BAKATA (Migration)

[2024] AATA 1474

BAKATA (Migration) [2024] AATA 1474 (21 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAIRUSI BAKATA

REPRESENTATIVE:  Mr LEO GIAMPIETRO

CASE NUMBER:  2411521

Home Affairs REFERENCE(S):               BCC2024/2690770

MEMBER:Paul Noonan

DATE:21 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2024 at 12.40pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging E) – acceptable arrangements to depart – passport lapsed, period as unlawful non-citizen and working – discussions with family about whether to apply for another visa – stated wish to stay in Australia and work – not eligible for other subclass visas – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 359A(1), (4)(b), 376
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(2)

CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 7 May 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) which states that the 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 9 May 2024 on the basis that the applicant does not meet the requirements in cl 050.212.

4. The applicant appeared before the Tribunal on 21 May 2024 to give evidence and present arguments. The applicant’s representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The grounds for seeking the visa - cl 050.212

6. 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.

7. The Tribunal discussed these criteria with the applicant. The applicant confirmed that he is now seeking to meet cl 050.212(2) only.

   Acceptable arrangements to depart Australia

8. cl 050.212(2) states that the 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. For the reasons below, the applicant does not meet cl 050.212(2).

9. ‘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. The Tribunal discussed with the applicant that the delegate’s decision (a copy of which he supplied to the Tribunal) sets out that, at interview with the Department on 8 May 2024, he stated that he wished to be released from detention so that he could discuss his options with his Australian based mother as to whether he lodges an application for a new visa or departs Australia. He also stated that he wished to discuss this with his family as to whether they needed him to stay in Australia before deciding whether to depart or not. Further that he stated to the interviewer that he wished to stay in Australia and find a way to find a new visa to work. Further, it was noted, that the applicant had been an unlawful non-citizen in Australia who had been working for the previous four years, reflecting a history of disregarding Australian migration laws, and also that he had let his Fijian passport lapse. The Tribunal put to the applicant that this history and his statements at interview, may indicate to the Tribunal that he has an intention to remain in Australia and work. The applicant stated that he just wanted three weeks to arrange his departure with his mother. The applicant stated that this is because he has no money and she will pay all his travel expenses.

11. The Tribunal asked the applicant whether he would be willing to let the Department arrange his departure straight from detention. The applicant stated that he did not want this and wanted his mother to arrange it. He submitted that she has the money as she works. The Tribunal asked the applicant whether his mother could not simply purchase a ticket for him. The applicant stated that he needed to be with her outside of detention but did not explain why this was the case.

12. On balance, the Tribunal considers that the applicant has not demonstrated that he was making acceptable arrangements to depart Australia at the time of application. This is because he has made recent statements indicating an intention to continue working in Australia and he has not taken any steps to actually arrange his passage back to Fiji, such as renewing his passport or obtaining valid travel documentation. Further he has a long history of working as an unlawful non-citizen in Australia which indicates a propensity to disregard Australian migration laws, which also indicates to the Tribunal a continued intention to work rather than depart. These considerations significantly outweigh the applicant’s vague claim that he needs to be released to be with his mother, in order to begin the process of arranging his departure.

13. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant does not meet cl 050.212(2).

    Application for a substantive visa

14. cl 050.212(3)(b) states that an applicant meets the requirements if this subclause if the Minister is satisfied that they will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

15. The applicant was also recorded in the delegate’s decision as stating that if released he intended to apply for a work visa pursuant. The applicant confirmed to the Tribunal that he no longer seeks to meet this criteria and just wants consideration under the depart Australia criteria discussed above.  

16. The Tribunal is not satisfied that at the time of application the applicant has made or will be able to make a valid application for a substantive visa in Australia that can be granted in Australia. Therefore the applicant does not meet cl 050.212(3).

17. The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and after discussing these with the applicant the Tribunal is satisfied that this is the case.

    Whether the applicant satisfies cl.051.211

18. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. One of the criteria under this visa subclass is cl.051.211, which requires an applicant to be an “eligible non-citizen” referred to in rr.2.20(7), (8), (9), (10) or (11) of the Regulations.

19. Based on the information in front of it, the Tribunal finds that the applicant had turned 18 at the time of application and is therefore unable to satisfy the definition of “eligible non-citizen” in r.2.20(7) at that point. It finds that the applicant had not turned 75 at the time of application and is therefore unable to satisfy the definition of “eligible non-citizen” in r.2.20(8) at that point.

20. The applicant confirmed that he is not under nay form of medical treatment. In respect of r.2.20(9), there is no information to show that the applicant had a special need in respect of which a medical specialist appointed by the Department has certified that he cannot properly be cared for in a detention environment: r.2.20(9)(c). He is therefore unable to satisfy the definition of “eligible non-citizen” in r.2.20(9) at the time of application.

21. In respect of r.2.20(10), the applicant confirmed that he is not that the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen: r.2.20(10)(c). He is therefore unable to satisfy the definition of “eligible non-citizen” in r.2.20(10) at the time of application.

22. Lastly, and in respect of r.2.20(11), there is no information to show that the applicant is a member of the family unit of a non-citizen to whom r.2.20(10) applies.

23. As the applicant was not an eligible non-citizen referred to in rr.2.20(7), (8), (9), (10) or (11) at the time of application, he is therefore unable to meet the requirements of cl.051.211 at that point.

24. The applicant therefore does not meet the requirements for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    Non-disclosure certificate

25. Prior to the hearing the Tribunal made the applicant aware of the existence of a non-disclosure certificate made under s.376 of the Act by letter dated 14 May 2024, which relevantly stated as follows:

    In this matter, the Department has issued a certificate over documents supplied to the Tribunal under s.376 of the Migration Act 1958 (‘the Act’). I attach a copy of the certificate for your reference.

    The Department has sought to protect disclosure of TRIM reference number(s) ADD2024/2758457 of file number BCC2024/2690770 on the basis that it would be contrary to the public interest to disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods

    The Tribunal has reviewed the material sought to be protected by the certificate and found it relates to a Located Person Interview conducted with the applicant by Australian Border Force.

    The Tribunal has the discretion to disclose the information which is subject to the s.376 certificate to you, or it may withhold the information, having regards to any comments raised by the delegate in the certificate.

    Invitation to comment

    Subject to your comments the Tribunal proposes to find that the certificate is valid. I write to provide an opportunity for you comment on the validity of the certificate. You should provide any submissions regarding the validity of the certificate by 20 May 2024.

26. With respect to the validity of the certificate the applicant stated that he did not wish to make a submission.

27. The Tribunal also explained to the applicant that it has reviewed the certificate and the documents and information covered by the certificate. The Tribunal informed the applicant that it has determined that it is not obliged to disclose the information under s.359A(1). As the information either comprises details of the processes and procedures that by themselves are not relevant to the issue of whether the applicant satisfies cl 050 and therefore does not constitute information that would be the reason or part of the reason for affirming the decision that is under review or where, it may be relevant to cl050, is already contained in the decision of the delegate (a copy of which was provided by the applicant to the Tribunal) and is therefore covered by the exception in s.359A(4)(b) from being disclosed under s.359A(1). The applicant made no submissions with respect to this point.

    Conclusion

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

29. 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

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

    Paul Noonan
    Member