2208538 (Migration) - [2022] AATA 2050

2208538 (Migration) [2022] AATA 2050 (22 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2208538
MEMBER:David Barker
DATE:22 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 22 June 2022 at 2:28pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – no genuine intention – unreliable evidence – abide by conditions imposed – worked unlawfully – unlawful non-citizen – criminal history – cannabis cultivation offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 359AA
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

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).
The applicant , a citizen of Vietnam, applied for the visa on 4 June 2022. 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.
The decision to refuse to grant the visa was made on 8 June 2022 on the basis that the delegate was not satisfied the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The applicant appeared before the Tribunal by video from [an immigration detention centre] on 21 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant arrived in Australia [in] April 2018 as the holder of an FA-600 Visitor Visa. This visa was valid [until] October 2018. After the cessation of her visa, she remained in the community as an unlawful non-citizen.
The applicant lodged an application for a Subclass 866 Protection visa with the Department on 9 December 2019. A delegate of the Department refused the application on 4 August 2020. The applicant, on 7 October 2021, applied to the Tribunal for a review of the Protection visa refusal decision. The Tribunal (differently constituted) determined that it lacked jurisdiction to conduct the requested review as the review application was not lodged within the prescribed time frame.
[In] January 2021, the applicant was remanded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2208538 (Migration)

Details

AGLC: 2208538 (Migration) [2022] AATA 2050
Case: [2022] AATA 2050
Decision Date: 22 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by an applicant who had remained in Australia as an unlawful non-citizen after her visitor visa expired. The applicant had previously applied for a Protection visa, which was refused, and a subsequent review application to the Tribunal was dismissed for being out of time. The applicant was subsequently convicted of cannabis cultivation offences, served a period of imprisonment, and was then transferred to immigration detention. The Tribunal was asked to review the refusal of her Bridging E visa.

The primary legal issue before the Tribunal was whether the applicant was making acceptable arrangements to depart Australia, as required by subclause 050.212(2) of the Migration Regulations 1994. This required the Tribunal to be satisfied that the applicant genuinely intended to depart Australia and would comply with any conditions imposed on a Bridging E visa, should one be granted. The Tribunal also considered whether the applicant met the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which she did not.

The Tribunal reasoned that for arrangements to depart to be considered "acceptable," they must be genuine. While the applicant had provided a flight reservation and a copy of her passport biodata page, and later an email with a receipt from the Consulate General of the Socialist Republic of Vietnam, the Tribunal found the evidence unreliable. The flight reservation was for a date in the past, and the receipt from the Vietnamese Consulate was incomplete and contained handwritten alterations that obscured key details such as the amount paid and the collection date. Furthermore, the applicant had previously worked unlawfully in Australia and had a criminal history, which raised concerns about her willingness to abide by visa conditions. The Tribunal concluded that the applicant had not demonstrated a genuine intention to depart Australia or that she was making acceptable arrangements to do so.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also found that the applicant did not meet the eligibility requirements for a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant arrived in Australia [in] April 2018 as the holder of an FA-600 Visitor Visa. This visa was valid [until] October 2018. After the cessation of her visa, she remained in the community as an unlawful non-citizen. The applicant lodged an application for a Subclass 866 Protection visa with the Department on 9 December 2019. A delegate of the Department refused the application on 4 August 2020. The applicant, on 7 October 2021, applied to the Tribunal for a review of the Protection visa refusal decision. The Tribunal (differently constituted) determined that it lacked jurisdiction to conduct the requested review as the review application was not lodged within the prescribed time frame. [In] January 2021, the applicant was remanded in custody and subsequently charged and convicted of drug cultivation of a commercial quantity of drugs with up to 16 months imprisonment by the County Court of Victoria. She served [number] days in total, both in remand as well as in criminal detention from 28 January 2021 to 25 March 2022. On 25 March 2022, the applicant was transferred to immigration detention. Information available from Departmental records indicated that the applicant was willing to depart Australia once Australian Border Force officials obtained her passport and that she signed a voluntary removal form. She subsequently applied for a Bridging Visa E (BVE), which was refused on 29 March 2022. That refusal decision was affirmed by the Tribunal (differently constituted) on 8 April 2022. In support of the current BVE the Department on 4 June 2021 received, from the email address given by the applicant to the Department and subsequently to the Tribunal for correspondence purposes: a copy of an airflight reservation for a flight from Melbourne to Ho Chi Minh City, leaving [date] June 2022; and a copy of the biodata page from the applicant’s Vietnamese passport, indicating the passport was issued to her [in] 2017. THE HEARING The following is a summary of the oral evidence provided by the applicant at hearing, it is not a transcript of her oral evidence. At the start of the hearing, the Tribunal explained to the applicant the requirements of the law. It explained that it was taking a fresh look at her case including whether it is satisfied she meets a ground for seeking the visa, in this case, that she is making acceptable arrangements to depart Australia. It explained that the Tribunal would consider whether it is satisfied the applicant genuinely intends to depart Australia, and that in the event she was to be released into the community on a BVE, whether the Tribunal could be satisfied that she would comply with conditions which would be attached to a BVE. The Tribunal explained the time frame in which a decision would be made in relation to the review of the BVE refusal decision was quite tight[1] and that given this constraint the Tribunal would consider any further evidence or arguments the applicant wished to produce in support of her claims, but that information would need to be provided by close of business on 21 June 2022.[1] The Tribunal endeavours to make a decision within 7 working days of receiving the review application, which results in the decision date expectation in this matter being 22 June 2022.

Evidence

Evidence Before The Court

By close of business on 21 June 2022 the Tribunal received an email which stated: ‘My name: [the applicant]. Dob: [date]. The attached is official receipt from the Vietnam Consulate office that the new Passport arrangement has been ordered’. Included within this email was a further copy of the biodata page from the passport issued to the applicant in November 2017 and an extract of a receipt with the following features:·No number next to the term No. – which the Tribunal has taken to be where a receipt number would ordinarily be placed;·The sentence ‘I received 01[2] passport(s)’; No amount next to the term A$- which the Tribunal has taken to be where a fee amount charged / paid would ordinarily be placed;·The name [Name 1] handwritten next to the term From: - which would appear to indicate a person by the name of [Name 1] (one of the applicant’s names) is present as being involved in the transaction;·Next to the phrase ‘You can pick up on: Sydney,’ a typed date which is in part obscured by handwritten numerals overwriting the date for the day and month with the number for the day being overwritten with the handwritten number ‘10’, and the typed date for the month ‘04’ being overwritten with the handwritten number ‘06’. ·A stamp which states ‘The Consulate General of the S.R. of Vietnam Suite 205, lever 2, Edgecliffe Centre 203-233 New South Head Rd, Edgecliffe, NSW 2027 Tel: 93272539, 93271912 – Fax: 93281653.[2] The number 01 was handwritten in the sentence which is otherwise typed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is making, or is the subject of, acceptable arrangements to depart Australia. 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. In this case, the applicant is seeking to meet cl 050.212. The applicant does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the applicant does not meet cl 050.212.Acceptable arrangements to depart Australia 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 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]). 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).

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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