2117724 (Migration)

[2021] AATA 5588

2117724 (Migration) [2021] AATA 5588 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117724

MEMBER:Roslyn Smidt

DATE:7 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 7 December 2021 at 7 December 2021

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – passport expired – no valid ticket, booking or reservation to leave Australia – travel restrictions – COVID-19 pandemic – security situation in Nigeria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 November 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.212.

3. The decision to refuse to grant the visa was made on 24 November 2021 on the basis that the delegate was not satisfied that the applicant was making acceptable arrangements to leave Australia.: The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

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

   Background

   The applicant’s migration history

6. The applicant arrived in Australia on a visitor visa [in] November 2016 which was valid until [date] February 2017. A no further stay condition was attached to that visa.

7. [In] February 2017 the applicant applied for a protection visa on the grounds of his sexual orientation. As a result he was granted a Bridging Visa A (BVA) on 1 March 2017.

8. On 28 August 2019 the applicant’s BVA was cancelled following his conviction for several criminal offences and he became an unlawful non-citizen for the first time.

9. On 6 September 2019 the applicant sought merits review of the decision to cancel his BVA. On 6 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider this application as the prescribed timeframe for lodgement had not been met.

10. On 7 September 2019 the applicant applied for a Bridging Visa E. He was granted a BVE in association with his PV application on 7 September 2019.

11. On 30 September 2019 the applicant’s PV application was refused by a delegate of the Minister. He sought review of that decision on 30 October 2019.

12. [In] 2020 the applicant’s passport expired.

13. On 6 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider the application for review of the cancellation of the applicant’s BVA as the prescribed timeframe for lodgement had not been met.

14. On 12 March 2020 a differently constituted Tribunal found that it did not have jurisdiction to consider this application as the prescribed timeframe for lodgement had not been met.

15. On 16 April 2020 the applicant’s BVE ceased and he became an unlawful non-citizen for a second time..

16. On 14 May 2021 he was granted a BVE on the basis that he was making arrangements to depart Australia. Between then and 18 January 2021 he was granted a further four BVEs. The final visa was valid until 12 February 2021.

17. On 8 March 2021 the applicant applied for a BVE on the basis that he was making arrangements to depart Australia.

18. In April 2021 the applicant was taken into custody. On 9 August 2021 the applicant was granted a BVE on criminal detention grounds.

19. On 13 October 2021 the applicant was released from criminal detention and detained at [an] Immigration Detention Centre where he remains.

20. On 16 November 2021 the applicant lodged a BVE application which was deemed invalid due to lodgement issues.

21. On 19 November 2021 the applicant lodged a BVE application.

22. On 24 November 2021 the applicant’s BVE application was refused as the delegate found that he had not made any arrangements to leave the country and had no intention of leaving.

    The applicant’s criminal history

23. On 7 January 2019 the applicant was charged with domestic violence related offences. He was charged with further offences on 28 May 2019

24. [In] August 2019 the applicant was convicted of several offences and sentenced to a two -year conditional release order.

25. [In] September 2019 the applicant was convicted of charges of ‘common assault’ and armed with intent to commit and indictable offence’ and sentenced to a two-year conditional release order.

26. On 3 October 2019 the applicant was charged with further criminal offences, including two counts of intentionally sexually touching a child.  

27. [In] May 2021 he was sentenced to 12 months in prison in relation to these charges. He spent six months in jail. [In] November 2021 the applicant’s appeal against the charges of intentionally sexually touching a child was upheld and the conviction was set aside

    Criteria for the visa

28. 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.

29. 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.

30. 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.

31. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).

32. In terms of relevant factors to be taken into account whether an applicant is making, or is the subject of, acceptable arrangements to depart Australia, PAM3 suggests they include whether:

    ·The applicant has a valid ticket for travel and a booking or reservation to leave Australia.

    ·The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.

    ·The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).

    ·The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (AVR) arrangements).

    ·The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.

    ·The applicant is the subject of departure arrangements in circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.

    ·The Department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).

    CONSIDERATION OF Claims and evidence

    Bridging Visa application

33. In his application the applicant stated that he did not hold a substantive visa and did not have any merit or judicial applications pending in Australia. He said that he was making arrangements to leave Australia, but the method of departure and his intended departure were unknown due to the COVID19 pandemic  He claimed that he was unable to return to Nigeria because he feared for his life and well-being because of violence and crime. In addition circumstances beyond his control such as financial hardship and travel restrictions surrounding the Covid19 pandemic meant he would not leave at the current time. He said that he needed a visa so he could remain in Australia lawfully and that he would abide by any conditions which attached to that visa.

34. According to the notes of his interviews with a Department office on 13 and 14 October 2021 the applicant said that he had savings of $100 and car with an estimated value of $2,000. He said that he would need to work to support himself if he was released from detention. He said that his partner worked and may be able to support him. When asked if there where any reasons he could not return to Nigeria he said that he could not return for reasons stated in his protection visa application. He also said that he had no money to pay for an ticket to depart and that he did not want to leave.

    The delegate’s decision

35. The delegate noted that while the applicant had stated in his application that he was making arrangements to leave Australia no such arrangements had been made. He observed that the applicant had made it clear in his application that he did not intend to depart Australia because of concerns about violence, insecurity, political unrest and the Covid pandemic in Nigeria and that he required a visa so he could remain in Australia lawfully. The delegate also noted that the applicant had stated during interviews on 13 October and 14 October that he wished to remain in Australia.

36. The delegate noted that the visitor visa issued to the applicant had a no further stay condition and that his protection visa application had been finally determined and that he had no reason to remain in Australia but was claiming he could not return to Nigeria.

37. The delegate found that the applicant did not meet cl 050.212 (2) or any of the alternative requirements in cl 050.212 and that he was therefore not entitled to a bridging visa.

38. A copy of the delegate’s decision was provided to the Tribunal.

    The Tribunal hearing

39. At the hearing on 7 December 2021 the applicant confirmed that he had applied for a BVE so that he could make arrangements to leave Australia. When asked if there was any other reasons for his application, for example, other applications before the Department, Tribunal or courts he said that the only reason for his application was to make arrangements to leave.

40. I noted that the applicant’s passport appeared to have expired in 2020 and asked if he had sought or obtained a replacement.  He said that that he had lodged an application for a new passport at the Nigerian Embassy in Canberra in 2020 but had been unable to attend offices of the Embassy in person to complete the application. I observed that I had no evidence of that and asked him to forward any relevant documentation.

41. Following the hearing the applicant’s representative forwarded copies of correspondence with the Embassy which confirmed that he had lodged an application for a replacement passport and that an interview to complete procedures had been scheduled for [in] November 2020. [In] October 2020 the Embassy advised the applicant that his passport application could not be processed further due to the Covid 19 Pandemic.

42. At the hearing I asked the applicant if he had made any other arrangements relating to his departure from Australia, such as inquires regarding the current rules for entering Nigeria or the availability of flights.  He said that he did not made any inquiries or arrangements.

43. I noted that the delegate had refused the applicant’s application because the information which he had provided in his application and during other interactions with the Department indicated that he did not intend to leave Australia. The applicant said that he intended to leave Australia, but he needed time to make arrangements before he left. I asked when he thought he would be able to leave. He said that he was not sure but perhaps in about six months. He said that he was not sure where he would go if he left Australia and might go to somewhere other than Nigeria. He said that he would like to go to Nigeria but he could not go because of the situation there. He also said that he might go to Nigeria briefly and then go elsewhere.

44. The applicant’s representative noted that the charges which had resulted in the applicant’s most recent Bridging Visa E being cancelled had been overturned and submitted that if this had not occurred he would continue to hold a Bridging Visa E and made a number of submissions regarding the applicant’s character. He said that the applicant had a genuine intention of leaving Australia, but the situation in Nigeria was very bad which meant he could not return there in the short term. He also submitted that until the applicant was able to obtain a replacement passport, he could not make any other arrangements regarding his departure.

    Findings and reasons

    Suitable arrangements to depart

45. In considering whether there are acceptable arrangements for the applicant's departure, I note that he does not at the present time have a current passport, a valid ticket, booking or reservation to leave Australia. While I acknowledge that he has applied for a new passport but was unable to attend an interview at the Nigerian Embassy in November 2020 to finalize his application, I also note that there is no suggestion that he has contacted the Embassy since that time to make alternate arrangements which suggests to me that he does not genuinely intend to make suitable arrangements to leave Australia. And while I acknowledge that without a passport it would not be possible for the applicant to obtain a ticket to leave Australia, in my view his failure to even make enquires about the possibly of travelling to Nigeria or entry requirements for Nigeria during the Covid pandemic are further indications that he does not wish to leave Australia and does not intend to make arrangements to do so.

46. More significantly, as pointed out by the delegate applicant’s statements to Department officers regarding his intentions and the submissions in his bridging visa application that he cannot return to Nigeria at the current time because of violence and lack of security strongly indicate that he has no intention of leaving Australia within the foreseeable future, which also indicates that he does not intend to make acceptable arrangements to depart Australia. This finding is supported by his statement at the hearing when he said that he needs to remain in Australia for some six months to make arrangements before he leaves but provided no information about the nature of these arrangements or why it would take six months to complete them.

47. Finally, I note that there is no suggestion that the Department of Home Affairs is currently making arrangements on the applicant's behalf to facilitate his departure.

48. After considering all of the evidence, I am not satisfied that the applicant has a genuine intention of leaving Australia. I am therefore not satisfied that he would comply with the requirement he make acceptable arrangements to depart Australia if he were released into the community.

49. For these reasons, I am not satisfied that at the time of application the applicant was making or 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.

    Other criteria under cl 050.212

50. The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

51. As the applicant does not meet any of the alternatives set out in cl 050.212(2)-(9), he does not meet cl 050.212 at the time of application. As this is an essential requirement for the grant of a Subclass 050 visa, he cannot be granted the visa.

52. 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

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

    Roslyn Smidt
    Member