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Sg [2003] MRTA  1491  (14 March 2003)

Last Updated: 19 May 2003

 [2003] MRTA 1491 

CATCHWORDS: Review of visa refusal - Bridging E (Class WE) visa - primary criteria met - whether shall abide by conditions - security decision - refusal affirmed

VISA APPLICANT: SG

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Ian McCluskey

MRT FILE NUMBER: N03/01425

DIMIA FILE NUMBERS: N98/305377

CLF2002/058539

DATE OF DECISION: 14 March 2003

AT: Sydney

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.

AND

The Tribunal affirms the decision not to request a security.

The Tribunal directs that information that would identify the applicant (including information about family, friends or associates) not be published (under section 378 of the Migration Act 1958). There is a public interest in not identifying persons who have made applications for refugee status. This means that if this decision is published, names and other identifying material must be removed from or modified in the published version of the decision.

STATEMENT OF DECISIONS 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 and Indigenous Affairs (`the delegate'). The visa applicant applied for a Bridging E (Class WE) visa on 27 February 2003. The delegate's decision to refuse to grant the visa was made on 28 February 2003.

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review to the Tribunal on 4 March 2003. 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.

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 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:

Legislation:

Item 1305 of Schedule 1 to the Regulations

Part 050 of Schedule 2 to the Regulations

Schedule 8 to the Regulations

Policy:

MSI 350- Bridging Visas- Overview; issued 16 May 2002.

MSI 369 Bridging E visa (Subclass 050)- Legislative Framework and Further Guidelines, issued on 9 December 2002.

Cases:

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. Clause 050.212 must be met at the time of this decision (clause 050.221).

* 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.

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, and found that no amount of security would ensure that he would do so. In the event clauses 050.211, 050.212 and 050.221 are satisfied, the Tribunal must then consider whether the visa applicant shall abide by visa conditions. If the Tribunal is not satisfied the visa applicant shall abide by conditions in the absence of a security being sought and paid, it must then consider whether a security should be required if so, how much the security should be.

EVIDENCE

12. The Tribunal had before it the MRT case file N03/01425, and the Department's case files N98/305377 and CLF2002/058539.

13. On 12 March 2003 the Tribunal sent the visa applicant a letter inviting him to provide comments at an interview before the hearing, on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Essentially the letter noted that (i) the visa applicant has spent periods of time in Australia unlawfully, (ii) he has had 2 previous visas cancelled for a breach of conditions, (iii) he previously failed to depart Australia as required and (iv) that he may have knowingly submitted a fraudulent letter to both the Department and the Tribunal.

14. A hearing was initially scheduled to take place on 12 March 2003 however this was put over to 14 March 2003 as the visa applicant was unwell. The visa applicant attended the hearing on 14 March 2003 as did his friend (the brother of the visa applicant's daughter-in-law) Mr A. The Tribunal spoke to Mrs B, the wife of the visa applicant's brother-in-law, by telephone.

15. A summary of the material contained on the above files and of the evidence given at the hearing follows.

16. The visa applicant arrived in Australia on 6 December 1997 as the holder of a business visa. Accompanying him were his 2 sons (now aged approximately 19 and 20 years), who were the holders of visitor visas.

17. The visa applicant's business visa ceased on 6 January 1998 and on this date he lodged an application for a Protection visa. He was granted a Bridging A visa on this basis.

18. On 5 February 1998 a decision was made to refuse to grant the visa applicant a Protection visa. This decision was then affirmed by the Refugee Review Tribunal on 28 May 1998. The visa applicant's Bridging A visa then ceased on 2 July 1998. He remained in Australia unlawfully.

19. On 28 July 1998 the visa applicant approached an office of the Department to enquire as to the progress of his Protection visa application, apparently unaware of the Refugee Review Tribunal's decision. The officer accepted the visa applicant's explanation that his agent had failed to notify him of the decision and granted him a Bridging E visa on the basis that he was intending to lodge a further substantive visa application.

20. The visa applicant failed to lodge a further substantive visa application at this time and his Bridging E visa ceased on 11 August 1998.

21. On 26 August 1998 the visa applicant wrote to the Minister, pursuant to section 417 of the Act, requesting that he intervene and grant him permanent residency. He was granted a Bridging E visa on this basis on 13 October 1998. This visa was subject to condition 8101 (no work). Further Bridging E visas were granted to the visa applicant on 3 December 1998, 5 February 1999 and 21 May 1999. Condition 8101 was attached to each of them.

22. On 9 June 1999 the Minister decided against intervening in the visa applicant's case. The visa applicant was then granted a further Bridging E visa on 20 July 1999 on the basis that he depart Australia by 5 August 1999.

23. The visa applicant failed to depart Australia as required and his Bridging E visa therefore ceased on 5 August 1999. The visa applicant then remained in Australia, unlawfully.

24. On 7 October 1999 the visa applicant joined the Lie class action. He did not, however, approach the Department to regularise his status until 5 July 2000 when he was granted a further Bridging E visa.

25. On 19 July 2000 the visa applicant attempted to lodge a further application for a substantive visa, but was legally prevented from doing so, as he had previously been refused a substantive visa whilst onshore.

26. A further Bridging E visa was granted to the visa applicant on 18 July 2002 on the basis of his inclusion in the Lie class action. This visa had conditions 8101, 8505 (must reside at specified address) and 8506 (must notify Department of any change of address).

27. On 26 July 2002 officers of the Department visited Address C, attempting to locate a third party. The Warrant Return for the visit appears on file and indicates that the visa applicant opened the door for the officers, but then attempted to close it on them once they identified themselves. The officers found that the visa applicant was residing at Address C and had not informed the Department as such, and the Warrant Return indicates that the visa applicant admitted that he was working. His visa was subsequently cancelled for a breach of conditions 8101, 8505 and 8506 and he was detained.

28. During the post-detention interview, held on 29 July 2002, the visa applicant is recorded as claiming that he has worked since his arrival in Australia and was then employed as a machine operator.

29. On 29 July 2002 the visa applicant lodged an application for a Bridging E visa.

30. On 30 July 2002 the delegate wrote to the visa applicant, stating that consideration was being given to granting him a Bridging E visa, provided that he lodged a security of $15,000, to be forfeited should he breach any of the visa conditions.

31. The visa applicant informed the delegate that he could not afford a $15,000 security, so the delegate agreed to lower the amount to $10,000. The visa applicant was also unable to afford that amount, so on 7 August 2002 a decision was made to refuse to grant the visa applicant a Bridging E visa. Without the lodgement of a $10,000 security, the delegate was not satisfied that the visa applicant would abide by visa conditions.

32. An application for review was lodged with the Migration Review Tribunal on 8 August 2002, with the visa applicant stating that a security of $10,000 was too high.

33. On 16 August 2002 this Tribunal (differently constituted) found that the visa applicant would abide by the conditions attached to the visa, provided that a security of $5,000 was lodged. The application was remitted to the Department on that basis.

34. On 29 August 2002 the visa applicant was granted a Bridging E visa following the lodgement of $5,000. This visa had conditions 8101 (no work), 8401 (report), 8505 (reside at specified address) and 8506 (notify change of address).

35. A file note appears on file which indicates that the visa applicant telephoned an officer of the Department, requesting permission to work. He was informed that, as the visa was granted on the basis of his inclusion in the class action, he was unable to obtain permission to do so. He was warned of the consequences of working.

36. On 11 October 2002 officers of the Department located the visa applicant working for a business in suburban Sydney. The Warrant Return appears on file and indicates that the visa applicant attempted to mislead the officers regarding his identity and then attempted to abscond. He was then forcibly restrained.

37. The visa applicant's Bridging E visa cancelled for a breach of condition 8101 and he was placed in immigration detention under section 189 of the Act.

38. On 18 October 2002 the visa applicant lodged an application for another Bridging E visa. Accompanying the application was a submission in which the visa applicant apologised for working, but stated he had to do so as he had to repay detention costs and also had to pay for his son's forthcoming wedding. He also stated that he was now willing to abide by visa conditions.

39. On 22 October 2002 a decision was made to refuse to grant the visa applicant a Bridging E visa. The delegate was not satisfied that the visa applicant would abide by the conditions attached to the visa and found that no amount of security would ensure that he would do so. On 1 November 2002 this Tribunal (differently constituted) affirmed the delegate's refusal.

40. The visa applicant lodged a further application for a Bridging E visa on 29 November 2002. Accompanying the application was a letter from the visa applicant, in which he states he was overwhelmed by having been twice detained. He states he was not familiar with immigration regulations and the consequences of breaching visa conditions. Also lodged in support of the application was a letter from the visa applicant's brother, Mr D and another, allegedly from the visa applicant's wife, Ms E, both offering support.

41. On 29 November 2002 the delegate wrote to the visa applicant, outlining his adverse migration history and inviting him to respond. Among other things, the letter noted that the letter from Ms E contradicts previous information given by the visa applicant that she had remarried and was living in the USA. The delegate also noted that the visa applicant was in a relationship with another detainee (which began prior to their detention) and that they were being housed as a family unit in the detention centre.

42. On 2 December 2002 the delegate telephone Ms E, who denied writing the letter of support. She stated that she had separated from the visa applicant and would be obtaining a divorce as soon as she could afford one. He had left her with a large debt and she will never resume her relationship with him.

43. On 3 December 2002 the visa applicant wrote to the delegate in response to the above letter and stated that he had divorced his wife and wanted to be released so that he can attend his son's wedding. He also denied being in a relationship with a fellow detainee.

44. On 3 December 2002 a decision was made to refuse to grant the visa applicant a Bridging E visa. The delegate was not satisfied that the visa applicant would abide by visa conditions and found that no amount of security would ensure that he would do so. The delegate noted that visa applicant's migration history in the decision record and also formed the view he knowingly permitted a forged letter of support to be given to the Department to influence a decision on the grant of a visa.

45. An application for review was lodged on 4 December 2002, with the visa applicant apologising for his past actions and stating that he shall abide by visa conditions. The visa applicant also submitted a further letter from Mr D and another purportedly from Ms E.

46. On 13 December 2002 this Tribunal (differently constituted) affirmed the decision to refuse to grant the visa applicant a Bridging E visa and also affirmed the decision not to request a security.

47. The visa applicant lodged a further application for a Bridging E visa on 13 January 2003. This application was refused on 15 January 2003, with the delegate again finding that the visa applicant would not abide by visa conditions, regardless of any amount of security being lodged.

48. An application for review was lodged with the Migration Review Tribunal on 15 January 2003, with the visa applicant claiming that he will abide by visa conditions.

49. On 17 January 2003 the visa applicant submitted a letter, stating that he is not willing to argue about the fact that he has breached visa conditions. He then continues, however, to state that he was unfamiliar with the immigration laws and of the consequences of not abiding by visa conditions.

50. Also lodged in support of the application were a further letter of support from Mr D and also one from Mr F, offering to support the visa applicant whilst the visa applicant is waiting for his decision.

51. On 28 January 2003 this Tribunal (differently constituted) affirmed the decision to refuse to grant the visa applicant a Bridging E visa and also affirmed the decision not to request a security.

52. On 24 February 2003 the visa applicant lodged an application for a Bridging E visa. A note on file dated 24 February 2003 states the visa applicant telephoned the delegate regarding this application. The delegate states that she explained to the visa applicant that she had no intention of granting him a Bridging E visa due to his immigration history. She believes that he will not abide with condition 8101. In the past he had given false information to the Department in relation to his applications for a Bridging E visa. He has two sons who are unlawful non-citizens concealed within the community.

53. On 28 February 2003 the delegate decided to refuse the application for a Bridging E visa. Given the visa applicant's history of non-compliance with visa conditions in the past and noting that he forfeited a $5,000 bond after having been located working unlawfully, the delegate considered that no amount of security would provide a sufficient incentive to ensure compliance.

54. On 4 March 2003 the visa applicant lodged an application for review of the delegate's decision with this Tribunal. At the time of this lodgement the visa applicant stated that he wished to be released from detention and is willing to place a security amount with the Department to ensure he abides by visa conditions. He also wishes to be released from detention as the costs of his detention are escalating.

55. At the hearing, the visa applicant stated he would abide by visa conditions. He had learnt from his past mistakes, particularly through having experienced some 5 months in immigration detention. He also stated that if granted the visa sought, he would reside at Mrs B's house at Address G. He stated Mrs B and her husband could support him. Both had jobs. The couple were the only people living in a 4-bedroom home, so there was clearly room for him there.

56. The visa applicant stated that in the event a security were required to be lodged, the maximum he could raise from friends and family would be $5,000. He stated the amount of $10,000 was clearly beyond the capacity of his friends and relatives.

57. The Tribunal telephoned Mrs B's home. A woman answered the phone who advised that neither Mrs B nor her husband were there. The Tribunal then contacted Mrs B at work and she confirmed she was willing to support the visa applicant and that she was confident he would comply with visa conditions.

58. Mr A stated he wished to assist the visa applicant and that he was confident the visa applicant would abide by visa conditions.

FINDINGS AND REASONS

59. 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.

60. 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).

61. 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.

62. The visa applicant has sought to establish that he meets this clause on the grounds that he is a member of the Lie class action. The evidence before the Tribunal is that on 8 August 2002 the High Court decided the primary applicant's case, remitting it back to the Refugee Review Tribunal. The Court reserved findings in relation the remainder of the members of the class action. As such, the Tribunal finds that the Lie class action ongoing so far as the visa applicant is concerned.

63. The Tribunal accepts the evidence in relation to the class action and finds that at the time of application the visa applicant met the criteria in subclause 050.212 (1). As a person who is described or identified in an application filed for the purposes as a group member to whom the representative proceeding relates (i.e. a class action) he meets subclause 050.212(4A).

64. It is necessary that the visa applicant continue to meet clauses 050.211 and 050.212 at the time of the Tribunal's decision (clause 050.221). The Tribunal is satisfied that the visa applicant continues to meet clause 050.211 as the class action has not been finalised so far as the visa applicant is concerned. Clauses 050.211 and 050.212 are satisfied at the time of this decision being made. The visa applicant therefore satisfies clause 050.221.

65. There are two remaining issues for the Tribunal to determine. First, whether, if the visa applicant were released from detention, he would abide by visa conditions and secondly, whether the decision not to request a security to ensure compliance was appropriate and, if not, what amount should be sought.

66. In considering whether the visa applicant will abide by conditions of the visa, the Tribunal, pursuant to subclause 050.612A of the Regulations, must impose condition 8101. The Tribunal may also impose any one or more of conditions 8201, 8207, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512. The Tribunal considers that conditions 8401, 8505, 8506 and 8512 are appropriate in this matter. Visa conditions are therefore as follows:

8101

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

8401

8401. The holder must report:

(a) at a time or times; and

(b) at a place;

specified by the Minister for the purpose.

8505

8505 The holder must continue to live at the address specified by the applicant before the grant of the visa

8506

8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

8512

8512. The holder must leave Australia by the date specified by the Minister for the purpose.

67. For the purposes of condition 8512, the Tribunal specifies the date to be 28 days after the High Court makes a decision in relation to the visa applicant, in the event that the visa applicant is unsuccessful.

68. The Tribunal has taken into account the factors set out in MSI 369, 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.

69. The Tribunal considers that the visa applicant's immigration history, particularly the fact he has had two Bridging E visas cancelled for breaches of condition 8101, together with the fact he was granted an earlier Bridging E visa on the basis of his leaving Australia but he did not depart, means the Tribunal cannot be satisfied that the visa applicant shall abide by visa conditions in the absence of a security being sought. The Tribunal is mindful of the fact the visa applicant has been in immigration detention for some five months, however even after taking this unhappy experience into account, the Tribunal is not satisfied as to compliance with visa conditions in the absence of a security.

70. This gives rise to a further issue, namely whether the payment of a security shall provide a sufficient incentive to ensure compliance with visa conditions. If so, how much should this be?

71. In view of the visa applicant's immigration history set out above in this decision, and for the same reasons as those set out in paragraph 69 above, the Tribunal does not consider the payment of a security shall provide a sufficient incentive to ensure compliance. It is unnecessary to consider quantum. This finding largely determines the outcome of this review application.

72. 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.

DECISION

73. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Bridging E (Class WE) 050 visa.

AND

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