2017729 (Migration)

[2020] AATA 6201

2017729 (Migration) [2020] AATA 6201 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2017729

MEMBER:Sean Baker

DATE:22 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

· cl.050.212(2) of Schedule 2 to the Regulations; and

· cl.050.221 of Schedule 2 to the Regulations; and

· cl.050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·  to indicate to the applicant that conditions 8101, 8207, 8401, 8505, 8511, 8512 and 8564 will be imposed if the visa is granted; and

·  to require a security of $15, 000 AUD for compliance with the conditions.

Statement made on 22 December 2020 at 12:09pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – complying with conditions imposed on visa – acceptable arrangements to depart Australia – evidence of valid travel ticket – time to sell belongings before departure – willingness to provide a security bond – plans for a wedding in Vietnam – not engaging in criminal conduct – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 0050.223, 050.617; Schedule 8, Visa Conditions 8101, 8207, 8401, 8505, 8511, 8512, 8564

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Liu v MIAC [2008] FMCA 725
VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289  

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa on 2 December 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). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa  and the decision relating to requiring a security was made on 8 December 2020 on the basis that the delegate was not satisfied the applicant would abide by conditions imposed and found that no amount of security would lead to compliance .The applicant appeared before the Tribunal on 18 December 2020  to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant will abide by conditions imposed on the visa.

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. For the reasons below, the applicant meets 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]

   [1] Chen v MIMIA [2001] FCA 285 at [21]; Lin v MIMIA [2001] FCA 283 at [21].

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

10. 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.[3] The Tribunal is also entitled to consider whether an applicant’s intentions are genuine.[4]

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

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

11. Departmental guidelines (PAM 3) 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.

12. The applicant did not provide any evidence to the Department other than the application form. Nonetheless the delegate accepted that the applicant met this ground and was making acceptable arrangements to depart.

13. To the Tribunal the representative supplied a short submission, statutory declarations from the applicant’s [partner], her sister, [named], and from a friend of the applicant, [Friend A]. Also provided was a bank statement of the applicant’s friend, [Friend A] and evidence of ticket price during January 2021 for a flight to Ho Chi Minh city.

14. I explained to the applicant that despite the delegate accepting that the applicant met this threshold requirement, I had concerns that he did, in fact, meet this requirement.

15. I asked the applicant what arrangements he had made to depart. He responded that he had asked his lawyer for a flight back to Vietnam on [a day in] January 2021. He said that if he was granted the bridging visa he would spend money to buy the ticket. He said that he could not buy it now as if he was not granted the visa he would forfeit the money. He said he had already talked with his family and they were planning to all go on vacation.

16. The applicant claimed he had made a reservation and now he needed only to pay the money and then he would have the ticket. I noted that I did not seem to have a booking reservation in front of me. The representative said that they could not pay for the ticket in case the bridging visa was refused, but that they would undertake to make a booking as soon as the bridging visa decision was made. I noted that I understood one could make a flight reservation and pay some but not all of the cost. The representative said that this had not been an option, perhaps because the date ([in] January 2021) is very close, there are limited flights going out, so the airlines wanted a downpayment straight away.

17. I confirmed with the applicant that he was in Perth and wished to fly to Melbourne, see his partner and sell his belongings, and then depart for Vietnam from there. I noted that he could then present evidence of a booked flight from Perth to Melbourne. It was again argued that if the visa was not granted the applicant would be out of pocket. He confirmed again that his intention was to depart to Vietnam on [a day in] January 2021.

18. The applicant said that he needed to sell his car, TV, furniture, desk, table and air conditioner. He said he would sell these by posting the items on websites which are for buying and selling vehicles and furniture.

19. The applicant indicated his continued willingness to provide a security in the amount of $15, 000 which he explained had been offered at the time of lodging the application.

20. I spoke to the applicant’s [partner]. She said she had nothing further to add to her statutory declaration. I asked how she would support the applicant and she said she would help him with accommodation and food. He would live with her and her sister. I asked if she was aware of any arrangements he had made to depart Australia and she responded that she knew about his arrangements to leave Australia. She said that he planned to leave, and she would also travel to Vietnam so they could hold a wedding ceremony. She said that he wishes to leave voluntarily. She told me that because he is the owner of his personal belongings it was better for him to decide on the price to sell them and photograph them rather than her.

21. The applicant’s representative requested the opportunity to provide submissions in writing and I agreed to this. Late on the agreed day the representative provided evidence of a flight booked and paid in full from Melbourne to Ho Chi Minh city for [a later day in] January 2021. The payment appears to have been made by the applicant’s partner.

22. I now have before me evidence of a flight booking and ticket paid for the applicant. Whilst I continue to have some concerns with other aspects of his evidence, I have taken into account the difficulties in making flight bookings during the pandemic and the applicant’s consistent evidence that he would depart in early January. I now have positive evidence of this. Having regard to the guidance that acceptable arrangements to depart be seen as a continuum, I accept that the applicant was making acceptable arrangements to depart.

23. For these reasons, the Tribunal is satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant meets cl.050.212(2).

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

24. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. On the evidence before me, in particular the booked and paid ticket for departure on [the later day in] January 2021, I accept that the applicant continues to satisfy cl.050.212(2). The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.

    Whether the applicant will abide by conditions - cl.050.223

25. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

26. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

27. If the Tribunal is satisfied that the applicant will only abide by the conditions if given a financial incentive to do so, it is necessary to consider the security decision made pursuant to s.269 of the Act: VAAN at [10]. Conversely, if not satisfied that an applicant would abide by the conditions attached to a bridging visa even where there is a financial incentive to do so, the occasion for the imposition of a security does not arise: VAAN per Finklestein J at [21]-[22]; Liu v MIAC [2008] FMCA 725 at [33] and [37].

28. In considering the security decision, the amount of security should be a sum that is designed to secure compliance with the relevant conditions, having regard to the conditions that must be complied with, and the particular circumstances of the person bound by the requirements, notably their financial position: VAAN at [27].

29. In this case, cl.050.617. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    8101 – The holder must not engage in work in Australia.

    8207 – The holder must not engage in any studies or training in Australia.

    8401 – The holder must report:

    (a) at a time or times; and

    (b) at a place;

    specified by the Minister for the purpose.

    8505 – The holder must continue to live at the address specified by the holder before grant of the visa.

    8511 – Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival.

    8512 – The holder must leave Australia by the date specified by the Minister for the purpose.

    8564 – The holder must not engage in criminal conduct.

30. The delegate was satisfied that the applicant would comply with the no study condition as he has shown no interest in pursuing further study whilst in Australia. Considering the short period in which the applicant will be in Australia after release, I also accept he will comply with this condition. The delegate was also satisfied that the applicant would not engage in criminal conduct as he had served 10 months for cannabis cultivation and did not have any other charges and had had limited incidents in detention of low concern. On the basis of this information and with no information to the contrary I am also satisfied the applicant will not engage in criminal conduct.

31. The delegate was not satisfied the applicant would not work. I have had regard to the delegate’s reasoning, which is clear and logical. However, I have been presented with further information. I accept that the applicant’s partner and her sister are willing for the applicant to reside at their house. I accept that his friend will provide financial support. I have drawn comfort from the applicant’s partners evidence of this at hearing. In tandem with my consideration of the security offered, below, I am satisfied that the applicant will abide by the no work condition.

32. In relation to reside at specified address, I now have evidence from the applicant’s partner, but also from her sister, the lease holder of the property, confirming that the applicant can reside at that address. I accept that the applicant will reside at this address.

33. I have carefully considered the reporting requirement. The applicant’s migration history does not indicate to me major instances of non compliance. It is true that he was unlawful for some three months after this student visa was cancelled. He claims that this was as a result of poor advice. I do not consider it fair to take into account the period between when he was refused protection and when he was properly notified of that refusal in December 2019 (by which time he was already in remand and would have had some significant restrictions on his ability to interact with the Department. I am not persuaded therefore by the reasoning of the delegate in this regard and I consider that there is good prospects that the applicant would report as required. In tandem with my consideration of the security offered, below, I am satisfied that the applicant will abide by this condition.

34. I turn now to the condition that the applicant show an officer a ticket for travel to a destination outside Australia. The applicant now has such a ticket and I find therefore that he will comply with this condition.

35. Lastly, the condition that the applicant leave Australia by the date specified. I continue to have some concerns. This relates to the lack of thought the applicant had put into how he would travel to Melbourne, sell his possessions and then depart.  This was certainly the situation when all I had before me to evidence his departure was his undertaking and a price quote for airfares. However, I now have a booked and paid for flight for him for [a later day in] January 2021, three days later than he claimed, but still within a short period. However, given his evidence at the hearing, I continue to have some doubt that the applicant will abide by this condition and will depart.

36. In this case the delegate turned their mind to whether a security would ensure compliance with the above conditions and found that no amount of security would do so.

37. I have re-considered the security decision in light of the fact that I have accepted the applicant will comply with some conditions not accepted by the delegate. I remain concerned about compliance with conditions 8101, 8401 and 8512. I have therefore considered whether the imposition of a security would ensure compliance.

38. The applicant has consistently offered a security in the amount of $15, 000. Having regard to his immigration history, to the short period prior to his departure, and to the conditions which I have concerns the applicant would comply with without a security, I find that this amount is a reasonable security which the applicant can provide, given he has offered it and continued to do so including in the post hearing submission, and an amount that would ensure compliance with the conditions identified. I accept the argument in the post hearing submission that this, taken with the booked and paid ticket, will ensure compliance of the applicant.

39. On the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if granted if a security in the amount of $15, 000 is taken. Therefore, the applicant meets cl.050.223.

40. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

41. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl.050.212(2) of Schedule 2 to the Regulations; and

    ·cl.050.221 of Schedule 2 to the Regulations; and

    ·cl.050.223 of Schedule 2 to the Regulations.

42. The Tribunal also directs the primary decision maker

    ·            to indicate to the applicant that conditions 8101, 8207, 8401, 8505, 8511, 8512 and 8564 will be imposed if the visa is granted; and

    ·to require a security of $15, 000 AUD for compliance with the conditions.

    Sean Baker
    Member