Htz [2003] MRTA 3053 (19 May 2003)

CATCHWORDS: Review of visa refusal - Subclass 050 - Bridging E - not acceptable arrangements to depart - intention to depart - primary criteria.

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Bridging Visa E (Class WE).

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the `delegate'). The visa applicant, applied for a Bridging Visa E (Class WE) on 5 May 2003. The delegate's decision to refuse to grant the visa was made on 7 May 2003.

2. The visa applicant lodged an application for review to the Tribunal on 8 May 2003. The application was for review of the decision to refuse the visa (section 338 (4) of the Act. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA or the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Part 050 of Schedule 2 to the Regulations

MSI 350 Bridging Visas-Overview; issued 16 May 2002

MSI 369 - Bridging E visa (Subclass 050)- Legislative Framework and Further Guidelines, issued on 9 December 2002

Jiang v Minister for Immigration and Multicultural Affairs [2001] FCA 282

Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285

Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 283

Tennakoon v. Minister for Immigration and Multicultural Affairs [2001] FCA 615

Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197

6. In Tennakoon and VAAN the Federal Court outlined the correct approach to be taken in determining an application for Bridging E (Class WE) subclass 050 visa. The Tribunal adopts this approach in making its determination.

7. In Applicant VAAN v Minister for Immigration and Multicultural Affairs the Federal Court outlined the steps required of a decision-maker:

As I see it, (and in expansion of what was said in Tennakoon), the steps are: (1) The decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa; (2) Next, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken); (3) If the answer is yes, no security should be imposed. If, on the other hand, the answer is no, the decision-maker must proceed to the next question which is: (4) Will the conditions be complied with if security is taken?; (5) If the answer is no, the visa ought not to be granted because the criterion set out in subcl 050.223 will not be met. If the answer is yes, security should be required and the decision-maker must assess the appropriate amount and type of security to be imposed; (6) If security has been required, the decision-maker must see whether or not it has been lodged. If it has not been lodged, the visa application should be rejected because subcl 050.224 will not be satisfied. If it has been lodged (provided all other relevant criteria have been met), the visa must be granted.

8. The Tribunal generally has regard to the Regulations as the Regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

9. All applicants for a Bridging E visa Subclass 050 (General) must satisfy the primary criteria set out in Part 050 of Schedule 2 of the Regulations both at the date of application and the date of decision.

10. In summary, the criteria are met if the Tribunal is satisfied that:

* The applicant is an unlawful non-citizen or the holder of a Bridging E (Class WE) visa (subclause 050.211(1)); and

* The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10) or (11) (subclause 050.211(2)); and

* The applicant meets the requirements of one of the subclauses (2), (3), (3A), (4), (4AA), (4A), (5), (5A), (6), (6A), (7), (8) or (9) of clause 050.212. The requirements of clause 050.212 include the following:

* that the applicant is making, or is the subject of, acceptable arrangements to depart Australia, or

* that the applicant has made an application, or will apply, within a period allowed by the Minister (the Tribunal), for a substantive visa of a kind that can be granted if the applicant is in Australia, or

* that the applicant has an outstanding application for merits or judicial review in relation to a substantive visa, or

* that the applicant has an outstanding request to the Minister that is one of a number of prescribed requests, or

* If a Bridging E visa is granted, the applicant will abide by the conditions imposed on it (clause 050.223). Some conditions are mandatory. All conditions are found in Schedule 8 to the Regulations; and

* A security (if requested) has been lodged (clause 050.224).

11. In this case the issue before the Tribunal is whether the visa applicant meets one of the primary criteria in clause 050.212 of the Regulations, in particular whether he is making, or is the subject of acceptable arrangements to depart Australia, at the time of application and decision. If the Tribunal finds the visa applicant meets one of the primary criteria in clause 050.212 of the Regulations, it may go on to decide whether he would abide by the conditions imposed on the visa and whether or not to request a security.

12. The Tribunal has had regard to the following material:

13. The visa applicant first entered Australia on 19 November 1997 as the holder of a Subclass 442 (Occupational Trainee) visa which was granted on 28 October 1997, this visa was due top expire on 30 April 1998. On 24 April 1998 a further Subclass 442 visa was granted. This expired on 30 November 1998. These visas had condition 8102 attached (work only in relation to study).

14. The review applicant then remained unlawfully in Australia for a period of approximately 15 months.

15. On 11 February 2000 he was granted a Bridging C visa as a result of the Protection visa application he lodged that day. Attached to this visa was condition 8101 (no work).

16. This Protection visa application was refused on 20 March 2000. An application for review of this decision was lodged with the Refugee Review Tribunal (RRT) on 22 April 2000. The Bridging C visa was still valid at this time.

17. On 22 February 2001 the RRT affirmed the Department's decision. The associated Bridging C visa ceased on 22 March 2001.

18. On 30 April 2001 a request was then made to the Minister under section 417 of the Act, that he exercise his power in this matter. However, no associated Bridging visa application were made.

19. The visa applicant's last held visa expired on 22 March 2001 and he has therefore remained unlawfully in Australia for a period of more than 2 years.

20. On 14 August 2001 the visa applicant was informed of the Minister's decision not to exercise his power in this matter.

21. On 1 May 2003 the Department located the visa applicant at Restaurant X, where the visa applicant was apparently working. The visa applicant was detained under section 189 of the Act and transferred to Villawood Immigration Detention Centre (VIDC). A report from this field activity stated the following in relation to the visa applicant:

* He attempted to abscond from the premises and had to be "mechanically restrained".

* He was employed as a kitchen hand at the Restaurant and had been there for 6 months.

* Compliance officers escorted him to his home residence, X. There was no evidence in the home unit that he had a wife, as claimed to Compliance officers. His bedroom comprised of one single bed.

22. During the post-detention interview conducted on 5 May 2003 at VIDC the visa applicant is recorded to have stated the following:

* He arrived in Australia on 19 November 1997 for the purposes of hospitality training.

* His passport is genuine, however he stated that it is no longer valid and did not know the expiry date. His wife had his passport and was applying for a renewal on his behalf. It is noted that the visa applicant was given, but refused to complete a new passport application at VIDC. His wife also has his identity card.

* He has worked at Restaurant A at "various times". He did not have permission to work.

* He has no outstanding legal or Departmental matters.

* He remained in Australia as he was married and wished to have a child here. He was concerned about Severe Acute Respiratory Syndrome (SARS) whilst the child was young.

* There is no reason why he cannot depart Australia and he will do so voluntarily at his own expense. His preferred destination is Country P, but not City Q.

23. On 5 May 2003 the visa applicant lodged an application for a Bridging E visa stating that he would depart Australia. On the application form it was noted that he planned to leave Australia in April but postponed the arrangements due to the SARS outbreak. Also provided to the Department on this day were the following:

* The authority for a representative to act on behalf of the visa applicant.

* Copy of an airline ticket for departure on 17 May 2003, with arrival in City Q. A figure of $985.00 is hand written on this copy, however it is not clear whether this has actually been paid.

* A copy of the visa applicant's passport indicating that it had expired on 11 July 2001.

* A letter from the representative stating that the visa applicant's wife had booked the ticket for departure and provided the applicant's passport. The representative notes that 2 months previously the visa applicant's wife had discussed immigration options available to the visa applicant and plans for his departure were discussed. The representative was assisting with a spouse application, however the couple became concerned about the risks of SARS and postponed their plans.

24. On 8 May 2003 the delegate made a decision to refuse the grant of a Bridging E visa. The delegate found that the visa applicant did not meet the primary criteria for the grant of this visa. The delegate referred to the total of 3 years and 5 months that the visa applicant had remained unlawfully in Australia. The only work permission the visa applicant held was in relation to the training he arrived in Australia to commence. This ceased on 30 November 1998. Also noted was that the visa applicant was uncooperative with Compliance officers at the time of location. The delegate did not consider the lodgement of security or whether the visa applicant would abide by required conditions.

25. The Tribunal received an application for review of this decision dated 7 May 2003 on 8 May 2003.

26. No evidence has been presented to the Tribunal indicating that the visa applicant has a valid travel document or applied for the renewal of his expired passport. The scheduled date for departure is prior to the date scheduled for the Tribunal's hearing. Evidence of a future booking has not been provided to this Tribunal.

27. The Tribunal held a hearing on 19 May 2003 and the visa applicant gave evidence as did his wife.

28. The Tribunal asked the visa applicant whether he met any of the primary criteria for the grant of the visa. The Tribunal went through each of the primary criteria and the only criteria that the visa applicant believed that he met was that he was the subject of or had made acceptable arrangements to depart.

29. The evidence submitted by the visa applicant of this fact was a ticket that had been issued on 16 May 2003 for a flight to City Q on 14 June 2003. The Tribunal asked the visa applicant whether he had a valid travel document. The visa applicant stated that his passport had expired in July 2001. When asked by the Tribunal whether he had applied for a new travel document to effect departure from Australia he advised that he had not. The visa applicant did not know what the ticket to City Q had cost as his wife had paid for it. The Tribunal stated that it needed to be satisfied that the visa applicant was the subject of or had made acceptable arrangements to depart at the time of the lodgement of the review application dated 7 May 2003. The visa applicant stated that he did not have a ticket at that time. The visa applicant stated that after his detention on 1 May 2003 his wife had gone to seek advice from a migration agent. This fact was contradicted by the visa applicant's migration agent Mr Xue in his evidence to the Tribunal as he stated that he had been initially instructed by the visa applicant in March 2003. Mr Xue was asked by the Tribunal why there had been no attempt by his client to obtain a new travel document after being advised by his migration that he would have to go offshore to lodge his spouse visa application. Mr Xue replied that he needed two to three weeks to prepare the visa applicant's spouse application and that he had a busy schedule. This did not explain to the satisfaction of the Tribunal why the visa applicant was precluded from applying for a new travel document between March 2003 and his detention.

30. The visa applicant then stated that he had in fact applied for a passport on 16 March 2002 at the Country P consulate and had not received it at this stage. He was advised at this time that as he was not the holder of a valid visa it was difficult for the consulate to issue a passport. The visa applicant then enquired about whether he could apply for a travel document and he was advised he could do this. However the visa applicant did not avail him self of this opportunity at this time as he states his wife was due to have their child and he wanted to stay in Australia whilst the child was a young baby. The child was born on 20 July 2002. There is no evidence that the visa applicant applied for a travel document after the birth of his child and up until the time of his detention on 1 May 2003.

31. The Tribunal asked the visa applicant whether he had received the passport that he applied for on 16 March 2002. He then stated that if he applied for a travel document it would be issued within two weeks.

32. The evidence on the file in terms of whether the visa applicant's intent to depart is genuine, indicates that since his arrival in Australia he has had two substantial periods where he was unlawful totalling 41 months. During these periods the visa applicant has not made any attempt to regularise his immigration status.

33. The Tribunal took evidence from the visa applicant's wife Miss X. Miss X stated that she had purchased the ticket for her husband last week. She then stated that she had not booked a ticket before this time as it was difficult to know which date to do so given that her husband was in detention and she did not know when he would be freed. Miss X confirmed the fact that her husband did not have a travel document and that she had attempted to apply for one through the Chinese consulate and had encountered difficulty with this.

34. The visa applicant's representative Mr Xue stated that the visa applicant was subject to departure arrangements at the time of the application on May 7 2003 and that this evidence had been provided to the Department. The Departmental file indicates at folio 19 that when interviewed by the Department in detention on 5 May 2003 the visa applicant is recorded by the delegate as saying "wife applying for a new passport refuse to complete application on spot although offered." There is no submission from the visa applicants representative on the Departmental file indicative of the fact that he had made acceptable arrangements to depart as at 7 May 2003. There is no evidence to satisfy the Tribunal that the visa applicant had made or was the subject of acceptable arrangements to depart Australia at the time of application and at the time of decision.

35. At the time the visa application was lodged, Class WE contained the following subclasses: Subclass 050 (Bridging (General)) and Subclass 051 (Bridging (Protection Visa Applicant)). The only subclass in respect of which any claims have been advanced is Subclass 050. There is no evidence to suggest that the visa applicant meets key criteria for the other subclass.

36. On the basis of the evidence before it, the Tribunal is satisfied that the visa applicant has made a valid application for a Bridging visa and meets the criteria in clause 050.211. The visa applicant is an unlawful non-citizen and is not an eligible non-citizen of the kind set out in subregulation 2.20(7) to (11).

37. The Tribunal must be satisfied that, both at the date of the primary application and at the date of decision, the criterion in subclause 050.212(1) has been met. For this criterion to be satisfied it must be established that at least one of the grounds in subclauses 050.212(2) to (9) has been met.

38. At the time of application the visa applicant sought to establish that he met the primary criteria for the grant of this visa. The grounds for this were that the visa applicant claims he is the subject of acceptable arrangements to depart and therefore meets subclause 050.212 (2). In deciding whether the visa applicant meets the criterion in subclause 050.212(2) the Tribunal must consider whether the visa applicant is able to satisfy the Tribunal that he is making or is the subject of acceptable arrangements to depart Australia.

39. What acceptable arrangements are will vary in each case. The Tribunal has had regard to the policy guidelines on this point set out in MSI 369. Those guidelines suggest a number of factors that may be taken into account. They are:

* whether the applicant is in possession of a valid travel document, or could obtain one within a reasonable period;

* whether the applicant has a ticket for travel to an acceptable destination and a booking/reservation to depart Australia, or could obtain one within a reasonable period;

* the applicant's capacity to travel (eg. health considerations);

* the officer is satisfied that the applicant will depart as arranged.

40. In considering whether the visa applicant is making, or is the subject of, acceptable arrangements to depart the Tribunal had regard to the Federal Court decisions of Carr J in of Jiang v Minister for Immigration and Multicultural Affairs [2001] FCA 282 and Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285. Carr J has stated similar conclusions in both these decisions. In Chen, Justice Carr stated:

In my opinion, when deciding whether a person "is making" acceptable arrangements to do something, in this case to depart Australia, it is clearly not an error of law to consider what that person has done to date. The making of arrangements can be seen as a continuing process. ... In my view, it would not make any sense to assess whether, at any stage in that continuum, the person was at that particular point of time making acceptable arrangements, without having regard to what, if any, arrangements that person had already made and what further arrangements remained to be made.

41. In Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 283, Carr J considered whether a Tribunal can consider the visa applicant's intention when deciding whether he or she is making or is the subject of acceptable arrangements to depart Australia. Carr J stated:

In my opinion, the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant's intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.

42. Thus Tribunal is not satisfied that at the time of application the visa applicant had made or was the subject of any acceptable arrangements to depart. The Tribunal is not satisfied that the visa applicant met subclause 050.212(2) at the time of application.

43. On the evidence before it, the Tribunal is not satisfied that at the time of application or decision the visa applicant has made a valid application, or will apply within any specified period, for a substantive visa for a substantive visa of a kind, which can be granted if he is in Australia as provided for in subclause 050.212(3). The Tribunal is unable to be satisfied that the visa applicant met subclause 050.212(3), either at the time of application or decision.

44. The Tribunal finds that no merits review or judicial review proceedings involving the visa applicant are underway. As the visa applicant has no outstanding application for merits or judicial review, the Tribunal is unable to be satisfied that the visa applicant met subclauses 050.212(3A), 050.212(4), 050.212(4AA), 050.212(4A), 050.212(5), 050.212(5A) or 050.212(9), either at the time of application or at the time of decision.

45. 0The Tribunal finds that the visa applicant does not meet the requirements of subclauses 050.212(6) or 050.212(6A) at either the time of application or decision, as he has no application before the Minister.

46. The Tribunal finds that the visa applicant is not in criminal detention. The Tribunal considers that the visa applicant does not satisfy subclause 050.212(7), either at the time of application or the time of decision.

47. The Tribunal finds that the visa applicant was not a holder of a Bridging E (Class WE) visa as required by subclause 050.212(8). The Tribunal considers that the visa applicant does not satisfy subclause 050.212(8), either at the time of application or the time of decision.

48. The Tribunal is unable to be satisfied that the visa applicant meets any of the criteria in subclauses 050.212(2) to (9). As the visa applicant does not meet any of the criteria in subclauses 050.212(2)-(9) at the time of application or at the time of decision he does not meet subclause 050.212(1) or clause 050.221

49. As the visa applicant does not meet these criteria the Tribunal has no alternative but to affirm the decision refusing to grant him a bridging visa. It is not necessary for the Tribunal to determine whether the visa applicant would abide by the conditions it would impose on a bridging visa 12 May were one to be granted or to consider the issue of a security.

50. This application is deemed also to be an application for a Subclass 051 (Protection) visa. It has not been claimed, nor is it apparent from the evidence that the facts of this case satisfy the criteria of a Subclass 051 visa. Therefore the Tribunal cannot make a finding that the visa applicant is eligible for the grant of a Subclass 051 visa.

51. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Bridging Visa E (Class WE).