2107906 (Migration)

[2021] AATA 3014

2107906 (Migration) [2021] AATA 3014 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107906

MEMBER:Dr Colin Huntly

DATE:28 June 2021

PLACE OF DECISION:  Perth

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

Statement made on 28 June 2021 at 8:52am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – immigration status – acceptable arrangements to depart Australia – no current, valid air ticket – no genuine intention to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 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 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 June 2021. 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 1994 (the Regulations).  Relevantly to this matter, the primary criteria include cl.050.212(2), which 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.

3. The decision to refuse to grant the visa was made on 17 June 2021 on the basis that the applicant did not meet the requirements in cl.050.212(2), which requires that an applicant make, or be the subject of, acceptable arrangements to depart Australia either at the time of making the application or at the time of decision as required at cl.050.221.

4. The applicant appeared before the Tribunal on 24 June 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issues in this case are whether the applicant continues to meet the relevant time of application ground in cl.050.212 at the time of decision (cl.050.221).

Background

1. According to his movement records and departmental records, the applicant arrived in Australia on a [temporary] visa [in] July 2016.  The visa expired [in] October 2016 and the applicant remained as an unlawful non-citizen (UNC) from that date.

2. On 10 December 2018, the applicant lodged a Medical Treatment visa (UB-602) application.  On 14 December 2018, this visa application was refused.  Six subsequent Medical Treatment visa applications were lodged and either refused or found to be invalid.  An Orphan Relative (Residence) visa (BT-837) application lodged by the applicant on 22 October 2019 was also refused.  Numerous bridging visas were granted to the applicant in connection with these substantive visa applications.  No merits review application was lodged by the applicant in connection with his unsuccessful visa applications.

3. The applicant’s visa status was UNC between 19 January 2019 and 7 February 2021.

4. [In] May 2020, the applicant was remanded into criminal custody and charged with ‘Supply prohibited drug (cannabis) in commercial quantity (x2 counts); Deal with identity information to commit etc. indictable offence; Goods in personal custody suspected of being stolen; and escape police custody.’  While in criminal custody, the applicant was granted a number of Bridging E visas (BVE’s).  The latest of these BVE’s expired on 11 June 2021.

5. On 14 May 2020, while in criminal detention, the applicant applied for a Protection visa (XA‑866).  This application was refused on 12 August 2020.  No merits review application was lodged by the applicant in connection with this unsuccessful visa application.

6. [In] April 2021, the applicant was convicted of ‘supply prohibited drug (cannabis) in commercial quantity’.  He was sentenced to 2 years and 3 months imprisonment, with a non‑parole period of 1 year and 1 month imprisonment.

7. The applicant was released from prison [in] June 2021 and was located and detained by Australian Border Force officers pursuant to s.189(1) of the Act.

8. He was placed in immigration detention at [an Immigration Detention Centre].

9. On 12 June 2021, the applicant lodged an online application for a BVE which was refused by the delegate on 17 June 2021.  The applicant seeks a review of this decision by the Tribunal as presently constituted.

10. No further documents were provided with the review application.

Immigration status of the applicant – cl.050.211

1. Clause 050.211 is met if, at the time of application:

   1.     the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   2.     the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17).

2. I am satisfied that the applicant was an unlawful non-citizen at the time of the application for the BVE.  Accordingly, the applicant meets cl.050.211(1).

3. I am further satisfied that the applicant was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17). 

4. Accordingly, the applicant meets cl.050.211(2).

5. Therefore, I find that the applicant meets cl.050.211.

The grounds for seeking the visa – cl.050.212

1. 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.

2. 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

1. 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]).

2. During his application interview, the applicant stated that his immediate family lives in Vietnam.  He also indicated that, on entering criminal detention, he had a girlfriend in Australia with whom he had lived for approximately 1 year.  He also stated that he had less than $2,200 in personal assets.  The applicant indicated that he had no plans at that time to return to Vietnam.  Rather, he wanted to stay in Australia.  I find, therefore, that, at the time of application, the applicant had no genuine intention to voluntarily depart Australia.

3. During the Tribunal hearing, the applicant stated that, if released into the community, he now intended to visit his girlfriend and obtain his belongings.  According to the applicant, his girlfriend is depressed and he needs to spend some time with her before he returns to Vietnam ‘after a while’.  According to the applicant, his girlfriend visited him on occasion and they exchanged text messages daily.  She is busy at work, having graduated in [Discipline 1], after moving to Australia from Vietnam on a student visa at the age of [age] approximately five years ago.  The applicant’s girlfriend currently lives in rental accommodation which is not that which she had previously shared with the applicant.

4. If released, the applicant and his girlfriend intend to move in together with ‘friends’ who would help to look after the applicant if he was not permitted to work.  These friends form part of the same Catholic youth fellowship in which the applicant met his former criminal associate.

5. To the Tribunal, the applicant expressed an intention to depart Australia voluntarily because he knows he has no right to remain in Australia and is in detention.  But first, he needs to visit friends, sell his property and stay with his girlfriend for maybe 1 or 2 months.  She may even decide to return to Vietnam with him.  The applicant gave his passport to his girlfriend when he was taken into custody.  She gave it to a lawyer for safekeeping.  The lawyer has been assisting the applicant with his legal problems.  However, the lawyer was not representing him in this matter.

6. The applicant does not have a current, valid air ticket and has made no enquiries about obtaining one.  He has asked his girlfriend to make enquiries about this on his behalf.  The applicant does not have the funds for an air ticket but believes he will be able to obtain help from his friends to purchase one if released.  He has not asked anyone in his social circle to do this yet.

7. When asked about his recent change of heart to return to Vietnam, the applicant stated that he would not be released from detention without agreeing to depart Australia.  All he needs is a short period in the community before he returns to Vietnam.

8. Based on this evidence, I do not accept that the applicant has any genuine intention to return to Vietnam in the reasonably foreseeable future.  Taken at its highest, the applicant evinces an intention to return to Vietnam at some notional and ill-defined time in the future.  This is not materially different from his stated intention at the time of making the application for the visa that he had no plans to return to Vietnam.

9. For these reasons, the Tribunal is not satisfied that at the time of application, the applicant was making, or was the subject of, acceptable arrangements to depart Australia.  Further, given the foregoing, the Tribunal is not satisfied that at the time of decision, the applicant was making, or was the subject of, acceptable arrangements to depart Australia.

10. Therefore, the applicant does not meet cl.050.212(2).

Whether the applicant will abide by conditions – cl.050.223

1. 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.

2. As the Tribunal has found that the applicant does not meet cl.050.212(2), he does not meet the requirements for the grant of a BVE.  Accordingly, it is not necessary to consider any relevant conditions in connection with a BVE under cl.050.223 on this occasion.

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

DECISION

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

Dr Colin Huntly
Member