Li, Yong [1999] MRTA 382 (11 October 1999)

CATCHWORDS: Bridging visa - arrangements to depart not acceptable.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs, details of which are as follows:

2. The application for review was validly made under section 338 of the Act (which goes to decisions reviewable by the Tribunal), and it complies with section 347 (which goes to the standing of the Review Applicant):

3. The Migration Act 1958 (as amended), (the Act) and the Migration Regulations 1994 (the Regulations) provide for different classes of visas. Government policy guidelines are an aid to interpretation and application of the prescribed criteria for these visas. Most policy guidelines are set out in the Procedures Advice Manual (PAM 3) issued by the Department of Immigration and Multicultural Affairs (the Department).

4. In reaching its decision the Tribunal is bound by Act and Regulations and applies relevant government policy that is lawful. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 499 of the Act are applied wherever they are relevant (see generally Re Drake and Minister for Immigration and Ethnic Affairs (no.2)[1979] AATA 179; (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144.)

5. An applicant is entitled to the grant of a visa under the Migration Act 1958 (the Act) and the 1994 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).

6. In order for an application for a Bridging E (Class WE) visa subclass 050 (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). A non- citizen who has a visa application refused or cancelled under section 501, 501A or 501B of the Act may not make a further application for a visa other than a Protection Visa.

7. All applicants for a Bridging 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. There are no secondary criteria for this visa.

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

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

8.2. 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

8.3. The applicant meets the requirements of one of the subclauses (2), (3), (3A), (4), (5), (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, 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 that the applicant is in criminal detention.

8.4. If a Bridging E visa is granted, the applicant will abide by the conditions imposed on it (Clause 050.213). Some conditions are mandatory. All conditions are found in Schedule 8 to the Regulations; and

8.5. A security (if requested) has been lodged (Clause 050.214).

9. The relevant policy guidelines are set out in the Department of Immigration and Multicultural Affairs' (the Department) Migration Series Instruction (MSI) 219 "Bridging E visa (subclass 050) - Legislative Framework and Further Guidelines". This MSI was issued on 21 April 1999. The Tribunal follows policy unless there are cogent reasons to the contrary.

10. In this particular case the criterion at issue is Clause 050.212(2), which states:

050.212(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.

This clause must be met both at the time of application and of decision.

11. This is a review of a decision refusing the grant of a Bridging E (Class WE) visa, subclass 050 (General) to, Yong Qian Li (the Applicant.)

12. Prior to the hearing the Tribunal sent to the Applicant, pursuant to section 359A of the Act, particulars of information adverse to the Applicant.

13. The Tribunal had before it material on the Department's file and its own file.

Mr Li arrived in Australia on 12 August 1997 with a subclass 456 business visa which was valid until 2 September 1997. Mr Li applied for a Protection Visa on 22 August 1997. This application was refused on 11 November 1997. Mr Li applied for a review of this refusal on 20 July 1998. The review application was not lodged within the prescribed time period for review. Mr Li's bridging visa ceased on 16 December 1997. Mr Li was detained on 21 September 1999. He was employed at this time.

14. At the hearing the Applicant gave evidence which can be summarised as follows:

He did not know his application for a protection visa had been refused. The Department had never notified him. He did not know he was without a visa after 20 July 1998. He now knows he was in Australia without a visa and that he is unable to work legally in Australia.

He wishes to get a bridging visa so he can sell his car, so he can pursue his Workers Compensation claim, and to attend to some personal matters. He does not know when he will leave Australia, perhaps in a fortnight. He does not have a ticket to leave Australia. Mr Kim will arrange for a ticket for him.

15. Mr Kyoung Kim gave evidence that can be summarised as follows:

He lived at 12/3 Lucerne Avenue Belmore. He is a pastor of the Chinese Church.

He has known Mr Li for ten days. His brother is a friend of Mr Li. His brother asked him to help. His brother could not attend the hearing as he is working.

The Chinese Church will provide a security of $6000. No one person will provide the security. He will pay for an airline ticket for Mr Li. He recognises that if Mr Li does not comply with any conditions that might be imposed, including leaving Australia by a certain date, that the money will be forfeited.

16. I find that Mr Li's has not made acceptable arrangements to depart Australia.

Mr Li says that he will leave Australia, perhaps in a fortnight. Mr Li does not have a ticket to leave Australia. He has no other plans in relation to his departure apart from wishing to sell his car and to pursue his Workers Compensation claim. I am not satisfied these plans are sufficient to show that Mr Li plans to leave Australia.

His evidence that he did not know he was without a valid visa on and after 20 July 1998 is not believable as this is the date on which he filed his application to review the refusal to grant him a protection visa. The review application was refused as it was filed out of time. His Bridging Visa expired on 16 December 1997. I find that Mr Li's evidence that he will leave Australia in the near future is not credible.

Mr Li has worked in Australia while he has been without a visa. He was working at the time he was detained. Mr Li knew that he was without a visa for much of the period in which he worked. I find that Mr Li will not leave Australia as he has not obeyed immigration law in the past.

For these reasons I find that Mr Li has not made acceptable arrangements to leave Australia.

17. I find that Mr Li is not the subject of acceptable arrangements to leave Australia.

Mr Kim has only known Mr Li for ten days. Mr Kim's brother, who is described as Mr Li's friend, did not attend the hearing because he had to work. No one person is prepared to lodge a security. The Chinese Church would, if requested, lodge a security of $6000. Mr Kim would buy an airline ticket for Mr Li. I find that these circumstances are not sufficient to establish that Mr Li is the subject of acceptable arrangements to leave Australia.

The Tribunal affirms the decision under review refusing to grant the Visa Applicant a Bridging E (class WE) visa, subclass 050 (General).