2000067 (Migration)

[2020] AATA 1242

2000067 (Migration) [2020] AATA 1242 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2000067

MEMBER:Jennifer Cripps Watts

DATE:9 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2020 at 6:38pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – applicant exhausted visa appeal options – entry on altered and invalid passport – barred from making a further substantive visa application onshore – fear of refoulement – applicant unwilling to depart Australia – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), ss 48, 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221

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 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 (the delegate) 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 20 December 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)An 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.

3. The decision to refuse to grant the visa was made on 31 December 2019 on the basis that the delegate was not satisfied that the applicant was making or was the subject of arrangements to depart Australia.  

4. On 2 January 2020, the applicant lodged a review application and provided the Tribunal with a copy of the delegate’s decision.  His matter was constituted to a member of the Tribunal in Sydney, New South Wales, on 3 January 2020.  On the same day a hearing was scheduled and the Tribunal sent the applicant an invitation, in writing, to attend (by video link from [Detention Centre 1]) on 9 January 2020.  Written confirmation by email was received from [Detention Centre 1] Status Resolution on 3 January that they had provided the Tribunal hearing invitation and accompanying letter to [the applicant].

5. On the morning of 7 January 2020, the Tribunal received a request for postponement of the applicant’s hearing.  The request was considered and the applicant was informed shortly afterwards, in writing, that the hearing was scheduled for 9 January 2020 because the Tribunal is required to make a decision in his case within seven days of his review application being made and, that in the circumstances, the hearing would go ahead, the postponement request would be discussed at the hearing and that an extension of time may be granted, with the applicant’s agreement, if the Tribunal considered it reasonable.

6. The response to the request for a postponement of the scheduled hearing was sent to the applicant through the [Detention Centre 1] Status Resolution email address.  On the afternoon of 7 January 2020, the Tribunal received a response from [a named officer] at [Detention Centre 1] Status Resolution (referring to the attached documents being the Tribunal’s notification and letter relating to the postponement request) saying:

   ‘Please be advised that documents above have been printed and [the applicant] has been supplied a copy via internal mail today (07/01/2020).

   An appointment was made to personally hand deliver the documents to [the applicant] today (07/01/2020), but he chose not to attend.’

7. On this basis, the Tribunal is satisfied that the applicant was provided with the written response advising the hearing would go ahead at the scheduled time.

8. The applicant appeared before the Tribunal by video link on 9 January 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.  The applicant confirmed early in the hearing that the interpreter had a different accent but that he could hear and understand him.  The applicant, from time to time, spoke clearly in English. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has considered relevant evidence material to the determinative issue, which is whether the applicant has made or is the subject of acceptable departure arrangements:  cl.050.212(2).

    Background

11. [The applicant] first arrived in Australia on [a date in] May 2012 holding a Subclass 651 e-visitor visa that expired naturally, three months later, [in] August 2012.  At the Tribunal hearing the applicant said he arrived in Australia on an expired Turkish passport, in his name, but that the document was not genuine because the expiry date had been altered by a people smuggler to 2015, but that it was not picked up at Immigration.  He confirmed that he did not have a valid passport when he entered Australia in 2012 and that he does not have one now.  He informed the Tribunal that he has been in detention for nearly three years.

12. On 1 August 2012, while he held the Subclass 651 visa, [the applicant] applied for a protection visa, which was refused.  The decision to refuse the protection visa was affirmed on review by the Tribunal (differently constituted) on 27 May 2014.  [The applicant] applied for judicial review by the [Federal Circuit Court].  [In] April 2015, the Court ordered the application for judicial review filed [in] June 2014 be dismissed.

13. The delegate noted, as at 31 December 2019, that [the applicant] had no ongoing matters with the Department (applications, requests before the Minister of any ongoing application for Ministerial Intervention) and that he was s.48 barred from making a further substantive visa application onshore, due to his partner visa refusal; and s.48 barred from applying for another protection visa, due to his previous protection visa refusal.  The Tribunal confirmed with the applicant at the hearing that he does not have any outstanding matters before the Minister at the time of this decision.   

14. It is further noted by the delegate that [the applicant] has made three requests to lift the s48 bar and that the most recent request was finalised on 10 April 2018 ‘with the result that a subsequent Protection Visa application would not be allowed’.  At the Tribunal hearing, [the applicant] said he was aware that he was s.48 barred relating to the partner and protection visas and that he knew he could not make a further application for Ministerial intervention.

15. 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.

16. [The applicant] applied for the Subclass 050 visa that is the subject of this review on departure grounds:  cl.050.212(2). 

17. On the basis of the reason the visa was refused, in the hearing invitation sent on 3 January 2020 the Tribunal requested that the applicant provide evidence that he had made arrangements to depart Australia or, in the alternative, any claim he may wish to make that he meets any of the other criteria in cl.050.212(3)-(9).

18. [The applicant] provided the Tribunal with two additional documents which were essentially character references; one from [a named person] and [another named person], both dated 6 January 2020.  The applicant has not provided the Tribunal with verifiable evidence that he had made or was the subject of departure arrangements at the time of application.  He has not claimed he meets any of the other criteria in cl.050.212(3)-(9).

19. The Tribunal hearing went for about an hour and 40 minutes and his matter was discussed at length and in detail.  The Tribunal is satisfied the applicant has not made acceptable departure arrangements.  He said that his fear of being arrested in Turkey has put him off applying for a Turkish passport.  He said in the hearing that he would like to be granted a BVE and be released into the community until Australian Border Force (ABF) arranges his travel documents.  He said he believes they cannot get any travel documents for him but, if they do, that is the only way he will depart, if he is deported ‘forcibly’.  But, he said, he does not expect that they will be able to get travel documents for him.

20. The applicant said at the Tribunal hearing, many times, that he cannot go back to Turkey because he will be imprisoned for five years for not finishing his military service.  He said he is very fearful to return because he is Kurdish and there is a high level of conflict in the region he comes from.  When asked, he confirmed that these matters were claims made in his 2012 protection visa application and was reminded by the Tribunal that his protection visa had been refused by the Department, affirmed on review by the Tribunal and his matter dismissed by the Federal Circuit Court. 

21. At the Tribunal hearing, the applicant expressed concerns about claimed inaccuracies in the Tribunal decision relating to the review of the refusal of his protection visa, on the basis that certain documents were not considered (nor were they provided, as the applicant himself did not obtain them until after the Tribunal made its decision) and also problems with the appeal to the Federal Circuit Court.  He was informed that the Tribunal was reviewing the refusal of his Bridging Visa E and not the refusal of his protection visa, nor the decision by the Tribunal affirming the decision. 

22. For the reasons below, the applicant does not meet cl.050.212.

    Acceptable arrangements to depart Australia

23. 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]).

24. At the time of application, it is noted in the delegate’s decision that, during a phone interview with [the applicant] held on 30 December 2019, he advised that he was not willing to depart Australia and that he could not apply for a Turkish passport.  At the Tribunal hearing, the applicant, who confirmed he is a citizen of Turkey, clearly and unambiguously informed the Tribunal that he will not apply for a Turkish passport.  He claims to be the subject of arrangements to depart because he said ABF has said they will obtain travel documents for him.  The Tribunal is not satisfied that this constitutes an acceptable arrangement in the context of the applicant’s refusal to entertain leaving Australia unless he is forcibly deported. 

25. As noted earlier, prior to hearing the applicant had requested that the Tribunal extend the timeframe to make a decision in his Bridging Visa E review application for a further three or so weeks.  The hearing went ahead on the basis that the Tribunal would consider the request again at the end of the hearing.  The applicant was informed at the end of the hearing that his request to extend the timeframe for the Tribunal to make a decision, with his agreement, would not be granted.  He was told that it was clear that he was not intending to provide any evidence that at the time of application he had made, or was the subject of, acceptable arrangements to depart Australia and, on that basis, as the evidence he said he wanted to provide would be statements of support, there would be no point in extending the prescribed period.  The applicant indicated he understood.

26. For these reasons, the Tribunal is not satisfied that at the time of application [the applicant] had made, or was the subject of, acceptable arrangements to depart Australia.  Therefore the applicant does not meet cl.050.212(2).

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

    DECISION

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

    Jennifer Cripps Watts
    Member