Ng (Migration)

[2021] AATA 2386

Ng (Migration) [2021] AATA 2386 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105600

MEMBER:Nicole Burns

DATE:5 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 05 May 2021 at 2:44pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) –no valid substantive visa application pending with the Department – intention to apply for a partner visa – no outstanding migration matters – no intention to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 73, 195, 359AA, 376
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

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 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 is national of Malaysia, born on [date of birth]. He applied for the visa on 26 April 2021. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 29 April 2021 on the basis that the delegate was not satisfied the applicant met any of the grounds for applying for the visa set out in cl.050.212(2)-(9).

4. The applicant appeared before the Tribunal via video link from a detention centre on 5 May 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the requirements of cl.050.212.

   The grounds for seeking the visa - cl.050.212

7. 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. For the reasons below, the applicant does not meet cl.050.212.

8. The applicant is relying on satisfying subclause 050.212(3) which is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

9. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

10. There is no evidence before the Tribunal that the applicant has a valid substantive visa application pending with the Department.

11. At hearing the applicant confirmed he had applied for a protection visa on 18 March 2021, which was refused on 25 March 2021.  Although claiming in the BVE application form he had sought a review of his protection visa refusal, at hearing he confirmed he did not because he claimed to not realise that was an option at the time.  He gave no indication that he plans to seek review; Department and Tribunal records do not indicate he has sought a review; and the statutory time period in which he is able to lodge a review application has passed. 

12. The applicant said he applied for the BVE to be released into the community in order to work and then apply for a partner visa. He told the Tribunal (and the Department at the visa application stage) he intends to apply for a partner visa sponsored by his Australian partner, [Ms A].  At hearing he said they have been in a relationship for around eight months although have never lived together.  She visits him most weeks in detention and they have made plans to move to the country if he is released where she will support his food and rent and other costs.  His plan is to find [work] to save enough money to pay for the partner visa application process.  He said they plan to marry. 

13. The Tribunal has several concerns about the applicant’s stated intention to apply for a partner visa based on his claimed relationship with [Ms A], as discussed at hearing.  His evidence to the Tribunal is that once he is released from detention, he plans to [work] to pay for the application fees which he has calculated will take two months.  Yet he also told the Tribunal he stopped work in Australia in August 2019 when his wife left him because he did not have a visa and found it difficult to get (and maintain) work without one.  He was homeless at times.  He told the Tribunal he exhausted all his savings and he is unable to afford a lawyer to assist with the partner visa application.  In his BVE application he stated that his sister is a permanent resident and could support him however the applicant did not mention his sister at hearing and has provided no further evidence of her alleged support.  Furthermore, at interview with the delegate (as noted in the decision record, a copy of which the applicant provided to the Tribunal on review) the applicant stated that he had not been in contact with his sister for a year and a half and did not know her address or contact details.

14. Moreover, the applicant has provided inconsistent evidence about his relationship with [Ms A], which undermines his stated intention to apply for a partner visa.  For instance:

    ·At hearing the applicant said he had been in a relationship with [Ms A] for eight months however in his BVE application the duration of their relationship is stated as a year.  At hearing the applicant confirmed they had been together for eight months, but some fellow detainees had told him to write a year in the application form. 

    ·According to a record of his immigration status interview[1] with an Australian Border Force (ABF) officer when first detained on 14 February 2012 the applicant said he was in a relationship with a woman called [Ms B], which undermines his claims to be in a relationship with [Ms A] at that time.  At hearing the Tribunal discussed this potentially adverse information with the applicant pursuant to s.359AA of the Act and explained that it may undermine his claims to have been in a relationship with [Ms A] for the past eight months and in turn his claimed plans to lodge a partner visa application (that can be granted).  The Tribunal also explained to the applicant that he has several options in which to respond to that information.  He chose to respond immediately, explaining that [Ms B] is someone he knows from when he was involved in drugs.  She had telephoned him when he was detained and said she was willing to lie to say they were in a fake marriage/relationship for money.  The applicant said he was sorry and that he was actually in a relationship with [Ms A].  However, if that was the case it makes no sense why he did not advise the ABF officer of such and instead identified his partner as [Ms B].   

    [1] Contained on the Departmental file

15. The applicant was also unable to provide [Ms A]’s address when asked at hearing, despite claiming to be in a relationship with her for eight months, planning to marry, and that he used to stay at her house two nights a week.  He said she had moved recently but his oral evidence was vague, and the Tribunal was not persuaded by his response.  Additionally, when asked where in the country he and [Ms A] planned to move to, he replied either [Town 1] or [Suburb 1]: yet [Suburb 1] is a suburb of Melbourne, not the country.

16. Given these concerns the Tribunal is not satisfied on the evidence before it that the applicant has the means or a genuine intention of making an application for a partner visa.   

17. The Tribunal has also considered the reasoning in Liu v Minister for Immigration & Anor [2008] FMCA 725. It appears to suggest that cl.050.212(3)(b) requires that a substantive visa could be granted to the applicant at the time of their application for a bridging visa. According to the primary decision record, the applicant had been detained since 14 February 2021 and, under s. 195 of the Act, he has limited time to make an application for a substantive visa. The Tribunal finds that at the time when the applicant applied for the bridging visa, he could not be granted a substantive visa because of the operation of s.195 of the Act. The Tribunal is not satisfied the applicant meets cl. 050.212(3).

18. There is no evidence that the applicant meets any of the alternative criteria in cl. 050.212. His evidence with the primary application and to the Tribunal is that his intention is to stay and work in Australia and then make an application for a partner visa once he has the funds.  He gave no indication that he would depart Australia and maintained that he fears his life will be at risk if he returns to Malaysia.  At hearing the applicant said in the past he was granted a bridging visa for 14 days on the basis of making acceptable arrangements to depart but was too scared to contact the Department for fear of being deported.  He said he was feeling hopeless, with no savings and no means of earning a living (he could not even buy a ticket) and had no contact with his family in Malaysia and still does not.  Given these considerations the Tribunal is satisfied the applicant is not seeking the visa on the basis of making acceptable arrangements to depart Australia.  The Tribunal is not satisfied the applicant has made, or is the subject of, acceptable arrangements to depart.

19. There is no evidence that the applicant has an outstanding application for any visa or application for Ministerial intervention or for judicial review. There appear to be no other matters that have not yet been decided.  The Tribunal notes, as did the delegate, in his application form the applicant stated that he had applied for judicial review on 25 March 2021.  However at hearing (and at the interview with the delegate as set out in the decision record, a copy of which was provided by the applicant) he clarified that he had not applied for judicial review (or merits review of the protection visa refusal), but was advised by fellow detainees to say he had.   

20. The Tribunal is not satisfied the applicant meets any of the alternative criteria in cl. 050.212. The Tribunal is not satisfied the applicant meets cl.050.212.

21. The Tribunal notes there is information contained on the Departmental file subject to a non-disclosure certificate issued under s.376 of the Act dated 3 May 2021. The information primarily relates to the applicant’s criminal history and ongoing criminal matters which are not relevant to whether or not he meets the grounds for seeking the visa.  At hearing the applicant confirmed he has an upcoming court hearing in mid-2021 regarding drug related charges. 

    CONCLUSION

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

23. 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

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

    Nicole Burns
    Member