2307852 (Migration)

[2023] AATA 2396

2307852 (Migration) [2023] AATA 2396 (15 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307852

MEMBER:Anne Grant

DATE:15 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.212(2) of Schedule 2 to the Regulations; and

·cl 050.222 of Schedule 2 to the Regulations.

Statement made on 15 June 2023 at 3:11pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – need for some preparation – getting a passport – accommodation and financial support – criminal history – drug addiction – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212, 050.211, 050.222

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 29 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) which requires that an 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 delegate was not satisfied that the applicant intended to or was making acceptable arrangements to depart Australia.

4. The applicant appeared before the Tribunal on 14 June 2023 to give evidence and present arguments by video conference using the Microsoft Teams application. The Tribunal also received oral evidence by telephone from [Mr A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 

   Consideration of Claims and evidence

6. The issue in this case is whether the applicant satisfies any of the subclauses in clause 050.212, in particular, whether he is making or it the subject of acceptable arrangements to depart Australia.

   The grounds for seeking the visa - cl 050.212

7. 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.

8. In this case, the applicant is seeking to meet cl 050.212(2), and the applicant does not claim to meet any of the other alternative criteria in cl 050.212.  For the reasons below, I am satisfied that the applicant meets cl 050.212.

   Acceptable arrangements to depart Australia

9. 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]).

10. According to the delegate’s decision, the applicant told the delegate that he did intend to depart, but also that he did not have a current passport and that he has ‘issues’ with his family that he needs to resolve before he can depart Australia – that he needed some months to be able to sort those issues out.   

11. In answer to questions about his current intention and arrangements to depart Australia, the applicant gave coherent and plausible evidence.  

12. At hearing, the applicant said that he has had enough of detention and all the troubles he has had in Australia and wants to return to India.  He has always honestly stated his intention to return to India (even back in 2021 on a different bridging visa application) but as he had told the delegate, there are issues he has to resolve before he can do so safely.  While he acknowledged that he may not be eligible for a protection visa, the applicant said he has to do what he can to make sure that his family (his father, mainly) don’t harass him if he returns to Punjab to collect his official documents, such as career and education certificates, which he has lost.  He has to go to Punjab to get new copies of those certificates.  So, his plan is to reach out to his relatives here in Melbourne and ask them to contact his father and get an assurance that the applicant will be left alone and safe if he returns temporarily to Punjab, knowing that he then would leave the area.  He has close relatives in Uttar Pradesh, and he plans to go there and live with them but again, that has to be arranged.  They are family, members of who are living in Melbourne.  He lost contact with them during 2020 and 2021 when he was ‘at his worst’ and they will need to see him and be shown that he is no longer living that life, and that he is clean and wants to start afresh. Then, with their help, he can make arrangements to go back to India safely.

13. I asked the applicant how he could afford to return to India, and he said that he believes his relatives in Melbourne will help him but even if they don’t, his two friends who gave him statements of support have also said they would assist him to get a plane ticket and return to India.

14. The applicant said that in 2021 when he told his family that he was a homosexual man, his father threatened to kill him.  He has not spoken to them again.  Due to his drug dependence, he became paranoid, fearing that his father would send someone to kill him here in Australia. I asked if he still worries about that and the applicant said he does not.  But the rejection by his family caused him to become very depressed and worsened his drug dependence, leading to the most serious of the offences for which he was sentenced to a term of imprisonment. 

15. The applicant gave evidence that he intends to and will return to India, though he needs about three months to make the necessary arrangements, outlined above.  He has made enquiries and can be granted a new passport within about four weeks.  His two friends have offered to house and feed him whilst he makes arrangements for his departure.  (Declarations had been provided with his application for the visa from [Mr A] and [Mr B] to this effect.)  I asked the applicant if he had discussed leaving the country with them specifically and he said that he had, as noted earlier, and had talked about making sure it was safe and then returning with their help buying the plane ticket.  I asked if his friends were expecting me to call today.  The applicant said that he had not expected the Tribunal to call them and so they were not, but he hoped that they would answer the phone. 

16. The Tribunal called [Mr B] but there was no answer.  However [Mr A] answered the call and agreed to discuss the applicant’s case with me.  He took an affirmation. [Mr A] said he is a truck driver.  He said that he had known the applicant since they were children in India together. He was always a smart and good kid, but he is aware that he lost his way, fell out with his family, and committed offences and took drugs over recent years.  [Mr A] said he had lost touch with the applicant for some years when those things were happening.  He confirmed that he knows the applicant is receiving treatment for his drug addiction and that he has talked with him about his desire to return to India.  [Mr A] explained that the applicant needs to get an assurance from his family that he will be safe first, and make arrangements with his extended family to live somewhere away from his parents.  I asked [Mr A] if he had asked the applicant how long this would take and he said that he had, and that he was under the impression it would take about three months for him to sort out these issues, get his passport organised and be ready to return to India safely.  [Mr A] confirmed that he would assist the applicant with whatever he needed, including the airfare to enable him to leave.  [Mr A] said he had no hesitation in offering accommodation and support to the applicant as he knows that he is a good person who is trying to get his life back on track.    

17. The file contains a certificate under s.375A of the Migration Act, claiming non disclosure of some of the ordinary documents on the departmental file but not providing a reason for the claimed non disclosure. On 9 June 2023 the Tribunal wrote to the Department alerting them to the defective certificate. The Tribunal subsequently received a new certificate under s.376 claiming non disclosure of two documents which form part of the Departmental file, claiming that disclosure of the material would be contrary to the public interest because

    ·     It would disclose lawful methods for preventing, detecting and investigating breaches or evasion of the law which would or be likely to prejudice the effectiveness of those methods; and

    ·     It could disclose, or enable a person to ascertain the existence or identity of a confidential source of information.

18. An examination of the documents covered by the certificate under s.376 discloses that they are a request to Victoria Police for the applicant’s criminal history record and Victoria Police’s response which includes the applicant’s detailed criminal history.

19. I find that the 375A certificate was defective and invalid.  I do not consider the certificate under s.376 to provide a valid ground for non-disclosure of the documents it covers.  Providing the applicant with information about a request for and the provision of his own recorded past criminal history is not logically going to disclose or prejudice the effectiveness of or reveal lawful methods for preventing, detecting or investigating breaches or evasions of the law.   Nor could it lead to the disclosure of any confidential source of information.   I consider that it is likely that the certificate is not valid, for that reason.  I did not invite the applicant to comment on the certificate, because regardless of validity, I considered that it was appropriate to discuss the contents of the criminal history record with the applicant.  I explained this to him and that in my view his criminal history was relevant because the record is potentially adverse to him and some of the offences could be characterised as dishonesty offences and therefore might be relevant to whether I accept him to be a reliable and truthful witness – and also, because it could give me an understanding of whether he has accepted responsibility for his past offending.

20. The applicant was verbally taken through each of the criminal history records.  He conceded that the record was an accurate one, and clarified how each occurred, as far as he could recall.  He acknowledged his offending and that he had pleaded guilty as advised by his legal representatives (where relevant).  It is clear and I accept that the applicant had a significant past history of serious drug abuse and that his past offending was linked to that addiction and consequent social isolation.  I also accept, based on the medical records provided from his place of detention, that the applicant has been receiving ongoing treatment for his addiction for the past few months in the form of opioid substitution injections administered monthly whilst he is in detention.

21. The applicant confirmed that he is receiving opioid substitution treatment for his drug addiction.  He is very optimistic about his progress.  He started this course of treatment in about March this year. I asked him if he could continue this treatment in the community here in Australia if he were released from detention.  He said that he could do so, and he definitely would, and explained that he had another person he knows who was receiving the same treatment when he was released from detention.  What happens is that the prescription is sent to the chemist near where you are staying, and you can then continue to receive it as required.  His understanding is that it is free of charge, but if there is a cost, he is sure his friends will help him pay for what is needed. 

22. The applicant explained that he had also researched the availability and how to access treatment for his drug addiction in India.  He has found that in India, the drug he currently receives via injection is a tablet rather than an injection.  He has ascertained that you take your referral to a general hospital and they make arrangements for a program of treatment.  His understanding is that this treatment in India is free of charge.   The applicant is confident that he can and will access ongoing drug therapy for his drug addiction in Australia and also in India on his return.    

23. I was impressed by the applicant’s frankness at hearing.  I found his evidence about the need for some preparation before he could return to India to be plausible and sensible.  I accept that he has made plans and enquiries about getting a passport, treatment, accommodation and financial support on his return, and that those plans are reasonably well advanced though not finalised at this stage, due to the restrictions he faces in detention. 

24. I was also impressed by the evidence of [Mr A], who was effectively ‘cold called’ and asked about matters that were not in his statutory declaration.  I accept that he was aware of the applicant’s troubled drug and criminal history and is able and willing to financially and practically support the applicant in Australia and also to assist him with the expenses of returning to India.   I accept that he has known the applicant since he was a child and considers that he is genuine about his desire to overcome his drug habit and to return to India.  He had even discussed the time needed with the applicant, saying that the applicant had given him the impression that he would expect to depart Australia within about three months of being released from Detention.

25. I accept the evidence given by the visa applicant and [Mr A].  I consider that the applicant has assessed and reasonably managed his expectations and the steps he needs to take to enable him to depart Australia, including passport application, treatment organisation and planning, financial support and negotiating or resolving familial estrangements as best he can to minimise his stress and distress on return to India. Given his personal and drug addiction history, it is essential that his return to India does not involve unnecessary physical or financial insecurity. To that end, he would not be reasonably able to simply buy a plane ticket and depart immediately on release from detention, and I accept that he is planning responsibly to ensure his safety and wellbeing before and at the time of departure.  I accept that he has sought the support of friends and will rely on that practical support if he is granted a bridging visa to prepare for and finalise his departure from Australia. 

26. For these reasons, the Tribunal is satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant meets cl 050.212(2).  The Tribunal is satisfied that the applicant continues to make acceptable arrangements to depart Australia at the time of making this decision and is an unlawful non citizen.  He therefore satisfies cl.050.222 

27. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl 050.212(2) of Schedule 2 to the Regulations; and

    · cl 050.222 of Schedule 2 to the Regulations.

    Anne Grant
    Member