Melerave (Migration) - [2025] ARTA 917

MELERAVE (MIGRATION) [2025] ARTA 917 (12 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Gibson Lui Melerave
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2522830
Tribunal:General Member S Collins
Place:Melbourne
Date:  12 May 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 May 2025 at 3:08pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – intention to apply for substantive visa within period allowed – period as unlawful non-citizen and disengagement with department – lost passport and visa information – criminal charges, bail and immigration detention – intention to work and support family – paid another person to prepare application, but no application made – intention to apply for protection visa, but no steps taken – natural disasters in home country – vague, inconsistent and evasive answers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 189, 194, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(3)(b), 050.221
CASE
Liu v MIAC [2008] FMCA 725
STATEMENT OF REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 24 April 2025. 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 050.211 and cl 050.212 of the regulations.
The decision to refuse to grant the visa was made on 30 April 2025 on the basis that subclause 050.212(3)(a) did not apply to as the applicant did not have a current valid substantive visa application with the Department and also on the basis that subclause 050.212(3)(b) did not apply as the applicant would apply within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted to the applicant in in Australia.
The applicant appeared before the Tribunal on 9 May 2025 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue in this case turns of the application of subclause 050.212(3)(b) of Schedule 2 to the regulations – the credibility of the applicant’s intention to apply for a visa.
Background
The applicant was born in 1988 in Vanuatu. The Tribunal adopts the delegate’s decision that the applicant is a national of Vanuatu.
Immigration records show that the applicant arrived in Australia on 20 January 2021 as a holder of a seasonal worker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melerave (Migration)

Details

AGLC: Melerave (Migration) [2025] ARTA 917
Case: [2025] ARTA 917
Decision Date: 12 May 2025

CaseChat Overview and Summary

The matter involves the applicant, a national of Vanuatu, who arrived in Australia in January 2021 on a seasonal worker visa, which allowed him to remain onshore until January 2024. The applicant became an unlawful non-citizen on 21 January 2024, having remained in Australia since his arrival. On 24 April 2025, the applicant applied for a Bridging E visa (subclass 050) while in immigration detention at Villawood Immigration Detention Centre. The Tribunal was tasked with deciding whether to affirm or overturn the delegate's decision not to grant the applicant a Bridging E visa.

The central legal issue before the Tribunal was whether the applicant demonstrated a credible intention to apply for a substantive visa within the period allowed by subclause 050.212(3)(b) of Schedule 2 to the regulations. The Tribunal considered the applicant's engagement with the Department of Home Affairs, his criminal charges and bail conditions, the loss of his passport and visa information, and his vague, inconsistent, and evasive answers during the interview. Additionally, the Tribunal evaluated the applicant's stated intention to work and support his family in Vanuatu, as well as his failure to take any steps towards applying for a protection visa.

The Tribunal concluded that the decision under review should be affirmed. The Tribunal found the applicant's explanations regarding his lost passport and visa information to be unconvincing and inconsistent. The applicant's vague and evasive responses during the interview raised doubts about his credibility and intention to apply for a substantive visa. Moreover, the Tribunal noted that the applicant had not made any efforts to regularise his status until he was detained. The Tribunal was satisfied that the delegate's decision was based on proper consideration of the evidence and applicable legal provisions.

The Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal found that the applicant did not meet the requirements for the grant of a Bridging E visa under subclause 050.212(3)(b) of Schedule 2 to the regulations. The Tribunal also noted that the applicant was not eligible for a Subclass 051 (Bridging (Protection Visa Applicant)) visa as he did not meet the criteria set out in cl 051.211 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The main issue in this case turns of the application of subclause 050.212(3)(b) of Schedule 2 to the regulations – the credibility of the applicant’s intention to apply for a visa.Background The applicant was born in 1988 in Vanuatu. The Tribunal adopts the delegate’s decision that the applicant is a national of Vanuatu. Immigration records show that the applicant arrived in Australia on 20 January 2021 as a holder of a seasonal worker visa under which he was permitted to remain onshore until 20 January 2024. He had not departed Australia since his arrive in 2021. On 21 January 2024, the applicant became an unlawful non-citizen and, at that time of the delegate’s decision, he had been an unlawful non-citizen for 465 days. Bail records (which were provided to the applicant before the hearing) show that on 18 April 2025, he was remanded to criminal custody and charged with the following offences:1. Contravene prohibition/restriction in AVO (Domestic) 2. Detention application – arrest3. Variation application notice after breach etc On 19 April 2025, he was released on bail from criminal custody. On the same day, he was located by Australian Border Force officers and detained pursuant to section 189 of the Act. He was transferred to immigration detention and, at the time of the hearing, he accommodated at Villawood Immigration Detention Centre (VIDC). On 24 April 2025, the applicant lodged an application for a Bridging E visa (subclass 050/051) (BVE). He wrote the following in his application:My visa has already being expired. So, am applying for a Bridging visa E (BVE). when granted, it should give me enough time to re- apply for another visa to stay & work here in Australia to support my family back home in Vanuatu.My country Vanuatu is currently going through natural disaster's at the moment. There really are not too many jobs & so people are travelling to Australia to work for money to support their families back at home. So, the reason for me to stay here in Australia & work mainly is to help & support my family in anyways possible that I can to support them. The applicant at the hearing said that he wrote the above in this application. The Detention Review Officer was notified about the lodgement of this application on 28 April 2025. The applicant was interviewed on 29 April 2025. The applicant at the hearing accepted that the note of the interview (which had been provided to him before the interview) was accurate. The note provides: SRO: Tell me in your own words, why have you applied for a BVE?Client: I applied for BVE because when I was outside I had already paid someone to apply for another visa. Once I came to detention centre, I am told to apply for a bridging visa E. I want to support my family back home.SRO: BVE is a short-term temporary visa, what are your intentions going forward? You do not have any outstanding immigration matter? What visa do you want to apply?Client: I want to apply for another visa. I want to work and support my family. I have paid someone to apply for other visa. But, she did not apply my visa.SRO: What other visa do you intend to apply?Client: I want to apply for bridging visas - BVA, BVB or BVC. What other visa can I apply?SRO: A Bridging visa is a short-term visa that allows you to stay in Australia lawfully while you make arrangements to leave, finalize your immigration application, or wait for an immigration decision. Since you are an unlawful non-citizen, your visa options will be limited. I cannot provide you any lawful information. If you intend to make an application for a visa, you may wish to seek legal or migration advice beforehand.Client: I may apply for a Temporary work visa - Subclass 403. I would apply in 2-3 weeks.SRO: Your last visa expired in January 2024. You disengaged from the department and made no attempt to regularise your status until you came to detention. Why did you not engage with department?Client: I did not apply for a visa because I lost my bag and I had all my ID’s and visa documents in the bag. I reported it to police. SRO: Are you married or in a Defacto relationship?Client: NoSRO: How many children do you have in A/a or overseas?Client: I have 3 children back home – 8, 10 and 12 years old. My parents are looking after them. I provide all the support to them. I send approximately $300 - $400 every week.SRO: Do you have any other family in a/a?Client: I have two brothers in A/a.SRO: Where would you live if you are granted a visa?Client: Supreme Poultry & Chickens factory.SRO: Were you working before coming to the detention centre?Client: Yes, I worked at the chicken factory.SRO: What was your occupation? How much was your approximate weekly income?Client: I was working as a packer in the freezer room. I earned approximately $700 per week.SRO: How much do you have in savings?Client: I usually send money back home. I have around $500 in savings.SRO: Do you have any Assets – car, house or land?Client: NoSRO: Do you have any health concerns?Client: NoSRO: You have mentioned in the visa application that you were charged with Contravene prohibition/restriction in AVO (Domestic)? What happened?Client There was an AVO between me and my friend. I was at the wrong place at the wrong time. The police visited the place and I was arrested by police for breach of AVO.SRO: Did you appear in court and what was outcome of court hearing?Client: I went to court and I was told my next court hearing would be on 16 June 2025.SRO: Are you out on Bail? What are the Bail conditions?Client: Yes I am out bail. The condition is that I must not have any contact with my friend and stay away from her.SRO: Do you have an Active AVO?Client: Yes, the AVO is active.SRO: You have not attached your passport or any other POI with the visa application. Where is your passport?Client: I lost all my documents including passport and I reported to police and they have not found it yet.SRO: I’m going to conclude this interview, do you have any questions for me?Client: Can I apply for any other visa, if I don’t get BVE.Client was notified that I cannot provide legal advice and he can check online at home affairs website or he may wish to seek legal or migration advice.Evidence at the hearing

Decision

Reasons for decision

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.Date(s) of hearing: 9 May 2025

Ratio Decidendi

Legal Principle Established

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