the Tribunal found that the applicant was eligible to be granted a Bridging Visa E, then it would impose the same conditions as the delegate selected; that is, conditions 8101 (no work),  8401 (report as directed), 8506 (notify of change of address within two working days), 8508 (apply for substantive visa), and 8564 (most not engage in criminal conduct).

33. The Tribunal discussed with the applicant the evidence submitted prior to the hearing and invited the applicant to provide background and context to his current circumstances.  The applicant stated that he met his partner in mid-2017 and that they moved in together in February 2019. He stated that at this time they decided to get married and that according to Vietnamese custom they needed to find a good date to get married according to the lunar calendar. He stated that they discussed it with their respective families and agreed that a good day would be in November, on the date of his partner’s birthday. He stated that he had contacted his lawyer and sought advice on the marriage and how to fill in the paperwork. He stated that unfortunately he was arrested in September 2019 before the intended marriage.

34. The applicant stated that the last few years had been very difficult for his partner emotionally and financially. He stated that, despite this, she had visited him every week without fail (before the COVID-19 restrictions), even though she had to travel a long way to do so. He stated that they talk on the phone for many hours each day and also had video-calls. He stated that the records of the prison would show how often they saw and spoke to each other. He stated that he applied for these records.

35. He stated that her financial situation was also very difficult, in particular during the COVID-19 pandemic. He stated that her family had sent money to support her and help her overcome the financial difficulties and that he had provided evidence of this with his pre-hearing submissions. He stated that this was approximately AU$5,000 each time and that this had happened around three to four times a year.

36. He stated that he was very remorseful about his criminal history and that he had paid the price and has spent a long time in prison.  He said that he wanted a second chance and would promise not to violate Australian laws again. He requested forgiveness for his past actions and wanted the opportunity to stay in Australia and build a new life here with his wife and her children. He stated that his family were willing to support them and to pay security to ensure he did not breach his conditions.

37. In relation to condition 8101, the Tribunal noted it had concerns that the applicant would abide by this condition, noting that he had stated previously that he was seeking a bridging visa to enable him to work to support his partner. The Tribunal asked the applicant about his financial circumstances, including any current liabilities.

38. The applicant stated that, if released, he would abide by the no work condition (if imposed) and that the applicant’s parents would continue to support him. He stated that when he first came to Australia he did some work, but since his visa had expired, he didn’t work because it would breach immigration laws. The Tribunal noted that it appeared that the applicant had worked without permission to do so. The applicant promised that he would not work and that his parents would provide money to support him.

39. The applicant noted that his parents had sent him money over the years and were willing to continue to do so, noting that they had sent some money to his partner while he was in detention. The applicant stated that he had provided the Tribunal with receipts to show that they had been providing financial support to his partner. The Tribunal asked the applicant for more information regarding the receipts provided to the Tribunal in advance of the hearing.  The Tribunal noted that it did not have any supporting documentation to establish who had sent the money or how much had been provided, or whether this money had actually been received by his partner. The Tribunal asked whether the applicant’s partner could provide evidence such as bank account statements to show the money had been received. He stated that he was happy to arrange for this to be provided.

40. The Tribunal noted that he was breaching immigration laws by staying in Australia after his visa was cancelled. He stated that he didn’t return to Vietnam because he was scared he would be put in jail there if they suspected he was under investigation by Australian authorities. In response to the Tribunal’s question about what steps he had taken to regularise his immigration status, he stated that he had wanted to marry his partner and was scared as to what would happen to him if the authorities found him. He stated that he wished he had been able to marry his partner before his visa had been cancelled.

1. The Tribunal asked about the applicant’s partner’s financial circumstances and capacity to support the applicant. He reiterated his previous evidence that his parents were helping to support his wife while he was in custody and that she received some single mother payments from the government.

2. The Tribunal asked the applicant where he would live if he were granted a bridging visa and asked the applicant to confirm that this was agreed with the applicant’s partner. The applicant confirmed that he would live with his partner at the same address that he lived prior to going into criminal detention.

3. In relation to condition 8401 (report as directed), the Tribunal noted that it had concerns that the applicant would do so, given his history of compliance with his visa requirements and the length of time that he was an unlawful non-citizen prior to his detention. The Tribunal noted that the applicant had been an unlawful non-citizen since his student visa was cancelled and that it did not appear that the applicant had taken any steps to contact the Department or regularise his immigration status before he was criminally detained.

4. The applicant requested a short adjournment for 10 minutes, which was granted.

5. On resumption, the Tribunal discussed condition 8564 (must not engage in criminal conduct). The Tribunal observed the nature of the applicant’s prior conviction, the applicant’s incarceration and the current the parole orders.  The Tribunal noted that applicant had received a 33 month sentence and was subsequently released on parole. The Tribunal noted that the Tribunal needed to take into consideration his record of compliance with Australian laws in considering the issues before it.

6. In response, the applicant stated that he was sorry and remorseful for what he had done and promised that he would not do anything that was against the law in Australia and would respect Australian laws if he was free again.  He stated that he was willing to present to immigration as often as required if he released. He stated that he has done his jail time and he never wants to go back.  He stated that he and his wife had discussed a bond to show his desire to respect Australian laws. He stated that he got in with a bad crowd and that he is no longer friends with those people.  He realised that what he had done violated Australian laws and he had paid the price for his actions. He stated that he had undertaken programs and short courses while in jail and was determined to change his ways and be a law abiding citizen.

7. The Tribunal noted that the delegate had not sought a security from the applicant. The Tribunal considered whether a security would help to secure compliance with any conditions on a bridging visa, if granted. The Tribunal noted that to impose a security the Tribunal needed to be satisfied that the applicant would only abide by any conditions imposed on the visa if given a financial incentive to do so. The Tribunal noted that it had not determined that these circumstances applied to the applicant, but that it would explore this issue with the applicant.

8. The applicant stated that he had spoken to his partner and that she could get AU$10,000 together for a bond for him.  He stated that he had properties in Vietnam that his parents had transferred to him and he could liquidate those. He stated that if AU$10,000 was not enough, his parents would be able to assist with more.  The applicant’s lawyer stated that he had spoken to the applicant’s partner and that she had stated that she has a job and could arrange security of AU$10,000 and up to AU$20,000 if required.  The applicant’s lawyer asked the Tribunal to consider the current financial circumstances and the impact of COVID-19 when considering the issue of a security.

9. The applicant reiterated his request that he be granted a visa to enable him to marry his partner and remain in Australian lawfully and that he be given a second chance.

10. In relation to condition 8508 (apply for substantive visa), the Tribunal noted that the applicant had been granted an extension of time to lodge an application and that this time had now lapsed. The Tribunal noted that the applicant is yet to lodge a substantive visa application. The Tribunal reiterated its concerns regarding the operation of s 195 of the Act and noted that it had sought submissions from the applicant on this issue.

    Witness evidence

11. The applicant’s partner gave evidence regarding the timing of meeting the applicant, moving in together and determining their marriage plans, consistent with that given by the applicant.  She gave extensive evidence regarding her dedication to him and her weekly visits to him while in criminal detention. She noted that her one wish is for him to be released from detention so that he can come back to live with her and her children and so they can get married. She stated that if he was allowed to do this, she would go on a vegetarian diet for a week to pay her thanks to Australia.

12. The applicant’s partner gave evidence regarding her financial situation, the payments received from the applicant’s parents and her capacity to put up a security, consistent with the applicant’s evidence. She reiterated her desire that he be released as soon as possible and became emotional, telling the Tribunal of their plans to have a child together as soon as possible. She stated that she was aware of his visa circumstances when they met and chose him to be her husband because she loves him and he is a good man who always keeps his promises to her. She reiterated their dedication to each other, noting that they talk on the phone very night, often for many hours. She stated that her only wish in life is to get him back to her and her family.

13. The Tribunal asked the applicant why he had advised officials that he wanted the bridging visa to enable him to make arrangements to depart Australia. He stated that he didn’t have an interpreter and didn’t really understand the question clearly. He stated he was just wanting to be released from detention so that he could be reunited with his partner and so they could get married.

14. The Tribunal reiterated its concerns that the applicant did not meet the threshold criteria for the grant of a bridging visa on the basis that the applicant was yet to lodge an application for a substantive visa and the time to do so had since expired. The Tribunal noted that it had sought post hearing submissions from the applicant’s lawyer addressing this issue. The Tribunal noted that it had explored the conditions and the question of a security and quantum of that security and had sought further financial information from the applicant post hearing. The Tribunal noted that it understood the circumstances were difficult for the applicant, but that it was required to determine whether the applicant met one or more of the threshold criteria for the grant of a visa, before considering what, if any, conditions should be imposed and the question of any security. 

15. The applicant provided the following documents and submission through his lawyer by email on 8 October 2021:

    I send you my submission for the Bridging Visa E application.

    According to section 195 (2) of Migration Act 1958, my client has to apply Bridging Visa E first.

    After being released from the detention centre, he will get married to his defector [sic] partner and then apply for his partner visa. Therefore, he needs three weeks to apply for a partner visa after approval of Bridging Visa E. The section 195 (2) is as below. A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

    My client has stayed illegally in Australia, so he can’t apply for a substantive visa including a partner visa. Therefore, he applied for a bridging visa E.

    I attach his partner’s bank statement showing that she has more than $11,000k as a surety.

    I also attach the old money transfer receipts showing that the sender was DANG Chi Thanh, who was Chinh’s father. The birth certificate shows that DANG Chi Thanh is Chinh’s father. Furthermore, on the receipts, the receiver of the money was PHAM Ngoc Thai who brought the cash to Thuy after he received that money from Chinh’s parents.

    If you need more information, please let me know.

16. The Tribunal notes that the documentation provided with the submission (including bank statements, screen shots of text messages and receipts) establishes that the applicant received $7,000 from the applicant’s father on 11 May 2020.

    The grounds for seeking the visa – cl 050.212 and whether the applicant continues to satisfy the time of application criteria – cl 050.221

17. At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9).

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

19. 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. For the reasons below, the applicant does not meet cl 050.221.

    Substantive visa application            

20. Clause 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.

21. ‘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.

22. The evidence before the Tribunal shows that the applicant became an unlawful non-citizen on 9 August 2017 and prior to being taken into criminal detention had not taken any steps to regularise his immigration status. The applicant stated that he had intended to get married to his partner and apply for a partner visa but was convicted and taken into criminal detention before this occurred. The Tribunal notes that it is the applicant’s consistent evidence that he intends to marry his partner and apply for a substantive visa as soon as possible after he is released from detention and has provided supporting documentation, including a notice of intended marriage and a draft partner visa application. The applicant and the applicant’s lawyer have requested that the applicant be granted three weeks to enable the applicant to marry his partner and apply for a partner visa on release.

23. As noted above, the applicant was given the Form 1423 – Very Important Notice and signed the form on the day it was provided on 15 September 2021 with the relevant information about the operation of s 195 of the Act. The applicant accepts that he was provided with the Form 1423 – Very Important Notice and that he signed the form on the day it was provided on 15 September 2021 but stated that he was not really sure what it meant. While the applicant claims that he did not really understand the form, the Tribunal notes that the applicant signed a declaration stating that he had read and understood the form. The Tribunal also notes that the applicant subsequently applied for an extension of time within which to apply for the visa, and was granted an extension of time within which to make a substantive visa application to 27 September 2021 suggesting that he did understand those requirements.

24. The Tribunal has considered whether s 194 of the Act has been complied with in the circumstances of this case. The Tribunal is of the view that s 194 was complied with when the applicant was given the relevant information (in the form of the Form 1423 – Very Important Notice). The Tribunal does not consider that it is required to determine whether or not the applicant read the form before signing it or understood its content. The Tribunal does not consider that s 194 or s 195 require the Tribunal to determine whether the applicant has understood the relevant provisions. The Tribunal considers it sufficient that the applicant was given the relevant information, as required by s 194.  In this case, this was done when the applicant was given the Form 1423 – Very Important Notice on 15 September 2021.

25. The Tribunal is satisfied that the information on the Form 1423 – Very Important Notice was sufficiently clear to comply with s 195 of the Act.  The Tribunal notes that the applicant signed the Form 1423 – Very Important Notice on the day it was provided to him. The Tribunal notes that the applicant made a request for an extension of time in which to apply for a substantive visa the following day and that this was granted to 27 September 2021. The Tribunal notes that to date the applicant is yet to lodge a substantive visa application.

26. The Tribunal has considered and discussed with the applicant the operation of s 195 of the Act and raised its concerns (in accordance with the requirements of s 359AA of the Act) that the applicant is out of time to apply for a substantive visa and as such did not meet any one or more of the requirements of cl 050.212(2) to (9) at the time of decision as required under cl 050.221.

27. The applicant’s lawyer has made submissions arguing that s 195(2) provides for the applicant to make a bridging visa application to facilitate the applicant subsequently making a substantive visa application despite not meeting the timing requirements in s 195(1) of the Act. The applicant’s lawyer submits that his client has stayed illegally in Australia and so can’t apply for a substantive visa including a partner visa.  The applicant’s lawyer submits that under s 195(2) his client is required to apply for the Bridging Visa E first.

28. The Tribunal has carefully considered but does not accept the applicant’s submissions. This is because, under s 195(1) of the Act, the applicant has a limited time to apply for a substantive visa and may not apply for a substantive visa if an application is not made within the time allowed.

29. In this case, the applicant was provided with the Form 1423 – Very Important Notice on 15 September 2021, signed the form on the same day and sought an extension of time to make a substantive visa application on 16 September 2021.  Accordingly, the Tribunal finds that the requirements of s 194 of the Act were met on 15 September 2021.  As such, the Tribunal considers that the requirements of s 195(1) were enlivened on 15 September 2021, giving the applicant two working days to lodge a substantive visa application or to seek an extension of time of five working days to do so. The Tribunal finds on the evidence before it that the time period to lodge the substantive visa was extended to 27 September 2021, following a request from the applicant.

30. The Tribunal notes that at the time the applicant applied for the bridging visa on 23 September 2021, the applicant was still within the time provided in s 195(1) to lodge the substantive visa application. However, the Tribunal considers that at the time the application was determined by the delegate on 28 September 2021, the time to apply for the substantive visa had passed.

31. The Tribunal finds that no substantive visa application was made by the applicant by 27 September 2021 and notes that the applicant is yet to lodge a substantive visa application.

32. As such, the Tribunal finds that the applicant did not satisfy the requirements of cl 050.212(3) at the time of decision.

33. The Tribunal has considered the reasoning in Liu v Minister for Immigration & Anor [2008] FMCA 725, which suggests that cl 050.212(3)(b) requires that a substantive visa could be granted to the applicant at the time of the application for a bridging visa[1]. In Liu the Court opined (in obiter) that the applicant must demonstrate that he is within the time to apply for the visa if released from detention without any further time allowed for this purpose[2] and that ‘the grant of a bridging visa under s 195(2) should not be used as a means of circumventing the plain legislative intent of s 195(1) of the Act’[3]. The Tribunal considers that in this case, the applicant is not within the time limit provided for in s 195(1) of the Act to apply for the substantive visa as the applicant has yet to apply for the substantive visa and did not do so within the specified time frame, namely by 27 September 2021.

    [1] Liu v Minister for Immigration & Anor [2008] FMCA 725 at [54]

    [2] Ibid at [54]

    [3] Ibid at [55]

34. The Tribunal finds that by virtue of s 195(2) of the Act, the time in which an application for a visa (other than a bridging visa or a protection visa) can be made, has now passed. The Tribunal finds that the applicant is no longer able to make an application for a substantive visa. The applicant has not indicated an intention to apply for a protection visa. Accordingly, on the evidence before it, the Tribunal finds that the applicant does not presently have an outstanding application for a substantive visa that has not been finally determined and as such the threshold criteria have not been met.

35. Further, there is no evidence before the Tribunal that the applicant has any other outstanding matters before the Department, the Tribunal, the courts or the Minister. There is no evidence before the Tribunal that the applicant meets any one or more of the other threshold criteria in cl 050.212(2) to (9).  The Tribunal is not satisfied the applicant continues to satisfy any one or more of the provisions in cl 050.212(2) to (9) at the time of decision.

36. 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.

37. As the Tribunal has found that the applicant does not continue to satisfy the time of application criteria in cl 050.212 at the time of decision, the Tribunal is not required to consider the remaining criteria for the grant of a bridging visa.

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

39. 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

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

    Phoebe Dunn
    Member