1919403 (Migration)

[2019] AATA 5991

1919403 (Migration) [2019] AATA 5991 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919403

MEMBER:Nathan Goetz

DATE:23 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2019 at 8:30pm

CATCHWORD
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – genuine intention to depart Australia – applicant would have remained in community unlawfully had he not been intercepted – migration history – nothing to indicate applicant charged with criminal offences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 73, 359AA, 417
Migration Regulations (Cth) 1994, Schedule 2, cls 051.211, 050.212

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 sections 378 and 501K 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 10 July 2019. 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(2) which states that the applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The decision to refuse to grant the visa was made on 15 July 2019.

3. On 17 July 2019 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision to his review application.

4. On 22 July 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration [agent].

5. Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A BRIDGING VISA

   The grounds for seeking the visa - cl.050.212

6. 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.

7. 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.

   Acceptable arrangements to depart Australia

8. 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]).

9. Whether an applicant is making acceptable arrangements to depart Australia is a question of fact for the decision maker, with an element of discretion or judgment lying at the heart of it.[1]It is appropriate to consider what the person has done to date.[2] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[3]

   [1] Chen v MIMIA [2001] FCA 285 (Carr J, 20 March 2001) at [21]; Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [21].

   [2] The making of arrangements can be seen as a continuing process and it would make no sense to assess whether at a particular time the person was making acceptable arrangements, without considering what, if any, arrangements had already been made and what further arrangements remained to be made: Chen v MIMIA [2001] FCA 285 (Carr J, 20 March 2001) at [11]; Lin v MIMIA [2001] FCA 283 (Carr J, 20 March 2001) at [11].

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

   PRELIMINARY MATTERS

10. There are two preliminary matters that the Tribunal needed to address with the applicant.

11. Firstly, in the department file there was a notation in the Field Operation – Located persons Interview of 5 July 2019 which was repeated in the Detention Note that the applicant was involved in criminal activities. There was nothing to indicate that the applicant has been charged with criminal offences, nor that the matter is the subject of ongoing criminal investigation. These notations were not the subject of a non-disclosure certificate under s.375A or s.376 of the Act. The Tribunal raised with the applicant that there was some allegation that he had been involved in criminal activities, but the Tribunal informed the applicant that the Tribunal would have no regard to that allegation because, in the Tribunal’s view, it did not go to the fact in issue, namely whether the applicant had made acceptable arrangements to depart Australia. As noted at the hearing, the Tribunal has had no regard to this allegation in making a decision about the applicant’s bridging visa E review application.

12. Secondly, the applicant had requested that the Tribunal take oral evidence from two witnesses in support of his bridging visa E review application.  The proposed witnesses were Mr [A] and Ms [B], who were the applicant’s uncle and wife respectively.

13. As noted in the migration agent’s email to the Tribunal of 22 July 2019, the applicant requested that [Mr A] be able to provide oral evidence to the Tribunal that he would financially support the applicant’s wife. Attached to this email was a statutory declaration from [Mr A] who declared that he would undertake sponsorship of the applicant to comply with his visa conditions if the application was granted, and stated that he would provide a security bond if that was required to ensure compliance with visa conditions. A [Bank] deposit receipt was attached which was identified as being from [Mr A] into the account of the applicant’s wife for [an amount of money]. The Tribunal indicated to the applicant that it did not propose to take oral evidence from [Mr A] as the matter under review was whether there were acceptable arrangements for the applicant to depart Australia per cl.050.212(2), and not whether the applicant would comply with visa conditions under cl.050.6 per the delegate decision. As the proposed evidence from [Mr A] was directed to compliance with visa conditions, there was no need for the Tribunal to hear from [Mr A] and that applicant, through his migration agent, indicated that he understood the Tribunal’s reason for not taking oral evidence from [Mr A].

14. As noted in the same email to the Tribunal, the applicant requested that Ms [B] be able to provide oral evidence to the Tribunal that should be granted the bridging vias and explain why her husband would depart Australia. The Tribunal indicated that it did not propose to hear oral evidence from Ms [B] because it was a matter for the Tribunal to determine whether the applicant had genuine intentions to depart Australia, and it would not be assisted by Ms [B] giving evidence about the applicant’s intentions. The only person who could provide evidence about his intentions was the applicant, and the only person who could make a determination about his intentions was the Tribunal. Given this, the Tribunal would not be assisted by Ms [B]’s oral evidence. The applicant, through his migration agent, indicated that he understood the Tribunal’s reason for not taking oral evidence from Ms [B].

    FINDINGS AND REASONS

15. After considering all the evidence before it, and having the benefit of the applicant’s oral evidence, the Tribunal has determined that the applicant does not have a genuine intention to depart Australia and consequentially, has found that his proposed departure arrangements are not ‘acceptable arrangements’ for the purpose of cl.050.212(2). The Tribunal has made this determination because of the following reasons:

    Provision of flight departure ticket

16. Before the delegate was a flight itinerary. This flight itinerary was again produced to the Tribunal in an email on 21 July 2019. This flight itinerary was for a [Airline 1 flight] to China [in] August 2019 departing from Sydney with a connecting flight in mainland China to take the applicant to Fuzhou Changle International Airport. Noting that this was a flight itinerary only, and there was nothing to show that a booking had been made and paid for, the Tribunal wrote to the applicant and asked for a copy of the booking receipt to demonstrate that the flight had been paid for and was confirmed.

17. On 22 July 2019, the applicant provided a copy of a newly purchased return flight to China. This document was a booking itinerary / eTicket and tax invoice. This was for [Airline 2] flight departing Sydney [in] August 2019 and arriving at Xiamen Gaoqi International Airport in China with a stopover in [Country 1]. This booking itinerary was attached to an email from the migration agent who wrote that the applicant had a newly purchased flight to return to China as the previous booking in the original itinerary had expired. The booking was made [in] July 2019. At the hearing, the applicant told the Tribunal that he had arranged for the flight [in] August 2019 himself while he was in detention and that he booked this online using a [card] that his wife into which his wife had transferred money. The money from his wife had come from his uncle as part of a [money] transfer to her [in] July 2019. The Tribunal asked the applicant what had caused him to make this booking, and he told the Tribunal that he did so because he got a clear picture of what was going on, and that he was requested to leave the country, before confirming that the previous booking had expired. He told the Tribunal that the previous booking had expired because no payment had been made and that he discovered that the previous booking had expired ‘last week’ via an email. The Tribunal queried why the applicant did not use the money that his uncle had provided to pay for this earlier booking and he responded that he was not sure that he needed to do so. The Tribunal queried why the applicant, having been notified last week that the previous booking expired, would delay making another booking until the day before the hearing. The applicant told the Tribunal that he did this because he had sufficient time to deal with his matter.

18. The Tribunal was not satisfied by the applicant’s evidence about the booking of his earlier flight to depart Australia [in] August 2019, or the evidence about his new booking [August] 2019. In the Tribunal’s assessment of the applicant’s evidence, if the applicant was genuine in his intention to depart Australia [in] August 2019, he would have proceeded with that booking and paid the cost of the flight. Clearly, he had capacity to do so as of [July] 2019. The Tribunal is satisfied that his failure to pay the cost of this flight, and the delay booking another flight until the day before the hearing (and only after being requested by the Tribunal to provide a receipt of payment for the earlier booking) demonstrates to the Tribunal that the applicant had no intentions to depart Australia, and only provided both of these bookings in an attempt to persuade both the delegate and the Tribunal that his intentions were genuine. The Tribunal is satisfied that if the Tribunal had not requested confirmation of payment of the  [August] 2019 booking, the applicant would not have made arrangements to book and pay for another flight and would have simply cited the [August] 2019 booking as evidence of his plans to leave Australia, despite that booking expiring ‘last week.’

    The applicant’s migration history

19. The applicant told the Tribunal that since arriving in Australia he has never returned to China. He told the Tribunal that in the beginning, he wanted to pursue his dream here. He told the Tribunal that he never returned back to China because he knew that if he did, he would be difficult for him to return here. He said he did not return to China because he thought he would spend time here to work but found that Australia was not as easy as expected, and that he has now found it meaningless to remain in Australia. He told the Tribunal that he was planning to go back to China as his passport was due to expire at the end of 2019, but had not yet made a proper goodbye to Australia. The Tribunal noted that the migration agent’s submission noted that the applicant wished to return to China to see his child who is [a certain] age. The Tribunal queried why the applicant now wanted to see his child, but had not returned to China previously to do so. The applicant told the Tribunal that he had made a promise to his child to return there when the child was [a certain] age, because after working in Australia, he would be able to provide his child a good education in China. The Tribunal queried how he could make this promise when, according to the written submission, he left his child in China when the child was [specified] months old. The applicant told the Tribunal that he told his child in a telephone conversation when the child was [older] that he would return when the child was [a certain] age.

20. The Tribunal also queried when the applicant realised it was meaningless to stay in Australia. He said he had this realisation in 2016. The Tribunal asked why the applicant remained in Australia after 2016 if he had that realisation. The applicant responded that it was because his wife was in Australia. The Tribunal noted that if he was released from detention, his wife would still be in Australia (she is the subject of a protection visa application which was refused by a delegate on 21 June 2017 and is currently awaiting constitution to a Member of the Tribunal for review), and consequently, the Tribunal wondered why the applicant would return to China given his wife was still in Australia. The applicant told the Tribunal that he had been together with his wife for 10 years and just needed to help her settle down. The Tribunal asked the applicant why his uncle, who had provided [an amount of money] to the applicant and his wife, could not assist her. The applicant told the Tribunal he had not been in contact with his relatives for a long time, and also said that because his uncle owns a business and needs to travel a lot, he would not be able to assist them. The applicant told the Tribunal that his uncle provided the money in lieu of providing any other assistance to the couple.

21. The Tribunal has considered the applicant’s oral evidence in light of his migration history which is as follows:

    ·The applicant first arrived in Australia [in] May 2010 as the holder of a [temporary] visa which was valid until 2 August 2010.

    ·On 26 July 2010 the applicant lodged a protection visa application and was granted a bridging visa A the following day.

    ·On 5 October 2010 the applicant’s protection visa application was refused by a delegate of the Minister. He applied to the Refugee Review Tribunal (RRT) on 9 November 2010 for a review of the refusal decision. The RRT affirmed the refusal decision on 8 February 2011.

    ·[In] March 2011 the applicant commenced a judicial review proceeding in the Federal Magistrates’ Court (FMC) seeking a review of that decision and he was granted an associated bridging visa A on 17 March 2011. [In] June 2011 the FMC dismissed his application for review.

    ·On 23 June 2011 the applicant lodged a request for Ministerial Intervention (MI) under s.417 of the Act. While this request was ongoing the applicant was granted a bridging visa E on 11 July 2011 which was valid until 5 July 2011. Conditions attached to this bridging visa E included being required to report as directed (condition 8401), notifying the department of any proposed change of address (condition 8506) and not to engage in any study or training in Australia (condition 8207). On 16 September 2011 the applicant’s MI request was finalised with the Minister not considering the request. On 25 July 2011, the applicant was granted a further bridging visa E which was valid until 22 August 2011. After this date, the applicant became an unlawful non-citizen.

    ·On 16 August 2011 the applicant applied for a further bridging visa E which was refused on 30 August 2011.

    ·On 25 August 2015 the applicant was included as a dependent family member in an application for a protection visa. As the applicant had previously had a protection visa refused, he was barred under s.48 of the Act from being included in that protection visa application.

    ·[In] July 2019 a search warrant was executed by the Australian Federal Police at a residential premises and the applicant was apprehended. He was detained under s.189 of the Act and transferred to an immigration detention facility where he remains.

    ·On 10 July 2019 the applicant lodged the application for a bridging visa E, which is the subject of the review to the Tribunal.

22. The Tribunal does not accept that the applicant now wishes to voluntarily return to China. His migration history is evidence of an applicant who wishes to remain in Australia, even if that requires the applicant to be an unlawful non-citizen, as he has done so on previous occasions. The Tribunal does not accept that the applicant now has a desire to see his child in China because the child has reached [a certain] age, and does not accept that the applicant will genuinely depart Australia after he has ‘settled’ his wife. His wife arrived in Australia in 2015 on a [temporary] visa and the applicant had four years to settle her in Australia. It is fanciful for the Tribunal to believe that the applicant needs another additional six weeks to do so, and will then voluntarily leave Australia. The applicant would have left Australia in 2016 if he genuinely thought it meaningless to remain here. He did not do so. The applicant told the Tribunal that he did not return to China because his wife was here, and in the Tribunal’s assessment, if released into the community on a bridging visa, the applicant will remain in Australia because his wife remains in Australia.

23. The applicant told the Tribunal that his wife would be returning to China soon, presumably to demonstrate that her continued presence in Australia would not act as an incentive for him to remain in Australia. When this was explored by the Tribunal, the applicant said that she was prepared to return to China as that was the couple’s plan. The Tribunal. The applicant told the Tribunal that his wife had an ongoing protection visa application and he was guessing that this matter would be decided this year or next year. He confirmed that his wife was not withdrawing her protection visa application and that she was still pursuing it. In the Tribunal’s assessment, the applicant’s wife is clearly not going to be returning to China in the foreseeable future, and the applicant’s claim that his wife was preparing to return to China was designed to address the Tribunal’s concern about his incentive to remain in Australia with his wife. The Tribunal is satisfied that the applicant’s wife’s continued presence in Australia undermines his claim that he genuinely intends to depart Australia.

    s.359AA material

24. The Tribunal has had regard to responses that the applicant has provided to migration officials in the lead up to his review application. Specifically, the Tribunal was concerned about the following responses that the applicant has previously provided:

1. In the Field Operation – Located Person Interview on 4 July 2019, the applicant told the Tribunal that a reason that he could not return to his home country was because he could not leave his life. He stated that he was not willing to depart Australia voluntarily and, in response to what he would have done if he was not located; he said that he did not plan to do anything, apart to work casually and stay at home.

2. In his Detention Client Interview on 5 July 2019, he confirmed that he did not wish to depart Australia voluntarily and when asked whether there were any other questions or issues that he would like to raise, he responded that he was concerned about his wife staying in Australia by herself. In the same interview, he stated that he could not return to his home country because Australia values human rights and has fresh air. He stated that he wished to obtain a bridging bias to stay in Australia until his wife receives an outcome from the court, and stated that if it was a negative outcome he and his wife would return to China.

3. The Tribunal utilised the provisions of s.359AA of the Act and invited the applicant to comment or respond to this evidence. In the Tribunal’s view, these previous responses indicated that the applicant was not genuine when he told the Tribunal that he was willing to depart Australia on 19 August 2019. The applicant’s response were that the was only given two choices, to either be deported or not leave. He said he was not given a good opportunity to respond to the official’s questioning. He told the Tribunal that he was planning to return to China. He disputed that he said he would not do anything other than continue his casual work and stay at home. He told the Tribunal that he had told officials that he needed to make arrangements for his wife. He suggested that there were problems with the interpretation of his responses with the interpreter and that the officials had incorrectly recorded his responses. He told the Tribunal that he had already proved to the officials that he had a booking to depart on [in] August 2019 and reiterated that he wanted to settle his wife in Australia and then leave.

4. The Tribunal is not persuaded by the applicant’s responses about this adverse information. The Tribunal accepts that the applicant told the delegate in an interview on 11 July 2019 that he had a ticket for travel [in] August 2019, but this was not the responses to the officials that the Tribunal was referring to. The responses as detailed in the interviews of 4 and 5 July 2019 indicate to the Tribunal that the applicant was determined not to voluntarily return to China, or at the very least, not return to China until his wife’s protection visa application had finally been determined. There was no mention in the interviews of 4 or 5 July that the applicant was making arrangements to depart Australia. The Tribunal does not accept the applicant’s claims that he was planning to do so, and would have done so, if not intercepted [in] July 2019. The Tribunal does not accept the applicant’s claims that there was an error in interpretation, or that interviewing officials incorrectly recorded his responses to questions. In the Tribunal’s view of the applicant as a witness, when considering the cumulative concerns that the Tribunal has referred to in this decision, the applicant fabricated his concern about interpretation issues and incorrect note taking in an attempt to explain previous answers that undermined his claim to the Tribunal that he was genuine in his plans to depart Australia.

   CONCLUSION

5. When considering all the matters, the Tribunal is satisfied that the applicant has not previously had, nor currently possesses, a genuine intention to depart Australia. The applicant would have remained in the community unlawfully had he not been intercepted [in] July 2019. His claims about incentives to return to China and his ability to now leave his wife in Australia (subject to being able to settle her in Australia) were fabricated in an attempt to be released from immigration detention. The Tribunal is satisfied that if the applicant was released from immigration detention, he will not depart Australia.

6. For these reasons, the Tribunal is not satisfied that the applicant is the subject of acceptable arrangements to depart Australia because the Tribunal is satisfied that these claimed intentions to depart Australia are not genuine. Therefore the applicant does not meet cl.050.212(2).

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

8. 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

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

   Nathan Goetz
   Member