2015440 (Migration)

[2020] AATA 4700

2015440 (Migration) [2020] AATA 4700 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015440

MEMBER:David Barker

DATE:26 October  2020

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

Statement made on 26 October 2020 at 2:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – period as unlawful non-citizen after visa ceased – criminal convictions, imprisonment and immigration detention – no application for substantive visa – previously stated preference to remain in Australia, now wants to return to home country to assist elderly mother – finalisation of finances in Australia – offer of accommodation and living expenses from relative – COVID-19 travel restrictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(2)

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 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 12 October 2020. 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).

3. The decision to refuse to grant the was made on 15 October 2020 on the basis that the applicant did not meet required criteria in cl.050.212.  The delegate found that there was no evidence that the applicant was making, or was the subject of, acceptable arrangements to depart Australia and  that there was no current evidence of the applicant intending to lodge, or that he had lodged, a valid substantive visa application with the Department.

4. The applicant appeared before the Tribunal on videoconference, utilising MS teams, on Friday 23 October 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The Tribunal gave the applicant until 26 October  2020 to provide further evidence or arguments that he may ask to be considered before a decision is made in this matter.  On 26 October  2020 the Tribunal received further information from the applicant  as to the identity and income of his younger [relative] and a support letter from that person.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has met a primary criterion for the grant  of the visa.

8. The following information about the applicant’s immigration history is taken from the delegate’s decision record, which was provided to the Tribunal by the applicant, from the applicant’s evidence and from other material before the Tribunal.

9. The applicant is a national of Vietnam and is [Age] years old.

10. The applicant first arrived in Australia [in] December 2013 as the holder of a student visa (subclass TU573), which was valid until 15 March 2018.  Upon that visa ceasing the applicant  became an unlawful noncitizen  and concealed himself in the community.

11. The applicant’s circumstances again came to the attention of the Department when they were informed that he had been remanded into criminal custody in NSW [in] June 2019, charged with “Cultivate a Prohibited Plant, Supply a Prohibited Drug, Possess Prohibited Drug, Deal With Property Proceeds of Crime with Value <$100000”.

12. [In] September 2019, the applicant was convicted and sentenced to a fixed term of four months imprisonment for “Supply Prohibited Drug <=Small Quantity-T2, Cultivate Prohibited Plant>Small & <=Indictable Quantity-T1, Deal with Property Proceeds of Crime < $100000- T2”.

13. [In] July 2020, the applicant was convicted and sentenced to 18 months imprisonment with a non-parole period of 12 months for “Knowingly Take Part-Cultivate >= Comm Qty- Cannabis-SI”.  The applicant  was released from criminal detention  in the NSW prison system [in] September 2020, at which time he was located and detained by Australian Border Force  officers pursuant to section 189 (1) of the Act and  subsequently transferred to the Villawood Immigration Detention Centre (VIDC), where he currently remains.

14. The applicant had on 20 June 2020 lodged a Protection visa application (subclass XA866) which he subsequently withdrew on 30 June 2020.  A Bridging Visa E (BVE) on criminal detention grounds, which the applicant  was granted on 17 September 2020, ceased on 21 September 2020.

15. The BVE application which is the subject of the current review before the Tribunal was lodged on 12 October 2020. The Detention Review Officer was notified about the lodgement of this application on 13 October 2020, as required under Item 1305(3)(c) of the Regulations.  It is the refusal of this application on 15 October 2020 that is the focus of the current review.

16. During Located Person Interview the applicant participated in,  on 22 September 2020, when asked “do you intend to apply for an Australian visa?” the applicant advised that he did not want to return to Vietnam and that he would like to apply for Protection visa. When asked “are you willing to depart Australia voluntarily?” the applicant stated “no”.  No application for a Protection visa was subsequently lodged by the applicant.

17. During his Detention Client Interview  with a Departmental Status Resolution Officer, on 23 September 2020, the applicant again advised that he did not wish to return to Vietnam and stated that his intention was to lodge a Partner visa application. He requested  and was granted an extension of time under section 195 of the Act allowing him to lodge a substantive visa application from detention by 1 October 2020.  No application for a Partner visa was subsequently lodged by the applicant.

18. On 2 October 2019, that applicant put in writing to Departmental Status Resolution Officer dealing with his  case that he would like to return to his home country.  He reiterated this claim at hearing on 23 October 2020 but indicated he had made no specific arrangements to depart from Australia and that no specific arrangements had been made on his behalf for his departure.  In their decision record, the delegate noted that there was no evidence of the applicant holding a valid ticket for travel, a booking or reservation to depart Australia and that given the current travel restrictions, there may be no certainty as to when the applicant  will be able to purchase an air ticket to Vietnam. The applicant confirmed at hearing that no flight arrangements to get him back to Vietnam had been arranged.

19. The applicant  gave evidence at hearing that if he is not granted  a Bridging visa, he would like assistance from the Australian authorities to return to Vietnam as soon as possible.  He said that he wants to now return to Vietnam because of the recent flooding that has occurred there.  He initially claimed both of his parents had been affected by the flooding because their home was swept away and that they were frail, aged and isolated.  When asked to provide further detail about this claim he said his father had passed away some years  ago and that it is his elderly mother who is isolated and affected by the flooding, as her home is underwater and the contents of the home are likely to have been swept away.  The applicant  said that he anticipated he would only remain in Australia for around two to three weeks if granted a Bridging visa, before returning to Vietnam.  He said that he would use the time in the community to sell his car so as to have funds to support himself, pay for his flight back to Vietnam and also pay back a debt of a bit more than $3,000 that he owes somebody.  The applicant said his car is worth up to $6,000 and that he also has a gold necklace that he can sell to get some funds.

20. In response, to the Tribunal asking the applicant why he had as recently as 22 September 2020 indicated that he was not willing to depart from Australia and return to his home country, the applicant reiterated his wish to return to Vietnam because of the flooding so as to look after his mother.  He gave a similar response when invited to comment on the concern that due to his history of being an unlawful non-citizen in Australia he would again seek to hide himself in the community if given the opportunity to do so by being released into the community on a Bridging visa.

21. The applicant  gave evidence that he would, if granted  a Bridging visa, reside with a younger [relative], [Mr A], who would also meet any living expenses that the applicant  could not meet through the proposed sale of his car and gold jewellery.  When asked by the Tribunal if he had any evidence that [Mr A] was willing to provide  accommodation and financial support to him, the applicant  said he did and referred the Tribunal to the document describing his parole conditions which was provided in association with his review application.  He claimed this document demonstrated that his [relative]’s home had been assessed and approved as an appropriate living situation for him in the community.

22. The Tribunal reviewed the document referred to by the applicant  and noted in a section titled ‘Parole reporting arrangements’ the document identifies [Mr A] as a phone contact for a release address in [Suburb], NSW and then states ‘As a pre-release home visit to this address has not yet been facilitated.  If the address is found to be unsuitable, you will be required to move’. The Tribunal put to the applicant  that it would not appear this document supported his claim that his younger [relative] had been assessed as having a suitable place for him to reside, or that [Mr A] was a suitable person to support him in abiding by conditions that would be attached to a Bridging visa.  In response the applicant  told the Tribunal that what he knew was that a parole officer had spoken to his younger [relative], who had offered to allow the applicant stay in his home.  He said that his younger [relative], [Mr A] has stable employment.

23. The Tribunal  summarised its provisional concerns, putting to the applicant that it is concerned that given his history of hiding in the Australian community for a significant period of time as an unlawful non-citizen, and his stated reliance on either selling possessions or his claim his younger [relative] would assist him meet his living expenses, the applicant would not abide by conditions that would be imposed upon a Bridging visa.  The Tribunal indicated its concern included that he may not abide by the no work and not engage in criminal conduct conditions if he lacked adequate funds from the sources he has described.  The Tribunal expressed concern the applicant may not comply with reporting and residential conditions if he deemed it in his interests to hide himself in the Australian community, rather than make acceptable arrangements to depart from Australia. In response the applicant  offered to get his younger [relative] to call the Tribunal and confirm he would financially support the applicant  if he was granted  a Bridging visa.  The Tribunal explained that it was not in a  position to take a phone call from [Mr A] at an indeterminate time, outside the context of the hearing.  The Tribunal indicated it would  time for the applicant  to provide any further documents, statements or other evidence he would like to be considered, as to arrangements made to depart from Australia or regarding whether he would abide by conditions of a Bridging visa.  The Tribunal explained that given the statutory time limits within which it needed to make a decision it would consider any further evidence received by 10 am on the Monday following the hearing.

24. The Tribunal then asked the applicant if there was anything further that he wished to say in support of his review and the applicant indicated that there was not.

25. On 26 October  2020 the Tribunal received a copy of [Mr A]’s NSW drivers license, a recent payslip for [Mr A] and a letter from him in which he attested his willingness to provide the applicant  with financial support and somewhere to live ‘during his waiting time for deportation’.  On the basis of this evidence the Tribunal accepts [Mr A] resides in [Suburb], NSW and that he holds employment as [an Occupation] in a [Workplace], which in a  one week pay period ending 18 October  2020 provided with a net income of around $642.

    The grounds for seeking the visa ­– cl.050.212

26. 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.

27. 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.

28. For the reasons below, the Tribunal finds that the applicant does not meet cl.050.212.

    Acceptable arrangements to depart Australia

29. 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]).

30. PAM 3 Departmental guidelines  indicate that an applicant will satisfy cl 050.212(2) if they provide acceptable evidence of a valid ticket and a reservation to leave Australia within an acceptable timeframe, or if they indicate an intention to arrange departure and will make the necessary arrangements within an acceptable timeframe. 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.[1] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[2]

    [1] Chen v MIMIA [2001] FCA 285 at [22]; Lin v MIMIA [2001] FCA 283 at [22].

    [2] Lin v MIMIA [2001] FCA 283 at [30].

31. The applicant has confirmed that he has made no specific arrangements to depart from Australia, nor that he is subject to any such arrangements being made on his behalf. No airline ticket has been purchased or reserved in his name. Clarification by him of requirements in relation to seeking approval to fly to Vietnam in the current context of the covid-19 pandemic has not been looked into by the applicant, or upon his behalf. The applicant reports an intention to depart from Australia within two to three weeks of when he would be released into the community on a Bridging visa.  However the Tribunal is not persuaded the applicant has demonstrated that he will or could make the necessary arrangements within an acceptable timeframe, or indeed that he would voluntarily follow through with any such departure arrangements if he were to be released into the general community. 

32. In forming this view the Tribunal has placed weight on the adverse elements of the applicant’s visa history in Australia, in that he remained an unlawful non-citizen in Australia  from March 2018 until arrested by the NSW Police service and charged with serious criminal offences in June 2019.  The Tribunal considers the applicant’s visa history in conjunction with his criminal convictions indicates his propensity to disregard Australian law where he deems it is in his interests to do so. 

33. The Tribunal considers the applicant lacks available financial resources  to facilitate the departure arrangements which he has proposed and is not persuaded his plan to sell assets so as to fund his return to Vietnam and meet other financial commitments is realistic.   The Tribunal acknowledges [Mr A]’s offer to support the applicant  whilst he waits deportation but is not satisfied this equates to financial support to make acceptable arrangements for the applicant ’s departure from Australia.

34. The Tribunal acknowledges the applicant ’s concern regarding the situation of his mother in Vietnam, given the recent reports of flooding in that country.  However, the Tribunal is not satisfied that this filial concern establishes the applicant will, or is able to, make arrangements to depart from Australia within an acceptable timeframe.

35. The Tribunal acknowledges the applicant’s stated intention to arrange for his departure from Australia and of his willingness to return to his home country.  The Tribunal acknowledges that at hearing  he requested assistance from the immigration authorities to facilitate his return to Vietnam  as soon as practical if he is not  granted a Bridging visa.  However, the Tribunal has also noted his recent, consistent indications that he was not willing to return to his home country and of his clear preference to remain in Australia.  The Tribunal is not persuaded the applicant’s more recent claims  to the contrary are genuine. 

36. 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). Furthermore, the Tribunal is not satisfied that, at the time of decision, it is factually correct or sound to conclude that the applicant continues to be making or to be the subject of acceptable arrangements to depart.  The Tribunal is therefore not satisfied the applicant’s stated intention to make arrangements for his departure from Australia are genuine.

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

38. 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

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

    David Barker
    Member