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 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 – arrest
3. 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: No
SRO: 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: No
SRO: Do you have any health concerns?
Client: No
SRO: 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
At the hearing, the applicant provided more background information. He confirmed that he had no health issues. He said that he has no children in Australia and that he has three children in Vanuatu. He said he has two brothers in Australia, here under seasonal work visas.
He said that before his detention, he was about to leave his employment at the chicken factory and was planning to go back to work for a former employer (at the hearing, he described this person as “the new boss” although he had worked for him before). Before his detention, he said that he was living in on-site accommodation at the chicken factory. He said that if he left detention, he would be accommodated by the new boss. He also said that his new boss would sponsor him for a work visa. He was asked how he knew this and he said some friends told him. He then said that his new boss had told him this directly. He was asked when he last spoke to the new boss and he said a month ago and then he then said he telephoned him from detention “a few days ago”.
The applicant accepted the immigration information - that he arrived here in January 2021 as a seasonal worker; his visa expired four years later, and that he had been here in Australia outside of immigration control since then. He was asked why, if he wanted to stay in Australia, he did not apply for a visa or regularise his situation with the department before his visa expired. He said that he engaged a person called Valencia Packete to apply for a visa for him. He did not know if this person was an authorised immigration agent or a legal representative. He said he instructed her because she was, he said, a Vanuatu person and well-known in the South Pacific community here in Australia for helping people like him stay here.
He said that he paid her AUD 750 and he was told by her that she would apply for what he described at the hearing “an 866 visa”. He said that she asked him for some information and to complete a form and he did so and that she said she would take care of it for him.
Meanwhile, he said, his visa expired. He was asked what happened to his application with Ms Packete. He said he did not know. He said that he contacted Ms Packete several times over the next 465 days to find out what was going on. He said she did not respond to any of his queries.
He was asked why he did not contact the department himself or take any steps about his situation at all after his visa expired and when Ms Packete had not responded to his queries. He said that he lost his passport and visa information and other documents.
The applicant said that he contacted Ms Packete last week via her Facebook page. He said that she did not respond.
The applicant said that he was arrested 31 Aug 2024 for a driving offence; then he said it was for being drunk; then, he accepted that he was arrested for breaching an AVO. He volunteered that he was arrested because he “was at the wrong place at the wrong time’. The applicant was advised that as these charges were still yet to be determined, he was not obliged to provide any further information about them.
However, he said that the applicant for the domestic AVO, the ‘intimate partner’, was his girlfriend and he lived with her; this was contrary to the information that he provided to the delegate that he did not have a de facto partner. He said his next appearance in court is on 16 June 2025 but he did not know why.
He said that his girlfriend was going to write a letter to the court that she had changed her mind about the AVO.
The Tribunal pointed out to the applicant that he did not have a substantive visa application. He agreed. The Tribunal discussed with the applicant whether he planned to apply for a visa and what kind: the Tribunal pointed out that the applicant in the interview that he wanted to apply for a “Temporary work visa - Subclass 403”. At the hearing, he said that he now wanted to apply for an “866 protection visa”. He was asked if he understood what a protection visa was and he said it was to protect him from his own country, from things like earthquakes and war.
The applicant was asked how he learned about protection visas since his interview with the delegate. He said that some friends had told him about it; then, he said that his brothers had told him about; then he said that his friends had told his brothers about it and his brothers had told him what they said. He said that they advised him that he should apply for a protection visa if he wanted to stay in Australia.
It was pointed out to the applicant that he had said earlier in his evidence that he had instructed Ms Packete to apply for a what he called an “866” visa. The applicant claimed that at the time he did not know at the time what that visa was for and that Ms Packete looked after it all.
The applicant was asked what steps he had taken to apply for a protection visa now that he decided he was going to apply for one. He said he had looked up protection visas on the internet and that he had a telephone conversation with someone at NSW Legal Aid “either on Monday or Tuesday” and, when pressed, he said it was on Monday. He confirmed that he had not done anything else and he said that he did not make his own application because his ImmiAccount would not let him do so. He was not able to explain why his ImmiAccount would not accept his application and he did not provide any evidence that he had attempted to do so.
It was put to the applicant that when his seasonal work visa had expired, he had no intention to make any kind of visa application at all and did not care that he was staying in Australia outside of immigration control. He denied this and said that he had instructed Ms Packete to sort this out for him before his visa expired.
He was not able to explain why he did not take any steps over the next 465 days or so when Ms Packete was not responding to his queries and he was outside of immigration control.
It was also put to him that he did not try to sort out his situation with the department because he did not want the department to know he was living in Australia outside of immigration control. He denied this and said that his passport and all his visa information had been lost.
It was also put to the applicant that the only reason that he told the delegate that he was going to apply for a temporary work visa and why he then told the Tribunal he was going to apply for a protection visa was because he wanted to get out of detention. The applicant denied this and said that he was serious about applying for a protection visa but he believed he could not anything about it while he was in detention.
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.
The Tribunal adopts the delegate’s findings concerning subclause 050.211(1), that the applicant is an unlawful non-citizen (and that none of the other categories in 050.211 apply).
The Tribunal also adopts the delegate’s findings concerning subclause 050.211(2) states that the applicant is not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11), (17), (18) or (19).
The Tribunal finds that the applicant does not meet subclause 050.212(2) because there is no evidence that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The Tribunal finds that the applicant does not meet subclause 050.212(3)(a) because he has not made in Australia a valid application for a substantive visa of a kind that can be granted.
Subclause 050.212(3)(b)
The main issue in this application concerns subclause 050.21393)(b). It provides:
An applicant meets the requirements of this subclause if:…
(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
In contrast to cl 050.212(3)(a), cl 050.212(3)(b) requires that the applicant can and will validly apply for the visa within that period. There are several restrictions on making valid visa applications but none apply in this case.
Section 195 limits the ability of a detainee to apply for a visa. This section provides that detainees may apply for a visa within 2 working days (following compliance with s 194 – see below) or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply. However, a detainee who does not apply within these time periods may not apply for a visa, other than a bridging or protection visa, after that time.
In obiter in Liu v MIAC, the Court accepted submissions by the Minister that the Tribunal had erred in accepting cl 050.212(3)(b) was met.[1] The Court considered that for cl 050.212(3)(b) to be engaged the Minister must have allowed for an application for a substantive visa to be made, noting that the use of the past tense of the verb ‘allow’ meant that an applicant must demonstrate they are within time to apply for a particular visa if released from detention, without any further time to be allowed for that purpose. There must be evidence of an intention by the applicant to make a further visa application and to demonstrate that, if released from detention, they would be within time to apply for a visa without any further time being allowed.[2]
[1] Liu v MIAC [2008] FMCA 725 at [53].
[2] Liu v MIAC [2008] FMCA 725 at [52]–[54
Clause 050.212(3)(b) allows an applicant for a substantive visa, who is entitled to apply for such a visa, more time in which to do so by the grant of a bridging visa. However, in Liu v MIAC, the Court was of the view that the grant of a bridging visa under s 195(2) should not be used to circumvent the plain legislative intent of s 195(1) so as to enable an applicant to be released from detention. If the BVE application is lodged after the s 195 bar takes effect, then the applicant cannot satisfy cl 050.212(3)(b) unless the substantive visa application is for a protection visa.
Another interpretation of cl 050.212(3)(b) permits a bridging visa to be granted to enable the applicant to apply for a substantive visa other than a protection or bridging visa, where the applicant would not be able to do so in detention because of s 195. It relies on reading the phrase ‘within a period allowed by the Minister for the purpose’ as forward looking in manner, indicating that the Minister may stipulate a period within which an applicant must apply for the substantive visa, either through the length of the visa granted, or by conditions attached to it.
The applicant maintained at the hearing that he intended to apply for a protection visa. Under either of the above interpretations of this subclause, the critical issue for the decision-maker is a finding that the applicant intends to make a protection visa application.
The Tribunal is not satisfied that the applicant intends to apply for a protection visa, were he granted a bridging visa, for the following reasons:
(1)The applicant did not provide any evidence at all supporting his claim that he intended to apply for a protection visa, other than his declaration that he intended to do so.
(2)The applicant overall gave vague, inconsistent and evasive answers to the Tribunal’s questions on material issues.:
a.   The applicant told the delegate that he did not have de facto partner but at the hearing he said that the ‘intimate partner’ on the domestic AVO was his girlfriend and he lived with her before she applied for the AVO and that his girlfriend was going to write a letter to the court to help him.
b.   He was evasive in his evidence about his charges. He gave two false accounts before being referred to the bail information which the Tribunal had sent to him before the hearing.
c.   He gave different accounts as to how and from whom he learned about protection visas – from his friends or his brothers or from his friends via his brothers. This also contrasts with his evidence that he claimed that he knew Ms Packete applied for an “866” visa (which, as set out below, the Tribunal does not accept).
d.   He gave inconsistent accounts as to his conversations with his new boss as to when he spoke to him about his new job, his new boss’ interest in sponsoring him for a work visa, and his accommodation were he to be released from detention.
(3)The applicant allowed more 465 days to lapse following the expiration of seasonal worker visa without taking any positive steps to make an application for a visa.
(4)His statement of his intention to apply for a visa of were made once he was in detention and in connection with his application for a bridging visa (at first a temporary work visa and then, after the decision refusing his application, a protection visa).
(5)The Tribunal does not accept that the applicant gave Ms Pakete or any other person instructions to apply for a visa before the expiry of the seasonal worker visa. He said that over the next 465 days he contacted her several times and she did not respond and he did not take any other steps about it. He said that, even after her complete failure to respond to him over that period regarding something which was of great importance, he still contacted her last week via Facebook and she did not respond. The Tribunal finds it incredible that an applicant in his situation, following Ms Packete’s alleged failures to respond to his queries about something so important that would take no action at all over the 465 days he was outside of immigration control and then in detention. Equally incredible is that, in detention, he would contact her again and expected her to respond. Accordingly, the Tribunal does not accept the applicant’s evidence that he made an attempt to apply for a visa before his detention.
(6)Even if the Tribunal accepted the applicant’s evidence that he had given instructions to Ms Pakete, he said that he did not know what visa she had applied for on his behalf which, to the Tribunal, evinces a state of mind that the applicant did not care what visa he would obtain or how long it or if it was ever in fact applied for.
(7)At the applicant’s interview with the department officer, the applicant said that he wanted to apply for a temporary work visa; yet at the applicant’s hearing, he said he planned to apply for a protection visa. He said he applied for a protection visa because friends and or his brothers had recommended it. The Tribunal finds that the applicant changed visa plans only after he received the delegate’s decision refusing his application in order to bolster the success of this application on review and not because he genuinely intended to apply for a protection visa.
(8)Following the delegate’s decision, he has not taken any demonstrable steps since the delegate’s decision to apply for a protection visa. All he said is that he looked up the topic of 866 visas on the internet (again contrasting with his evidence that he knew Ms Packete applied for an 866 visa on his behalf); and he said he had a conversation with NSW Legal Aid. Even if the applicant was precluded from lodging an application as he claims by his ImmiAccount, which the Tribunal does not accept, the applicant should have demonstrated some kind actual effort to draft an application or positively instructed someone to act for him or applied to postpone the hearing so that he could take some kind of positive steps.
(9)The Tribunal does not accept that the applicant spoke to anyone at NSW Legal Aid. Perhaps over mindful of legal privilege, the Tribunal did not ask the applicant about the advice he claimed that NSW Legal Aid would have provided to him (even if, which the Tribunal does not accept, he spoke to them). If the applicant had spoken to someone at NSW Legal Aid and they had given him substantive advice, then he would have provided evidence of an effort to draft an application or a request for a postponement of the hearing or that he was expecting representation of some kind or of some other evidence or information that supported his claim of his intention to apply for a protection visa.

The Tribunal finds that the evidence altogether is consistent with the following conclusions as to the scope and extent of the applicant’s intentions:
(1)The applicant allowed his seasonal worker visa to lapse and was not interested in taking any steps towards regularising his immigration situation in Australia before or after the expiry of his visa.
(2)The only reason he has expressed an intention to apply for some kind of visa was so that he could leave detention and be at large outside of immigration control.
Accordingly, the Tribunal finds on the evidence in this application that the applicant does not have any intention to apply for a visa including a protection visa, were he granted a bridging visa. Therefore, the Tribunal finds that he does not meet subclause 050.212(3)(b).
As to clause subclause 050.212(3A) and 050.212(4AAA) in Schedule 2, the Tribunal finds that the applicant has not set down an application for judicial review of any decision concerning his visa or immigration status. Therefore, the Tribunal finds that the applicant does not meet these subclauses.
As to subclauses 050.212(4AA), 050.212(4AB), 050.212(5), 050.212(5A), 050.212(5B)050.212(6), 050.212(6AA), 050.212(6B), 050.212(7), 050.212(8) and 050.212(9) of Schedule 2, the Tribunal accepts and adopts the delegate’s findings about the application of these subclauses to the applicant and his circumstances and finds that none of them applies in the applicant’s case and therefore the Tribunal finds that the applicant does not meet these subclauses.
Conclusion
For these reasons, on the evidence before it, the Tribunal finds that 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.
Date(s) of hearing: 9 May 2025