Kaur (Migration)

[2021] AATA 2052

Kaur (Migration) [2021] AATA 2052 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maninder Kaur

CASE NUMBER:  2107249

DIBP REFERENCE(S):  BCC2021/1146138

MEMBER:Jennifer Cripps Watts

DATE:9 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2021 at 5:31pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – application for substantive visa – period as unlawful non-citizen, criminal offences and charges, and immigration detention – no application made before or after detention and only general intention to make one – visa and study history – no substantive visa application made while holding previous bridging visa – substantive visa application can be made while in detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (‘the delegate’) to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 May 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 (BVE), which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevant to this matter, the primary criteria includes cl.050.212(3).

3. The decision to refuse to grant the visa was made on 31 May 2021 on the basis that the delegate was not satisfied that the applicant had made, or would make, a valid application for a substantive visa Australia.

4. The applicant appeared before the Tribunal on 9 June 2021 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent, who provided written submissions, but did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets cl.050.212(3), which requires the applicant:

   ·    to have made a valid application for a substantive visa, that was made in Australia and can be granted while the applicant is in Australia, and has not been finally determined; or

   ·    will apply for a substantive visa, in Australia, and that can be granted in Australia

   Background

8. The applicant is 26 years of age and first arrived onshore from India holding a subclass 573 student visa on 26 February 2015.  In her oral evidence, the applicant said she married Vikram Singh, another Indian citizen, in the same year and that an application was made to add him to her student visa as her dependent (husband), but that his visa was refused.  Department records accord with the applicant’s oral evidence; the dependent applicant, Vikram Singh born in February 1992, applied for the student visa as a dependent of the applicant in January 2016 and his visa was refused in January 2017.  The applicant said at the hearing that not long after the refusal he left her.  She said she thought he was granted another visa or had an undecided review application with the AAT.  The applicant said he has not contacted her and she has had no contact with him since he left about four years ago, that they are still married, but that she intends to divorce him. 

9. It is acknowledged that the applicant has had some good intentions since her arrival in Australia 2015, but they have rarely been realised.  Her purpose for travel to Australia six years ago was to study a bachelor degree, but the applicant only managed to achieve academic results to the level of diploma because she struggled to understand some ‘basic concepts’ in the business and management discipline.  She changed to an information technology degree but also found that difficult and changed course again.  The applicant next enrolled in a lower level suite of VET courses and had some success with her hospitality studies at the Certificate III, Certificate IV and Diploma level, but did not finish the Advanced Diploma in Hospitality Management.  Her marriage ended in 2017 and the applicant began taking drugs, including marijuana, heroin and ice; and was stealing.

10. On 22 October 2020, the applicant was granted a BVE, in effect up to 30 October 2020, on the basis of her stated intention to apply for a substantive visa during that period of time.  The applicant did not apply for a substantive visa before the BVE ceased on 30 October 2020, and from 31 October 2020 she remained onshore unlawfully, with no visa.  

11. The applicant has told the Tribunal that she now wishes to be granted another BVE because she wants to turn her life around, continue her studies and apply for a protection visa.  At the Tribunal hearing, the applicant was asked what her protection claims are, and what harm she feared if she was required to return to India.  The essence of the applicant’s claims and fears seem to be centred mainly around her parents, but also the extended family to some extent.  The applicant explained that her parents know about her drug problem and her ‘prison story’ and that they ‘are not happy with everything’.  The applicant said she is from a traditional and educated background and that her parents will not talk to her anymore and have told her not to return home and have said to her, ‘don’t show your face, you’re already dead to us’ and added that it was possible she would be killed by a family member. 

12. The applicant was asked if any of her family members in India had said they were going to kill her and she said, ‘I think they will’, specifically referring to an uncle and aunty.  The applicant says she tries to call her parents but, when they answer and hear her voice, they hang up straight away.

13. In the delegate’s decision it is included that certain charges were laid against the applicant in 2020 and that she had a future court date of 19 August 2021, at Sunshine Magistrate’s Court.  At the hearing, the applicant said that although she was charged with some offences by police when taken into custody, she has no future court dates now because all the charges were dismissed.  No probative evidence has been provided relating to dismissal of any charges.  However, this is not a matter material to the issue under review.

14. The applicant provided the Tribunal with some additional documents, including a copy of the identity page of her Indian passport, issued on 26 May 2014 for 10 years, in Amritsar, India.  The Tribunal has considered information contained in the delegate’s decision, which was provided by the applicant, her migration agent’s written submissions, the applicant’s oral evidence and any other relevant matters when making its decision.

    Immigration status of the applicant - cl.050.211

15. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

16. The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

17. At the time of application, Departmental records confirm that the applicant was an unlawful non-citizen.    

18. Accordingly, the applicant meets cl.050.211(1).

19. The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind referred to in cl.050.211(2).

20. Accordingly, the applicant meets cl.050.211(2).

21. Therefore, the applicant meets cl.050.211.

    The grounds for seeking the visa - cl.050.212

22. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9).   Subclause 050.221 requires that the applicant continues to satisfy this criterion at the time of decision.

23. 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.  In summary, cl.050.212(3) is met if the Minister, or the Tribunal on review, is satisfied that the applicant has applied for, or will apply for, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia.

24. As discussed earlier, the applicant claims to be in the process of preparing an application for a protection visa, which is a substantive visa, but is not claiming to have made the application yet.  The applicant claimed in October 2020 to have been intending to make an application for a substantive visa and did not do so, but instead remained in Australia for six months with no visa until she was detained by police, who discovered her visa status.  The applicant was moved into detention, where she applied for the BVE that is the subject of this review. 

25. The applicant has provided, and given oral evidence, of her drug dependency up to the time she was placed in detention in April 2021, but says she has managed her withdrawal herself and is no longer dependent on drugs.  The applicant provided information about a few options she may have for accommodation and financial support if she is granted the BVE.  And, as mentioned earlier, the applicant says she intends to apply for a protection visa. 

26. The applicant was detained by Australian Border Force on 17 May 2021 and, under s.195, given a five day extension to 26 May 2021 to make a visa application.   On 26 May, the BVE application that is the subject of this was made.  The visa was refused on 31 May 2021.  The period 17 May 2021 to 31 May 2021 is a total of two weeks.  The applicant has remained in detention until the Tribunal hearing, which was on 9 June 2021.  During that total period, of more than three weeks, the applicant could have applied for the protection visa she claims to be preparing an application for; she has had ample time.  In any event, the applicant can still apply for a protection visa while in detention, if she has a genuine intention to do so. 

27. At the time of this decision, the applicant has not applied for a substantive visa, nor is she claiming to have already applied for one.  Having considered the applicant’s circumstances, the Tribunal is not convinced, even when the applicant expresses intentions she has that have the complexion of good intentions, that she can be relied on to follow through with them.  This is because she appears, on the evidence, to have a tendency not to, as discussed earlier in this decision relating to her studies and an earlier opportunity the applicant had to apply for a substantive visa in October 2020. 

28. A subclass 866 protection visa is a visa that can be applied for and granted in Australia.  The applicant has not applied for a protection visa and the Tribunal is not satisfied that the applicant will apply for a substantive visa if the BVE is granted, notwithstanding that she gave oral evidence that her protection visa application is being prepared for the purposes of meeting cl.050.212(3)(b).

29. As the applicant does not satisfy the requirements of cl.050.212(3)(b), the applicant does not meet cl.050.212.

    Conclusion

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

31. 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

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

    Jennifer Cripps Watts
    Member