1826351 (Migration)

[2018] AATA 4014

1826351 (Migration) [2018] AATA 4014 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826351

MEMBER:Sean Baker

DATE:18 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 18 September 2018 at 10:08pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General) –‘acceptable arrangements to leave Australia’ – no concrete plans to leave Australia – outstanding criminal matters – lodged a passport application – first time being unlawful in Australia – able to depart from immigration detention – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cls 050.212, 050.221

CASES
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 September 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 6 September 2018 on the basis that the applicant did not meet any of the specified grounds in cl.050.212. The applicant did not provide a copy of the delegate’s decision with his application for review.

4. The applicant appeared before the Tribunal on 14 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A].

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets one of the grounds specified for seeking the visa.

7. At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

8. In this case, the applicant is seeking to meet cl.050.212(2).The applicant does not claim to meet any of the alternative criteria in cl.050.212. For the reasons below, the applicant does not meet cl.050.212.

   Acceptable arrangements to depart Australia

9. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

10. The applicant explained at the hearing that he did not have a current passport. I asked if he had lodged an application with the Bangladesh High Commission and he said he had not and he needed to be released from detention so he could obtain a passport. He explained that he needed to fly to Canberra as they needed biometrics for his passport. He said that they had told him that the process would take 45 days, or if urgent, 28 days.

11. I asked the applicant had discussed voluntary departure with his case officer. He said he had, and he had signed that he agreed to be voluntarily removed last week, on the 7^th or 9^th of September he thought, and they had said they will get in touch with him to get the passport done but he hadn’t heard much.

12. I asked if he had made any other arrangements for departure. He said there was not much he could do from the detention centre. He had tried to book a ticket but he needed a passport. He said that his partner wanted to come with him to Bangladesh so without knowing what was happening she was waiting as well.

13. I asked the applicant about the offences which had led to the imprisonment he had disclosed in his application for review. He said that he had been imprisoned for [criminal offences]. I asked if he had any further court dates and he said that he had to attend court in [month] for [a specific task]. I asked if this was all that would happen on that date and he said it was. I asked did he not have any outstanding charges and he said he did, in [month] in [a local] Court. I asked how he could depart the country if he was facing outstanding charges and he said he did not realise that this would have an impact, and that because it was a similar offence and happened before the offences he was jailed for, he thought he would just get a fine or community work.

14. Pursuant to s.359AA I put to the applicant several pieces of information that I explained to him would be, subject to any comment or response he made, the reason or a part of the reason for affirming the decision under review. The first set of information was that the applicant had been in Australia since 2003 on a series of visa and had then had a period of unlawfulness from 13 June 2018 until 26 August 2018. I explained that having lived in Australia for this period of time, and the period of unlawfulness may lead me to doubt that he genuinely intended to depart Australia. He indicated he understood the relevance of the information. I explained the consequence of the information being relied on and he indicated he understood that.

15. I put to the applicant a second set of information, being that information on the Department file indicated that he had been charged a total of 42 times for criminal offences, had been on bail a total of 9 times, been the subject of 18 arrest warrants and was wanted on a ‘Forensic identification for [a particular offence]’. Further, that he had outstanding court matters that were due to be heard on [date] [month] 2018 for five [charges for an offence] and [other] offences. I explained that the relevance of this information was that it may lead me to doubt he genuinely intended to depart, whether he could depart given he was facing charges, and further that it may lead me to doubt he would comply with conditions, specifically not to engage in criminal conduct. The applicant indicated he understood. I explained the consequence of the information being relied on and he indicated he understood that.

16. The applicant elected to respond straight away. He said that he realised he had a history of[a certain behaviour], he was not going to give an excuse but it was due to his marriage breakdown, and since then he had made the wrong choices. He said that the 42 charges were all [details deleted], his car was taken for identification [but] it was not his car and they gave it back, but that was an allegation. He said they took the car and left him off the charge, he had never done anything with his car. [Sentence deleted].

17. He said in relation to the charges he does have those charges coming up and he was not too sure why that was not dealt with because all of the charges had been due to be consolidated and those ones seem to have been left out, and he said he had already been to prison for the same charges and he hoped he would not be punished as he has already been jailed and he has not done anything wrong after he was punished and he promised not to do anything wrong.

18. He said in relation to the first point that he had not ever been unlawful in Australia in 15 years, and he does not ever want to be unlawful or stay illegally in a country. He explained that that period of unlawfulness was because his visa has expired when he was in prison and there was nothing he could do, he tried to tell his legal aid lawyer but they said he needed to focus on the charges, and the first time he knew it expired was when he was contacted in prison.

19. I asked the applicant why he could not depart from detention. He said that he did not know how long it would take, he needed to go to Canberra for the biometrics, he could get his ticket and sell his car, he has been here for 15 years and he had so many things and would be easier for him to do this, and if he was removed he would have a 3 year ban. I asked if the ban would still apply if he departed voluntarily and he said it would. I noted that my understanding was that he could depart for Bangladesh from detention and that the Department would arrange a travel document for him from detention. He said he had discussed this with them but then he had not heard from them.

20. I asked if there was any reason his partner could not sell his car and deal with his belongings. He said it was a manual car and she could not drive it. He said he could get her to get it fixed and sell it but he would not recoup the full value of the car. He said she could not gather his belongings as they were everywhere, over several houses and he would like to collect his clothes, laptops, and phones, he didn’t even know where they are. He said his friends would not give them to his partner.

21. He said that he wanted to get married when they went to Bangladesh, but his partner’s parents would not be able to fly there as they are in bad health and so they wanted to do the ritual and fly to Bangladesh and do the wedding there. He said his father has been asking him to come home to Bangladesh for a long time. He said now he was looking forward to going back and he missed his mum and dad. He said it was time to settle down so he was looking forward to getting married and starting a new chapter in his life – his brothers would come from [another country] in December so that would be a perfect time if everything went well. I asked if they would apply for a spouse visa for the applicant and he said they would see how everything goes, they might travel to India, to a few countries and most likely apply for a spouse visa. I asked if they had made any arrangements in Bangladesh for their marriage and he said they had not, they were waiting to see. He said that they wanted to have an engagement ceremony in Australia but when I asked if they had planned for that he said that they could not as they did not know what was happening with the bridging visa.

22. I asked if he had a proposed date for departure and he said two months from now. I asked how he would support himself until that time and he said he has a friend who [runs a business] and he had offered the applicant work, cash in hand, and a friend of his partner’s has also offered him a job. He explained that he would be staying with his partner and she is working full time and would support him.

23. I asked the applicant how much tickets to Bangladesh cost and he said 800 maximum one way. I asked how he would pay for that and he said that he and his partner have some savings and could pay for it now, or their parents were happy to pay or he could use the money from his car.

24. I also took evidence from the applicant’s partner, [Ms A]. I noted that I had before me the statement and statutory declaration she had provided. She explained that they had lived together for the whole of 2017 before she had gone to [Country 1] and then the applicant was jailed and taken into detention. They had known each other for 6 years. As soon as she got back from [Country 1] she touched base with him and found out he had been sent to prison. She confirmed that the applicant would be able to live with her. She said it was her intention to travel to the applicant to Bangladesh. I asked if she had arranged a visa and she said she had not, she was just waiting to see what is happening with him first, as she was not sure when he is leaving as well, so they can book the same time and day. She had found out prices, and sussed things out and wanted to find out his situation before she booked anything and paid anything as it is only 10 business days to fix the visa. She said she was working full time. I asked if she was able to take leave and she said that she just started three months ago and she was securing a permanent role so she didn’t want to take too much leave. I noted she would have to take leave to travel to Bangladesh. She also said that they were planning to get engaged, and she would love her family to be a part of that. She showed the Tribunal a cordial and welcoming message she had received on her phone from the applicant’s father.

25. I discussed with the applicant my concerns about whether he had demonstrated he is making acceptable arrangements to depart. I noted that I had real concerns that he would not be able to depart before his court date, and that there was a possibility he would be imprisoned on those charges, which would mean that he would not be departing when he claimed he would be, in [month]. He said that he did not think he would be jailed as he had already been jailed for similar offences and these offences had occurred prior to that offending. He said if he got a fine then he would be able to depart, if he was jailed or given community work then he would not be able to depart by his proposed date but would be able to depart right after he got out of prison. He said could he possibly get the bridging visa up until the court date and then see. I explained that this was not how a bridging visa on departure grounds worked. He said if he got a last chance he would do the right thing. I noted that given he said he had been imprisoned for similar charges in the past it appeared at least possible that he would be jailed. He said no, for a similar offence which happened in March he got a [fine] because, he was already in prison and these offences were prior to his punishment.

26. I noted a further concern that he and his partner had explained their claimed intentions, but there did not seem to be anything concrete that they could point to, to indicate arrangements. I noted that he had not provided any documents to indicate that he had applied for a passport or made any other arrangements. He said that he had submitted documents to the Bangladesh High Commission to get his passport from prison but nothing had happened, he believed they were contacting the immigration officer as that was the address he had given, the detention centre. I asked if he had a receipt of those documents and he said he had given them to the immigration officer.

27. I noted that I was concerned that there was uncertainty about whether he would be convicted and jailed or have to serve a sentence which meant he was not able to specify a date he would be able to depart by. He said that he would depart as soon as the court case was resolved.

28. I have had regard to the statutory declaration from [Ms A], and her statement, both provided at the hearing, which indicate her support for the applicant. The statement sets out her view that he has changed, that he needs to get out to deal with his car, and that her parents wish to perform a ceremony with them before they depart for Bangladesh. It notes if released he will organise a passport, sell his car, spend time with her and her family and sort out things for the departure, and if necessary they would give a security bond, sign in to a police station and she will also abide by any conditions.

29. After the hearing I was provided with an email from a friend of [Ms A]’s who said she is a recruiter and would be willing to offer him possible casual employment [when] he becomes available. I was also provided with an email from a criminal lawyer specialist who noted that in his experience, having regard to the applicant being on a correction order, the offences pre-dating the correction order and term of imprisonment, and the relatively low level nature of the offending, the applicant was extremely unlikely to be returned to prison for that case subject to him remaining offence free and compliant with the offence order. The lawyer notes this is a matter for a magistrate to determine.

30. I have carefully considered the information that has been provided. Ultimately, after weighing this information, for the following reasons, I am not satisfied that the applicant is making or is the subject of acceptable arrangements to depart Australia.

31. In my consideration I have considered that the making of arrangements can be seen as a continuing process. In assessing whether at a particular time the applicant was making acceptable arrangements, I have considered what, if any, arrangements had already been made and what further arrangements remained to be made.[1] Matters such as the absence of a valid travel document or ticket, failing to secure those documents over a long time and other indications of disregard for immigration law can support a conclusion that the applicant has not made acceptable arrangements to depart Australia.[2] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[3]

    [1] Chen v MIMIA [2001] FCA 285 at [11]; Lin v MIMIA [2001] FCA 283 at [11].

    [2] Chen v MIMIA [2001] FCA 285 (Carr J, 20 March 2001) at [22]; Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [22].

    [3] Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [30].

32. The applicant does not have a current passport. The applicant claims to have made inquiries of the Bangladesh High Commission for a passport, and he later said he had submitted documents to the High Commission. He also said he had signed a voluntary departure form. He has not provided me with any documents to support these assertions, or any information to support them. He has not provided a ticket or a travel booking or document. There is a total lack of documentary evidence of any arrangements the applicant has made to depart. This is of concern in establishing that the applicant has in any meaningful sense made arrangements or is making arrangements to depart.

33. Whilst the applicant says that he has an intention to depart Australia, it is very difficult to determine if this intention is genuine because the applicant appears to have put very little thought into the process of departing. Firstly, the discussions around his upcoming court date in [month] are of concern because they do not appear to indicate that the applicant has considered how this would impact on his departure, leading me to question whether his intention to depart is genuine. He was initially unclear that he had any further charges due on [date] [month], stating he was only going to court for [a specific task]. He did not appear to have appreciated that it is appropriate for him to not depart before he has appeared in court to answer the charges and undertake any sentence. He suggested that he be given a bridging visa until the court date, so as to see what the Court decided. Whilst I draw some comfort from the criminal lawyers advise in the email that the applicant is very unlikely to receive a custodial sentence, I am very concerned with the attitude and apparent lack of thought given to this by the applicant and how it might potentially impact on his claimed planned departure.

34. Secondly, the applicant was further unable to explain with any specificity when he would depart – he stated two months from now, but during later discussion indicated that it may have to be later than that to take account of the court hearing at the end of [month] and he could depart after that. again, this does not indicate to me that the intention of the applicant to depart is genuine because it appears to indicate that the applicant has given an actual departure date very little thought. Related to this was his lack of thought or planning about matters that he and his partner could have had some control over, such as the arrangements for the claimed engagement celebration in Australia, or the claimed wedding in Bangladesh – again, his responses to attempts to clarify when these might occur or if any arrangements had been made, any plans or bookings or inquiries, the applicant responded that they were waiting until the applicant is released. I appreciate that this may feel somewhat like a catch-22 to the applicant and his partner – they cannot completely plan such events without knowing if the applicant is released, but I also note that it does not provide me with certainty or any factual basis to find that the applicant’s claimed intention to depart – and the steps and events he claims will happen before that – is genuine. Whilst I accept that not all of such events could be planned, he was unable to point to any steps that had been taken. Again, this indicates to me that the applicant has not turned his mind to how his release, his time in Australia, and his departure would work. This in turn leads me to question whether the applicant has an intention to depart, given the little planning or thought he appears to have given into when he will depart, and the arrangement and timing of significant events including his engagement party and his wedding, given that these are said to have been structured around his planned departure.

1. The evidence of [Ms A], both written and in person, was helpful and I accept it as far as it goes but it does not assist me with the above concerns because her evidence does not establish, nor does it lead me to be able to discern that the applicant holds a genuine intention to arrange his departure, and he has not provided me with any documents or evidence of arrangements.

2. When coupled with his inability to provide any documents or evidence which might indicate he has taken steps or made any arrangements for his departure, this leads me to conclude that I am not satisfied that his intention to depart is genuine. This is critical in this case because the applicant has not provided evidence of any arrangements he has taken to date, and my findings on his intention mean I do not accept that he will or is in the process of making or has an intention to arrange or be subject to arrangements to depart.

3. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making, nor was the subject of, acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

4. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

5. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

   Sean Baker
   Member