He (Migration)

He (Migration) [2019] AATA 4853 (6 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Li He
CASE NUMBER:  1930486
DIBP REFERENCE(S):  BCC2019/5345114
MEMBER:David Barker
DATE:6 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 06 November 2019 at 12:04pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – visa history and periods as unlawful non-citizen – working without appropriate visa – arrangements to depart Australia – no filing of substantive visa application – credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 73, 359AA
Migration Regulations 1994 (Cth), Schedule, cl 050.212(2)
CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 24 October 2019. 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(2).
The decision to refuse to grant the visa was made on 25 October 2019 on the basis that the applicant did not meet the criteria in cl.050.212 because the delegate was not satisfied the applicant was making any arrangements to depart Australia and had not filed a substantive visa application.
The applicant appeared before the Tribunal on 1 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Shiau Chuen Kong, Mr Zuping Zhong and Mr John Paul Heymel. Ms Antonella Heymel was also presented as a potential witness, but departed from the Tribunal premises prior to her being called to give oral evidence. Neither the applicant nor his representative asked the Tribunal to take further steps to take evidence from Ms Heymel. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The Tribunal has before it the application for review, attached to which was a copy of the delegate’s decision record and the letter of notification.
The Tribunal also received copies of the applicant’s Bridging E visa application form, and the written records from two interviews that he attended, and which were referred to in the delegate’s decision record. These were: (a) a Located Person Interview held on 17 October 2019; (b) a ‘Detention Client Interview (Part A and Part C)’ held on 18 October 2019.
The applicant is a citizen of the People’s Republic of China (China) and is 36 years old.
The delegate’s decision record, a copy of which was provided with the review application, indicates the applicant first entered Australia on 7 February 2010, on a Subclass 676 Tourist visa, using a false passport in the name of Nan Liu (date of birth 5 June 1980).
The delegate’s decision record contains the following information relevant to the applicant’s circumstances:
·On 7 May 2010 the applicant lodged an application for a Protection visa. This application was refused on 4 February 2011 and on 22 March 2012 the refusal decision was affirmed by the Refugee Review Tribunal (RRT). The applicant sought a judicial review of the decision of the RRT and on 26 November 2012 that appeal was finalised in the Federal Court as ‘Minister Win’;
·The applicant was an unlawful noncitizen from the time the Bridging visa associated with the aforementioned judicial review ceased on 24 December 2012 until 28 February 2014, at which time he was granted a further Bridging visa associated with his second application for a Protection visa;
·The second application for a Protection visa was refused on 23 June 2014, with the RRT affirming that refusal decision on 29 May 2015. On 25 June 2015 the applicant lodged an appeal at the Federal Court for a judicial review of the RRT’s decision. On 2 December 2015, the applicant withdrew his application for the judicial review and when the associated Bridging visa ceased on 30 December 2015 he became an unlawful noncitizen in the Australian community;
·On 12 December 2017 the applicant requested Ministerial Intervention under s.417 of the Act and on the same date, 12 December 2017, this request was finalised as ‘Inappropriate to Consider’;
·The applicant was granted a further Bridging visa on 19 December 2017, with a validity until 28 December 2017, on departure grounds. At the cessation of the Bridging visa, the applicant did not depart, nor did he engage with the Department of Home Affairs. As a consequence the applicant once again became an unlawful noncitizen;
·The applicant was located at a residential address at Lidcombe on 17 October 2019 and was detained as an unlawful noncitizen pursuant to s.189 of the Act. Mr He was then transferred to the Villawood Immigration Detention Facility (VIDF) where he currently remains;
·In the application for a Bridging visa E (BVE) lodged by the applicant on 24 October 2019, at Part D, Question 9, he placed a tick in the box indicating ‘Making arrangement to depart Australia’. In support of his application for the BVE, the applicant submitted the following documents to the Department:
oForm 1008, Form 956
oCopy of passport
oSubmission from the Migration agent
oa letter from Dr T. Diep, dated 21 October 2019, regarding Ms Shiau Chuen Kong
·There was no information which would indicate the applicant had applied for a substantive visa of any kind and therefore did not satisfy cl.050.212(3); and
·The applicant did not satisfy any of the alternative criteria in cl.050.212.
The submission from the migration agent states:
We note Mr. He was placed into Villawood Immigration Detention Centre on 17 October 2019. On the same date we were contacted by his partner Ms. Shiau Chuen KONG (19/09/1980) whom is an Australian Citizen.
Further we visited Mr He on 18 October 2019 at Villawood Immigration Detention Centre and sought instruction.
Accordingly, we now apply for BVE visa for Mr. He as he is making arrangement to depart Australia on his own accord.
We note the predominant reason for him to depart on his own grounds is so that he can make necessary arrangements to ensure Ms Kong’s welfare.
Ms Kong is a single mother with two children and she has been suffering from depression prior to meeting with Mr He, further as a result of Mr He’s detention her condition has worsened and Mr He wishes to be able to come out, calm her situation, confirm their relationship and then make arrangements to depart. Her recent medical report is attached.
It was also instructed to us that Ms Kong then intends to travel to China with him or within a week to be able to stay by his side.
We submit Mr. He meets the requirement of making arrangement to leave Australia under 050.212(2) of Schedule 2 of Migration Regulation 1994.
The delegate notes that during a Located Person Interview, the applicant stated that he had been working and operating multiple businesses in Australia despite the fact he was aware that he was not holder of a valid visa.
With respect to his departure for Australia, the delegate noted that whilst the applicant claimed his intended date of departure was 11 November 2019, no evidence was provided of him holding a valid ticket, a booking or reservation to leave Australia.
Prior to the hearing, the Tribunal received the following documents:
·submissions from his migration agent;
·evidence of airline tickets purchased with Xiamen Airlines, in the names of Mr He / Li and Ms Kong / Shiau Chuen, for flight for Mr He from Sydney to Fuzho, departing 24 November 2019 and for Ms Kong departing Sydney for Fuzhou 24 November 2019 and returning from Fuzhou to Sydney on 24 December 2019;
·photographs;
- a further copy of a letter from Dr T. Diep, dated 21 October 2019, regarding Ms Shiau Chuen Kong.
The written submissions from the migration agent summarised the applicant’s migration history and further to this stated:
We concede that Mr. He has a history of lodging protection visa and appeals; however this is due to a genuine fear Mr He has of being persecuted should he return to China.
At this stage, after gaining a greater understanding of his visa options, Me. He has decided that he will return to China, together with his girlfriend, Ms. Shiau Chuen Kong, to lodge an offshore partner visa. We also attach the paid fight ticket with departure date 24 November 2019. Enclosed and Marked "A" is the ticket confirmation and payment receipt.
Other relevant factors for consideration
We submit that, it is necessary for Mr. He to leave Villawood migration detention centre, to arrange his departure for the below reasons:
1)Mr. He needs to pack his personal belongings from his girlfriend Ms. Kong's apartment. Enclosed and Marked "B" are photos of his belongings.
2)We note Ms. Kong is in severe distress especially after the detention of Mr. He. She needs Mr. He to return to calm her, help her and in turn, she could help Mr. He to depart Australia by accompanying him. Dr. Thomas Diep who had treated her since 2007, advised that her condition has aggravated due to Mr. He's detention. Enclosed and Marked "C" is the copy of the doctor's letter.
3)Ms. Kong has two children from previous relationship currently aged 15 (Son) and 13 (Daughter). She needs to make arrangement to explain to them that she would travel to China with Mr. He. And it is also important that Mr He properly explains to them the situation himself personally.
4)Mr. He also needs to collect unpaid money for his work as a contractor. The only way for him to do it is to get the money in person. The money is significant for him to support Ms. Kong and himself, and for the application fee of offshore partner visa.
Overall, we conclude that although Mr. He did not comply with Australian rules previously, he has done so due to his hear of being persecuted. With the help of his girlfriend, friends and relatives, he is prepared to, on his own term, travel back to China with Ms Kong, where he can apply for the offshore partner visa, with a prospect to return to Australia, to live with his girlfriend permanently.
Additionally we have provided Mr He with advice that there is no likely prospect of lodging a partner visa on shore and believe he has taken this advice and have instructed us to assist in the future for an offshore partner visa application.
Applicant’s evidence at the hearing
The applicant confirmed the details of his migration history in Australia, as they are detailed in the delegate’s decision record, with the exception that he denied knowledge of the departure requirement attached to a Bridging visa he was granted in December 2017. Irrespective of this he conceded that he knowingly remained in and worked in Australia after this date and that he was aware he did not have a valid visa permitting him to so do. He said that he did so because he was scared to go back to China, but that after communicating with Ms Kong and with her support and understanding he now wants a good beginning and a good future with her here in Australia.
As to current arrangements he has made to depart from Australia, the applicant said his girlfriend has already booked flight tickets for him to return to China and that she plans to remain with him in China for a month. He said that he needs to be released into the community so that they can deal with their issues before they depart from Australia. The applicant said the issues that they need to deal with include communicating with his girlfriend’s child, about why he is leaving Australia, so that their studies are not adversely impacted. He said that his girlfriend can have emotional difficulties and that explaining the situation to her children is important so that she feels assured that her children will be all right. The applicant said that he also needs to be released into the community so that he can chase up wages that are owed to him. The applicant claimed he also needs to communicate with his girlfriend so that she can apply online for a patent for his ‘creative invention’.
The Tribunal referred the applicant to his representative’s submission that it is important he is able to depart from Australia on his own grounds so that he can make necessary arrangements to ensure Ms Kong’s welfare. The applicant explained that ever since he was arrested and taken away Ms Kong has been very anxious and having difficulty sleeping. He said that since they met, he and Ms Kong have both come to see each other as dependable and that he hopes that he can cherish and share every day with her because of the love they hold for each other. He said that he wants to be released into the community so that he can deal with the issues and that this will be reassuring to Ms Kong and help her maintain her emotional stability.
In response to the Tribunal asking about his relationship with Ms Kong, the applicant said they met in the middle of 2018 and that they started the relationship a few weeks later. He said they have cohabited in Ms Kong’s home since May 2019.
The Tribunal referred to the letter from Ms Kong’s family doctor, which indicates she disclosed to her doctor on 12 September 2019 that she had been feeling depressed, irritable and having recurrent panic attacks for a one-year period and that she had a suicide attempt in February 2019. The Tribunal sought the applicant’s understanding of when Ms Kong first sought assistance from her family doctor for these reported emotional difficulties and he said that Ms Kong has suffered from depression and unstable mood from the time he first met her, and that she often goes to see her family doctor but that he does not accompany her. He said that he tries to reassure Ms Kong when she is upset, however when asked for more information about Ms Kong’s reported suicide attempt in February 2019 the applicant was unable to provide any specific information about what occurred, beyond saying she was a mess and that she gets very anxious and depressed.
The Tribunal referred to the delegate’s decision record, where it is reported the applicant acknowledged working and operating multiple businesses in Australia, despite knowing that he did not hold a valid visa. The applicant denied that he has operated his own businesses, but conceded that he has helped to manage a labour hire business for his ‘boss’. When asked, he conceded he worked under the name Nan Liu and contended he did so, as this was the name he was granted when he came to Australia and that he at that time had permission to work. In terms of his usual annual income, the applicant said he usually earned between $30,000 to $40,000 per annum and that the bulk of this went towards meeting his regular day to day living expenses.
The Tribunal acknowledged the applicant’s concession he had worked during periods he was either an unlawful non-citizen, or on Bridging visas which had a no work condition and asked him how it could then be satisfied he would abide by conditions which may be attached to a Bridging visa if he were to be released into the community. In response the applicant said that he needs Ms Kong and that she needs him. He said Ms Kong gives him support and courage and will accompany him back to China.
The applicant gave evidence that he moved from Auburn to the home of Ms Kong in Lidcombe in December 2017 and conceded he did not notify the Department when he changed address. When asked how the Tribunal could then be satisfied he would comply with a condition he notify the Department of changes in his residential circumstances if he were to be granted a Bridging visa, the applicant said he will obey any conditions imposed on him, as he does not want Ms Kong to worry about him, because worry can cause her emotional and mental instability. He gave a similar response when asked how the Tribunal could be satisfied he would comply with reporting requirements and not seek to disappear into the general community, as he has done on some previous occasions when he has been granted a Bridging visa.
Evidence of Ms Shiau Chuen Kong
Ms Kong gave evidence she trusts the applicant and believes he will comply with all visa requirements until he departs Australia. She said that she will be by his side until they both go to China and that she will ensure he does the right thing. She said the applicant conveys the impression he is a solid and honest man and that ever since he came into her life he has assisted her to maintain her physical and emotional stability.
Ms Kong said she and the applicant hopes that from this point forward everything can be done openly and legally so that the applicant can return to China and apply for a Partner visa so that he can return to have a good life with her in Australia. She said the plan is for her to accompany the applicant to China, remain there for a month then returns to Australia. She said that she will then make regular trips to China to spend time with the applicant whilst he applies for a Partner visa.
Ms Kong said she has no relatives in Australia and that the applicant is an important source of support for her. She gave evidence she has had emotional difficulties for some time and that her family doctor is whom she seeks professional assistance from.
Evidence of Mr Zuping Zhong
Mr Zhong gave evidence that he and the applicant met in 2018 on a work site, where he was providing cleaning services and the applicant was a painter. He said that they realised they came from the same home town in China and they subsequently became good friends. Mr Zhong gave evidence that he considers the applicant to be a credible person who will obey all required regulations if he is released into the community.
Evidence of Mr John Paul Heymel
Mr Heymel gave evidence that he has known the applicant for around five years through using him as a painting contractor on retail and residential construction projects he has project managed. Mr Heymel said the applicant is a very skilled and reliable worker and that he has found him to be an honest and reliable person.
Particulars of information put to the applicant pursuant to s.359AA of the Act
During the hearing, the Tribunal put particulars of information to the applicant after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.
The particulars of the information put to the applicant was firstly, that during a Detention Centre Interview he participated in on 18 October 2019, he indicated he did not intend to depart from Australia voluntarily, as he did not want to return to China.
The Tribunal explained that this information is relevant because it is not consistent with the indication he gave in his Bridging visa application that he is making arrangements to depart from Australia on 11 November 2019 and is also not consistent with oral evidence he gave at hearing. The Tribunal explained that if it prefers the applicant’s reported statement during the Detention Centre Interview it may find that he does do not have a genuine intention to depart from Australia.

Secondly, the Tribunal put to the applicant that during the Located Person Interview that he participated in on 17 October 2019 he:
- initially identified himself as Nan Liu, date of birth 5 June 1980, and claimed that he indicated that he did not have a passport;
- indicated that he owns a number of companies in Australia: Fugui Interiors and Fuhao Construction Pty Ltd and Good Faith Painting;
- indicated that he is single and that he wants to meet someone in Australia and get married;
- indicated that he was hiding at the time he was found by officers of the Department as he was afraid he will be deported and sent back to China.
The Tribunal explained that this information is relevant because:
·     his claim to be Nan Liu appears to indicate that the applicant continues to represent himself using the same false identity that he used when he came to Australia under a false passport and that unless he continues to try and hide his identity, there is no credible reason why he would be continuing to use this false identity;
·     his claim to not have a passport was false and untruthful, as he has provided evidence that he was issued a new passport by the Chinese authorities on 22 May 2017;
·     his claim to be single and wanting to meet someone to marry is not consistent with other evidence he has provided as to a de facto relationship with Ms Shiau Chuen Kong;
·    his claim to own multiple businesses is not consistent with his oral evidence at hearing regarding his employment circumstances.
The Tribunal explained that if it places weight on his reported statements during the Located Person Interview, the untruthful nature of his claim to be Nan Liu and to not have a passport raises concern as to his credibility and whether evidence provided by him can be relied on to support his claims. The Tribunal explained that the inconsistency in evidence provided by the applicant about his relationship status raises concern as to whether any claims associated with his relationship status can be relied on, and that his explanation for why he was hiding and seeking to evade officers from the Department reinforces the contention the applicant has a strong wish to not return to China and the inconsistency in his evidence regarding his employment circumstances raises concern as to whether he is a truthful witness.
Thirdly, the Tribunal put to the applicant that information available to the Department indicates he has withdrawn very considerable amounts of cash between late 2013 and September 2019 and during that period remitted funds offshore amounting to in excess of $800,000.
The Tribunal explained that this information is relevant because if the Tribunal was to place weight on it, the amount of funds the applicant is reported to have remitted offshore and the extent of cash withdrawals he is reported to have made indicate his income in the 2013 to 2019 period is considerably higher than what he has elsewhere suggested.
The Tribunal explained that the amount of income he appears to have earned whilst an unlawful noncitizen, or on Bridging visas that contained a no work condition, gives rise to concern about both his credibility and the reliability of his evidence, and also that he has a demonstrated history of non-compliance with visa conditions.
The Tribunal then explained to the applicant that if it relies on some or all of this information it may find he is not a reliable witness and that evidence he has provided in support of his claims cannot be relied on. The Tribunal explained that in that circumstance it may not be satisfied he would abide by any conditions which may be attached to a Bridging visa if he were to be granted one and may not be satisfied that he is making acceptable arrangements to depart from Australia. The Tribunal explained that if it were to be not satisfied the applicant is making acceptable arrangements to depart from Australia it will affirm the decision to refuse his application for a Bridging visa.
After a brief adjournment, the applicant requested until 4 November 2019 to provide written comments and response and the Tribunal consented to this request. On 4 November 2019 the Tribunal received a response from the applicant ‘s representative which stated:
Background
We note Mr Li HE ("the Applicant") was given the opportunity to respond to further information by way of written submissions through his legal representative. We also note that a formal request for the interview records of the Located Person interview conducted on 17 October 2019 and Detention Centre interview on 18 October 2019 was made orally during the hearing on 1 November 2019. However this was not provided and we do not push for this as it was explained during the hearing that they may be confidential; notwithstanding this we hope the member could take this into consideration within our response as we are responding to records which we do have.
Our Response
Using the same subheadings, we response as follows:
First—Detention Centre Interview -18 October 2019
We advise that when the Applicant was detained and brought to Villawood Detention Centre, his girlfriend Ms Kong visited him on the afternoon of the very same date (17 October 2019). I then received a call from Mr Li He who had got my number through a friend that afternoon and I spoke to Ms Kong and Mr He. During this initial phone call, I was made aware that Ms Kong is an Australian Citizen and as they are in a serious relationship with the Applicant living with her, that she wanted to sponsor Mr He on a partner visa.
Mr He also informed me that he would be having an interview the very next morning; with case officers and therefore I advised him that he should request an extension of time to allow him 5 working days instead of the usual 3 to potentially lodge a substantive visa. I also advised him that I would be attending the Detention Centre in the afternoon on 18 October 2019 as I needed to make an appointment to visit.
When I met with Mr He on the afternoon of 18 October 2019, I gathered further information from him about his relationship and I noted that they did not have the 12 month requirement of a de facto relationship to lodge the partner visa and therefore I advised him that it would be the best case scenario that he would lodge an offshore partner visa, this would allow him to no longer need to be unlawful in Australia. However, he needed to make arrangements to depart Australia.
I left the detention centre giving Mr He time to speak to his girlfriend and discuss the situation. The instruction I received following this was that through the encouragement of Ms Kong, the Applicant has agreed to depart from Australia and that they asked if they could leave together. I advised that I could make a bridging visa E on the grounds of departure, but they would have to purchase tickets themselves and get ready to leave. They then were proceeding with planning and I believe they genuinely intend to leave Australia together in order to process the lodgement of an offshore partner visa.
Therefore, this is the true background of why on the morning of 18 October 2019, during the interview, Mr He did not intend to depart voluntarily.
Second—Located Person Interview on 17 October 2019
We are advised that the Applicant does admit that he was hiding at the time he was found by officer of the department because he was afraid of being deported. He also admitted that he did initially identify himself as Nan Liu to avoid detection. However Mr He's claim that he did not have a passport was because he was answering the question as to whether he has Nan Liu's Passport as it was stripped when he first arrived in Australia.
Furthermore, what's important to note is during the questioning, he did advise that he was in a relationship with Zanny (which is Ms Kong's English name). This name Zanny is also found from the email which was provided as a confirmation from the ticket issuing agency. The Applicant also attested to having lived with Ms Kong for a couple of months.
We hope that if the interview records are checked, this should confirm the consistency of what has been disclosed by the Applicant.
Third — Remitted Funds
We advise that the Applicant confirms that some of those funds are his but there is also an overwhelming majoring which is not his. He was asked to transfer those monies for others as ordered by his boss. This is because they know he is an unlawful citizen and so they used his name to transfer monies as to not be detected.
Conclusion
We respectfully submit that the Applicant has a genuine intention to travel back to China. That he developed this genuine intent based on the encouragement from Ms Kong and also from myself as I persuaded the best way for them to have a future in Australia is if they lodged an offshore partner visa.
I did not want them to go through the troubles of apply for a waiver of Schedule 3. This is something the have agreed to after explaining the notion of Schedule 3 to them many times.
Although the Applicant has most notably lied about his identity, this is in actual fact consistent with his Protection Visa claims. And all other information are consistent with his intent to leave Australia, it is important to give the Applicant the opportunity to right his wrongs. As per policy of BYE, the main things to look at is the actions of the Applicant as they intend to make for departure, and respectfully we do not believe there to be any inconsistencies to his motive to depart after taking legal advice on the afternoon of 18 October 2019 after his interview at the Detention Centre.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has made acceptable arrangements to depart from Australia.
The Tribunal has noted the representative’s submission, in response to the information put to the applicant pursuant to s.359AA, regarding their not pushing for the release of the records of the Located Person Interview conducted on 17 October 2019 and Detention Centre Interview on 18 October 2019. The Tribunal has put the information from these records to the applicant for his comment, where it considers they are relevant to issues arising in the review and where the particulars of information are not consistent with claims or other information the applicant has himself put forward. Further to this, following the hearing the Tribunal provided a clear written summary to the representative of the particulars of information it put to the applicant orally during the hearing. The Tribunal has taken into consideration the representative’s submission when considering the s.359AA response and is satisfied it has provided procedural fairness in relation to this issue.
The grounds for seeking the visa – cl.050.212
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.
In this case, the applicant is seeking to meet cl.050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.
For the reasons below, the Tribunal finds that the applicant does not meet cl.050.212.
Acceptable arrangements to depart Australia
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The 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]).
The Tribunal first considered the reasons put forward by the applicant as to why he should be released into the general community on a Bridging visa.
There is evidence before the Tribunal that the applicant has made arrangements to depart Australia on 24 November 2019, by flight from Sydney to Fuzho, China, via Xiamen, China. His claim that he intends to make this trip in the company of his partner, Ms Kong, is supported by the evidence of flights booked and purchased with Xiamen Airlines. The Tribunal has given some weight to this evidence. However, the concern held by the Tribunal is whether the making of these travel arrangements, at the cumulative cost of $1,460 for a one way flight for Mr He and a return flight for Ms Kong, is sufficient evidence to satisfy the Tribunal as to whether Mr He has a genuine intention to depart from Australia.
The Tribunal has considered the financial outlay referred to above, as there is evidence that the applicant has earned considerable income whilst working and operating multiple businesses in Australia since 2013. The concern of the Tribunal is that when compared to the reported earnings, the amounts outlaid for flights to China and for Ms Kong to return from China pale into insignificance. The applicant’s evidence as to his financial circumstances in Australia was in the view of the Tribunal unconvincing. He denied operating his own business in Australia, which is not consistent with information he gave to the Department during a Located Person Interview on 17 October 2019. The response to information put to the applicant pursuant to s.359AA of the Act during the hearing did not address the inconsistency in his evidence regarding this issue and the Tribunal considers the lack thereof reinforces concern as to the unreliability of the applicant’s evidence in general.
In the s.359AA response, the applicant has conceded some of the more than $800,000 which he has remitted offshore by him whilst he has been in Australia was his money, but the overwhelming majority was amounts he transferred offshore upon instruction from his ‘boss’ in an endeavour to hide the identity of the people whose money it was. This response is of concern to the Tribunal for a number of reasons. It raises concern that evidence the applicant gave at hearing, where he said he has only earned between $30,000 to $40,000 per annum whilst in Australia and that most of these earnings have gone to meet his regular day-to-day living expenses is not convincing, given he now concedes he has been remitting significant funds offshore. Further to this, taken at face value the applicant’s concession he has remitted funds offshore for third parties in an attempt to disguise the source of these funds, when considered in conjunction to the associated information put to him pursuant to s.359AA, regarding very considerable cash withdrawals, which he has not commented upon gives rise to concern about the applicant’s involvement in illegal activity whilst he has been in Australia, which goes beyond merely working without permission.
The applicant contends he needs to be released into the community, in part so that he can chase up wages owed to him from work he has done whilst he had no permission to work in Australia. Whilst the Tribunal is satisfied the applicant has had a strong economic incentive to work illegally whilst he has been an unlawful noncitizen in Australia, the Tribunal does not find the contention that providing him the opportunity to ‘chase up’ money owed to him from illegal work provides a persuasive argument as to why he should be released into the general community on a Bridging visa.
The applicant contends he needs to be released into the general community so that he can deal with ‘issues’ before departing from Australia on 24 November 2019. He contends it is important that there can be communication with the children of Ms Kong about the reasons for his need to return to China and that Ms Kong will be accompanying him for around a four week period, before returning to Australia. It would appear to the Tribunal that there are at least three components to this contention. There is the applicant’s wish to explain to Ms Kong’s children why he is required to return to China. The Tribunal understands the applicant may not wish to have a conversation with the children of Ms Kong regarding this issue in the context of VIDF, but is not persuaded why Ms Kong, as the children’s mother cannot explain the current circumstances of the applicant to her children.
As to explaining to the children that the applicant intends to apply for a Partner visa allowing him to return to Australia on the basis of a committed relationship with Ms Kong and that the applicant will need to remain offshore while a partner visa application is processed, the Tribunal is not persuaded that Ms Kong would not be an appropriate person to explain this issue to her children and the associated issue of why she intends to travel to China for a four week period from 24 November 2019.
The applicant has given evidence that he wants to ensure Ms Kong is not unduly distressed by the nature by which her children are informed about the applicant’s impending departure from Australia and the reasons for it. The Tribunal acknowledges the current situation is a source of stress to Ms Kong and that this may impact her overall emotional stability and wellbeing, but the Tribunal is not persuaded that she cannot ensure the conversation with her children about the current circumstances is age appropriate and reassuring for them. There is no evidence before the Tribunal to establish Ms Kong lacks parenting capacities enabling her to soothe her children where it may be appropriate.
The Tribunal has considered the related issue of whether the impact of the applicant’s current circumstances and the distress they are causing Ms Kong provide a reason why he should be released into the general community on a Bridging visa for the relatively brief period before she has booked flights for them to travel to China on 24 November 2019. As discussed above, the Tribunal understands Ms Kong may be experiencing a degree of stress associated with the disruption caused by the current situation and the impending periods of separation which will occur when she is not spending time with the applicant in China awaiting the outcome of a further Partner visa application. Given the applicant and Ms Kong appear to have established a plan to travel together to China and to spend periods of time together there whilst he seeks a lawful pathway allowing him to return to Australia, it would appear that they have removed a lot of the uncertainty which would have contributed to the stressors affecting Ms Kong. In the face of the disruption and transitional adjustments which will inherently flow from the applicant departing from Australia, the Tribunal is not persuaded stress impacts on Ms Kong from the applicant remaining in detention until they travel together to China in a few weeks’ time outweighs concerns arising from whether the applicant has a genuine intention to follow through on arrangements he has made to depart Australia.
The Tribunal acknowledges the contention, contained in the s.359AA response that the applicant told the Department, in a Detention Centre Interview on 18 October 2019, that he did not intend to depart from Australia voluntarily as he was yet to make a plan with Ms Kong to travel together to China and from there, to apply for a Partner visa which may provide him a lawful pathway to return to Australia. Whilst this contention is reasonable, the weight given to it is diminished by the applicant’s reported claim during a Located Person Interview on the 17 October 2019, in which he stated he was single and wanting to meet someone in Australia he could marry. In the view of the Tribunal, the weight of evidence supports a view there is a relationship between the applicant and Ms Kong, which leads to concern as to why the applicant would make an untruthful statement about his relationship status. In the view of the Tribunal this reinforces the concern the applicant is not a truthful witness and that evidence provided by him in support of his claims cannot be relied on.

The applicant has previously failed to depart from Australia when granted a Bridging visa on departure grounds in December 2017. When asked about this during the hearing he denied knowledge of any such condition attached to the Bridging visa he was issued on 19 December 2017 and which ceased on 28 December 2017, claiming he was unaware of what his previous migration agent arranged for him. The Tribunal does not find this claim persuasive and in any event, the applicant concedes he nonetheless, from December 2017, knowingly remained in Australia without a valid visa and worked without having permission to work. His lack of compliance with a previous Bridging visa granted on departure grounds, in the view of the Tribunal, gives rise to a concern the applicant has demonstrated that he has in the past shown a disregard for commitments he has made to depart from Australia.
The applicant’s explanation as to why he has continued to represent himself in Australia using a false identity, namely Nan Liu, was unconvincing. He contended it was because this was the identity he used when he first came to Australia. He conceded he then applied for two Protection visas in his actual name and had no credible explanation for why he resumed a false identity for work and other purposes, which leads the Tribunal to have a level of satisfaction that he has used this false identity in an ongoing attempt to hide himself in the Australian community and by doing so has displayed an ongoing disregard for Australian migration law.
The applicant’s representative contends lying about his identity is consistent with Protection visa claims and the Tribunal acknowledged this is often the case. However, the Tribunal is not satisfied that this provides a convincing reason as to why a person, who it is claimed ‘should be given the opportunity to right his wrongs’ used a false identity when first located by the Department on 17 October 2019. The Tribunal is also unconvinced why the applicant would have misunderstood a question in the Located Person Interview as to whether he had a passport and assumed the question was asking whether he held a passport under the false identity, rather than under his actual identity. In the view of the Tribunal, the applicant’s actions to hide his identity when first located and during the Located Person Interview is further evidence of his propensity to not tell the truth when he perceives this to be to his advantage.
The Tribunal has considered the evidence provided by the witnesses at hearing, who consistently attested to the applicant’s good character, credibility and reliability. The Tribunal sees no reason to doubt the sincerity of this evidence, but is concerned that the applicant has not displayed similar traits when responding to his requirements under Australian immigration law.
The Tribunal has considered the claim the applicant needs to be released into the community so as he can pack his belongings which are located at Ms Kong’s home. The Tribunal is not persuaded why Ms Kong could not assist the applicant through packing his belongings for him.
When considering the evidence in its totality, the Tribunal finds the applicant is an unreliable witness and is concerned that he has not demonstrated his current stated intention to depart from Australia can be believed. He has a history of noncompliance with conditions which have been attached to previous Bridging visas and of particular concern, he has failed to depart Australia as required when he was previously granted a Bridging visa on departure grounds. He has failed to explain inconsistencies in his evidence and provided unconvincing explanations as to why he has continued to use a false identity for over nine years after his initial arrival in Australia.
For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making, nor was the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2). Furthermore, the Tribunal is not satisfied that, at the time of decision, it is factually correct or sound to conclude that the applicant continues to be making or to be the subject of acceptable arrangements to depart.
Substantive visa application: cl.050.212(3)
The applicant has not made any application for a substantive visa, as of the date of his BVE application (24 October 2019), or the date of this decision.
The applicant has not claimed, and there is nothing to suggest, that he now has an intention to apply for a substantive visa of a kind that can be granted if he is in Australia, or that he will do so within a period allowed by the Minister for the purpose: cl.050.212(3)(b).
The Tribunal is not satisfied that, 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.
Accordingly, the applicant does not meet cl.050.212(3).
Other criteria under cl.050.212
The applicant does not claim to meet any of the other alternative criteria in cl.050.212.
As the applicant does not meet any of the alternatives set out in cl.050.212(2)-(9), he does not meet cl.050.212 at the time of application. As this is an essential requirement for the grant of a Subclass 050 visa, he cannot be granted the visa.
Conclusion
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
David Barker
Member

[2019] AATA 4853

6 November 2019

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Immigration

Administrative Law

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