2420112 (Migration)

[2024] AATA 2809

2420112 (Migration) [2024] AATA 2809 (4 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2420112

MEMBER:Lilly Mojsin

DATE:4 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2024 at 11:56am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – compliance with conditions and acceptable arrangements to leave – significant periods as unlawful non-citizen, unsuccessful application for protection visa and immigration detention – no visa or court applications in progress – no application for new passport or travel plans – need to recover business investment in person – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(2), 050.223

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) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant, who is a male citizen of Malaysia, applied for the visa on 24 June 2024. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria includes cl 050.223, which concerns compliance with visa conditions.

3. The decision to refuse to grant the visa was made on 27June 2024 as the delegate was not satisfied the applicant was making acceptable arrangements to leave Australia.

4. The applicant appeared before the Tribunal on 4 July 2024, via video, from Villawood Detention Centre to give evidence and present arguments. The applicant utilised the services of an interpreter in the Mandarin language.

5. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant’s migration history is as follows:

   ·On 2 May 2006, the applicant lodged an application for an Electronic Travel Authority (class UD) (subclass 976) visa (UD 976) which was granted on the same day, permitting him to stay in Australia for 3 months after arrival.

   ·[In] May 2006, the applicant arrived in Australia and has not departed since. On 20 August 2006, the applicant’s visa ceased.

   ·On 21 August 2006, the applicant  became an Unlawful Non-Citizen (UNC) for over 6 years until 16 October 2012.

   ·On 15 October 2012, the applicant lodged an application for a Permanent Protection (class XA) visa (PV ) and on 16 October 2012 the applicant was a granted a Bridging C (class WC) (subclass 030) visa (BVC) in association with this application.

   ·On 22 November 2012, the applicant’s PV application was determined to be invalid and subsequently his associated BVC ceased on 31 December 2012.

   ·On 1 January 2013, the applicant became UNC for 7 Days until 08 January 2013.

   ·On 8 January 2013, the applicant lodged a further PV application and on the same date was granted a BVC in association to this application. On 25 January 2013, the PV application was refused.

   ·On 4 February 2013, the applicant lodged an application for a further BVC, which was granted on 5 February 2013.

   ·On 21 February 2013, the applicant appealed the Department refusal to then Refugee Review Tribunal[1] (RRT). On 16 April 2013, the RRT [differently constituted] affirmed the decision to refuse the application and subsequently the associated BVC ceased on 24 May 2013.

   ·On 25 May 2013, the applicant became and remained UNC for over 11 years.

   ·On 22 June 2024, the applicant was located by Australian Border Force (ABF) officers and detained under s189 of the Act.

   Tribunal hearing held on 4 July 2024

   [1] RRT 1302682

7. At the Tribunal hearing the applicant confirmed his migration history, as detailed above. He stated that he is not married and he does not have any children. His family are all in Malaysia.

8. The applicant confirmed that he had not made any application for any other visa and he did not have any outstanding appeals before the courts. He stated that he had intended to apply for a bridging visa before he was detained by Border Force but had not done so. He had prepared an application for a new passport but had not submitted it. He also had intended to take a trip around Australia before he left Australia for good.  

9. The applicant told the Tribunal that he did not return to Malaysia earlier because there are still some things he has to attend to, he has debt issues and arguments with his business partner. He also needs to get out of the lease with his partner, [Ms A], who he lives with and sell the car.

10. The applicant claims that he invested money in a restaurant with his business partner. He wants to get his money back and repay the persons from whom he borrowed the money. The restaurant is under his friend’s name, [B], which is his nick name. He is not sure of [B]’s full name. The address of the restaurant is [Address]. The applicant claimed that he has $A10000 and his business partner owes him $60000. If he goes to Malaysia to take care of this issue, he is not sure if his business partner will give the money back. When asked why [Ms A], his partner, has not arranged to recover his investment from the business partner and repay the debt, he said that the person has to see him and he has to sign the contract. The Tribunal put to the applicant that this could be achieved by video, he would be able to scan and sign the document in front of the person and then return it to the partner. The applicant responded that the business partner is only willing to give the money back when he sees him in person.

11. The applicant does not have a current passport, it has expired. He has not submitted an application to renew it, as yet. The day before he was detained he had filled out the form but it is on his laptop. It has not been submitted as he was put into detention and he did not have his laptop or charger. 

12. The applicant gave evidence that he proposed departing as soon as he sorts everything out. The Tribunal asked if he was still planning to travel around Australia before he leaves and he said that he did not. When asked why he would not disappear into the community again he responded that last time he was unlawful he was thrown out of his unit and could not continue with his appeal. 

13. The applicant confirmed to the Tribunal that he had not booked a flight, he has not submitted an application to renew his passport and he has not signed a request for the Department to remove him.

    FINDINGS

14. The Bridging E (Class WE) visa is a visa for unlawful non-citizens seeking permission to remain temporarily in Australia.

15. The criteria for a Subclass 050 visa are set out in Part 050 of Schedule 2 to the Regulations. All applicants must satisfy the primary criteria.

16. The primary criteria to be satisfied at the time of application for a Subclass 050 visa include that the applicant is an unlawful non-citizen or the holder of a Bridging E (Class WE) visa or a Subclass 041 (Bridging (Non-applicant)) visa. The applicant must not be an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10) or (11): cl.050.211. In addition, the applicant must meet one of the alternate sub criteria in cl. 050.212.

17. The delegate refused the application on 27 June 2024, finding that the applicant was unable to meet any of the grounds under cl 050.211 and cl 050.212, including subcl. 050.212(2) of the Regulations that states:

    (2) An 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.

18. The delegate found there was no evidence that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

19. As the delegate concluded that the applicant did not meet any of the time of application criteria under clause 050.212, the delegate did not consider whether the applicant would abide by the conditions of a bridging visa, or whether a security would be required to ensure that he would abide by any conditions.

20. Clause 051.211 states that:

    The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

21. The delegate was also not satisfied that that the applicant met the requirements in cl 051.211 because the applicant is not an eligible non- citizen of the kind set out in regulation 2.20(7), (8), (9), (10) or (11).

22. The applicant has been interviewed by an officer authorised by the Secretary for the purposes of cl 050.222. The applicant therefore also satisfies cl.050.222.

23. Therefore, the issue to be determined in this review is whether the applicant will satisfy cl.050.212.

24. 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.

25. The applicant does not claim to meet any of the other alternative criteria in cl 050.212.  On the basis of the evidence before the Tribunal, the Tribunal is satisfied the applicant does not satisfy cls.050.212(3), (3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6), (6AA), (6A), (7), (8), or (9).

26. Subclause 050.212(2) is met if the decision-maker is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

27. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chen v 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]).

28. The applicant has been in Australia for over 18 years and has been an unlawful non-citizen in Australia for a cumulative period of over 16 years, which is a significant period of time since his subcl. 976 visa ceased and then his bridging visa ceased. He had attempted to regularise his migration status with the Department when applying for a PV and the associated BV but once that application was unsuccessful, he again became an unlawful non-citizen. He claims that he lost his appeal papers when evicted from his unit and could not continue his appeal. The applicant then became an unlawful non-citizen again for over 11 years until he was arrested and placed in detention.

29. The applicant’s past period of unlawfulness and failure to depart Australia may demonstrate a future intention to continue to remain in Australia and not depart. The Tribunal is not persuaded by the applicant’s claims that he has a business partner and he needs to see this partner face to face in order to obtain his investment back and repay his debtors. He only knew the nickname of this person. The Tribunal does not accept as plausible that the applicant would invest $60000 in a restaurant without knowing even the name of the person to whom he paid the monies. Therefore the Tribunal is not satisfied that the applicant needs to make arrangements regarding repay his debts.

30. The term ‘making’ or being ‘the subject of, acceptable arrangements’ to depart Australia means practical arrangements to depart Australia, such as signing a request for the Department to remove the applicant, possessing a valid passport and arranged travel by sea or air. The applicant does not have a valid passport and he has not made any arrangements to depart Australia. He has not signed a request for the Department to remove him.

31. In all the circumstances, the Tribunal is not satisfied that the applicant is making, or the subject of, acceptable arrangements to depart Australia.

32. Therefore, the applicant does not satisfy cl 050.212(2).

    DECISION

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

    Lilly Mojsin
    Member