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

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 , 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.

3. 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.

4. 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.

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

   BACKGROUND

6. 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.

7. 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.

8. [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.

9. 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.

10. 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

11. 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.

12. At the hearing, the Tribunal discussed with the applicant the requirements of the relevant law, her migration and criminal history. She confirmed the information which is outlined in the Background section of these reasons for decision (the reasons), with the exception of claiming her criminal conviction was for the offence of cultivation of a non-commercial quantity of cannabis. The Tribunal prefers the information available on the Department file but did not take an adverse view or attach any particular significance to the applicant not accurately representing her criminal history.  This appeared to be influenced by her poor English language skills, reflecting her not fully understanding documentation regarding her criminal history which had been provided to her.

13. At the hearing the Tribunal discussed with the applicant the reasons for her coming to Australia. The applicant told the Tribunal that her intention to come to Australia was to work as she had debts in Vietnam and friends suggested to her she could find work and earn money in Australia. She told the Tribunal that she wished to run away from her debts.

14. The applicant confirmed that she came to Australia on a three month Tourist visa and commenced working approximately a month after her arrival.  She said she freelanced in various jobs, working on farms and in [specified] shops and [businesses]. The Tribunal discussed with the applicant it’s concerns that she knowingly came to Australia on a visa that had no work rights. The applicant told the Tribunal that she found out that she was not supposed to work when she sought advice from a migration lawyer around the time her three month Tourist visa was due to run out. She had been told by members of the Vietnamese community with whom she interacted in Australia that she could apply for a Protection visa if she wished to remain in Australia.  However, the migration lawyer told her this would cost her around $6,000 and at that time she did not have that much money available.  The applicant decided she would remain in Australia so as to keep working and save the money so that she could apply for the Protection visa. She was aware that by doing so she would be both remaining here without a visa permitting her to do so and also working when she had no permission to do so.  At hearing the applicant conceded that she knowingly breached visa conditions and remained unlawfully in Australia and indicated that at the time she did this it was what she thought she had to do.

15. The applicant told the Tribunal that she is seeking the BVE on the grounds that she is making acceptable arrangements to depart from Australia.  She indicated that she is not able at this stage to indicate what those arrangements would be, as staff at the immigration centre told her she needs to wait.  She has asked if she can purchase an air ticket to return to Vietnam but is told by the staff that she needs to wait for a further period before she can do this. The applicant explained that she finds it very stressful at the immigration facility where she is detained.  She finds it more stressful than gaol was. As a consequence, she wants to return to Vietnam as soon as she can, and if the immigration authorities let her buy a ticket and released her, she would return to Vietnam as soon as possible.

16. The applicant told the Tribunal that she wants to be granted the BVE so that she can be released from detention so that she can make arrangements to locate her personal property, including: her passport, a motor vehicle, clothes and over $15,000 in cash. 

17. The Tribunal asked the applicant what evidence she was seeking to rely on to demonstrate that she is making acceptable arrangements to depart Australia. The applicant indicated that a person ‘[Mr A]’ was recommended to her by a friend and that [Mr A] has been assisting her.  She said [Mr A] is a person who assists Vietnamese people who lack English language skills. In response to a question as to what sort of assistance [Mr A] was providing her with, the applicant said he was applying for a new passport for her, as the people who came into possession of her personal belongings when she was detained, including her passport, will not give them back to her. She explained that when she was arrested in February 2021 she entrusted her personal belongings, with the exception of her car, to a female friend, but when she contacted this woman by phone sometime later the woman told her she had passed the applicant’s belongings on to a man who they both knew.  When the applicant contacted this man by phone, he denied any knowledge of the applicant’s belongings and said that they had not been given to him to look after.  The applicant seeks to be released into the community so that she can confront each of these people and if she does so, she is confident she will establish where her belongings are and that she will be able to ensure they are returned to her. In relation to her car, it is parked at a location she cannot name, due to her lack of English language skills.  The applicant could however, with the assistance of google, if she was to be released into the community and was sitting in a car, drive, or be driven to the location where her car was left.

18. As to whether there was anyone who could assist her reclaim her passport and other personal belongings, the applicant said she has an ex-boyfriend, but that as she does not know the address of the property where her car is located, she cannot give him the information which would tell him where to find it.

19. The applicant was asked about why, in light of the air flight reservation and evidence of her passport sent to the Department from her email address, when interviewed by a Departmental officer on 7 June 2022 in relation to the current BVE application, she gave no indication that she was preparing for her own departure from Australia and that she did not know the current whereabouts of her passport. In response the applicant contended that she has been misunderstood and that what she said to the Departmental officer was that as soon as she was released, she would pay for an air ticket out of her own money and return to Vietnam as soon as she could arrange to do so. She reiterated that the main reason she wants to be released from immigration detention is that she finds it so stressful and also she wants to reclaim her personal belongings.  The applicant contended that she had never claimed she needed to be released in order to make departure arrangements.

20. As to the evidence provided in the email sent from her email address on 4 June 2022, the applicant contended that when she previously applied for a BVE she had arranged for her sister in Vietnam to photograph a copy of her passport biodata page that she left with her family in Vietnam and that her sister had forwarded the photograph of the biodata page to Australia and that this was what was included with the email sent on 4 June 2022.  She reiterated that she does not have access to her passport and that [Mr A] was assisting her to get a new one from the Vietnamese consulate.  In terms of what is involved with this process and how [Mr A] was applying for it on her behalf and without documents to establish her identity, the applicant said she has been informed it is a relatively simple procedure that would take only around 10 days for her to get a replacement passport.

21. As to whether she intended to take the flight back to Vietnam on [date] June 2022, the applicant conceded that she did not and that she had not liaised with the Department as to whether this was possible.  She claimed that this was because if she brought up anything about wanting to return to Vietnam as soon as possible, she was always told she had to keep waiting before this would be something she could do.  The applicant indicated [Mr A] paid a $100 deposit on the [date] June 2022 flight reservation and would pay for further costs associated with air flights back to Vietnam on the understanding that she would pay him back once she returns to Vietnam.

22. As to the circumstances whereby an airline reservation ticket and the copy of her passport biodata page was emailed from her personal email address, the applicant said that she gave [Mr A] her email address details and asked him to send any correspondence such as the airline reservation and passport details, from her email address.  When asked why he could not have used his own email address, the applicant said she made this arrangement so that she would have a record of emails and would know when they needed to be responded to.  When asked how she would be able to track this information if, as claimed, she lacked English language skills and the emails were in English, the applicant contended she just noted when an email arrived or was sent and then contacted [Mr A] to ask him what they were about.

23. The Tribunal explained that even if the Tribunal was satisfied that she had made acceptable arrangements to depart Australia it has to consider whether it is also satisfied she will comply with conditions imposed on a bridging visa. It noted conditions 8101- no work; 8401 -report as required, 8506 notify of new address, 8510 - show passport, 8511 - show ticket, 8512 - depart Australia on a specified date and 8564 – must not engage in criminal conduct. The Tribunal explained that it may be concerned that the applicant given her history of breaching her visa conditions, may not comply with conditions imposed on a bridging visa including not working and as her passport is missing, not showing her passport. In response the applicant indicated that she would not work and that she would comply with other requirements.  She explained that she has spent time in gaol and now in immigration detention and that she now just wants to reclaim her personal belongings, sell her car and then return to Vietnam.

    Information put to the applicant for her comment and response pursuant to S 359AA of the Act

24. During the hearing, the Tribunal put certain information to the applicant pursuant to s.359AA of the Act.  The Tribunal explained to the applicant that the particulars of this information would, subject to her comments and response, provide the reason, or part of the reason, for affirming the Department’s decision to refuse her application for the bridging visa. The Tribunal told the applicant it would explain to her why the information was relevant and what the implications would be if the Tribunal relied on that information.  The Tribunal advised the applicant she could, if she wished, request further time to consider her response.

25. The particulars of the information put to the applicant were that at hearing she gave oral evidence that she was unaware that she lacked permission to work in Australia until she spoke to a migration lawyer around three months after her arrival who told her that the Tourist visa she held did not have a condition attached that allowed her to work in Australia. The Tribunal put to the applicant that this was inconsistent with information she has previously provided to Departmental officers, or to the Tribunal when she was before it. 

26. The Tribunal told the applicant that this information was relevant as, if the Tribunal were to prefer the records of evidence she has previously given about this factor over what oral evidence she provided at the hearing, it would raise concern that the applicant has not provided truthful evidence about this factor.  The Tribunal informed the applicant that this in turn would raise concern as to whether any of the evidence she has provided in support of her BVE application is reliable and that if the Tribunal decided her evidence could not be relied upon it would provide the reason or part of the reason for affirming the decision under review.

27. The applicant indicated she did not wish further time to consider her response.  She contended that previous responses given by her to the Tribunal in particular, were just brief responses to a general enquiry as to whether she had known she did not have permission to work whilst she was in Australia.  The applicant reiterated that she was unaware she lacked work rights for most of the period she held her initial Tourist visa and that her answers to more detailed questioning in the current hearing was accurate and should be preferred.

28. 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: [phone] – Fax: [phone].

    [2] The number 01 was handwritten in the sentence which is otherwise typed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The issue in this case is making, or is the subject of, acceptable arrangements to depart Australia.

30. 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.

31. 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

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 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]).

2. 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).

3. Based on the evidence before it, including the applicant’s oral evidence at the hearing, the Tribunal finds that the applicant arrived in Australia [in] April 2018 as the holder of a Subclass 600 Visitor visa which was valid [until] October 2018. The applicant concedes that  she worked in paid employment in Australia whilst having no work rights and that she became an unlawful noncitizen after her initial Visitor visa ceased. Based on the applicant’s oral evidence, she came to Australia for the purpose of working and did so for significant periods whilst aware she lacked work rights. Following a period of approximately 12 months in which she was knowingly an unlawful non-citizen, the applicant lodged an application for a Subclass 866 Protection visa. Following the refusal of her Protection Visa and unsuccessful endeavour to have that decision reviewed, she made no further attempt to regularise her immigration status before she was remanded in custody as a result of being charged with cannabis cultivation offences.

4. The Tribunal has carefully considered the applicant’s evidence and claims, and for the following reasons is not persuaded that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

5. With regard to the particulars of information put to the applicant pursuant to s 359AA about inconsistency in information provided by her at different points in time regarding her awareness of her lack of work rights in Australia.  The Tribunal is not persuaded by the applicant’s claim that the evidence she gave at hearing on 21 June 2022 should be preferred over records of previous information provided by her.  This is because the Tribunal does not accept her claim that previous enquires about this factor were general in nature and not precise enough to capture when she became aware she lacked work rights. In forming this view, the Tribunal took into account the following extract from a record of the applicant’s interview with a Departmental officer on 7 June 2022:

   Department Officer:   Were you aware you applied for a visitor visa to come to Australia?
   
   Applicant:                   Yes, I was aware of that.
   
   

   Department Officer:   Most visitor visas do not have work on them did you know this before

   you arrived?

   Applicant:                  Yes I was aware of that. I asked advised to change visa to allow me to

   stay and work. I was broke and did not have any money to get help from migration agent to change visa.

   Department Officer:   Tried seeking help after arriving in Australia?

   Applicant:Actually, at the beginning I got advice from friends in Australia. It’s illegal to work on visitor.  

6. The Tribunal has no reason to doubt the accuracy of the interview record.  In preferring this evidence, the Tribunal finds the inconsistent evidenced provided by the applicant with regard to this factor calls into question the reliability of her claims.  Specifically, with regard to when she knowingly worked in Australia without work rights and the reliability of information provided by her in support of her claims more widely.

7. The Tribunal places no weight on the document provided after the hearing in support of the applicant’s claim a third party ‘[Mr A]’ has applied for a replacement passport on her behalf.  This is because the range of anomalous features on what presents as a partial extract of a purported receipt gives rise to concern that this may be a bogus document, in that it is a document which appears is counterfeit or has been altered by a person who does not have authority to do so. With respect to the anomalous features, the Tribunal is concerned that the purported receipt lacks a receipt number, identified fee charged, lacks a signature, infers the applicant was the person requesting the replacement passport; a passport was handed in as part of the replacement request and the original date on the document has been changed in an obvious and unsophisticated manner. There is also a spelling error on the consular stamp, with it stating the Vietnamese Consulate in Sydney is located on ‘lever 2, Edgecliffe Centre’, rather than Level 2. This sort of error, in the experience of the Tribunal is indicative of a possible counterfeit document.

8. The Tribunal’s concern about the document produced following the hearing gives rise to further concern about the overall reliability of information provided in support of the applicant’s claims.  Specifically, in relation to the applicant’s claims about her passport being in the possession of an unidentified party who will not return it to her; and the nature of assistance and involvement in her circumstances of a third party identified as ‘[Mr A]’.

9. The Tribunal also considers it unlikely the applicant would have a replacement passport issued to a third party on her behalf when at best the only proof of her identity is a photo of a photocopy of the biodata pages from her existing passport.

10. The Tribunal is not persuaded by the applicant’s explanation as to why a third party is sending emails, from an address which has been provided to both the Department and Tribunal as the applicant’s email address for correspondence purposes.  This is especially so, considering the applicant’s BVE application and Review application contain responses from her that she does not authorise another person to act on, or receive communication about the BVE or review applications on her behalf.

11. The concern the Tribunal holds about the involvement of a third party in this matter extends to the provision to the Department on 4 June 2022 of the flight reservation information and a photocopy of the applicant’s Passport biodata information.  The Tribunal is not persuaded the applicant has provided a plausible explanation for not referring to this departure arrangement when interviewed by the Department on 7 June 2022.  Or, that her claim the passport biodata information was not provided as purported proof that the lack of an accessible passport was no longer an impediment to her departure through her self-funded means on [date] June 2022. The Tribunal has concern that the documents received by the Department on 4 June 2022 were provided with an intention to mislead and that they do not reflect a genuine arrangement for the applicant to depart from Australia. In forming this view, the Tribunal notes that the applicant conceded that the flight on [date] June 2022 was not paid for in full and that she at no stage discussed with staff at the immigration facility where she is staying whether arrangements could be made for her to depart on this flight.  Given the available information indicates the applicant has signed a voluntary removal document, the Tribunal does not consider it plausible that any attempt to discuss arrangements by which she would voluntarily depart would be consistently blocked by Departmental staff. The Tribunal also considers it implausible that a third party, ‘[Mr A]’, who the applicant has no direct connection with, would presumably through benevolent motivations, assist her to the extent of funding her return to Vietnam on the understanding that upon her return she would repay him for funds he had expended on her behalf.

12. As to the applicant’s financial circumstances, the Tribunal found the applicant’s evidence at hearing to be unconvincing.  She contends her financial circumstances were so constrained that it took her around 12 months leading up to December 2019 to save the $6,000 necessary to regularise her unlawful migration status through applying for a Protection visa.  Yet, in the period from then until late January 2022 she accumulated personal belongings including a car and savings in excess of $15,000 cash. She claims that she was not involved in the cannabis cultivation of which she was convicted, having merely accompanied a man to the location where the cultivation was occurring. Taken at face value, income from this source was not an explanation for how the applicant improved her finances in the 2020 period.  The applicant now claims she was unable to fund the deposit on her airline reservation unassisted but would be able to do so if released from immigration detention.  She claims that one of two unidentified people have over $15,000 in cash that belongs to her in their possession which that they have to date refused to return.  However, the applicant remains confident that upon confronting them she will get that money.  She is also confident an ex-boyfriend would pay a security bond on her behalf if it was required by the Department but gave no indication that this person would provide her with financial support in other circumstances.  She also claims that upon her return to Vietnam, where she has claimed she owes considerable debts, she would be in a position to pay back any costs incurred in paying for her flight back to her home country.  When considered cumulatively, the Tribunal is not persuaded the applicant’s claims about her financial circumstances are plausible.  The Tribunal is not satisfied that the applicant has access to funds that would enable her to make, or be the subject of, acceptable arrangements to depart Australia.

13. The Tribunal accepts the applicant has conceded that she could potentially make arrangements to depart Australia from her current situation in immigration detention.  The Tribunal is not satisfied that she has to date made a genuine attempt to do so. The Tribunal does not accept the evidence provided to the Department on 4 June 2022 establishes the applicant is making, or is the subject of, acceptable arrangements to depart Australia.  The Tribunal is not satisfied that there is a genuine basis upon which to have confidence the applicant could obtain a ticket, make a booking or reservation and have a genuine intention to leave Australia within a reasonable period.

14. The Tribunal accepts the applicant’s claim that there are no arrangements in place to be returned to her home country through her actively engaging in a Status Resolution service, including assisted voluntary return arrangements.  This is despite the indication she has previously agreed to such a procedure.  In the absence of clear evidence to the contrary, the Tribunal is not satisfied that at the present time the Department is making arrangements on the applicant's behalf to facilitate the applicant's departure.

15. Due to the inconsistency in the available evidence with regard to the applicant’s passport, the Tribunal is not satisfied that at the present time, the applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period.

16. As to why the applicant said she wanted a BVE, the Tribunal acknowledges she claims she wants to locate her personal belongings, including cash, clothes, a car and her passport. Whilst the Tribunal did not find the applicant’s explanation as to where her car is located and why she could not get assistance from her ex-boyfriend to retrieve it entirely plausible, the Tribunal does not accept that the applicant could not get his assistance with regard to this item and other items of her personal belongings from detention. The Tribunal noted that in response to this factor being put to the applicant at hearing, she restricted her response to the vehicle issue and neglected to explain why assistance to retrieve other items was not viable.

17. Having considered all of the evidence, the Tribunal finds the applicant’s immigration and criminal histories to raise concerns as to whether the Tribunal can rely on the applicant’s claim that she genuinely intends to depart Australia if she is released from detention. The Tribunal is not satisfied that the applicant will make a genuine endeavour to obtain an airline ticket due to the lack of credible evidence before the Tribunal to support her financial capacity to do so.  Or furthermore, that a third party ‘[Mr A]’ will pay the full cost of a ticket on her behalf. The applicant has not provided a credible date for departure and the Tribunal is not satisfied that the applicant currently has the documentation required to depart Australia.  The Tribunal has also formed the view that the information provide in support of the applicant’s claims is not reliable and that actions of third parties have not been adequately explained in this matter.

18. Overall, the Tribunal is not satisfied that, at the time of application, the applicant had a genuine intention to depart Australia. Nor is it satisfied that it can rely on the applicant’s current assertions that she will depart Australia if she is granted a BVE. It has taken into account her explanation for why she wants to be released from detention; however, it has found her evidence on this issue to be unpersuasive and in significant part, unreliable. It has concerns that the applicant may not depart Australia as she claims she intends. 

19. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).

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

21. 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

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

    David Barker
    Member