Applicant: Georgios Papachristopoulos IRT Reference: N97/00094 #number 8831 [1997] IRTA 8831 (5 February 1997)

The Applicant is a citizen of Greece who arrived in Australia on 11 June 1990. The last entry permit held by the Applicant ceased to have effect on 6 December 1991 and consequently he is now an unlawful non-citizen.

An applicant is entitled to the grant of a visa under the Migration Act 1958 (the Act) and the Migration Regulations (the Regulations) if he or she makes a valid application for a visa of a specified class and satisfies the criteria prescribed by the Act and the Regulations for a visa of that class. An applicant for a bridging visa must be an 'eligible non-citizen', meaning that the applicant must have been immigration cleared or must come within certain classes of persons set out in the Regulations (see sections 72 and 73 and regulation 2.20). In order for an application for a Subclass 050 bridging visa (General) to be valid it must be made in the way required by item 1305 in Schedule 1 to the Regulations (see sections 45 and 46 and regulation 2.07). The criteria for the grant of a Subclass 050 bridging visa (General) are set out in Part 050 of Schedule 2 to the Regulations (see section 31(3) and regulation 2.03). (The Applicant is not eligible for the grant of a visa of subclass 051: see clause 051.211.) A copy of the relevant legislative provisions is at Attachment A. All applicants for a Subclass 050 bridging visa (General) must satisfy the primary criteria set out in Part 050 of Schedule 2.

In the course of its review the Tribunal received written submissions and it took oral evidence from the Applicant and from the following witnesses, Michael Tsapos and Demetre Georgopoulos.

The Applicant stated that he had arrived in Australia on 11 June 1990 on a tourist visa. He subsequently met an Australian permanent resident, Ms Danica Funes, and lodged an application for permanent residence based on his de facto relationship with Ms Funes.

On 14 April 1992 he was arrested by police. The Applicant stated that two weeks before his arrest he had had a disagreement with Ms Funes (concerning her son from a previous relationship), and as a consequence he left her house. Asked about a statutory declaration which had been made by Ms Funes on 27 March 1992, in which Ms Funes declared that their relationship had ended five weeks before that date because the Applicant had had a relationship with another woman, the Applicant denied this. He stated that he now believed that Ms Funes had been a police informant. He thought that another motive for her withdrawing her sponsorship was that he had refused to give her money to buy a car.

After he was arrested on 14 April 1992, on a charge of possessing and selling heroin, he was granted bail subject to the lodgement of substantial security and to reporting conditions. These conditions were subsequently relaxed somewhat. Concerning the heroin charges, the Applicant claimed that he had been 'set up' by the police. A jury had recently acquitted him of these charges. Furthermore, he had reported the police involved in his arrest to the Royal Commission into the New South Wales Police Force.

He told the Tribunal that he had suffered intimidation by police and a man by the name of George Plionis because of certain evidence which he would give at his trial. This had been his reason for ceasing to report to police and to Immigration authorities and his failure to appear in court on 18 March 1995. He had been threatened that he, and members of his family in Greece, would be killed. He left the address that he was living at so that he could not be found. However he did not seek to change his identity, the Applicant said. Although

he was found with a licence in the name of George Pappas, this had been the name that he was known by since his arrival in Australia. He agreed, however, that he had purchased the licence for $200.

The Applicant gave the following account of the circumstances leading to his arrest. An acquaintance of his, George Plionis, had told him that he was able to arrange for passports to be issued by the Immigration Department for a price. The Applicant then met three Romanian nationals who wanted to stay in Australia and who were prepared to pay $5,000 for each of the passports. The Applicant claimed that he had taken this money to a police officer by the name of Pickering, who at the time had posed as an immigration officer. An arrangement had been made for the Applicant to pick up the passports on 14 April 1992. When the Applicant arrived at the agreed location he was arrested by the police and a false allegation made in relation to possession and supply of heroin.

The Applicant had applied for a protection visa. This had been refused. However an application for review was with the Refugee Review Tribunal. If it was unsuccessful he would leave Australia as required. He would not remain here illegally. The Applicant claimed that he had told the Department about his intention to seek refugee status when interviewed in 1992. He produced a photocopy of what appeared to be folios 246 and 248 of the Department file N91/520813. These form part of a record of interview which had been conducted by Departmental officers on 19 May 1992. The Applicant claimed that answers to certain questions had been 'blacked out' by the Department. His original answers to the questions had indicated that he had expressed an intention to seek refugee status. The questions to which the answers were 'blacked out' were:

Have there been any other developments since your arrival which you now want to inform the Minister's delegate about? and

Is there any reason why you cannot return to that address?

When it was put to him that the original folios on the file did not record his intention to apply for refugee status or his fear of returning to Greece, the Applicant claimed that the original document had been falsified.

The Applicant wanted to be released from detention because he needed to prepare properly for his protection visa application. He would not be able to earn any money if he remained in detention to pay the legal costs involved. He assured the Tribunal that when 'everything was finished', if a protection visa was not granted to him he would leave Australia and he would not disappear into the community. He had given the Royal Commission and police his address and fingerprints. He had formed a relationship with an Australian permanent resident, however he did not want her name disclosed. They hoped to marry in the near future.

Other witnesses giving evidence were Mr Michael Tsapos and Mr Demetre Georgopoulos. Both gave evidence of their friendship with the Applicant over a number of years. They stated that they also knew him as George Pappas. Both witnesses gave assurances that in their view the Applicant would not disappear into the community if released from detention.

The Applicant told the Tribunal that a Mr Warren Brain would be willing to provide him with accommodation and a substantial sum as security.

The Applicant is an unlawful non-citizen who entered Australia lawfully before 1 September 1994 and has not left Australia and who is therefore taken to be immigration cleared (see regulation 35 of the Migration Reform (Transitional Provisions) Regulations.

The Applicant made a valid application for a bridging visa (General) on 21 January 1997. I am satisfied on the basis of the evidence before me that the Applicant has made a valid application for a substantive visa and that application has not been finally determined.

Clause 050.213 requires that I be satisfied that the Applicant will abide by any conditions which may be imposed on the visa if one is granted. A list of the conditions which may be imposed is set out at Attachment B. In coming to a conclusion with regard to whether the Applicant will abide by any of these conditions which it would be appropriate to impose to ensure the effective regulation of the Applicant's stay in Australia while his application for a protection visa is finally determined, I have had regard to the considerations set out in the relevant Departmental Migration Series Instruction and I set out my conclusions below with regard to these considerations.

* whether the applicant has been identified to the satisfaction of the decision-maker;

* whether the applicant has co-operated with the Department in its dealings with him or her;

The Applicant's co-operation (or lack of it) is considered under subsequent heads.

* whether the applicant has previously been removed or deported;

The Applicant has not been previously removed or deported.

* whether the applicant has previously been refused a bridging visa;

The Applicant has been refused a bridging visa on a previous occasions. This Tribunal affirmed the refusal on 23 December 1996.

* whether the applicant has committed any breaches of the Act or Regulations;

Relevantly, only as discussed under the other heads which follow.

whether the applicant has breached the conditions of any previous bridging visa;

The Applicant was granted a bridging visa on 7 October 1994, on 5 December 1994 and on 27 February 1995 valid to 6 May 1995. As stated by a Departmental officer on a previous consideration of a bridging visa application, on 18 March 1995 the Applicant failed to appear in the District Court of New South Wales. At the same date he stopped reporting to the Department of Immigration as required by a condition of his bridging visa. The Applicant has maintained in his evidence that this was because of his being intimidated by police. I note that Senior Counsel Assisting the Royal Commission into the New South Wales Police Service, in a letter dated 4 December 1996, advises that:

In his disclosures to this Commission, Mr Papachristopoulos has outlined how he has been subjected to police intimidation at various specific occasions. However, at no time in the course of this Commission's dealings with him has he expressed any particular ongoing concerns in relation to his own safety arising from allegations of police intimidation.

* whether the applicant has previously absconded from immigration detention or other custody, or is likely to abscond;

* the applicant's conduct during any period of immigration detention;

* the strength of the applicant's ties to the Australian community;

The Applicant does appear to have friends and acquaintances here in Australia. One of them is prepared to lodge a substantial security. There is also a relationship with an Australian permanent resident which the Applicant claims will lead to marriage.

* whether the applicant has had a visa cancelled or a substantive visa application refused in Australia;

The Applicant has had a substantive application for the grant of residence refused on 16 April 1992. An application for a protection visa has also been refused by the Department. It is currently under review by the Refugee Review Tribunal.

* whether the grant of a bridging visa to the applicant is in the best interests of the community.

I do not believe that a grant of a bridging visa is in the best interests of the community as I am not satisfied that the Applicant would abide by any conditions of a bridging visa designed to regulate his stay in Australia while his application for a protection visa is finalised. I have arrived at this conclusion partly because of his previous failure to maintain contact with the Department. I should say that I find his explanation for this failure unconvincing. In general I am not impressed with the Applicant's credibility. His allegation that documents had been falsified by the Department and his production to the Tribunal of photocopies of particular folios on the Departmental file, in my view indicates that the Applicant is prepared to fabricate allegations and evidence. His account of the circumstances which led to his arrest in 1992, whether one believes it or not, is instructive in one respect. It indicates a certain attitude by the Applicant to Australian immigration law. He apparently saw little wrong in being a 'go between' in the purchase of passports for non-residents. Similarly, the fact that the Applicant considered quite acceptable, that he should obtain a New South Wales driver's licence by purchasing it for $200, gives me very little confidence that he will maintain contact with authorities or abide by any of the appropriate conditions, whether or not a security were to be provided.

The Tribunal affirms the decision refusing the grant of a bridging visa (General).

I certify that this and the 8 preceding pages are a true copy of the decision and reasons for decision of this Tribunal.

[NOTE: "Compelling need to work" and "criminal detention" are defined

in regulation 1.03. For "eligible non-citizen" see regulation 2.20.

[NOTE: All applicants must satisfy the primary criteria.]

050.21 Criteria to be satisfied at time of application

(2) The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20 (7), (8), (9), (10) or (11).

050.212. (1) The applicant meets the requirements of subclause (2), (3), (4), (5), (6), (7) or (8).

(2) An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

(3) An applicant meets the requirements of this subclause if:

(a) the applicant has made a valid application for a substantive visa and that application has not been finally determined; or

(b) the Minister is satisfied that the applicant will apply, within a period allowed by the Minister for the purpose, for a substantive visa.

(4) An applicant meets the requirements of this subclause if:

(a) he or she has applied for judicial review of a decision; or

(b) he or she has applied for merits review of a decision:

(ii) to refuse a visa under section 501 of the Act (which deals with refusal of visas to persons not of good character, etc.); or

(c) the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b).

PART 050--continued

(5) An applicant meets the requirements of this subclause if:

(a) he or she held a visa that was cancelled under subsection 140 (1) or (3) of the Act (which deals with cancellation because of the cancellation of a visa held by another person); and

(i) the other person whose visa was cancelled has applied for review of the decision to cancel his or her visa; or

(ii) the Minister is satisfied that that other person will make an application of that kind.

(6) An applicant meets the requirements of this subclause if he or she is the subject of a request to the Minister under section 345, 351, 391, 417 or 454 of the Act (which deal with the Minister's power to substitute a more favourable decision for the decision of a review authority) that has not been decided.

(7) An applicant meets the requirements of this subclause if he or she:

(b) if he or she has been sentenced to imprisonment or periodic detention, has actually served a period of imprisonment; and

(c) no criminal justice stay certificate or criminal justice stay warrant about the non-citizen is in force.

(8) An applicant meets the requirements of this subclause if he or she is the holder of a bridging visa Class E that is subject to condition 8101 and the Minister is satisfied that the applicant has a compelling need to work.

050.213 The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

050.214 A security has been lodged by the applicant, if asked for by an officer authorised under section 269 of the Act (which deals with security for compliance with the Act).

050.22 Criteria to be met at the time of decision

050.221 The applicant continues to satisfy the criteria set out in clauses 050.211 to 050.214.

PART 050--continued

050.222 (1) Unless subclause (2) or (3) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

(a) the applicant is not in immigration detention; and

(b) the applicant has made a valid application for a substantive visa; and

(c) the applicant holds a Bridging E (Class WE) visa; and

(d) the applicant is not seeking to be granted a further Bridging E (Class WE) that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

(a) an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant at the time of the application; and

(b) the applicant is not in immigration detention; and

(c) the applicant has made a valid application for a substantive visa; and

(d) the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

[NOTE: All applicants must satisfy the primary criteria.]

050.411 The applicant must be in Australia but not in immigration clearance.

[NOTE: The applicant must be an eligible non-citizen at the time of grant: see the Act, s. 73.]

050.511 In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied for a substantive visa--bridging visa:

(b) permitting the holder to remain in Australia until:

PART 050--continued

(i) if the Minister's decision in respect of the substantive visa application is to grant a visa--on the grant of the visa; or

(ii) if the Minister's decision in respect of that application is to refuse to grant a visa--28 days after the holder is notified of that refusal; or

(iii) if the substantive visa application is refused and the holder applies for merits review of that refusal--28 days after notification of the decision of:

(B) if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies--28 days after notification of the decision of that other review authority; or

(iv) if the holder withdraws his or her application for a substantive visa or an application to a review authority--28 days after that withdrawal; or

(v) the grant of a further bridging visa to the holder in respect of his or her substantive visa application.

050.512 In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied for judicial review of a decision--bridging visa:

(b) permitting the holder to remain in Australia until:

(i) if another bridging visa is granted to the holder in respect of his or her judicial review application--on the grant of that bridging visa; or

(ii) 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(iii) if the holder withdraws his or her application for judicial review--28 days after that withdrawal.

050.513 In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied for merits review of a decision to cancel a visa--visa coming into effect on grant permitting the holder to remain in Australia until:

(a) 28 days after notification of the review decision; or

(b) if another bridging visa is granted to the holder in respect of his or her merits review application--the grant of that bridging visa; or

PART 050--continued

(c) if the decision to cancel the substantive visa is reversed--on the reversal of that decision.

050.514 In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) to whom subsection 140(1) or (3) of the Act (which deal with cancellation as a result of cancellation of a visa held by another non-citizen) applies, if the other person whose visa was cancelled has applied

for review of that cancellation decision--visa coming into effect on grant permitting the holder to remain in Australia until:

(a) 28 days after notification of the review decision; or

(b) if another bridging visa is granted to the holder in respect of that merits review application--the grant of that bridging visa; or

(c) if the decision to cancel the substantive visa is reversed--on the reversal of that decision.

050.514A In the case of a visa granted to a non-citizen to whom subclause 050.222(3) applies - bridging visa:

(b) permitting the holder to remain in Australia for 5 working days from date of grant.

050.515 (1) In the case of a visa granted, or taken to have been granted, to a non-citizen who is in criminal detention--visa coming into effect on grant and ceasing on:

(a) the non-citizen's unconditional release from criminal detention; or

(i) the non-citizen's completing a sentence of imprisonment; or

(ii) subject to subclause (2), the non-citizen's release on parole; or

(ca) subject to subclause (2), in the case of a non-citizen who is subject to an order for periodic detention--the completion of the period of periodic detention imposed by that order; or

(d) the signing of a deportation order against the non-citizen; or

(f) if the non-citizen is subject to an order for periodic detention--the non-citizen's breaching a condition of that order.

(2) Subparagraph (1)(c)(ii) and paragraph (1)(ca) apply only in the case of a non-citizen who has actually served a part of a term of imprisonment.

PART 050--continued

050.516 In the case of a visa that is taken to have been granted by operation of section 75 of the Act (which deals with applications for bridging visas which the Minister does not decide within a short period)--visa coming into effect on grant permitting the applicant to remain in Australia for:

(b) if within 5 working days of grant the holder shows an officer a ticket for departure from Australia--14 days from date of grant.

050.517 In any other case--visa coming into effect on grant and ceasing on a date specified by the Minister for the purpose.

050.611 In the case of a visa granted to a non-citizen who:

(a) applied for a substantive visa at the same time and on the same form as he or she applied for the bridging visa; and

(c) held a Bridging E (Class WE) visa at the time when he or she made the application referred to in paragraph (a);

whichever of conditions 8101, 8104, 8201, 8401, 8402, 8505 or 8506 that apply to that bridging visa.

050.611A In the case of a visa granted to an unlawful non-citizen:

(b) who has held a Bridging E (Class WE) visa since he or she last held a substantive visa, but does not hold a Bridging E (Class (WE) visa immediately before the time of grant; and

(c) who was interviewed by an officer authorised by the Secretary for the purposes of clause 050.222 before the visa was granted;

any 1 or more of conditions 8101, 8104, 8201, 8401, 8402, 8505 and 8506 may be imposed.

050.611B In the case of a visa granted to an unlawful non-citizen to whom subclause 050.222(3) applies:

(b) any 1 or more of conditions 8101, 8104, 8201, 8505 and 8506 may be imposed.

PART 050--continued

050.612 In the case of a visa that is taken to have been granted by operation of section 75 of the Act--conditions 8101, 8201, 8402, 8506 and 8509.

050.613 In the case of a visa granted to an applicant who meets the requirements of subclause 050.212(8)--any 1 or more of conditions 8104, 8201, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.

050.614 In any other case--any 1 or more of conditions 8101, 8104, 8201, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.

050.711 No evidence need be given unless the visa holder asks for it.

050.712 If evidence is given, to be given by a visa label attached to a passport.

8101 The holder must not engage in work in Australia.

8104 The holder must not engage in work for more than 20 hours a week while the holder is in Australia.

8201 While in Australia the holder must not engage in:

(i) leading to the completion of a primary or secondary education program; or

(ii) leading to a degree, diploma, trade certificate or other formal award; or

(b) any other course (other than a language training program)8 completion of which may be unconditionally credited towards, or accepted as a prerequisite for, a course of studies at a higher educational institution within or outside Australia; or

(c) any studies or training of more than 3 months' duration.

8403 The holder must visit an office of Immigration specified by the Minister for the purpose, within the time specified by the Minister for the purpose, to have evidence of the visa placed in the holder's passport.

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

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

8507 The holder must, within the period specified by the Minister for the purpose:

(b) make an arrangement that is satisfactory to the Minister to pay;

the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder's detention.

8508 The holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified by the Minister for the purpose.

8510 Within 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.

8511 Within 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.

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