2436172 (Migration)
[2024] AATA 3998
•9 October 2024
2436172 (Migration) [2024] AATA 3998 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2436172
MEMBER:Rachel Da Costa
DATE:9 October 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 9 October 2024 at 9:58am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – arrangements to depart Australia – applicant convicted of several offences – request for Ministerial Intervention – period of unlawful residence – valid passport – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46, 48, 73, 85, 195, 351, 417
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; r 2.20CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 September 2024. 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).
The decision to refuse to grant the visa was made on 27 September 2024 on the basis that the applicant did not meet the requirements in cl 050.212, cl 050.221 or cl 051.211 of Schedule 2 to the Regulations. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 8 October 2024 to give evidence and present arguments. The applicant is currently residing in [a named] Detention Centre and the hearing was conducted using the Microsoft Teams videoconference platform. The applicant speaks fluent English and did not require the assistance of an interpreter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
Based on the information contained in the delegate’s decision, information on the Department file and evidence provided by the applicant in the hearing, the applicant’s relevant background is as follows.
The applicant was born in Sri Lanka and arrived in Australia in August 2012 by boat when he was [age] years old. In very brief terms, the applicant claims that his mother sent him to Australia for his safety after he was a witness to his father’s murder in 2011 by the Sri Lankan Army due to his father’s connection to the Liberation Tigers of Tamil Eelam (LTTE).
Since being in Australia, the applicant has applied for permanent Protection visa (class XA) (the application for which was determined to be invalid) and for a Safe Haven Enterprise Visa (class XE) which was refused in May 2020. The applicant unsuccessfully sought review of this refusal in the Tribunal and the courts. In September 2020, the applicant was convicted of a number of offences and spent three years in prison. Upon being released from prison in January 2023, the applicant was taken into immigration detention where he remains. The applicant’s most recent Bridging E visa ceased when he was released from criminal custody and since that time he has been an unlawful non-citizen. The applicant is subject to s 46A, s 48A and s 195 of the Act.
Prior to the Tribunal hearing, the applicant provided copies of the following documents, along with the delegate’s decision:
· a written statement dated 10 August 2022 explaining why it is not safe for him to return to Sri Lanka and requesting the Australian Government’s help;
· English translations of two written statements from his mother in Sri Lanka dated 1 March 2023 and one undated, both of which explain why she fears for her son’s safety if he returns to Sri Lanka;
· letter dated 23 March 2023 from [Parliamentarian A], Member of Parliament for the [named] District, Sri Lanka, explaining why it would not be safe for the applicant to return to Sri Lanka;
· extract and English translation from the Information Book of [Town 1] Police Station dated 15 October 2021 referring to an incident when some people came to the house of the applicant’s mother looking for the applicant and making threats.
As discussed with the applicant in the hearing, it appears that these documents relate to the reasons the applicant claims to fear harm if he returns to Sri Lanka and they are not directly relevant to the issue the Tribunal has to determine in relation to the applicant’s Bridging visa E application.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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
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).
The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
At the time of application, the applicant was an unlawful non-citizen. As at the time of decision, he remains 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).
Therefore, the applicant meets cl 050.211.
The grounds for seeking the visa – cl 050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
In his Application for a Bridging visa E form, the applicant selected the reason for applying for a Bridging visa E that is most appropriate to his circumstances as ‘Ministerial intervention’. The subclauses relating to Ministerial intervention are subclauses 050.212(5B), (6), (6AA) and (6B). The applicant does not claim to meet any of the other alternative criteria in cl 050.212, although the Tribunal has considered whether he also meets cl 050.212(2) on the basis that he is making, or is the subject of, acceptable arrangements to depart Australia. For the reasons set out below, the applicant does not meet cl 050.212.
Ministerial intervention
The Tribunal has considered whether the applicant meets any of the subclauses which relate to Ministerial intervention.
Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act.
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss 345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss 345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. _
While the evidence indicates that s 48A of the Act applies to the applicant, in the hearing, the applicant gave evidence that he has no visa applications or other immigration matters, including requests for Ministerial intervention, currently on foot apart from his Bridging E visa application. The applicant gave evidence that he had twice attempted to make a request for Ministerial intervention in the past by post in 2021 or 2022 when he was in prison. The applicant has not provided further detail about the basis of these requests but he told the Tribunal he never received a response. The delegate’s decision notes there is no record in Departmental systems of an ongoing request for Ministerial intervention by the applicant and the Tribunal accepts this. Based on the evidence before it, including the fact that the applicant never received a response from the Department and the Department has no record of ongoing Ministerial intervention requests, the Tribunal is not satisfied that the applicant has made, or that there has previously been in relation to the applicant, a request for Ministerial intervention of the types referred to in subclauses 050.212(5B) and 050.212(6). The Tribunal finds that subclauses 050.212(5B) and 050.212(6) are not met by the applicant.
Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss 345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s 85 of the Act. There is no evidence before the Tribunal to indicate this situation applies to the applicant.
Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss 345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl 050.212(6A) or, for visa applications made on or after 14 September 2009, cl 050.212(6) or (6A). There is no evidence before the Tribunal to indicate this situation applies to the applicant.
For the reasons explained above, the Tribunal finds the applicant does not meet the requirements of subclauses 050.212(5B), (6), (6AA) or (6B).
Acceptable arrangements to depart Australia
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
The delegate in their decision notes that the applicant signed the Request for Removal form on [a day in] September 2024, but that the applicant had also indicated that he was not willing to depart Australia and he does not hold a valid passport. The Tribunal discussed this with the applicant in the hearing. The applicant gave evidence that his mother, who is his only remaining family member in Sri Lanka, is sick with cancer and he wants to see her, but she told him to stay in Australia and she is worried about the applicant returning. The applicant is also worried that if he returns to Sri Lanka he might be harmed because of what happened in the past. He said he has been warned that people in Sri Lanka are still looking for him and he referred to the documents he provided as set out in paragraph 9 above.
The applicant gave evidence that he would rather stay in Australia than return to Sri Lanka because he fears for his safety, but he has signed the Request for Removal form and he has an appointment to speak to the Sri Lankan Consulate, but he can cancel the meeting. He does not have a valid passport and he has not booked a ticket.
On the basis of the evidence before it, the Tribunal is not satisfied that the 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).
Other subclauses
The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and based on the evidence before the Tribunal, it finds that he does not.
Therefore, cl 050.212 is not met.
Clause 050.221 requires that at the time of decision the applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212. As the applicant does not meet cl 050.212, the Tribunal is not satisfied that the applicant meets the requirements of cl 050.221.
Non-disclosure Certificate
The Tribunal has before it the Departmental file relating to the refusal of the applicant’s visa. The delegate has placed restrictions on some of the material given to the Tribunal by certifying, in writing, that disclosure of the material is contrary to the public interest under s 376 of the Act.
Section 376 provides that the Tribunal may, if the Tribunal thinks it appropriate to do so (having regard to any advice given by the Secretary pursuant to subsection (2)), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
The Australian courts have held that the fact such a certificate has been issued must be disclosed to the applicant in the review as an obligation of procedural fairness.[1] For this reason the Tribunal sent a letter to the applicant prior to the hearing which attached a copy of the certificate, and explained that the Tribunal would discuss further matters relating to the certificate with the applicant in the hearing.
[1] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
The certificate is dated 3 October 2024 and states that disclosure of the document in question would be contrary to the public interest because it would ‘endanger the life or physical safety of a person.’ As explained to the applicant in the hearing, the document covered by the certificate is the Australian Border Force Located Person Interview form completed by the Australian Border Force officer who interviewed the applicant on 23 January 2023 after he was placed in immigration detention.
The Tribunal has read the document and, as explained to the applicant in the hearing, it does not consider the contents of the document to be relevant to the issue for determination by the Tribunal in this case. The Tribunal explained to the applicant that on this basis, it would not place any weight on the contents of the document in making its decision. The Tribunal invited the applicant to comment on this or to request further clarification, but he declined.
Conclusion
For the reasons explained above, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Rachel Da Costa
Member
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