Anitoni (Migration)

[2024] AATA 2820

Anitoni (Migration) [2024] AATA 2820 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Feingaola Anitoni

CASE NUMBER:  2423763

Home Affairs REFERENCE(S):               BCC2024/3694929

MEMBER:Rachel Da Costa

DATE:26 July 2024

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 26 July 2024 at 2:08pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – periods of unlawful residence – airline ticket – support for Australian partner – family support – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 73, 376
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; r 2.20

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3

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 11 July 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) and, in particular, subclause 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 16 July 2024 on the basis that the applicant did not meet the requirements in subclause 050.212 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 25 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Falefoou Morris (the applicant’s sister), Ms Kristina Vuna (the applicant’s partner) and Mr Robert Morris (the applicant’s brother-in-law and Ms Morris’s husband). The Tribunal hearing was conducted by videoconference with the assistance of an interpreter in the Tongan and English languages although the witnesses did not need the interpreter.

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

   Background and migration history

6. In the hearing, the applicant gave evidence about his personal background and migration and visa history which is supported by information on the Department and Tribunal files.

7. The applicant is a citizen of Tonga. In Tonga, he has his mother and a sister who live on one of the outer islands and a brother who lives on the main island in Tongatapu. Before coming to Australia, the applicant lived with his brother who is an electrician and he helped his brother in his business.

8. In Australia, the applicant lives with his sister and her husband, their four children, and his partner. All those people are Australian citizens or in the case of his sister, an Australian Permanent Resident. He also has an uncle and aunt in Australia, both of whom are Australian citizens.

9. The applicant came to Australia in December 2019 on a subclass 403 visa as part of the seasonal worker program and worked as a fruit picker in Queensland. He came to Australia to find better opportunities in life. After his visa expired in August 2020, he remained in Australia as an unlawful non-citizen and has not done regular paid work since that time. Between 11 January 2021 and 3 January 2023, the applicant has been granted five Bridging E visas and spent various periods of time as an unlawful non-citizen. His most recent Bridging visa E (prior to the visa which is the subject of this application for review) was granted on 3 January 2023 on the basis that the applicant depart Australia by 17 January 2023. The applicant did not depart Australia. That visa ceased on 17 January 2023 and the applicant became an unlawful non-citizen and remains so to date. On 7 July 2024, he was located by Australian Border Force and detained in Villawood Immigration Detention Centre where he remains.

10. The applicant gave evidence that he does not work but helps babysit his sister’s children. His partner works on a casual basis in a warehouse and she supports him financially and so do his sister and brother-in-law. The applicant and his partner have around $9000 in savings and she owns a car. The applicant does not send money home to Tonga because he does not have the funds to do that.

11. A woman called Daphne Leveni helped him to fill out his Bridging visa application form. She is a relative of his partner.

12. The applicant and his partner have been together since April 2021. They are in a serious, committed relationship. They do not have any children together but in September 2023 and April 2024, the applicant’s partner suffered miscarriages. This has affected both of them emotionally but the applicant’s partner in particular. She is receiving support from her General Practitioner and regularly sees a psychologist to help her with symptoms of depression. The applicant and his partner want him to be able to resolve his visa situation so that he can be with his partner in Australia and they can build their lives here together.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

13. 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

14. 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).

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

16. At the time of application, the 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).

17. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa – cl 050.212

18. 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.

19. 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 the Tribunal finds that he does not. For the reasons below, the Tribunal finds that the applicant meets cl 050.212.

    Acceptable arrangements to depart Australia

20. 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]). 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.

21. The Tribunal has before it the following relevant documents in relation to the applicant’s application which it has taken into account in making its decision:

    ·     Australian Border Force Immigration Status Service Located Person Interview form dated 7 July 2024;

    ·     Department of Home Affairs Detention Client Interview form dated 8 July 2024;

    ·     Bridging visa E application form dated 11 July 2024;

    ·     Notes from interview between the delegate and the applicant in respect of his Bridging visa E application made on 12 July 2024 and 17 July 2024;

    ·     Delegate’s decision made 16 July 2024 which was provided by the applicant to the Tribunal;

    ·     Confirmation and e-ticket flight itinerary for the applicant to fly from Sydney to Nuku’Alofa on 21 September 2024;

    ·     Statutory Declaration of Kristina Vuna (the applicant’s partner) dated 11 July 2024;

    ·     Letter from the applicant to the Visa Assessment Officer, Bridging visa, Department of Home Affairs, dated 11 July 2024;

    ·     Letter from Anil Kaushik, Psychologist, Casula Central Medical Centre in respect of the applicant’s partner dated 9 July 2024;

    ·     Letter from Dr Habib Hassan, General Practitioner, Casula Central Medical Centre, in respect of the applicant’s partner, dated 9 July 2024;

    ·     Letter of support from Ms Falefoou Morris (the applicant’s sister) dated 10 July 2024;

    ·     Letter of support from David Namoa (the applicant’s uncle) dated 10 July 2024;

    ·     Letter of support from Sherry Namoa (the wife of David Namoa) dated 10 July 2024;

    ·     Bio-data page of the applicant’s Tongan passport with expiry date of 1 March 2031.

22. In his interview with the delegate, as set out in the delegate’s decision, the applicant gave conflicting evidence about his intentions to depart Australia, on the one hand saying that he needed to stay in Australia to support his partner and on the other hand saying he was willing to depart Australia and lodge a visa application from Tonga. By the time of the interview, the applicant had booked a ticket to depart Australia for Tonga on 21 September 2024 but the delegate was not satisfied that despite this, the applicant had a genuine intention to depart.

23. In the Tribunal hearing, in response to questions, the applicant explained why he had not complied with his Bridging visa obligations in the past. These explanations essentially amounted to him getting stuck in Australia due to the Covid-19 pandemic and then meeting his partner, falling in love and being emotionally overwhelmed by the miscarriages. He said he just forgot to pay attention to whether his visas were still valid and what was going on. He gave evidence that it was his uncle’s wife who had been making the Bridging visa applications for him after his substantive visa expired. The applicant said that he and his partner had made plans to seek advice about what he needed to do to obtain a substantive visa but they had not got around to it. The Tribunal put to him that his last Bridging visa was granted on the basis that he had agreed to depart Australia by 17 January 2023, but he did not depart, which was a concern in the context of his current application. The applicant said he knew about that visa but he didn’t remember to ask when the visa expired. The Tribunal put to the applicant that his behaviour and migration history suggested that he is a person who does not respect Australia’s migration laws, who does not pay attention to those laws and who does what suits him. The applicant said the Tribunal was right and he is very sorry. He failed to remember to seek the information.

24. The Tribunal asked the applicant how it could be satisfied that if he were granted the Bridging visa this time he would depart Australia, given his past behaviour. The applicant said that he realises he has made a mistake, he has had enough of running around and he has ended up in detention which is a turning point for him. He will never disrespect the laws again and he has made up his mind that he has to leave Australia and sort out his visa situation offshore. He wants to return to Australia and live here but he promises he will depart and obey the laws from now on.

25. The Tribunal asked the applicant why, in that case, he had booked a flight for September rather than, for example, next week. The applicant said that he wants some extra time with his partner to deal with the burden of the miscarriages and also to be here for the birthday of his young niece with whom he is very close, and then he will return to Tonga and sort out his visa situation. The Tribunal asked the applicant how, given his evidence about how close he and his partner are and their emotional struggles, staying longer in Australia before departing makes it more likely that he will depart. The applicant responded that he and his partner have made up their mind about it and his brother-in-law, who is like the leader of the family in Australia, will make sure he goes.

26. In the absence of independent corroborative evidence, like the delegate the Tribunal would have found it difficult to accept the applicant’s assurances about his intention to depart in light of his past behaviour. However, the Tribunal found the oral evidence given in the hearing by the applicant’s partner, brother-in-law and sister to be very persuasive in response to the Tribunal’s questions to them about how it could be satisfied that the applicant genuinely intends to depart Australia this time if he is granted the Bridging visa.

27. In particular, the evidence of the applicant’s brother-in-law, Mr Morris was very clear. Mr Morris said that previously, he was a bit ignorant about the consequences for the applicant and the family of the applicant’s actions, but he clearly understands now. He said that as a professional person and as a member of the family, he will now take on responsibility to ensure the applicant departs on time. If the visa is granted, Mr Morris will personally take the applicant to the airport on his departure date and ensure that he departs. The applicant will no longer be welcome in Mr Morris’s home (which is where the applicant lives) and Mr Morris will not support him financially if he does not do the right thing and return to Tonga when required. Mr Morris said he has the blessing of the family to take this action. He said the applicant wants a future and he won’t be able to return to Australia unless the family helps him to do the right thing.

28. Ms Morris, the applicant’s sister, also confirmed that the applicant’s flight is booked and she and her husband will ensure the applicant leaves and does the right thing. She said the whole family is committed to this and she promises it will happen. Ms Vuna, the applicant’s partner, also said that she and the applicant are completely committed to one another but she will not allow him to overstay his visa in Australia anymore and she wants him to depart and lodge a partner visa application from offshore. Previously, she was scared and didn’t want them to be separated but she has come to terms with what must happen and she has the psychological and other support she needs to deal with his absence. Because of what has happened, she would very much like them to have a bit of extra time to talk and make plans before he departs Australia, which is why they booked the ticket for 21 September 2024 rather than earlier.

29. The Tribunal found the evidence of the witnesses to be compelling. The Tribunal considers that the applicant’s understanding of his situation and options since being detained, as well as the understanding of his partner, sister and brother-in-law, who seem to be the most influential people in his life, has become very clear and they are all committed to making sure he does the right thing and will depart Australia at the time he is required to do so.

30. The applicant’s representative submitted that the applicant has learned his lesson and he understands that he has to depart Australia if he wants to return in the future.

31. Therefore, in all the circumstances, the Tribunal is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

32. For these reasons, the Tribunal is satisfied that at the time of application the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Therefore the applicant meets cl 050.212(2). For the reasons explained above, the Tribunal is also satisfied that at the time of decision the applicant continues to satisfy cl 050.212(2) and so he continues to satisfy cl 050.212, as required by cl 050.221.

    Non-disclosure Certificate

33. 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.

34. 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.

35. 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 provided a copy of the s 376 certificate to the applicant prior to the hearing. The Tribunal also provided a copy of the document covered by the certificate to the applicant prior to the hearing for ease given the hearing was to be conducted by videoconference. The delegate had redacted the surname of the author of the document and the Tribunal added some additional redactions of names which appear in the document which may have been overlooked by the delegate.

    [1] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3

36. The document covered by the certificate is the Australian Border Force Immigration Status Service Located Person Interview form dated 7 July 2024.

37. Before relying on the non-disclosure certificate, the Tribunal must consider whether it has been validly issued. The certificate is dated 19 July 2024 and states that disclosure of the documents in question would be contrary to the public interest because it would:

    a. disclose, or enable a person to ascertain the existence of identity of, a confidential source of information
    b. endanger the life or physical safety of a person.

38. While the Tribunal considers that protecting the personal privacy of the author and other Departmental officers named in this document is appropriate by redacting their names, the Tribunal does not accept that disclosure of the information contained in the documents would be contrary to the public interest for any of the reasons given in the certificate, or for any other reason. For this reason, the Tribunal does not consider the certificate to be valid. Further, much of the information contained in the document was provided by the applicant himself when interviewed and that information is then accompanied by the author’s analysis and conclusion about the applicant’s detention. The Tribunal ultimately did not find this information to be relevant, apart from providing background, and did not rely on it in making its decision.

    Conclusion

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

2. 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

3. 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 of Schedule 2 to the Regulations

   Rachel Da Costa
   Member