Wang (Migration)

[2022] AATA 2728

Wang (Migration) [2022] AATA 2728 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanxin Wang

REPRESENTATIVE:  Mr Chang Liu

CASE NUMBER:  2209077

Home Affairs REFERENCE(S):               BCC2022/2221315

MEMBER:David Barker

DATE:28 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 June 2022 at 1:53pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful Non-Citizen – applicant made no genuine attempt to make arrangements to depart Australia – applicant made no attempt to regularise his visa status for a ten year period – not satisfied that the applicant currently has the documentation required to depart Australia – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, cls 050.222, 050.223, Schedule 8

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 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).

2. The applicant applied for the visa on 16 June 2022. 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 050.223.

3. The decision to refuse to grant the visa was made on 21 June 2022 on the basis that the delegate  was not satisfied that the applicant would, if her were to be released into the community on a Bridging visa E (BVE), comply with conditions which would be imposed upon the visa. The applicant appeared before the Tribunal by Video from Perth, WA  on 27 June 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant’s identified representative did not participate in the hearing. The applicant was asked why this was the case and he indicated that his representative had told him he was busy.  The applicant told the Tribunal that he would see how he went at hearing and in relation to the overall review without a representative present at hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues in this case are whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia; and if so, whether he will abide by visa conditions if he were to be granted a BVE and released into the community. (cl.050.223). 

   The applicant’s visa history

7. The following information about the applicant’s immigration history is taken from: the delegate’s decision record (the decision record), a copy of which was provided to the Tribunal by the applicant, from the applicant’s evidence and from other material before the Tribunal.

8. The applicant is a national of China.  He is 31 years old.  The applicant’s immigration history as detailed in the delegate’s decision is as follows.

9. The applicant first entered Australia on 23 November 2008 holding a subclass 571 student visa which was valid until 15 March 2011. The applicant remained unlawfully in Australia between 16 March 2011 and 23 May 2011, before applying for a  subclass 572 student visa on 23 May 2011.  Whilst this application was being considered, the applicant was granted a Bridging visa.  The subclass 572 student visa was refused by the Department on 7 September 2011. He requested a review of this decision and on 25 June 2012 the Migration Review Tribunal (MRT) affirmed the decision to refuse the student visa application.  The applicant’s bridging visa ceased on 1 August 2012.  The applicant has remained unlawfully in Australia since then.

10. The applicant was located by WA police during a routine traffic stop on 26 January 2022.  The applicant was cautioned in relation to his unlawful status and directed to apply for a bridging visa online to regularise his status.  The applicant did not do so, and on 9 June 2022 the applicant was located via another routine traffic stop and detained under s 189 of the Act.

11. On 16 June 2022 applicant applied for the BVE on the grounds he is making, or is the subject of, arrangements to depart  Australia[1]. The decision record notes that the applicant participated, with the assistance of a Mandarin interpreter, in a BVE interview 20 June 2022, at which time the applicant’s immigration history, as outlined above was put to him and he agreed that it was accurate. The applicant stated that he is applying for a BVE for the purpose of departing Australia.  The applicant had earlier, on 10 June 2022 participated in a  Located Person Interview (LPI).

    [1] Clause 050.212(2).

    The Hearing

12. The following is a summary of the applicant’s evidence at hearing.  It is not a transcript.

13. At the start of the hearing the Tribunal explained that it has to consider the issue regarding the ‘time of application’ criteria. In response to a question from the Tribunal, the applicant confirmed that he applied for the BVE on the basis of making arrangements to depart Australia. He confirmed that this remains his intention and that there is no other basis for his BVE application.

14. The applicant  confirmed the accuracy of his migration history as it is recorded in the decision record. He explained that when he was stopped by the WA police in January 2022 they only spoke to him for a couple of moments and did not allow him to use his phone translation app and as a consequence he did not understand what they told him to do with regard to his visa. He said that he thought the police may have been talking to him about whether he had paid traffic fines imposed on him as a result of an earlier traffic matter and that when he went home he checked online and verified that he had no outstanding fines. The applicant also explained that when they[2] spoke to him he was not able to provide them with a current address where he was staying, but as he had his old residential address details in his mobile phone, they could have ascertained details of his new address through communicating with the people at his previous address. The applicant emphasise that is not providing current address details was not a matter of trying to mislead or misrepresent the immigration authorities.

    [2] the applicant's reference to ‘they’ was made when he was emphasising he had not provided fraudulent or false and misleading information when interviewed by immigration officials.  This reflects aspects of his response in the LPI interview on 10 June 2022.

15. The applicant gave evidence that he  came to Australia with a stated intention to study languages at the higher education sector level, but that he did not subsequently complete any courses of study in Australia.

16. As to why he remained in Australia after the bridging visa associated with his unsuccessful application for a second student visa ceased in August 2012, the applicant said it was so as to pay off a debt amounting to  between RMB300,000 and RMB400,000. He said that after 10 years he has paid off over half of this debt and has RMB130,000 remaining to pay. In response to a question as to whether he had incurred this debt before he came to Australia in 2008, the applicant gave evidence that it is not his debt but that it is a debt that his father owes.

17. The applicant is seeking the BVE so that he can make arrangements to get his Chinese passport renewed and so that he can get an airline ticket upon which to return to China. He said that he cannot do these things from detention and that they can only be arranged if he is released into the community. The applicant said that a person will act as guarantor for him and that he promises on his character that he will abide by any conditions that may be imposed on a BVE.  He said that he would not harm the dignity and reputation of the guarantor, who is an Australian citizen, by not complying with visa conditions. When asked if he had any evidence to support his claim to having a guarantor, the applicant said that he did not. When asked the identity of the guarantor he was referring to, the applicant said it was a person with the surname ‘Wu’. He did not of his own volition elaborate as to Wu’s full name or other identity details. When asked for further details as to the identity of Wu the applicant said Wu was a female friend.  He did not elaborate further as to the nature of his connection to Wu, beyond saying she was a good friend who he had known for a few years.

18. In response to a question as to where he would reside if released into the community, the applicant said he would reside with a Wu, but was not able to provide detail as to where Wu resided. As to how he would pay for necessary expenses, such as an airline ticket back to China, if he were released into the community, the applicant said Wu would meet all of these sorts of expenses.

19. With regard to his passport, the applicant gave evidence that it was not a document he used frequently over the last 10 years, as his driver’s licence was a more relevant and frequently used way to, if asked, establish his identity. He said that a friend who was packing up his belongings so they could be sent back to China noticed that the applicant’s passport had expired and brought this to his attention.  When asked for detail as to when this friend informed the applicant that his passport had expired, the applicant was unable to specify when this occurred and when pressed further on this issue, he said it would have been two to three days after he was placed in immigration detention. The Tribunal put to the applicant that his evidence at hearing did not appear consistent with what he has previously told Departmental staff and that if it were to be shown there was inconsistency in his claims in relation to this factor, this would raise concern as to whether he is a reliable source of information.  In response the applicant reiterated his claim that he only found out that his passport was no longer valid  a few days after he was detained, when the friend who packed up his belongings after he was detained noticed the passport expiry date had passed.   

20. When asked how he had supported himself since 2011, the applicant said that he had secured random jobs through looking at newspapers and that this had involved working in a bakery and also in the construction industry. When asked to elaborate further about how he had supported himself over the 10 years whilst he has been an unlawful non-citizen and lacked work rights in Australia, the applicant said he worked in a bakery whilst he was in Sydney and got construction work after he relocated to Western Australia in 2012.

21. As to how the Tribunal could have confidence that the applicant would comply with visa conditions which may be imposed on a BVE if he were to be released into the community, given he had demonstrably not complied with or respected visa and migration requirements for a period of around 10 years, the applicant reiterated that he promised he would comply.  He said he would do this, as he would not act in a way which ruined the reputation of the person who would be willing to be his guarantor. In discussing this issue at hearing the applicant returned to the communication difficulty experienced because of his poor English language skills, during the January 2022 interaction with the Western Australian police. When the Tribunal acknowledged this may well have been the case but that it did not really address the previous 10 years in which he had knowingly remained in Australia without a valid visa, the applicant indicated that he had thought about returning to China a few years ago, so that not all of his youth weas spent away from his home country.  He did not elaborate as to why he had not acted on this thought and when asked if he had anything further he wanted the Tribunal to take into account, he said that he did not.

22. The Tribunal discussed with applicant the tight time frame in which the Tribunal is required to make a decision when a review applicant is in detention and that whilst it would consider further evidence or arguments which the applicant may wish to provide following the hearing, any such material would need to be received by the Tribunal by 10 am Western Australia time on 28 June 2022. 

23. On 28 June 2022 the Tribunal received an email from the applicant’s representative, Chang Liu, which stated ‘We are instructed to submit the attached IDs for the guarantor in the application of BVE review. Ms Wu can be contacted on [details of phone number and email address provided].  Along with this email was a pdf attachment which provided  information from an Australian passport biodata page and a Western Australian driver’s license which contained details of Jiongyu Wu.

    Assessment of the evidence

24. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2) to (9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

25. Having regard to all the evidence before it, the Tribunal finds the applicant was granted a student visa (sc 571) on 10 November 2008 and subsequently arrived in Australia on 23 November 2008. That visa ceased on 15 March 2011 and his application for a further student visa (sc 572) was unsuccessful, with that decision being affirmed by the MRT on 25 June 2012.  The bridging visa associated with that application ceased on 1 August 2012. 

26. The Tribunal finds that the applicant became an unlawful non-citizen on 2 August 2012. The Tribunal finds that on 9 June 2022 the applicant was detained by the Department pursuant to s.189 of the Act, at Midland Police Station in Western Australia.  Subsequently the applicant was transferred to the Perth Watch house, where he was interviewed by Immigration Status Service staff  on 10 June 2022, prior to his transfer to the Perth Immigration Detention centre, where he is currently located. The Tribunal finds the applicant applied for the BVE which is the focus of the current review on the grounds that he is making acceptable arrangements to Depart Australia and that he has and has no other matters before the Department.

27. 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.

28. 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 has determined that the applicant does not meet cl 050.212(2).

    Acceptable arrangements to depart Australia

29. 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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).

30. In terms of relevant factors to be taken into account whether an applicant is making, or is the subject of, acceptable arrangements to depart Australia, PAM3 suggests they include whether:

    ·The applicant has a valid ticket for travel and a booking or reservation to leave Australia.

    ·The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.

    ·The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).

    ·The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (AVR) arrangements).

    ·The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.

    ·The applicant is the subject of departure arrangements in circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.

    ·The Department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).

31. The Tribunal has carefully considered the applicant’s evidence and claims and for the following reasons is not persuaded that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. 

32. There is no indication the applicant has taken any steps to make arrangements for his departure.  He does not have a valid air ticket or reservation upon which a deposit has been paid, either by him, or by a third party acting on his behalf. The applicant  has not nominated a date on which he intends to depart, beyond claiming he will need at least a month after he were to be released into the community, to make arrangements for his departure.

33. A review of the applicant’s responses in the LPI he participated in on 10 June 2022 indicates he declined the option of requesting the Department purchase an air ticket and make travel arrangements on his behalf. The applicant claims that he is reliant on a third party to purchase an air ticket and meet other travel expenses on his behalf, as he lacks sufficient funds of his own.  The applicant has not however produced credible evidence that this third party, Wu, is willing and has the financial capacity to support the applicant financially in the way he claims. 

34. Information was received following the hearing which provided further detail as to the identity of  Ms Jiongyu Wu, but this was not accompanied by any statement or declaration from Ms Wu attesting to her willingness to act in the capacity of what the applci ant has referred to as his guarantor, namely that she would: a) meet all expenses he may incur if he were to be released into the community and expenses associated with his return to China; and  b) provide him with somewhere to reside if he were to be released into the community, until such time as he were to return to China.  The Tribunal is not satisfied that the information about the identity of Ms Wu constitutes evidence of her willingness, or capacity to support the applicant financially and otherwise in making acceptable departure arrangements.

35. As to Mr Chang Liu’s statement that Ms Wu can be contacted on the supplied phone number or email address, it is for the applicant to make out their case and put before evidence and arguments in support of his BVE application. The applicant was put on notice at the hearing as to  the lack of evidence that his claimed guarantor was willing to provide him with the level of support and he assistance he claimed and the Tribunal is not satisfied that the information provided post hearing demonstrates this is the case in this matter.

36. The applicant does not hold a valid Chinese passport, having allowed the most recent passport that he held to lapse.  At hearing the applicant was unable to give a clear indication of when his passport lapsed, beyond indicating it was not long before he was detained and likely sometime in May 2022.  The Tribunal accepts the applicant’s contention that he did not give much thought to his passport, instead placing more reliance on his NSW driver’s license to establish his identity when asked. The Tribunal has taken the applicant’s evidence with regard to this factor to also reflect the lack of thought given by the applicant to departing Australia and consequently needing current travel documents such as a valid passport, until required to do so by his current circumstances.

1. An aspect of the applicant’s oral evidence at hearing which is of concern is that he claimed to be unaware that his passport had expired until he was in detention for between two to three days, whereas his responses in the LPI indicate he was aware of the expired status of his  Chinese passport on 10 June 2022, prior to his transfer to the Perth Immigration Detention Centre. In the view of the Tribunal the inconsistency in the applicant’s evidence with regard to this issue suggests he was aware of the status of his passport before he was detained and elected to do nothing about it.  In the view of the Tribunal this calls into question the reliability of information provided by the applicant, and in particular his contention that he is willing to make arrangements to depart from Australia. The Tribunal finds that at the present time, the applicant does not hold a valid travel document and has taken no actual steps to obtain a valid travel document within a reasonable period of time.

2. The applicant has given no indication that he is willing to request assistance from the Department, such as through working with a Status Resolution service  to get travel documents and  make arrangements  for assisted voluntary return to his home country.

3. Having considered all of the evidence, the Tribunal considers the applicant’s immigration history to raise concerns as to whether the Tribunal can rely on the applicant’s claim that he genuinely intends to depart Australia if he is released from detention. The Tribunal is not satisfied that the applicant will  make a genuine endeavour to obtain an airline ticket due to the lack of credible evidence before the Tribunal to support his having either the financial capacity to do so, or that a third party, Ms Wu will pay the full cost of a ticket and other travel related expenses on his behalf. The applicant has not provided a credible date for departure and  the Tribunal is not satisfied that the applicant currently has the documentation required to depart Australia.  The Tribunal has also formed the view that the information provided in support of the applicant’s claims is not reliable and that there is significant doubt the applicant is genuinely motivated to depart Australia.

4. As to why the applicant said he wanted a BVE, the Tribunal acknowledges he has claimed he cannot make arrangements to depart Australia whilst he is in detention. The Tribunal does not accept this claim. If, as claimed he has a good friend willing to provide him somewhere to reside and meet all of his required expenses, including the cost of his return flight to China, the Tribunal considers it implausible that the applicant could not ask for assistance from Ms Wu to make an airline reservation on his behalf and thereby establish some specific departure arrangements.  It is also open to the applicant to request assistance to both arrange travel documents which would allow travel to China and to meet the cost of such travel through the Department’s voluntary return procedures.

5. Overall, the Tribunal is not satisfied that at the time of application the applicant had a genuine intention to depart Australia. Nor is it satisfied that it can rely on the applicant’s current assertions that he will depart Australia if he is granted a BVE. The Tribunal has taken into account the applicant’s explanation for why he wants to be released from detention; however the Tribunal has found the applicant’s evidence on this issue to be unpersuasive. It has concerns that the applicant may not depart Australia as he claims he intends. 

6. For these reasons, the Tribunal is not satisfied that at the time of application, or at the present time, the applicant was making or was subject to acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).

   Whether the applicant will abide by conditions - cl 050.223

7. Notwithstanding its findings that the applicant is not making and is not subject to acceptable arrangements to Depart Australia, the Tribunal has also considered whether the applicant will abide by conditions imposed on a BVE if one was to be granted.

8. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa was to be granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

9. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

10. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

11. In this case, cl 050.611B applies because the applicant is an unlawful non-citizen to whom cl 050.222(3) applies.  This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101    The holder must not engage in work in Australia.

    8401    The holder must report:

    (a)       at a time or times; and

    (b)       at a place;

    specified by the Minister for the purpose.

    8505The holder must continue to live at the address specified by the holder before the grant of the visa

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address

    8510Within the time specified by the Minister for the purpose, the holder must, either:

    (a)show an officer a passport that is in force; or

    (b)make an arrangement satisfactory to the Minister to obtain a passport.

    8511Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival.

    8512The holder must leave Australia by the date specified by the Minister for the purpose.

    Condition 8101 - no work

12. The Tribunal has concern regarding the reliability of the applicant’s claims in relation to his ability to meet his essential living expenses without seeking employment, if he was to be released into the community.  This is because the Tribunal is not persuaded he has access to the amount of financial support he would require, through the generosity of Ms Wu having either the willingness or financial capacity to meet the applicant’s expenses. The Tribunal is not persuaded as to any such contention as there is no credible evidence to support this contention.

13. The applicant’s stated reason for overstaying his last valid visa by ten years was so that he could pay his father’s debts.  He has indicated that he has paid a bit more than half of these debts, with an amount of RMB130,000 still owed by his father.  The applicant gave evidence that he remained in Australia to pay these debts, despite having a wish to return to China.  Given these circumstances, the Tribunal is unconvinced the applicant would not, if released into the community on a BVE, seek to disappear into the general community and resume work once again in the construction industry so as to continue to remit funds back to his home country to pay his father’s debts.

14. After considering the cumulative evidence about this issue, and for the reasons outlined above, The Tribunal is not satisfied the applicant would not seek paid employment to meet his essential expenses and meet what he perceives to be his filial responsibilities.  The Tribunal is not satisfied that the applicant will abide by condition 8101 if a BVE is granted to him.

    Condition 8401 - report as directed

15. The Tribunal is concerned that the applicant has a strong motivation to remain in Australia and that he does not have a genuine intention to depart from Australia.  The Tribunal has unresolved concern that the applicant would, provided the opportunity, seek to disappear into the general Australian community and continue to seek paid employment. Therefore, I am not satisfied that the applicant will abide by visa condition 8401 if a BVE is granted to him.

    Conditions: 8505 - continue to live at the address specified by the holder before the grant of the visa, and 8506 - notify Immigration at least two working days in advance of any change in the holder’s address

16. The delegate reports that the applicant indicated to Departmental officers that he would reside, at least until the end of June 2022, at an address in Castlewood Parkway in Southern River, WA. This was a location where he rented a room.  At hearing he made no such claim and instead claimed that he would reside with his good friend Ms Wu, but he was unable to provide detail as to where  Ms Wu resides. Informaion received post hearing sheds light on Ms Wu’s residential location and of note, it is not in Castlewood Parkway, Southern River, WA.  

17. In light of the applicant’s demonstrated willingness to breach visa conditions over the 10 years he remained in Australia as an unlawful non-citizen, the Tribunal is not satisfied that his claims as to where he would reside if he were to be released into the community on a BVE are reliable. The Tribunal is also not convinced the applicant would not seek to again disappear into the general community and as a consequence, not notify the Department of an impending change to his residential arrangements. Therefore, I am not satisfied that the applicant will abide by visa conditions 8505 and 8506 if a BVE is granted to him.

    Conditions: 8510 - apply for a passport, 8511 - apply for a travel document and 8512 - to depart Australia by a specified date

18. The Tribunal notes that the applicant made no attempt to regularise his visa status for a ten year period and is not by his own choice in the circumstance where he is seeking a BVE, which if granted would result in his again becoming a lawful non-citizen in Australia. The Tribunal considers the applicant’s claims with regard to his knowledge of the status of his passport to be unreliable and motived by an intention to misrepresent the circumstance where he was aware his Chinese passport needed renewing, but that he did not perceive a need to prioritise renewing the passport.  The applicant’s claims in relation to his departure arrangements are reliant on the role that a third party, Ms Wu, would take in this process and the Tribunal does not consider the claims made with respect to this factor to be plausible or for reasons discussed elsewhere in this decision, corroborated by any credible evidence. The Tribunal is not persuaded the applicant has a genuine intention to depart from Australia voluntarily. Therefore, I am not satisfied that the applicant will abide by visa conditions 8510, 8511 and 8512 if a BVE is granted to him.

    Overall assessment of whether the applicant will comply with conditions

19. In order to make a favourable decision the Tribunal must be positively satisfied that, if a BVE were to be granted to the applicant, he will abide by the conditions imposed on it.  However, in the final analysis I am not persuaded the available evidence, or the applicant’s submissions in relation to this evidence, demonstrates that the applicant will comply with conditions 8101, 8401, 8505, 8506, 8510, 8511 and 8512. Therefore, the applicant does not meet cl.050.223.

20. On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223 of the Regulations.

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

22. 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

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

    David Barker
    Member