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Finau, Sandra [2001] MRTA  1248  (30 March 2001)

Last Updated: 24 May 2001

 [2001] MRTA 1248 

CATCHWORDS: Review of visa refusal - Subclass 050 - Bridging E - does not meet primary criteria - does not meet clause 050.224.

VISA APPLICANT: Sandra Moimoi Finau

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: George Haddad

MRT FILE NUMBER: N01/01311

Related applications, MRT File Numbers N01/01312 and N01/01305

DIMA FILE NUMBER: CLF2001/009710

DATE OF DECISION: 30 March 2001

AT: Sydney

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) visa.

The Tribunal affirms the decision to request a security in the amount of $8000.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the `delegate'). Ms Sandra Moimoi Finau (the `visa applicant'), a national of Tonga, born on 3 November 1962, applied for a Bridging Visa E (Class WE) on 5 March 2001. The delegate's decision to refuse to grant the visa was made on 13 March 2001.

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review to the Tribunal on 15 March 2001. 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 to request a security (paragraph 4.02(4)(f) of the Regulations). The decision is reviewable by the Tribunal and the application for review has been properly made and combined at lodgement, by persons with standing to apply for review.

LEGISLATION AND POLICY

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 Affairs (DIMA). 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:

Legislation:

Item 1305 of Schedule 1 to the Regulations

Part 050 of Schedule 2 to the Regulations

Schedule 8 to the Regulations

Policy:

MSI 271- Bridging Visas- Overview; issued 3 May 2000

MSI 294 Bridging E visa (Subclass 050)- Legislative Framework and Further Guidelines, issued 13 October 2000

6. 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.

7. 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.

8. 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).

9. Prior to 14 December 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, but was not 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)). 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.

EVIDENCE

10. The Tribunal has the following documents:

MRT case file N01/01311, folio numbered 1- 58

DIMA case file CLF2001/009710, folio numbered 1-80

11. A hearing was held on 29 March 2001 and the visa applicant gave oral evidence.

12. Mr Michael Kork, a registered migration agent, represented the visa applicant. On 28 March 2001 the Tribunal received advice from the migration agent stating that he was not instructed to act or appear on behalf of the visa applicant.

13. A summary of the evidence available from the files and the hearing follows.

14. The visa applicant first entered Australia on 14 December 1990 on a Category 663 temporary entry permit, which was valid until 18 June 1991. The visa applicant departed Australia on 4 January 1991.

15. On 13 September 1994 the visa applicant entered Australia on a Subclass 673 Close Family Visitor (Short Stay) visa, which was valid until 13 December 1994. The visa applicant did not depart Australia and continued to remain as an unlawful non-citizen until she was located on 14 February 2001 and detained at the Villawood Immigration Detention Centre pursuant to section 189 of the Act. The visa applicant was detained with her son, Daniel Smith Taumoepeau and her defacto spouse, Mr Hesitingi Lolohea Faapoi.

16. During her post location interview the visa applicant stated that she did not apply for any visas since she arrived in Australia in 1994. The visa applicant also stated that she has been working with AGC for five years on a full time basis in the name of Mrs Jean Filipe. The visa applicant had been using a false name and false documents. The visa applicant stated that she did not depart Australia at the expiry of her visa because she had met her current partner, Mr Faapoi, shortly after arriving in Australia and she wanted to be with him.

17. On 16 February 2001 the visa applicant, her son and her defacto spouse lodged applications for Bridging E visas. The applications were accompanied by a letter from the visa applicant requesting a five day extension with respect to the Department's decision. A further letter was sent by her defacto spouse also requesting a five day extension. The delegate subsequently discussed the conditions in which he would release the visa applicant from detention. Namely, a security in the amount of $10,000, a valid passport, an airline ticket for departure within one week and the payment of detention costs. On 26 February 2001 the visa applicant withdrew her application for a Bridging E visa.

18. After some discussion with the visa applicant the delegate decided to reduce the requested security amount from $10,000 to $8,000. The Department wrote to the visa applicant on 27 February 2001 stating that if the visa applicant lodged the security and presented an open airline ticket to the Department by 5 March 2001, the Department would release the visa applicant on a Bridging E visa. The letter also stated that the Bridging E visa would initially be granted for three days to allow the visa applicant to attend the Tongan Consulate and present evidence from the Consulate to the Department that she has applied for a passport. The letter also stated that if the visa applicant did not lodge the $8,000 security and present an airline ticket by 5 March 2001 the Department will subsequently make arrangements to remove the visa applicant from Australia.

19. On 2 March 2001 the visa applicant's de facto spouse sent a fax to the delegate requesting that the security amount be reduced to $2000 because that is all they can afford after purchasing the airline tickets. The visa applicant's de facto spouse also stated that the letter sent by the delegate regarding the security indicated that the Department only required a security in the amount of $8,000 for both the visa applicant and himself. However, the visa applicant's de facto spouse conceded that the delegate had confirmed during a telephone conversation that it was $8,000 each and $16,000 altogether.

20. On 5 March 2001 the visa applicant, with her defacto spouse and son, lodged further applications for Bridging E visas. The application also requested a further five days extension, allowing the Department to make a decision by 14 March 2001.

21. On 13 March 2001 the delegate refused the application for a Bridging E visa. The delegate found that the visa applicant did not satisfy the criteria in clause 050.212 of the Regulations as she was not making, nor is she the subject of acceptable arrangements to depart Australia. The delegate also found that the visa applicant did not meet clause 050.224 of the Regulations because she had not lodged the $8,000 security requested by the delegate.

22. The visa applicant subsequently lodged an application for review of the decision to refuse her a Bridging E visa to the Tribunal on 15 March 2001.

23. The visa applicant was sent a letter on 19 March 2001 inviting the visa applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Essentially this stated that there is no indication from the material contained on the Department's file that the visa applicant meets the criteria in clause 050.212 for the grant of a Bridging E visa. The letter also stated that the visa applicant has not, to date, lodged the $8,000 security requested by the Department. The letter also invited the visa applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to her case.

24. On 21 March 2001, the Tribunal received a telephone call followed by a fax from the visa applicant's de facto husband stating that due to illness he requests the Tribunal to re-schedule her hearing and the hearings of the other related files to a later date.

25. The Tribunal rescheduled the hearings for 29 March 2001 with the visa applicants' consent.

26. The visa applicant was given an opportunity to comment on this information in an interview held before the hearing on 29 March 2001.

27. At the hearing the visa applicant gave evidence as follows:

28. The visa applicant recognised that she has been unlawfully in Australia for a considerable period of time. She also recognised that she seriously breached Australian law.

29. The visa applicant said that she met her de facto husband around the end of 1994. They commenced a relationship soon after and they live together, along with her son, as a family.

30. The visa applicant stated that she wished to remain in Australia and did not want to go back to Tonga.

31. She said that she had discussed purchasing a ticket to depart with her sister last weekend but has not taken any further steps to purchase the ticket. She said that her passport is currently not valid.

FINDINGS AND REASONS

32. 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.

33. 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).

34. 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.

35. The Tribunal finds that the visa applicant does not meet any of the criteria in subclauses 050.212(3) to (9).

36. The visa applicant has not made an application, and cannot apply, within a period allowed by the Minister (the Tribunal), for a substantive visa of a kind that can be granted if the visa applicant is in Australia. The visa applicant has no outstanding application for merits or judicial review in relation to a substantive visa, or outstanding request to the Minister that is one of the prescribed requests. The visa applicant is not in criminal detention.

37. The Tribunal must consider whether the visa applicant is able to satisfy the Tribunal that she is making or is the subject of acceptable arrangements to depart Australia. 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 294. 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 in 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.

* The decision-maker is satisfied that the applicant will depart as arranged.

38. The visa applicant indicated at the hearing that she has no arrangements in place to depart Australia. She said that she had discussed it with her sister but has neither a valid passport nor a ticket for travel. The Tribunal also notes that the visa applicant stated at the hearing that she wishes to remain in Australia and does not want to return to Tonga. There is no evidence before the Tribunal or suggestion that the visa applicant is the subject of acceptable arrangements to depart Australia. Therefore the Tribunal is not satisfied that the visa applicant meets clause 050.212.

39. As the visa applicant fails to meet an essential criterion, it is not necessary for the Tribunal to consider other criteria.

CONCLUSION

40. The Tribunal finds that the visa applicant does not meet the criteria in clause 050.212. Failure to meet one of the essential criteria for the Bridging E visa means that the application must fail.

41. 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 050 visa.

DECISION

42. 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) visa.

43. The Tribunal affirms the decision to request a security in the amount of $8000.