2307689 (Migration)

[2023] AATA 2221

2307689 (Migration) [2023] AATA 2221 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307689

MEMBER:Rachel Da Costa

DATE:9 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2023 at 11:32am

CATCHWORDS  
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an unlawful non-citizen – no ongoing immigration matters – eighth application for a BVE on departure grounds – medical condition is not preventing him from departing Australia – failed to comply with several conditions imposed on his BVEs – applicant does not wish to depart Australia and has not made any arrangements to do so – not satisfied that applicant would abide by conditions imposed on a bridging visa if granted to him –decision under review affirmed  

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, r 2.20, cls 050.211, 050.212

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289

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 (BVE) under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 May 2023. 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(2)-(9) and, in particular, cl 050.212(2) which states that “[a]n applicant meets the requirements of this subclause if the Minister 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 1 June 2023 on the basis that the applicant did not meet the requirements in either clause 050.212 or 051.211 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The hearing was conducted by videoconference using the Microsoft Teams (MS Teams) platform. The applicant speaks fluent English and did not require an interpreter. The applicant provided the Tribunal with a copy of the delegate’s decision prior to the hearing.

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

   Background and migration history

6. In the Tribunal hearing, the applicant gave the following evidence about his personal circumstances. He is a citizen of Brazil. His last employment in Australia ceased on 30 March 2023. He was working as [an occupation] doing [specified work]. He has no family or close relatives in Australia and he is not in a relationship with anyone. In Brazil, he has his parents with whom he is in regular contact. He has two children in Brazil but he is not in contact with them. Before coming to Australia, he lived in Brazil in a city [doing] informal work in the construction industry.

7. As of 1 June 2023, the applicant is in immigration detention at [an] Immigration Detention Centre. His most recent Bridging E visa ceased on 31 May 2023, so he is currently an unlawful non-citizen.

8. As discussed with the applicant in the hearing and as set out in more detail in the delegate’s decision, the applicant’s background and migration history is as follows (unedited):

   You first and last arrived in Australia on [date] August 2015 as the holder of a Student visa (subclass TU572). This visa permitted you to remain onshore until [date] March 2016. Condition 8534 -“The holder will not be entitled to be granted a substantive visa, other than: (a) a protection visa; or (b) a Subclass 485 (Temporary Graduate) visa; or (c) a Subclass 590 (Student Guardian) visa; while the holder remains in Australia” was imposed on this visa.

   On 04 February 2016, you lodged a request for Condition 8534 to be waived to allow you to lodge an application for a further TU572. On 09 February 2016, your Condition 8534 waiver request was refused. Therefore, you remain subject to Condition 8534.

   On 12 March 2016, your TU572 ceased and on 13 March 2016 you became an unlawful non-citizen (UNC).

   On 12 April 2016, you were granted a Bridging E visa (subclass WE050) (BVE) on departure grounds. Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” (Departure Date) was imposed on this visa. On 26 April 2016, your BVE ceased and you again became a UNC. As you did not depart Australia prior to this BVE ceasing, you did not comply with Condition 8512 “The holder must leave Australia by the date specified by the Minister for the purpose”.

   On 16 May 2016, you reengaged with the Department and were granted a further BVE on departure grounds, again with Condition 8512 - Departure Date imposed.

   On 16 May 2016, you lodged an application for a Permanent Protection visa (subclass XA866). On 23 May 2016, you were granted a further BVE in association to your ongoing XA866 application, with Condition 8101 - ”The holder must not engage in work in Australia” imposed. On 21 June 2016, you lodged an application for a further BVE in which you requested permission to work. On 04 July 2016, you were granted a further associated BVE with Condition 8101 still imposed. On 02 August 2016, you lodged an application for a BVE in which you again requested permission to work. On 03 August 2016, you were granted a further associated BVE with Condition 8101 removed, allowing you to work. On 09 May 2017, your application for an XA866 visa was refused. On 02 June 2017, you lodged an application for merits review of your XA866 refusal at the Administrative Appeals Tribunal (AAT). On 17 February 2021, the AAT affirmed your XA866 refusal. You did not seek further review of this decision. On 17 March 2021, your associated BVE ceased.

   On 16 March 2021, you were granted a BVE on departure grounds. This BVE permitted you to remain onshore until 08 September 2021. On 09 September 2021, you again became a UNC.

   On 15 September 2021, you were granted a further BVE on departure grounds. This BVE ceased on 02 March 2022.

   On 11 February 2022, you were granted a further BVE on departure grounds. This BVE ceased on 05 August 2022.

   On 08 July 2022, you were granted a further BVE on departure grounds. This BVE ceased on 05 December 2022.

   On 10 November 2022, you were granted a further BVE on departure grounds. Condition 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” was imposed on this visa. This BVE ceased on 09 February 2023. You did not provide the Department with a valid ticket for departure prior to this date. Therefore, you did not comply with Condition 8511.

   On 16 January 2023, you were granted a further BVE on departure grounds. Condition 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” was again imposed on this visa. This BVE ceased on 05 April 2023. You did not provide the Department with a valid ticket for departure prior to this date. Therefore, you did not comply with Condition 8511 a second time.

   On 17 March 2023, you were granted a further BVE on departure grounds. Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” was imposed on this visa. This BVE ceased on 31 May 2023. As of today’s date 01 June 2023, you remain onshore and have not departed Australia. Therefore, you have not complied with Condition 8512.

   On 16 May 2023, you lodged an application for a further BVE. It is this application which is currently being assessed. As of today’s date 01 June 2023, you have no ongoing immigration matters and this is your eighth application for a BVE on departure grounds since your XA866 application was finally determined on 17 February 2021, two years and three months ago.

9. The delegate has also set out at length in her decision the reasons given by the applicant in his BVE application forms for applying for each of his BVEs, including why he was not making arrangements to depart Australia, and evidence given by him in interviews with the Department in connection with his BVE applications since 2021. Where relevant, this is referred to below.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. The issue in this case is whether the applicant meets any of the criteria in cl 050.212(2)-(9).

    Immigration status of the applicant – cl 050.211

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

    (1)  The applicant is:

    (a)  an unlawful non‑citizen; or

    (b)  the holder of a Bridging E (Class WE) visa; or

    (c)  the holder of a Subclass 041 (Bridging (Non‑applicant)) visa.

    (2)  The applicant is not an eligible non‑citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

12. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

13. At the time of application, the applicant was the holder of a Bridging E (Class WE) visa. As at the time of decision, he is an unlawful non-citizen. Accordingly, he meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2).

14. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa – cl 050.212

15. 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.

16. In this case, the applicant is seeking to meet cl 050.212(2), namely, that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and based on the evidence before it, none of the other grounds in cl 050.212 are available on the evidence. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of subclauses (3)-(9) of cl 050.212.

17. For the reasons set out below, the applicant does not meet cl 050.212.

    Acceptable arrangements to depart Australia

18. 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 at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to the Tribunal to consider whether the applicant’s intentions in making any arrangements to depart, were genuine. As stated in Lin at [30]:

    …the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant’s intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.

19. The applicant has provided the following documents to the Department and Tribunal in support of his application:

    ·     Letter dated 30 March 2023 from the Government of [Country 1] confirming the applicant’s [visa application has been received by Country 1] on 30 March 2023;

    ·     Worker’s injury claim form from the NSW State Insurance Regulatory Authority dated 15 May 2023 in which the applicant claims he has been suffering [a medical condition] and the injury date is listed as 13 October 2022;

    ·     Letter from Dr [A] Surgeon, dated 2 April 2023, confirming that the applicant is suffering from [a medical condition]. She notes that she gave him some treatment for symptomatic relief but ultimately he will need surgery, but ‘we will wait and see what happens with the work claim before discussing this further’. She has not arranged a formal follow up;

    ·     Letter from [Insurance company 1] confirming that the applicant has an appointment with an independent medical examiner, Dr [B],  surgeon, for an examination on 11 July 2023;

    ·     Letter from [Insurance company 1] regarding financial and other assistance that may be available to the applicant while a claim for compensation and assessment of liability for injury are assessed. The letter sets out the information provided by the applicant about his situation and states that at present, the insurer does not have enough medical information to establish that there is an injury and that it is related to the applicant’s work;

    ·     Statement of account up to 6 March 2023 from the Administrative Appeals Tribunal showing the applicant has a debt of $673;

    ·     Undated screenshot of New Zealand electronic travel authority valid to 2 June 2025 which gives the applicant permission ‘to travel to New Zealand or to pass through Auckland International Airport as a transit passenger while you are on your way to another country’;

    ·     Undated letter to the Tribunal from the applicant which states as follows (edited for punctuation):

    I’m writing to the Tribunal to reaffirm that I am willing to leave the country as soon as I can. Recently I was diagnosed with [a medical condition]. In 11/05/23 I started a worker’s compensation claim because I injured myself while I was at work, (must see insurance’s appointed doctor on 11/07/23). The past week I had an interview with the Department of Immigration when I tried to explain the situation [and] why I’ll need to go thru surgery urgently. During the interview I showed the immigration agent my passport and an application for a [Country 1] visa that was made in March. I thought that it should be enough evidences to show my intentions to leave the country. About the flying ticket I did not buy me one yet because I have not been working since 12/03/23. And I still haven’t been paid by the insurance company.

20. In the Tribunal hearing, the applicant said he was feeling overwhelmed by being in immigration detention. He has never committed any crimes and he has been trying to comply with the law. It is not fair for him to be in detention and if he is deported it will affect him badly. He promises he will depart Australia. In assessing the applicant’s evidence, the Tribunal has taken into account that he feels overwhelmed by being in immigration detention.

21. In the Tribunal hearing, the Tribunal discussed with the applicant his migration and visa history, as well as his current BVE application. The Tribunal pointed out to him that since his protection visa application was finalised by the Tribunal in February 2021, he has had no ongoing immigration matters but rather than departing, he has remained in Australia on a series of BVEs. He has applied for the BVEs on departure grounds but he has not departed and he has given various reasons as to why he was not making arrangements to depart. As set out in the delegate’s decision, these reasons included:

    ·     He had to get a new passport, which he had been unable to do due to Covid-19 lockdown;

    ·     He is not willing to return to Brazil and it is not safe for him there;

    ·     He wants to remain permanently in Australia because he is settled here;

    ·     He has a debt to the Tribunal to pay off;

    ·     He needs to improve his financial situation before he departs;

    ·     He is planning to obtain a [Country 1] Student visa and has applied for a [Country 1] visa.

22. The Tribunal explained to the applicant that his history of applying for BVEs and then not complying with the conditions imposed, including departure by a certain date, raised a concern about his intentions to depart this time. In response, the applicant said that in relation to the first four BVEs he applied for, he could not depart because of the Covid-19 pandemic in Brazil and he felt safer in Australia so it made sense for him to remain here. After that, he applied for more BVEs. Two of them had a condition that he had to show his ticket for departure and he agrees he did not do this. The most recent BVE had this condition too and he did not comply. He lost his job and hasn’t been working so that is why he hasn’t provided the airline ticket. Also, in respect of the condition 8512 which required him to depart by a certain date, he has not departed because of his strong reason to remain in Australia to be treated for the injury he suffered at [work]. This situation is irreversible unless he has surgery or receives physiotherapy. He has made an insurance claim for worker’s compensation and is waiting to attend another medical examination. That is why he didn’t depart. He wants the Tribunal to consider his health situation because it will be really hard for him to go back and he doesn’t want to go back to Brazil. 

23. The applicant went on to say that he made a mistake in his recent interview with the Department when he said that he wants to stay in Australia if he can. He said that he wants to change his statement and if he gets the BVE, he is prepared to leave Australia as soon as he gets his [body parts] fixed. He does not intend to apply for more visas. He just needs to get his [body parts]  fixed. When asked why he changed his mind, the applicant said he knows it will be impossible to receive a permanent visa or apply for another visa under all the restrictions imposed on his BVE. The last condition he had was to depart by a specific date. He has no other choice because Australia has made it really hard for him. When asked why he doesn’t depart now, the applicant said that he has a health condition. He can’t start a new life in a new country with that problem and he would have to start treatment all over again. He is in pain and can’t sleep well. He also told the Tribunal that he would like to stay in Australia until the end of the financial year so he can lodge his tax return and get some money because he can’t leave without any money in his pocket.

24. Later in the hearing, the applicant said that he would agree to leave Australia immediately if he could be granted the visa so he can organise his belongings, even if the visa was granted for one day. The Tribunal put to him that this was different from what he has said about needing to remain in Australia for medical treatment before he could leave. The applicant responded that he just wants the visa to organise himself and leave and if he has time, he will attend his medical appointment on 11 July 2023 with the independent medical examiner who will assess his injury and then he will get approval for worker’s compensation and have his surgery. The Tribunal asked him how long after seeing the medical examiner he expected it would take for his worker’s compensation to be approved. He said maybe two weeks. The Tribunal asked him where this timeframe came from and he said it would maybe be less than that but the first thing he needed to do was to see the independent medical examiner to have his claim accepted and then he would be booked in for surgery. The Tribunal pointed out to him that it was possible his worker’s compensation claim would not be accepted. The Tribunal asked the applicant about his statement in his letter to the Tribunal in which he said he needed to go through surgery urgently and asked him whether he had any medical evidence to support that, noting that this is not what the letter from Dr [A] says. He said that he is in pain and if he can have resources to have surgery he would do it, but he does not have the money.

1. In the course of the hearing, the applicant mentioned that he had tried to apply for a Medical Treatment visa but he was not able to because of certain conditions on his BVE. He said that because of this, he needs the BVE to be able to see the independent medical examiner and get treatment. He doesn’t want to stay here forever; he just wants to be treated.

2. The Tribunal asked the applicant whether he had any evidence to indicate that he is medically unfit to travel. The applicant said he did not. The Tribunal put to him that it might find his medical condition is not preventing him from leaving Australia. The applicant agreed that it was not, but asked rhetorically why he would leave Australia without being treated or reimbursed by worker’s compensation and suggested that would make no sense. The Tribunal put to the applicant that it might find that the evidence suggests he wants to stay in Australia. The applicant responded that he is happy to leave. Later, the applicant said that he wants to have his health issues fixed but whatever date he is given to depart he will comply. He said he is making arrangements to leave.

3. In terms of making arrangements to leave Australia, the applicant referred to the fact that he has applied for a [Country 1] visa and is awaiting the outcome. He said that he has applied for a Visitor visa for [Country 1], because he did not have enough funds to apply for a Student visa, and as soon as it is approved he can leave. He said this might take about two months from now to be approved. The Tribunal notes that the letter provided by the applicant indicating he has applied for a [Country 1] visa does not specify what type of visa he has applied for. The Tribunal is prepared to accept the applicant’s evidence that he has applied for a Visitor visa. The applicant also referred to his New Zealand visa, which the Tribunal pointed out to him appeared to be a transit visa. The applicant said that Brazil and New Zealand have an arrangement where a Brazilian citizen can spend up to three months in New Zealand on a transit visa. He did not provide any evidence to support this.

4. The Tribunal put to the applicant that based on all the evidence, it might find that his medical condition is not preventing him from departing Australia or from making acceptable arrangements to depart. It might find that based on all the evidence, including the applicant’s migration history, that he does not genuinely intend to depart Australia despite the arrangements he has made. The applicant reiterated that he could travel now but he wants to resolve his health situation which is a compelling reason for him to stay in Australia for treatment. Being deported will be bad for his immigration record and he does not want to go back to Brazil. He will go to [Country 1] when he gets the visa. He will leave as soon as he gets his medical issue resolved or depart when he is told to. He has paid off his debt to the AAT[1] and he is trying to do the right thing.

   [1] Tribunal records confirm this is correct and the debt was paid in full on 6 June 2023.

5. The Tribunal has carefully considered all the applicant’s written and oral evidence in support of his Bridging visa application, including the contents of the Tribunal and Departmental files. While the Tribunal is sympathetic to the applicant’s personal circumstances and accepts he has developed a medical condition that affects his [body parts], the question for the Tribunal is whether it is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

6. In terms of making, or being the subject of, acceptable arrangements to depart Australia, the applicant has applied for a Visitor visa to [Country 1] and has been granted a transit visa for New Zealand. The [Country 1] visa is yet to be granted and there is no certainty that it will be granted. The New Zealand visa permits the applicant to travel to New Zealand or pass through Auckland International Airport as a transit passenger while he is on his way to another country. Based on the evidence before the Tribunal, the applicant has not yet made any arrangements to travel to another country and so at present, his New Zealand visa is not able to be used. The Tribunal notes that in his letter to the Tribunal, the applicant stated that he had not booked a ticket for a flight because he is short of money. The Tribunal is not satisfied that the applicant’s actions amount to him making, or being the subject of, acceptable arrangements to depart Australia.

7. Further, as discussed in Lin, in considering whether arrangements made by the applicant to depart Australia are acceptable, the Tribunal is entitled to consider whether the applicant has a genuine intention of carrying through with those arrangements. In the Tribunal’s view, the applicant’s migration history indicates that he wishes to remain indefinitely or permanently in Australia. He arrived in 2015 and has not departed since. He has applied unsuccessfully for a permanent protection visa. As explained above, since that application was finalised by the Tribunal in 2021, the applicant has applied for and been granted a series of BVEs on departure grounds and has consistently indicated that he was not making arrangements to depart Australia for various reasons. He has also failed to comply with several conditions imposed on his BVEs, including to depart Australia by a specific date.

8. Up until the applicant’s letter to the Tribunal following his most recent interview with the Department on 1 June 2023, the applicant had stated that it is his wish to remain permanently in Australia. His evidence to the Tribunal in his letter and in the Tribunal hearing is that he has changed his mind and he is prepared to leave. In the Tribunal hearing, the applicant gave evidence that he wishes to be granted the visa and remain in Australia to have his medical condition with his [body parts]  treated and then he will depart. Alternatively, he gave evidence that he would depart immediately if granted the visa and that was the condition imposed. The Tribunal notes that the applicant also gave evidence that he tried, unsuccessfully, to apply for a Medical Treatment visa to enable him to remain in Australia to have medical treatment for his [body parts]. Based on the evidence before it, there are no clear timeframes around the applicant’s treatment for his medical condition or the assessment of his worker’s compensation claim. Further, the applicant gave evidence that he is not medically unfit to depart Australia.

9. The Tribunal accepts that people can change their mind about their intentions, and being in immigration detention has no doubt focussed the applicant’s mind on his situation. However, in the Tribunal’s view, the applicant’s migration history described above, his attempt to apply for a Medical Treatment visa, his many statements to the Department in connection with his BVE applications about wishing to remain permanently in Australia, the fact that he is not medically unfit to travel and his evidence to the Tribunal about his strong preference to remain in Australia for an unspecified period of time to have treatment for his medical condition and resolve his worker’s compensation claim, all weigh heavily in favour of the applicant lacking a genuine intention to carry through with his arrangements to depart Australia if granted the Bridging visa. In the Tribunal’s view, these factors are not outweighed by the applicant’s recent statements to the Tribunal that he intends to depart Australia. Therefore, for the reasons described, the Tribunal finds that the applicant does not have a genuine intention of carrying through with his arrangements to depart Australia.

10. 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. Therefore, the applicant does not meet cl 050.212(2). As stated above, based on the evidence before the Tribunal, the applicant does not meet any of the other criteria in cl 050.212(3)-(9).

11. Therefore, cl 050.212 is not met.

    Conclusion

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

13. 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

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

    Rachel Da Costa
    Member