Zhou (Migration)

[2023] AATA 2260

Zhou (Migration) [2023] AATA 2260 (5 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junming Zhou

CASE NUMBER:  2305895

HOME AFFAIRS REFERENCE:               BCC2023/2436343

MEMBER:L. Symons

DATE:5 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 May 2023 at 12:03pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

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 to the Department of Home Affairs (the Department) for the visa on 21 April 2023. 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 050.212.

3. The decision to refuse to grant the visa was made on 26 April 2023 on the basis that the applicant did not met the requirements of cl.050.212 or cl.051.211. On 28 April 2023, the applicant applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 5 May 2023 at 9.30am to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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

8. 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.

   Substantive visa application

9. Subclause 050.212(3) 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.

10. ‘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 an application being made: s 5(9) of the Act.

11. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 26 April 2023 which sets out his immigration history in Australia. It indicates that he arrived in Australia on 4 February 2027 as the holder of a subclass 500 Student visa that was valid until 30 September 2019. He subsequently applied for and was granted two further subclass 500 Student visas the last of which was valid until 30 May 2021. He did not lodge a further application for a substantive visa or depart Australia and remained in Australia is an unlawful noncitizen.

12. The Department’s Decision Record dated 26 April 2023 indicates that the applicant lodged his first application for a Bridging E visa on 3 December 2021. He was granted this visa on 11 December 2021 and it was valid until 11 April 2022. He thereafter did not depart Australia and remained in Australia as an unlawful noncitizen. On 21 June 2022, he applied for a second Bridging E visa. He was granted this visa on 22 June 2022 and it is valid until 22 September 2022. He thereafter did not depart Australia and remained in Australia as an unlawful noncitizen.

13. The Department’s Decision Record dated 26 April 2023 indicates that the applicant lodged a third application for a Bridging E visa for the purpose of lodging an application for a Student visa. On 17 October 2022, he was remanded into criminal custody and charged with a number of offences. On 14 November 2022, he was granted a Bridging E visa on criminal detention grounds to maintain a lawful immigration status while he was incarcerated. On 3 April 2023, he was convicted of Possess Loaded Firearm in a Public Place and Possess Unregistered Firearm and was sentenced to twelve months imprisonment with a non-parole period of five months and three weeks.

14. The Department’s Decision Record dated 26 April 2023 indicates that, upon his release from criminal custody on 8 April 2023, his Bridging E visa seized and he thereafter became an unlawful noncitizen. He was located by Australian Border Force officers and detained pursuant to s.189 of the Act. He was subsequently transferred to immigration detention and is currently accommodated at the Villawood Immigration Detention Centre (VIDC). On 17 April 2023, he lodged an application for a Bridging E visa whilst in immigration detention. This was not a valid application. On 18 April 2023, he lodged another application for a Bridging E visa whilst in immigration detention. This was also not a valid application. On 21 April 2023, he lodged a further application for a Bridging E visa which is a valid application. This application is the subject of this review.

15. In his application for a Bridging E visa lodged on 21 April 2023, the applicant stated that he intended lodging an application for a substantive visa. He did not provide the Department or the Tribunal with any evidence that he had lodged an application for a substantive visa. During the hearing, he gave evidence that he intends lodging an application for a subclass 500 Student visa so that he can complete his Master of Engineering degree at the University of NSW.

16. The applicant stated that he is currently on enforced “Program leave” from his university so that he can address his mental health issues. He is now ready to return to university. When asked whether he is receiving any counselling from a Psychologist at the VIDC, he responded that he has received counselling. When asked whether it is ongoing counselling, he responded that he did not attend the counselling sessions last week and this week as he wanted to stay in his room and not see anyone.

17. The applicant stated that before he can apply for a Student visa, he needs to obtain a Confirmation of Enrolment (COE) from the University of NSW. When asked whether he had contacted the University of NSW to obtain a COE, he responded “not yet”. He did not have their telephone number. He needed to attend the university personally. He is unable to do anything in relation to getting a COE until he is released from detention.

18. The Tribunal asked the applicant whether he had obtained immigration advice from a migration agent or a lawyer. He responded that he had but his lawyer had not contacted him for the last four weeks. When asked whether he knows whether he is now entitled to apply for a Student visa, he responded that he did not know and had not got advice about that.

19. The Tribunal discussed with the applicant the other relevant criteria in cl.050.212. He stated that he had not made any arrangements to depart Australia nor had anyone else made any arrangements on his behalf for him to depart Australia. He lost contact with his parents in China many years ago and does not know where they are. His paternal grandparents, who brought him up, have both passed away. He has nowhere to go if he returns to China. He has no intention of departing Australia. Other than for this application for a Bridging visa, he does not have any other application before the Tribunal. He does not have any pending application before a Court. His criminal law proceedings have also been finalised. He has not made any application to the Minister for Ministerial intervention.

20. The Tribunal explained to the applicant the threshold criteria in cl.050.212 and raised as an issue with him the fact that he did not satisfy any of the relevant criteria. After a long pause, he responded that he did not know what to do. The Tribunal suggested that he obtain some immigration advice specific to his circumstances.

21. The applicant has not provided the Tribunal with any evidence that he lodged an application for a substantive visa at the time of application. Therefore, the Tribunal finds that, at the time of application, the applicant has not made, in Australia, a valid application for a substantive visa of a kind that can be granted if he is in Australia and that application has not been finally determined. The Tribunal is not satisfied that he will apply, in Australia, within a period allowed for the purpose, for a substantive visa of a kind that can be granted if he is in Australia. Accordingly, the applicant does not meet the requirements of cl.050.212(3).

22. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. Therefore, the Tribunal finds that the applicant does not meet the threshold criteria in cl.050.212. 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.

    L. Symons
    Member