Review & Visa Applicant: Andri Sutiawan IRT Reference: N98/01037 #number 12005 [1998] IRTA 12005 (3 June 1998)

The Applicant was born on 3 March 1964 and is a citizen of Indonesia. The Visa Applicant arrived in Australia on 25 October 1988 holding a visitor visa which expired on 20 November 1988.

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).

All applicants for a bridging visa E subclass 050 (General), must satisfy the primary criteria set out in Part 050 of Schedule 2. There are no secondary criteria for this visa. Among the primary criteria is the criterion that if the visa is granted, conditions may be imposed.

These criteria are set out in Part 050 of Schedule 2 of the Regulations.

These are, briefly, that the Tribunal must be satisfied of the following:

1. Subclause 050.211(1) which is to the effect that the Visa Applicant is an unlawful non-citizen or the holder of a Bridging E (Class WE) visa; and

2. Subclause 050.211(2) which is to the effect that the Visa Applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10) or (11); and

3. Clause 050.212(1) which is to the effect that the Visa Applicant satisfies at least one of the following:

a) The Visa Applicant is making acceptable arrangements to depart Australia;

b) The Visa Applicant has a current application for a substantive visa or will apply within a period allowed by the Minister (Tribunal) for a substantive visa;

c) The Visa Applicant has applied, or will apply within statutory limitations, for judicial or merits review of a decision including a decision to cancel a visa or refuse a visa under section 501 of the Act; or the Visa Applicant held a visa as a secondary person in relation to an applicant for such judicial review;

d) The Visa Applicant is the subject of a request to the Minister under sections 345, 351, 391, 417 or 454 of the Act;

e) The Visa Applicant is in criminal detention and fulfils certain conditions;

f) The Visa Applicant is the holder of a bridging E visa (Class WE) that is subject to condition 8101 and the Minister is satisfied that the Visa Applicant has a compelling need to work; and

4. Clause 050.213 which is to the effect that the Tribunal is satisfied that, if a bridging visa is granted, the applicant will abide by the conditions imposed on it; and

5. Clause 050.214 which is to the effect that a security (if requested) has been lodged.

The above primary criteria have to be satisfied both as at the date of application and decision. All applicants for a bridging visa E have to satisfy the primary criteria. There are no secondary criteria for this visa.

Conditions which may be imposed, pursuant to clause 050.213, if the visa is granted, are set out in Schedule 8 of the Regulations. Among the conditions which may be imposed are the following:

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.

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.

The findings are based on the oral evidence of the Visa Applicant and of Iswandi Bin Nasmi Rauf as well as on the material in the Tribunal and Departmental files, numbered N98/01037 and N94/520080 respectively. Oral evidence was given with the assistance of an interpreter in the Indonesian language.

1. That the Visa Applicant meets the relevant requirements of subclauses 050.211(1) and (2) on the ground that the Visa Applicant entered Australia legally, remains in Australia and is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10) or (11).

2. That the Visa Applicant meets the requirements of clause 050.212 on the ground that the Visa Applicant has applied for judicial review of a decision in that he has been joined to a class action in the Full Federal Court which is seeking to establish that persons from other countries other than those specified in clause 850.212 of Schedule 2 to the Migration Regulations may apply for the subclass 850 visa provided for in that Part.

I will consider clause 050.213 which is to the effect that I must be satisfied that, if the visa is granted, the Visa Applicant will abide by the conditions (if any) imposed on it.

According to the evidence on the Department's file, Mr Sutiawan's first application to the Department after the expiry of his visitor visa in November 1988 was an application lodged on 23 November 1993 for determination of refugee status. That application was refused in April 1994 and the refusal was affirmed by the Refugee Review Tribunal on 28 November 1994. In December 1994 the Minister's intervention under section 417 of the Migration Act was sought and on 8 March 1995 the Minister informed Mr Sutiawan that he had decided not to intervene in relation to the decision of the Refugee Review Tribunal. On 19 April 1995 Mr Sutiawan lodged an application for a Territorial Asylum Class 800 visa which was refused on 5 October 1995. That refusal was subsequently affirmed by the Migration Internal Review Office and, on 30 January 1997, by the Immigration Review Tribunal. On 23 February 1997, the Minister was asked to intervene on behalf of Mr Sutiawan under section 351 of the Migration Act. A bridging visa was granted to Mr Sutiawan while this request to the Minister was being considered. The bridging visa was granted on 29 May 1997 and contained conditions as follows:

To advise the Department of a change of address at least two working days before the change;

The bridging visa granted on 29 May 1997 was stated to be for a period ending on 29 August 1997.

On 2 September 1997 the Minister wrote to the adviser acting for Mr Sutiawan indicating that he had decided not to consider exercising his power under section 351 of the Act and asking that Mr Sutiawan contact the nearest regional office of the Department to discuss his status in Australia. There is no indication that Mr Sutiawan reported in person to any office of the Department. However, a further application for a Bridging visa E, dated 19 September 1997, was lodged with the Department on Mr Sutiawan's behalf with a covering letter from his adviser stating that Mr Sutiawan had made a further submission to the Minister under section 351 of the Migration Act. On that bridging visa application, Mr Sutiawan's residential address was given as 77 Dora Street, Hurstville.

There is no indication on the Department's file that the application, dated 19 September 1997, for a bridging visa had been determined.

On 28 October 1997 officers of the Department of Immigration (Compliance Section) went to an address in Oak Road, Kirrawee, looking for someone else and detained Andri Sutiawan on the grounds that he had breached conditions of the bridging visa granted to him on 29 May 1997 in that he had not continued to live at the address specified and had not notified the Department of a change of his address. The Compliance Officer, Ian Hooper, recorded in a written report, dated 29 October 1997, that he believed Mr Sutiawan was living at the Oak Street, Kirrawee, address although Mr Sutiawan maintained that he still lived at 77 Dora Street, Hurstville.

In his oral evidence to the Tribunal, Mr Sutiawan stated that he had been staying at his friend's place at Oak Street, Kirrawee, for approximately one week before the Departmental officers found him there. He had gone there because he was unemployed and could no longer afford the rent at Dora Street, Hurstville, although he still regarded his address as 77 Dora Street, Hurstville. Mr Sutiawan told the Tribunal that he had intended to stay at Kirrawee until he found employment. He was looking for work and had last worked in June 1997. He did not know whether he had permission to work.

Mr Sutiawan also told the Tribunal that he had lodged an application for a Resolution of Status visa prior to 31 March 1998 and had used the credit card of his friend, Iswandi Bin Nasmi Rauf, to pay the lodgement fee. He is involved in a class action that he understood is currently before the High Court in relation to eligibility for such visas. When asked about the effect of recent events in Indonesia on his feelings about returning to that country, Mr Sutiawan told the Tribunal that he would return if the class action was unsuccessful.

Mr Sutiawan also told the Tribunal that he has no family in Australia. His friendship with Mr Rauf is long standing and very close. He previously had other friends in Australia but has lost contact with them after seven months in detention.

Iswandi Bin Nasmi Rauf told the Tribunal that his friend, Andri Sutiawan , had been staying with him at Oak Street, Kirrawee, for approximately a month and a half before Mr Sutiawan's detention. He was doing so because he could no longer afford to pay the rent on his place in Hurstville. He would have been welcome to stay at Oak Street as long as he wanted. He would also be welcome to stay there if he were released from detention.

In coming to a conclusion as to whether the Applicant will abide by the conditions which I have decided to impose, I have had regard to the considerations set out in the relevant Departmental Migration Series Instruction and I set out my conclusion below with regard to those considerations:

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

I note that in his application for refugee status, Mr Sutiawan stated that his real name was different (and gave it). Nevertheless, having been issued with a passport in the name of Andri Sutiawan and having used it ever since he now intended to continue to use it and to apply for renewal of his passport in this name. I find that there is no material uncertainty with regard to the Applicant's identity.

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

The Applicant has not been co-operative in relation to certain significant matters such as his address at the time of his detention and applying for renewal of his passport. He now says he has filled out and signed an application for a new passport.

whether the applicant has previously been removed or deported;

There is no evidence of previous removal or deportation.

whether the applicant has previously been refused a bridging visa;

The Applicant has been refused bridging visas on previous occasions.

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

The Applicant overstayed his visitor visa and breached conditions of his previous bridging visas (granted on 29 May 1997) in relation to work and notification of change of address, having worked up to June 1997 and having ceased to reside at 77 Dora Street, Hurstville when he could no longer afford the rent without informing the Department of this change.

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

The Applicant breached conditions of his bridging visa granted on 29 May 1997 in relation to work and notification of change of address.

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

There is no evidence of absconding or of likelihood of absconding.

the applicant's conduct during any period of immigration detention.

There is no adverse evidence of conduct in detention.

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

The Applicant has no family ties in Australia but has a friend, Iswandi Bin Nasmi Rauf, who was providing him with accommodation prior to detention and who is willing to continue to do so if he is released.

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

The Applicant has had an application for refugee status and a Territorial Asylum visa application rejected.

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

It is not clear how long it will take to resolve the proceedings for judicial review of the decisions that applications from a class of people including the Applicant for Class 850 visas are invalid. If I could be satisfied that the Applicant would abide by conditions of a bridging visa I would consider it to be in the community's best interest as well as his own that he be released. However, the Applicant has by his past actions indicated no serious concern about restrictions imposed by immigration laws and has indicated a strong motivation to stay in Australia. I am not satisfied that he will abide by conditions of release and I do not consider it to be in the best interests of the community to release him.

The Tribunal affirms the decision under review refusing the Visa Applicant a bridging visa E subclass 050 (General).

I certify that this and the 9 preceding pages are a true copy of the decision and reasons for decision of this Tribunal.