1836694 (Migration)

1836694 (Migration) [2018] AATA 5363 (24 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836694
MEMBER:Alison Mercer
DATE:24 December 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 24 December 2018 at 11:28am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – genuine intention to depart Australia – arrived on visitor visa – detained in Australia for close to 2 years – visitor visa cancelled – wish to speak with an Australian lawyer in person – wish to leave independently as opposed to forced removal by the Commonwealth – acceptable arrangements to depart Australia – no tickets or bookings to depart Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 2, cls 050.212, 050.221, 050.223
CASES
Chen v 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

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).
The applicant applied for the visa on 10 December 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.050.223, as the delegate was not satisfied that the applicant would abide by the conditions that the delegate would have imposed on a subclass 050 visa granted to the applicant.
The decision to refuse to grant the visa was made on 12 December 2018 on the basis that the delegate was not satisfied that the applicant genuinely intended to depart Australia as claimed, or that the applicant would abide by the conditions that the delegate would impose on any bridging visa granted to the applicant.
The Tribunal received a review application from the applicant on 14 December 2018, which was accompanied by a copy of the delegate’s decision.
The applicant appeared before the Tribunal by videoconference from detention on 21 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets one of the threshold grounds entitling him to be granted a subclass 050 visa, and if so, whether the Tribunal is satisfied that he would abide by the conditions that it would impose on the visa (and if not, whether the imposition of a security amount would ensure his compliance).
Departmental history
The Department’s records indicate that the applicant, who is a citizen of the People’s Republic of China (PRC), applied for a subclass 600 (Visitor) visa in the Tourist stream on 29 March 2017 in the PRC and was granted this visa on 31 March 2017. It was valid for a stay of 3 months from the applicant’s date of entry to Australia.
The Department’s records further indicate that the applicant entered Australia [in] April 2017, with [number] companions. The Statement of Material Facts prepared by the [State 1] Police indicates that they were as a group involved in the following incidents:
·on the morning of [a day in] April 2017, the group attended the business premises of [Company 1], where [number] members entered the premises and spoke to a co-owner of the business, ordering him to pay back $[amount] they claimed was owed to a person in China. The other [members] of the group remained outside, then came inside and approached the co-owner and other staff aggressively. The group stayed there for approximately 2 hours during which time the group repeatedly threatened the co-owner and ordered him to pay back the [amount];
·on [the following day], the group returned to the premises of [Company 1] and again entered aggressively, made threatening comments and left bank details in which they wanted cash to be deposited. The co-owner was not present and the group left the premises;
·a short time later, the group arrived at the co-owner’s home address, but was refused entry and left without speaking to the co-owner;
·later that afternoon, the group went to the home address of another co-owner of [Company 1] and left a letter asking for help getting the other co-owner to pay US $[amount];
·on [the next day], the group returned to the business premises of [Company 1] and reiterated to the co-owner that he had to pay $[amount] and threatened him that there was another group from [Country 1] who had guns and would shoot them; and
·on the same date, the [State 1] Police arrested the applicant on suspicion of Extortion.
[In] April 2017, the [State 1] Police charged the applicant with 1 count of Demanding Property by Oral Threats contrary to s.397(2) of the Criminal Code ([State 1]).
On 15 June 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) in relation to his subclass 600 (Visitor) visa. The applicant did not respond.
On 26 June 2017, a delegate made a decision to cancel the applicant’s subclass 600 visa pursuant to s.116(1)(g) of the Act, as a prescribed ground for cancellation existed, as per r.2.43(1)(j) of the Act; namely, that despite the grant of the subclass 600 visa, the Minister was satisfied that the visa holder did not have, at the time of the grant of the visa, an intention only to visit, or remain in, Australia, as a visitor temporarily for the purpose of visiting an Australian citizen or permanent resident who was a parent, spouse, de facto partner child or sibling of the visa holder, or for another purpose other than one related to business or medical treatment. The delegate found that the applicant’s purpose in coming to Australia appeared to be to extort money from [Company 1], and that this was incompatible with the purpose for which he was granted a subclass 600 (Visitor) visa.
It appears from information on the Department file that the applicant was issued with a criminal justice certificate at some point but was refused a criminal justice visa. He therefore became an unlawful non-citizen upon cancellation of his subclass 600 visa but remained in criminal detention in [State 1] until [November] 2018, when the criminal charge against him was dismissed and his criminal justice certificate was cancelled. He was then interviewed and taken into immigration detention on that date.
In his interview of 28 November 2018, the applicant indicated that (in summary):
·his visitor visa was cancelled and he was notified of this by mail. He did not hold a valid visa and had not lodged any visa application. He believed the [State 1] Police still held his passport and was willing to apply for another one if necessary;
·he was currently in [Prison 1], and prior to that was in [Prison 2]. However, he was innocent and had been acquitted of the charge against him;
·he had not worked in Australia. He came for a holiday and he and colleagues went to visit their client to ask them to pay about US $[amount] which was owing but the client tried to frame them;
·he could not support himself in Australia without working as he had nothing left. The bank repossessed his house and he had nowhere to go. However, if necessary, he could borrow money from friends;
·he did not know whether he intended to apply for a visa, but said that he would need permission to work because the legal case he intended to bring against his former colleagues for defamation would take about 2 years and he needed to support himself in the meantime;
·he could not go back to the PRC as he did not have any family or a place to stay, and his Australian lawyer had asked him to stay here;
·he did not have a valid ticket to depart and could not afford to buy himself one;
·he worked in a [company] in China, which had dealings with [Company 1] in [State 1]. When he went to [Company 1] to chase up money they owed the applicant, they called the police and he was arrested;
·however, the case against him was dismissed [by the] Court [in] November 2018. The applicant had a lawyer and wanted to sue his accusers for defamation, and he wanted to stay in Australia to do so. He said that he was wrongly accused and lost his job, his wife and his house, such that if returned to the PRC, he would have nowhere to go.
The applicant made his present application for a subclass 050 visa on 10 December 2018. He was interviewed again by a Department officer on 11 December 2018. In that interview, the applicant indicated (again in summary) that:
·he was an employee for an overseas [Industry 1] company and was sent to Australia to speak to various clients and explore the [Industry 1] market here. His company organised a team last April and spent a considerable amount of money on this trip;
·he was granted a 12 month visitor visa but was arrested on his fourth day in Australia after allegations made by [Company 1]. He still had unfinished business in Australia and also wanted to see the country in more detail;
·he no longer intended to apply for a further substantive visa or take anyone to court for defamation and/or perjury as these matters had been resolved by his employer. However, he did want to be released from detention for a few days at least to settle his affairs in Australia, and preferably for 2 to 3 weeks to complete the work in which his company overseas had invested so much time and money;
·when he was in jail, he lost contact with his family and believed his wife had returned to live with her parents, but he had now been able to contact her and resolve this matter, so he did not have nowhere to go if he went back to the PRC; and
·if granted a subclass 050 visa with conditions 8101 (no work) and 8512 (depart by specified date), he would be able to lodge a bond of $20,000 if requested to do so, although he would need a couple of days to be able to do so.
On 12 December 2018, the delegate refused to grant the applicant a subclass 050 visa. He found that the applicant did not have a genuine intention only to visit Australia to visit a relative or for any other purpose not related to business or to medical treatment; rather, he found that the applicant came to conduct business and that this was not a purpose permitted by a subclass 600 (Visitor) visa granted in the Tourist stream.
The delegate further found that despite stating that he wished to be granted a subclass 050 visa to be released from detention to depart from Australia, the applicant said when interviewed that he wished to have 2 to 3 weeks in the community in order to complete various business dealings before departing. It was also noted that he did not have a travel booking to depart nor did he have his passport in his possession. The delegate further noted that when interviewed on 28 November 2018, the applicant had indicated that he had no intention of leaving Australia and had nothing in the PRC to return to, and further, that he intended to remain in Australia to pursue a legal case for defamation and/or perjury against third parties that he had been advised would take approximately 2 years and that he would therefore need to work to fund this. In his subsequent interview with the delegate on 11 December 2018, the applicant said that his plans had changed, and that he no longer intended to pursue legal action in Australia and had an incentive to return to the PRC. He stated that he intended to depart but needed to be released for a few days first to consult with his lawyer.
The delegate found that the applicant was very determined to seek justice and to continue the work he was instructed by his Chinese employers to carry out, despite not holding an appropriate visitor visa to conduct business negotiations, and this led the delegate to believe that the applicant’s intention was to remain in Australia and to work to support himself, rather than to depart Australia. He therefore was not satisfied that the applicant would abide by conditions 8101 (no work) or 8512 (depart by a specified date). The delegate appears not to have considered whether lodgment of a security bond by the applicant would have ensured compliance with those conditions.
Applicant’s evidence at Tribunal hearing
The applicant said that his intention when he came to Australia on a Visitor visa in April 2017 was to visit some business colleagues and to check out some [Industry 1] markets in Australia. He said that he worked for a [Industry 1] company in Shenzhen in the PRC, and he and [number] colleagues came to check out opportunities in Australia and to visit come companies with whom their company did business with in Australia. The company made all of the travel and visa arrangements. In response to the Tribunal querying why he had a Visitor visa in the Tourist stream (which is generally granted to people on holidays and/or visiting family members), the applicant said that he and his colleagues did not actually do any business, as they were not authorised to sign contracts on behalf of their business, and were generally only in Australia to observe markets and visit clients who were friends of the Chinese company. In that sense, they were just visiting Australia.
In response to the Tribunal’s query, the applicant said that if everything had gone to plan, he and his colleagues had planned to stay for 2 weeks in Australia. He said that he knew he could stay for 3 months at a time, over a period of 12 months. He described the trip as a bonus offered to him and his colleagues as the business in the PRC was doing very well. When asked what his family circumstances were at the time he left the PRC, the applicant said that his parents were deceased and that he was married with [children]. In response to the Tribunal’s query, the applicant said that he lost contact with his family in the PRC for a period while he was in jail in Australia, during which time there was a period of miscommunication and/or lack of communication via third parties, being extended family members. He received information that one of his 3 houses in the PRC was going to be repossessed as his funds in the PRC were frozen and his financial agent there would not authorise payments in the absence of his instructions. He said that he owned the other 2 properties outright and still did. After he was released from jail, he was able to access his funds and the mortgage issue was sorted out. The applicant said that he was horrified to be advised by his criminal lawyer in Australia that he was facing 2 to 14 years in jail on the criminal charges laid by the [State 1] Police. His family were scared as well. However, once the police dropped the charges, he was able to communicate directly with his family from immigration detention and to reassure them, and also communicate with his financial agent to have access to funds.
In response to the Tribunal’s query, the applicant said that all charges against him were dropped by the [State 1] Police [in] November 2018, and he denied that he or any of his colleagues threatened the employees or owners of the Australian company, as alleged. The applicant said that he and his colleagues did attend the Australian company’s factory but there were no verbal or physical threats. He said that someone mentioned a debt from a few years ago owed by the Australian company during the visit, but there were no threats. The boss of the Australian company denied that any debt was owed. The applicant said that he and his colleagues were not perturbed by this denial as they considered it was a matter between their bosses in the PRC and the boss of the Australian company. The applicant said that they were happy to return to the PRC without pursuing the matter but that the boss of the Australian company invited them back the following day, so they went, but then they were framed by false accusations that they had threatened the boss of the Australian company. Then the [State 1] Police became involved and he and his colleagues were arrested, charged and put in jail.
The applicant denied there was any basis to the charges and said that the fact that the charges had now been dropped was proof that they had been fabricated, as did the fact that the boss of the Australian company had now paid back the debt. The applicant said that he and his colleagues were unfairly punished for this incident. He noted that some of his other colleagues received legal advice to plead guilty to the charges to enable them to go back to the PRC earlier, which they did, but he and another few colleagues did not as they wished to maintain their innocence. It was a matter of principle to them. In response to the Tribunal querying why the boss of the Australian company would falsely accuse the applicant and his colleagues of threatening him, the applicant said that he could not say but that he speculated that the boss wanted to avoid having to repay the debt he owed the PRC company. If they were in jail, he would not have to do so.
The applicant said that he now wished to be granted a bridging visa E in order to be released from detention to depart from Australia independently. He said that he now had access to his funds in the PRC. When asked when he planned to depart from Australia, the applicant said that would like to visit some business colleagues and also have a look around before he booked a ticket to the PRC. He said, ideally, he would like 7 to 10 days out of detention before he left. The Tribunal noted that the delegate who refused his bridging visa E found that the applicant had no incentive to return to the PRC due to having nothing left to go back for, and that he also refused the Department’s proposal that if released on a bridging visa E, he should leave Australia on the same date. The applicant agreed that he refused the proposal to depart Australia on the same day he would be granted a bridging visa E and released from detention because he was not happy with this: he wanted some time to prepare himself and he was adamant that he wanted to book and purchase his own ticket to depart Australia and did not want to leave under escort and with a debt to the Commonwealth. The applicant said that the Department officers had told him that he would not be allowed to book his own ticket (and that they would not be satisfied if he simply put a deposit on a ticket booking) and he would only be able to get a ticket if they booked one for him.
The applicant confirmed that he had a valid passport, which expires in 2024. It was currently being held by the staff of the detention centre but he would be able to use it to leave Australia. He said that he could afford to pay for his own ticket but a ticket had not yet been booked. He reiterated that he had been told he was not able to book his own ticket and that the Department had to book it for him, and that he was reluctant to have them do so.
The applicant said that he thought that he had been honest with the Department and the Tribunal about what had happened since he came to Australia. He did want to return to the PRC and his family wanted him to come back immediately. In response to the Tribunal’s query, the applicant said that he had funds of RMB 2 million (about AUD $400,000) in the PRC, and he could access that over his mobile telephone. The applicant said that he did not have an Australian bank account, and had come over to Australia with cash. He pointed out that he had provided evidence of his assets to the Department when he got his visitor visa and these remained his. In response to the Tribunal’s query, the applicant said that he had no access to his PRC funds while in jail so his Australian lawyer was from Legal Aid.

The Tribunal queried why the applicant would need or want to spend 7 to 10 days visiting business colleagues and/or looking around given that he had been in jail and/or detention in Australia for close to 2 years, and noted that this seemed implausible. The applicant said that he was in daily video contact with his family since going into immigration detention, and they did want him to return as soon as possible, but he still wanted to make some kind of counter-claim against the boss of the Australian company who had ruined the applicant’s reputation by wrongly accusing him of criminal behaviour. He said that he had had some initial consultation with a Mandarin-speaking lawyer in [State 1] about this, and wanted to get further advice in person. He said that if he could also do a bit of travelling in Australia, this would be a bonus. The Tribunal noted that in his previous interview on 1 November 2018, the applicant said that he wanted to take legal action against the boss of the Australian company and that this would take approximately 2 years to run and he needed to be out of detention to work to support himself. The applicant said that at that time, he was very confused. His funds in the PRC were frozen and he was nearly bankrupt. He had been told that his wife was considering divorcing him and taking the children. He reiterated that he was very confused when he was interviewed on 1 November 2018.
The Tribunal further noted that in his later interview on 28 November 2018, the applicant resiled from the above and stated that he no longer wished to pursue legal action as the matters had been settled between the Australian and Chinese companies, yet he was now stating to the Tribunal that he did wish to take legal action against the Australian company’s owner. The applicant said these were 2 different things: the commercial relationship between the companies and his personal reputation and the economic loss he had personally suffered by being unjustly detained in Australia for nearly 2 years. In response to the Tribunal’s query, the applicant said that he had been advised that he could bring legal action accusing the Australian boss of perjury and/or for economic loss. His new lawyer had told him that this action could be pursued from the PRC if he gave instructions and authority to his Australian lawyers. The Tribunal queried why the applicant needed to be out of detention for 7 to 10 days, if he could pursue his proposed legal action through his Australian lawyers while he was in the PRC. The applicant said that he had not yet decided which Australian lawyer to instruct. He had contacted 8 Australian lawyers online while in immigration detention but wanted to speak to some of them in person to make a final selection. Most lawyers also wanted to see him in person. Some of them were willing to come and see him in detention but would charge him for doing so. The Tribunal noted that while it might be preferable for the applicant and his lawyer to speak in person, it was not actually necessary. The applicant reiterated that it would be best for him to be able to speak to his potential lawyers in person, for which he had to be out of detention. He also wanted to buy his own ticket to depart, and not be escorted or removed from Australia.
The applicant said that he did not want a negative impact on his migration record, as he anticipated possibly pursuing future business opportunities here and was considering sending his children to study here at some stage. He was concerned that he would be subject to a 3 year exclusion if he was removed, rather than leaving independently. When asked by the Tribunal what was stopping him from booking a ticket now (or having family members do so), the applicant reiterated that the detention centre staff had told him that he could not book his own ticket. He said that the Department staff had in fact booked him a ticket to depart on 3 January 2019 but he remained concerned that this would incur a debt to the Commonwealth. He also stated that he really wanted to have some time out of detention to get legal advice, and possibly to see friends. In response to the Tribunal’s query, the applicant said that the PRC company was willing to take him back but it was his choice whether he would work for them in future as he had his own investments and his main reason for having worked for them initially was to gain knowledge of [Industry 1]. He said that the company had settled things with the Australian company and had not paid for his legal costs to date. He said that he might be able to negotiate this with the boss in the PRC on his return.
The Tribunal put to the applicant an alternative version of the events described earlier by the applicant: namely, that he and his colleagues did come over from the PRC to put pressure on the boss of the Australian company to repay a debt, things went wrong and they were charged with criminal offences and jailed, and that the charges against the applicant were dropped after his other colleagues pleaded guilty and left Australia. The Tribunal further speculated that the applicant might want to be released from detention to seek revenge on the person who accused him of extortion and threats. The applicant denied this and reiterated that he did not want revenge but did want to take legal action of some kind to clear his own name. There would be no point in taking revenge as this would only cause further legal complications for him. He genuinely was only concerned to get legal advice in Australia before returning to China to clear his name and restore his business reputation in the industry. He said that he would be happy with this, or possibly an apology.
The Tribunal discussed the conditions it would impose on any bridging visa E granted to the applicant, being conditions 8101 (no work), 8510 (must have valid passport), 8511 (must show valid ticket for departure), 8512 (must leave Australia by a specified date) and 8401 (must report at a time and place specified by an officer).
The applicant said that he now had access to his funds in the PRC and had no need to work. He would pay for a hotel for the time between being released from detention and leaving the country. This was not a problem. He reiterated that he had a valid passport and was willing and financially able to book a ticket to depart by 3 January 2019, or earlier if he was able to get legal advice sooner. He said that he had already informed the Department he was willing to depart on 3 January 2019 if absolutely necessary but that in the meantime, he wanted to see if he could get a bridging visa E and spend some time out of detention. The applicant aid that he would abide by any reporting conditions imposed on him and that he could lodge a security of $20,000 to ensure his compliance. In response to the Tribunal suggesting a $50,000 security, the applicant said that this amount would require him to instruct his finance agent in the PRC to liquidate some more of his assets (probably by selling stocks) and he would prefer not to do this. He then said that if a security of $50,000 was imposed, he preferred to stay in detention until his departure.
The grounds for seeking the visa - cl.050.212
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.
In this case, the applicant is seeking to meet cl.050.212(2). The applicant does not claim to meet any of the other alternative criteria in cl.050.212.
For the reasons below, the Tribunal finds that the applicant does not meet cl.050.212.
Acceptable arrangements to depart Australia
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]).
PAM3 (current version as at 13 December 2018) provides the following guidance on this issue:
Acceptable arrangements to leave Australia
Relevant factors
When assessing this criterion, officers may take into account any or all of the following factors in satisfying themselves that the applicant is making, or is the subject of, acceptable arrangements to leave Australia:
- The applicant has a valid ticket for travel and a booking or reservation to leave Australia.
- The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.
- The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).
- The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (AVR) arrangements).
- The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.
- The applicant is the subject of departure arrangements in circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.
- The department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).
Departure arrangements that may be acceptable (examples)
An applicant will satisfy 050.212(2) if they provide evidence acceptable to the decision maker of a valid ticket and a reservation to leave Australia within an acceptable timeframe. If there is any doubt as to the genuineness of the travel arrangements, the airline or travel agent should be contacted to ensure the ticket is valid and that a reservation for departure has been made within an acceptable timeframe.
An applicant will satisfy 050.212(2) if they indicate an intention to arrange departure from Australia, provided officers are satisfied the applicant will make the necessary arrangements within an acceptable timeframe.
- If the applicant is unfit for travel (for example, has physical or mental health issues), certification by a doctor for the purpose of establishing that the applicant is too ill to travel should be requested. If officers suspect that the medical certification is incomplete or inaccurate, they may ask the applicant to make an appointment to see a doctor appointed by the department. Departure arrangements should be pursued as soon as the applicant is certified well enough to travel. (For more information on this, refer to PAM3: Act - Compliance and Case Resolution - Case resolution - Community Status Resolution Service.)
- If an applicant is willing to leave Australia, but has no funds and no means of obtaining funds to purchase a ticket, officers may:
Departure arrangements that may not be acceptable (examples)
It is open to officers not to be satisfied the applicant is subject to acceptable arrangements to leave Australia if the applicant:
- has not made a booking/reservation to leave Australia within a reasonable or acceptable timeframe, for example, within the next two weeks or
- supplies a booking/reservation to leave Australia, but the destination is not a country where the applicant is permitted to enter - for example a booking for travel to a country that the applicant requires a visa to enter or
- has failed to attempt to obtain a valid travel document or
- does not agree to seek consular assistance or engage with the Status Resolution Service or
- is not maintaining meaningful engagement with the Status Resolution Service or
- has not left Australia as arranged under the assisted voluntary return program or has subsequently refused to leave under the program or
- is unwilling to provide certification by a doctor that they are too ill to travel
If engaged with the SRS
An applicant may be granted a BVE 050 on the basis of acceptable departure arrangements if, although they are not currently making arrangements to leave, they have acknowledged they are on a departure pathway, and are prepared to engage with the Status Resolution Service on that basis.
For example, a person who has made a repeat request for the Minister to intervene under any power of the Act is ineligible for a BVE 050 on ministerial intervention (MI) or s48B grounds in relation to the repeat request. The person may, however, be eligible for a BVE 050 on departure grounds if officers are satisfied that the person is making or is the subject of acceptable arrangements to leave on the basis that the person has acknowledged they cannot expect to remain in Australia until the outcome of the subsequent request to the Minister is known, and is actively engaged with the Status Resolution Service.
BVE conditions - Departure arrangements
Discretionary conditions only
A BVE 050 granted on departure arrangements must have conditions imposed in accordance with 050.617.
There are no mandatory conditions; officers have the discretion to decide which conditions of those listed in 050.617 should be imposed on any BVE 050 granted. In deciding which conditions to attach to the visa, they should take into account the applicant's individual circumstances. However, under policy, the conditions imposed on previous visas should be reimposed.
In the following four circumstances, consideration should be given to imposing the conditions indicated:
- Applicant needs to obtain a travel document and a ticket for travel - conditions 8510 (valid passport) and 8511 (valid ticket).
- Applicant has a ticket to leave Australia – condition 8512 (must leave Australia by a specified date).
- If the visa period of the BVE 050 is more than a few day (that is, if the applicant needs more time in which to make departure arrangements) – condition 8401 (must report at a time and place specified by an officer).
- Applicant is unable to leave within a short timeframe – condition 8207 (no study or training), as it is unlikely that a person who is unable to travel due to a temporary concern is able to work and/or study.
These conditions should be attached only to the BVE of the applicant who is able to travel. If there are other applicants who made a combined application, separate consideration should be given to whether these visa conditions are appropriate. For example, it would not usually be appropriate for condition 8207 to be imposed on a BVE held by school-aged minors.
"Reporting" conditions
Conditions 8401, 8508, 8510, 8511 require an officer to determine an appropriate place, date and time, which should be recorded on the visa notification. It is important that actual times, dates and places are recorded in the decision record and acknowledgement of the conditions to be imposed on the visa if granted, which should be signed by the applicant.
In relation to the use of reporting conditions, officers should have regard to what is reasonable in the individual circumstances.
Officers considering attaching condition 8401 to the grant of a visa should take the following factors into consideration when considering the frequency of reporting that is appropriate to the individual in the circumstances:
- the applicant's compliance/non-compliance history
- the purpose of the reporting condition
- how the frequency of reporting will affect the non-citizen and
- the most infrequent reporting requirement that would be sufficient to ensure compliance.
Reporting/frequency of reporting should be reviewed with each visa grant to determine whether it is still necessary and appropriate.
Condition 8101 (no work) - Departure arrangements
Under policy, officers should generally impose condition 8101 on a BVE 050 granted on departure grounds. However, they should consider applicants on a case by case basis and use judgment in imposing conditions, in order to effectively promote engagement with the department and assist in achieving an outcome.
Permission to work, for example, should be linked to a specific objective based on the applicant's individual circumstances and, like all conditions, must be reconsidered at the grant of each new BVE 050. Therefore:
- if an applicant is due to leave shortly, it would follow that condition 8101 should be imposed on to the visa but
- even if an applicant is unable to leave soon, officers should still consider imposing condition 8101 because a person who is unable to travel due to a temporary concern can generally be taken as unable to work
- officers should consider granting permission to work if the applicant can demonstrate a 'compelling need to work' (defined in regulation 1.08).
Officers could consider granting permission to work if access to work would facilitate an applicant's departure from Australia. For example, permission to work may be considered if the applicant is willing to purchase a plane ticket to leave Australia but lacks the funds to do so. Officers should also consider imposing reporting conditions to monitor the applicant's progression towards the objective. If the applicant is not progressing towards an outcome the officer should consider imposing condition 8101 on any subsequent BVE grants and consider alternative options for the applicant.
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The Tribunal accepts that the applicant has a valid PRC passport which is currently held by staff at the immigration detention centre. The Tribunal found the applicant’s evidence about obtaining a ticket to depart to be somewhat confusing. The applicant has said that the detention staff has booked him a ticket for departure on 3 January 2019 but he is unwilling to accept this booking as he fears that he will incur a debt to the Commonwealth and be subject to forcible removal. There is no concrete evidence of this in the records forwarded to the Tribunal by the Department, but if true, it suggests that the applicant has been engaging with the Department’s Status Resolution Service (or similar) with a view to make a voluntary assisted departure. However, the Tribunal is unable to ascertain the reason that the applicant could not book his own flight to show good faith in his claim to be prepared to depart, as it appears that he now has a mobile phone and he claimed he now had access to funds. The fact that he has not done so – and has not provided substantive evidence as to why he could not do so – undermines his claimed genuine intention to depart.
Similarly, the Tribunal found the applicant’s other claimed reason for wishing to be released into the community unconvincing. It found his evidence about wanting or needing to seek legal advice related to potential legal action against the Australian person he claims falsely accused him of threats and extortion to be confusing and contradictory. Within the period of approximately 1 month, he has stated that he had nothing to go back to in the PRC and anticipated living and working in Australia for 2 years to fund a legal action against his accuser, he has then stated that he no longer wishes to pursue this action as it had been settled by the relevant companies, and he has most recently told the Tribunal that he does in fact want to pursue some form of legal action to clear his name and wants to be released into the community for at least several days to obtain further advice about this. Even allowing for the applicant’s changed circumstances during the above period (namely, his transfer from criminal detention into immigration detention and the greater ability to communicate and access funds he claims to have had since going into immigration detention), the Tribunal finds his claimed reasoning to be contradictory and implausible. The applicant has indicated that he has been able to obtain preliminary legal advice from several lawyers while in immigration detention and that he has been advised that he will be able to instruct them from the PRC on his return. There therefore appears to be no strong or plausible reason for the applicant to speak with a lawyer in person, although it accepts that he would prefer to do so. This evidence did not support the applicant’s claim that he genuinely intends to depart Australia.

The Tribunal has also had regard to the applicant’s claim that he wishes to leave independently so as not to incur a debt to the Commonwealth for forced removal. It is unclear to the Tribunal whether the voluntary assisted removal arrangements that appear to have been the subject of discussion between the applicant and detention centre staff constitute forced removal or not. Assuming that they do, and the applicant may incur a debt to the Commonwealth for the costs of such arrangements, there appears no reason why he cannot make acceptable arrangements to repay these costs, given his evidence that he now has access to considerable funds. This would obviate his concerns regarding future applications for Australian visas on this basis. His failure to do so undermines his claimed genuine intention to depart.
Having had regard to all of the available evidence, the Tribunal is not satisfied that the applicant has made, or intends to make, acceptable arrangements to depart Australia at this time. It therefore finds that he does not satisfy cl.050.212(2) and it is satisfied that he has not claimed to meet, and does not meet, any of the other criteria in cl.050.212 for the grant of a bridging visa.
That being so, it is unnecessary for the Tribunal to consider whether the applicant would abide by the conditions that would be granted on a bridging visa 050, or whether lodgment of a security bond would make it more likely that he would. The Tribunal finds that – at this time – the applicant does not meet a threshold ground for the grant of a bridging visa 050 (although it notes that he may do in future if he is able to provide more convincing evidence of his ability to meet cl.050.212(2), or another criterion in 050.212).
For these reasons, the Tribunal finds that the applicant does not satisfy the criteria for the grant of a subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Alison Mercer
Member

[2018] AATA 5363

24 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction