Mei Wu, Jia [2002] MRTA 2348 (30 April 2002)

CATCHWORDS: Review of visa refusal - Subclass 050 - Bridging E -abide by conditions - security decision

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

The Tribunal affirms the decision not to request a security.

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'). Ms Jia Mei Wu, (the `visa applicant'), a national of the People's Republic of China, born on 15 April 1961, applied for a Bridging Visa E (Class WE) on 12 April 2002. The delegate's decision to refuse to grant the visa was made on 16 April 2002.

2. The visa applicant lodged an application for review to the Tribunal on 18 April 2002. The application was for review of the decision to refuse the visa (section 338 (4) of the Act) and for a review of the decision not to request a security (paragraph 4.02(4)(f) of the Regulations). The decisions are 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 (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 330- Bridging Visas- Overview; issued 3 September 2001.

MSI 336 Bridging E visa (Subclass 050)- Legislative Framework and Further Guidelines, issued on 13 September 2001 and in effect from 1 November 2001.

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 Applicant VAAN, the Federal Court set out 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. 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.

8. 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.

9. 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), (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 that the applicant is in criminal detention.

* 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).

10. Prior to 1 November 2000 the decision whether to require a security for compliance with conditions on the visa was not a separately reviewable decision, but formed part of the decision as to whether the visa applicant met the visa criteria. Prior to amendments on 1 November 2000, the criterion concerning the payment of a security was one that had to be met at the time of application. Following the amendments to the Regulations the criterion became one that had to be met at the time of decision. By virtue of paragraph 4.02(4)(f) of the Regulations, the decision relating to a security became a separately reviewable decision. The changes to the Regulations on 14 December 2000 prescribe the decision relating to the security as an MRT-reviewable decision (paragraph 4.02(4)(f)), but permit the application for a review of the decision on the visa and the decision on the security to be combined in the same application for which no fee was payable. The Tribunal now has the power to review the decision to require a security, or a decision not to require a security. It can review the amount of the security and vary it. Where the delegate has not made a decision to require a security, if, for example the delegate has already found that the visa applicant fails to meet an earlier criterion and has not considered later criteria, then there is no decision under paragraph 4.02(4)(f) of the Regulations for the Tribunal to review.

11. In this case the delegate was not satisfied that the visa applicant would abide by the conditions that would have been imposed on the visa, if one were granted. No amount of security would have satisfied the delegate that the visa applicant would do so. The Tribunal must therefore consider whether it is satisfied that the visa applicant will abide by the conditions if any are imposed on a visa and whether a security should be required for compliance with those conditions and if so, how much the security should be.

12. The Tribunal had before it the MRT case file N02/02568, and the Department's case file CLF2002/19834 which reveal that the visa applicant arrived in Australia on 3 November 2001 as the holder of a Subclass 456 Business (Short Stay) visa, valid for stay until 3 December 2001.

13. The visa expired and the visa applicant remained unlawfully in Australia until 28 December 2001 when she lodged an application for a substantive visa and was granted a bridging visa (Subclass 030) on that basis. This visa had condition 8101 (no work) attached.

14. On 21 February 2002 a decision was made to refuse the application for a substantive visa. An application for review of that decision was then lodged with a Review Tribunal on 21 March 2002. This review application is still undecided.

15. On 4 April 2002 the visa applicant was located in a brothel in Fyshwick, ACT and had her bridging visa (Subclass 030) cancelled for a breach of the no work condition. She was then placed in detention.

16. During the post-detention interview, held on 4 April 2002, the visa applicant claimed the following:

* Her residential address was Redfern, Sydney, but she could not remember the name of the street.

* She had worked at Club 77 and Monica's (both brothels in the ACT) from January 2002 up to the date that she was detained.

* She was aware that she did not have permission to work.

17. On 12 April 2002 the visa applicant lodged an application for a bridging visa (Subclass 050) on the basis of her outstanding application before a Review Tribunal.

18. On 16 April 2002 a decision was made to refuse to grant the visa applicant a bridging visa (Subclass 050). The delegate was not satisfied that the visa applicant would abide by the conditions attached to the visa and considered that no amount of security would ensure that she would do so.

19. An application for review was lodged with the Migration Review Tribunal on 18 April 2002. Lodged in support of the application was a written submission from the visa applicant's migration agent, to the effect that Mr Qiang Hai Zeng, who claimed to be the visa applicant's boyfriend would be able to provide the visa applicant with financial support, pay a security of $10,000 and repay the visa applicant's debts to the Commonwealth.

20. Prior to the hearing the representative submitted details of Mr Zeng's employment and cleaning business and a photocopy of a bank cheque for $15,000 dated 26 April 2002 and made out to Mr Zeng. Copies of invoices from the cleaning business said to be owned by Mr Zeng were submitted. They related to periods for June- July 2000 and January - March 2001. No other evidence of Mr Zeng's income or employment was submitted other than a business card said to be that of his employer.

21. On 23 April 2002 the Tribunal sent the visa applicant a letter inviting her to provide comments, at an interview before the hearing on 30 April 2002 on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. This information was the fact that the visa applicant's bridging visa (Subclass 030) was cancelled for a breach of the no work condition and she had spent some time in Australia, unlawfully. At the interview before the hearing the visa applicant referred to the submission already lodged by her adviser and stated that she had no further comments.

22. Mr Shitao Zheng, a registered migration agent, represents the visa applicant.

23. At the hearing the visa applicant and Mr Qiang Hai Zeng gave evidence as follows.

24. The visa applicant stated that she had come to Australia on business for her employer to investigate the stock feed market. She had carried out her research in Sydney. She had remained after her visa expired because she was a member of a sect that was persecuted in China. She has stayed with a female friend (the only person she knew in Australia ) at first in Ashfield and then they had stayed in Kings Cross. She had lost touch with this friend when she had lost her address book with the telephone numbers. She had located the job at the first brothel in the ACT through an advertisement in a newspaper. She had only gone to work there for a few days in January 2002 because she needed the money to pay for her visa application and rent. She had then returned to Sydney, staying first in Kings Cross and then in Redfern. She had not worked in that period. She had then met Monica at the beginning of April in the casino at Star City. Monica had offered her a job in Canberra and told her she could obtain permission to work for her and for a friend. This was the only reason she accepted the employment offer. She had been taken to Canberra in Monica's car. She had only been there one day before Monica had reported her to the Department and she had been detained.

25. The visa applicant described her relationship with Mr Zeng as follows. They had met at Star City casino in December 2001. Their relationship had developed gradually and they had become girlfriend and boyfriend by the end of December. She had not gone to live with him or stay with him on return from her first visit to Canberra because in China it was not the custom to cohabit before marrying. However now she would go to stay with him and they were planning marriage. She stated she had never been to Mr Zeng's flat as it was too far away. She had not mentioned Mr Zeng to the Department during the interview as she had not been asked if she had a boyfriend.

26. As far as her financial position was concerned she had no money of her own but would rely on Mr Zeng to support her. She had not asked him previously as the relationship had just started. She knew that he was prepared to pay a security but she did not know how much he was able to pay. Apart from the money that she had received for working she had relied on her female friend to help her. Her friend worked in a restaurant.

27. The visa applicant stated that she would abide by the visa conditions. She had learnt her lesson since being detained.

28. Mr Zeng stated he was an Australian citizen and confirmed the information concerning his employment set out in the submission. He estimated his income to be about $1200 a week. He confirmed that he had met the visa applicant Star City casino in December 2001 when she had approached him and they had begun a conversation. He thought she was very nice. Their relationship became close by the end of December 2001. After the visa applicant had gone to Canberra he had not seen her until she had called him a couple of weeks ago and he had seen her in April in detention.

29. Mr Zeng said that he currently rented a room in a house in Campsie. He planned to rent an apartment owned by his brother and move there with the visa applicant. He did not know the address as his brother had just told him about it. He and the visa applicant would live together although plans to marry were for the future. If her visa was refused then they would appeal to the Federal or High Court.

30. Mr Zeng stated he had $15,000 available to support the visa applicant, and to pay her detention costs and a security. The bank cheque in his name was evidence that the money was available. Mr Zeng was asked how he obtained the money and why it was evidenced in the form of a bank cheque made out to himself. He responded that the money came from various sources of his business and employment and he had thought it was most clearly evidenced in that form. He had not submitted the evidence in the form of bank statements because he had not kept them and he had not put the money directly into his account.

31. 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.

32. 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).

33. 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.

34. The visa applicant has sought to establish that he meets this clause on the grounds that she has an outstanding application for merits review in respect of a substantive visa application that has not been finally determined. The Tribunal accepts the evidence in relation to this application and finds that at the time of application the visa applicant met the criteria in subclause 050.212 (1). As a person who 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 she meets subclause 050.212(3).

35. It is necessary that the visa applicant continue to meet clause 050.212 at the time of the Tribunal's decision (clause 050.221). As the Tribunal is satisfied that the visa applicant's application before the Refugee Review Tribunal is still outstanding at the time of the Tribunal's decision, the Tribunal finds that the visa applicant satisfied clauses 050.211 and 050.212 at the time of decision. The visa applicant therefore satisfies clause 050.221.

36. There are two remaining issues for the Tribunal to determine. First, whether, if the visa applicant is released from detention, she will abide by any conditions imposed and secondly, whether the decision not to request a security to ensure that the visa applicant would abide by the conditions of the visa was appropriate and, if not, what amount should be sought.

37. In considering whether the visa applicant will abide by conditions of the visa, the Tribunal may impose any one or more of conditions 8101, 8104, 8201, 8207, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 pursuant to subclause 050.614 of the Regulations. The Tribunal considered that conditions 8101, 8401, 8505, 8506, and 8507 are appropriate in this case. Those conditions are as follows:

8101. The holder must not engage in work in Australia.

8505 The holder must continue to live at the address specified by the applicant 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.

38. The Tribunal has taken into account the factors set out in MSI 336, in its consideration of whether the visa applicant would abide by conditions and has had regard to the visa applicant's immigration history and past dealings with the Department.

40. The applicant is not a previous removee or deportee. She has not absconded from immigration detention. There are no adverse reports of the visa applicant's conduct in detention.

41. However the visa applicant has committed serious breaches of the Migration Act and Regulations by remaining unlawfully in Australia and working without permission. She has had a bridging visa cancelled because she did not comply with the conditions on that visa.

42. The visa applicant has stated that she has learnt her lesson and is prepared to abide by the conditions listed above. She has produced evidence of an offer of support from a person who she claims to be in a serious long term relationship with. That person has offered to support her and to pay a security on her behalf.

43. The Tribunal did not find either of the witnesses to be convincing when they described the development of their relationship. Although they claimed that it was serious, the visa applicant did not mention him as a source of support or as a close acquaintance when interviewed by the Department. She had never been to the room that Mr Zeng rents. He claimed not to have seen her after she went to Canberra in January until she was detained and to have received only one phone call from her. She stated however that she returned to Sydney after only a few days in Canberra and was in Sydney until she went to Canberra in April. Her account of why she worked in a brothel in Canberra and did not approach Mr Zeng earlier for financial support was not convincing.

44. The evidence concerning Mr Zeng's income was incomplete as he submitted no recent invoice from his business or other evidence of his current earnings. He submitted evidence that he has $15,000 but did not explain adequately the source of those funds.

45. The Tribunal is not satisfied as to the accuracy of the account given by the visa applicant of her activities in Australia or her relationship with Mr Zeng. Nor is it satisfied as to the source of the $15,000 Mr Zeng has produced as evidence of his ability to support the visa applicant. Moreover Mr Zeng has stated that he intends to move with the visa applicant to an address in Kogarah but was unable to supply that address or any evidence of an arrangement to rent it from his brother. Currently Mr Zeng is renting a room in a house in Campsie and this was initially supplied as the address specified for the purposes of condition 8505.

46. In the light of the evidence before it and its findings above the Tribunal is not satisfied that the visa applicant would abide by the conditions on the visa. In particular it is not satisfied that the visa would not work and would reside at a specified address. It is not satisfied that Mr Zeng is the visa applicant's boyfriend and would support her as he claims he would.

47. The Tribunal finds that the visa applicant does not meet the criterion in clause 050.223 at the time of this decision.

48. The Tribunal has considered whether the payment of a security would provide an incentive for the visa applicant to abide by the conditions. There is evidence before the Tribunal that Mr Zeng is willing to lodge a security of $10,000. However the Tribunal is not satisfied that the payment of a security would provide the necessary assurance that the visa applicant would abide by the conditions. In making this finding the Tribunal has taken into account the unsatisfactory nature of the evidence before concerning the visa applicant's proposed living arrangements and source of support. Given these circumstances and in the light of its findings above the Tribunal finds that no amount of security would satisfy it that the visa applicant would abide by conditions on the visa if it were granted.

49. The visa applicant has also made an application for review of the decision relating to the security. However as noted above the Tribunal does not consider that the payment of a security would provide an assurance and therefore has not gone onto consider further what amount of security should be requested.

50. The Tribunal finds that the visa applicant does not meet the criterion in clause 050.223 as it is not satisfied at the time of this decision that the visa applicant would abide by the conditions on the visa if it were granted. Failure to meet one of the essential criteria means that the application must fail. The Tribunal is satisfied that a security would not ensure that the visa applicant would comply with the conditions of the visa and that in these circumstances a security should not be required.

51. 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 finds that the visa applicant is not eligible for the grant of a Subclass 051 visa.

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

53. The Tribunal affirms the decision not to request a security.