Visa Applicant: Ok Lim Hoang IRT Reference: N98/00435 #number 11499 [1998] IRTA 11499 (19 March 1998)

The Applicant was born on 8 March 1972 and is a citizen of South Korea. Ms Hoang visited Australia between 31 January 1998 and 22 February 1998. She returned on 5 March 1998 holding a visitor visa (subclass 976) which originally expired on 5 June 1998. This visa was purportedly cancelled on 6 March 1998.

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). The criteria for the grant of a bridging visa E subclass 050 (General) are set out in Part 050 of Schedule 2 to the Regulations (see section 31(3) and regulation 2.03). (The Visa Applicant is not eligible for the grant of a bridging visa E subclass 051: see clause 051.211.).

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.

Briefly, these are 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:

1. The Visa Applicant is making acceptable arrangements to depart Australia;

2. 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;

3. The Visa Applicant has applied, or will apply, for judicial or merits review of 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 to this person;

4. The Visa Applicant has applied for judicial review of a decision other than a decision in relation to the grant of a visa.

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

6. The Visa Applicant is in criminal detention and fulfils certain conditions;

7. 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.

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 Applicant is in detention as a result of action by the Compliance Section of the Department which occurred at the Joy Club, Kings Cross on the night of 6 March 1998. This review of the Applicant's refusal of a bridging visa is one of eight such applications before the Tribunal.

For the purposes of this review the Tribunal has before it its file in this matter and the file of the Department (98/112122). With regard to the Department's file there are five folios which the Minister (by way of his delegate) has certified for the purposes of section 375A of the Migration Act 1958. It was my view, at least for the initial stages of the review, that I would separate these folios from the rest of the Department's file and not read them. My reasons for doing this have their immediate origin in the recent Federal Court case of Gilson v Minister for Immigration (Lehane J, 21 July 1997). These reasons are set out in the Tribunal decision of Re Moon (N98/00431 19 March 1998).

Drawing on documents on the Department's file and upon information provided by the Applicant's agent, the following background material would appear to be uncontentious. The Applicant had previously visited Australia between 31 January 1998 and 22 February 1998. She returned to Australia with a group of four other female South Korean nationals on 5 March 1998. Action by the Compliance Section of the Department at a Korean Club in Kings Cross - the Joy Club - led to her detainment and then to her visa being cancelled on (it is claimed) 6 March 1998. There are on the Tribunal's file statements from Mr Peter Lee, Mr Kevin Lee (acquaintances of the Applicant) and Ms Young Ha Lee, the owner of the Joy Club. For reasons which will become apparent I do not need to discuss the content of these statements.

Hearings were arranged for these eight related matters commencing on the afternoon of 17 March 1998 and continuing on to 18 March 1998. After settling certain procedural matters the Tribunal commenced with the application Re Moon (N98/00431). However, before that matter was concluded the adviser for the eight Applicants requested that the Tribunal deal with Ms Moon's application and with the other seven matters before it on the material (on file or in the form of oral evidence) as it presently stood. The consequence of this is that I have not taken oral evidence from the Applicant in this matter or from other witnesses with the particular circumstances of Miss Hoang in mind. That the likely result of this course of action would be a negative decision by the Tribunal was explained to the Applicant.

On the evidence before me in this matter it is clear that the Applicant cannot show that clause 050.212(1) is met either at the time of application or for that matter at the date of decision. For at the date of application (12 March 1998) there was no application on foot for a substantive visa or for merits review of the cancellation of the Applicant's tourist visa. Nor had any application been made for judicial review and no request had been made to the Minister. I add that at the date of decision no such applications or request have been made, and of course some of these options are now statute barred. Of the other two possibilities left, there is no information before me which allows me to say that they are satisfied. I have in mind here the requirement that the Applicant shows that she is making arrangements to depart (050.212(2)) or that the Tribunal is satisfied that on the date of application for the bridging visa (12 March 1998) the Applicant was making arrangements to apply for a visa, which was not then (or now) statute barred.

In summary, on the material before me I cannot find that requirement 050.212 is met. As stated, there is no evidence that any of the matters set out at 050.212 (2) to (8) has occurred either at the date of application for the bridging visa or the date of the Tribunal's decision.

Finding as I do there is no need for me to discuss the other central issue for this review, namely, whether the Applicant would abide by any conditions imposed on the visa by the Tribunal. And nor would it be appropriate for me to discuss this issue as I have not explored it with the Applicant and her witnesses.

I certify that this and the 6 preceding pages are a true copy of the decision and reasons for decision of this Tribunal.