Goh (Migration)

[2018] AATA 3135

Goh (Migration) [2018] AATA 3135 (27 July 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Il Koo Goh

CASE NUMBER:  1820894

DIBP REFERENCE(S):  BCC2018/2629825

MEMBER:David McCulloch

DATE OF DECISION:  27 July 2018

DATE CORRIGENDUM

SIGNED:13 August 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The section ‘s.424A’ at paragraph 16 should be replaced with ‘s.359AA’.

David McCulloch
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Il Koo Goh

CASE NUMBER:  1820894

DIBP REFERENCE(S):  BCC2018/2629825

MEMBER:David McCulloch

DATE:27 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 July 2018 at 8:28am

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Whether the applicant is making, or is subject of, acceptable arrangements to depart Australia – Where applicant claims to intend to depart Australia after sale of assets – Where applicant stated at Located Person Interview that he did not intend to depart Australia willingly – Where applicant stated at Located Person Interview that he intended to apply for a substantive visa – Decision affirmed

LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Migration Act 1958 (Cth), ss 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

CASES
Chenv 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 378 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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 July 2018. At that time Class WE contained two 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 (the Regulations). Relevant to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 17 July 2018 on the basis that the applicant did not satisfy any of the criteria in cl.050.212. In particular, the delegate was not satisfied that the applicant was making, or the subject of, acceptable departure arrangements to depart Australia The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Josh Hs Lee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

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). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant does not meet 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 Department of Immigration’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides 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]).

   Background from delegate’s decision

10. The Tribunal notes the following relevant details from the decision of the delegate dated 17 July 2018 to refuse the application for the bridging visa:

    Mr Goh last arrived in Australia on 5 August 2014 as the holder of a Visitor Visa (Subclass FA600) which permitted him to remain in Australia for three months.

    On 9 October 2014 Mr Goh lodged an application for a Student Visa (subclass TU572). He was granted an associated Bridging Visa A (BVA). On 30 October 2014 Mr Goh was granted a Student Visa subclass TU572 which was valid until 15 March 2017.

    On 11 July 2018, Mr Goh was located by Australian Border Force (ABF) officers at Sutherland Local Court. He released from criminal custody with a s10A conviction for "Possess Prohibited Drug". Mr Goh was detained pursuant to section 189 of the Migration Act 1958 (the Act) as an UNC. He was transferred to the Villawood Immigration Detention Facility (VIDF), where he currently remains.

    On 12 July 2018 Mr Goh expressed his intention to lodge a substantive visa application from detention and sought an extension of five working days to lodge a substantive visa application. The extension was granted to Mr Goh on the same day under section 195 of the Migration Act and that is valid until 20 July 2018.

    On 13 July 2018 Mr Gob lodged an application for a Bridging Visa E (BVE) on Form 1008. The Form 1008 was sighted by the Detention Review Officer on the same day, as required under Item 1305(3) (c) of the Migration Regulations.

    In his application for a BVE, Form 1008 under question 9, Mr Goh's has ticked "Making arrangement to depart Australia". On Form 1008 in question 15, Mr Goh's states, "/ have been in Australia for 4 yrs and I found student visa expired on Mar 2017 later because I thought that my ex-wife applied for her visa on April 2017 and I was included with that application. It was my mistake. I decided to depart Australia within 3 weeks. I booked an air flight which departs Sydney on 3^rd Aug 2018 already as attached. I have to arrange my departure including applying new passport, paying bills and removed booking other personal belongings to S. Korea. I was staying with my ex-wife and children and I also have to let them make their decision for departure since they are waiting for AAT decision there are my parents and sibling in S. Korea and I have to go back there in any way. Please let me have some time to prepare my departure. I do not want to leave any unsettled accounts (Rent, car, electricity, mobile phone and etc) in Australia. In addition, my children do not know what happened to their father and they are very anxious about this now. I want them to be relieved from this situation and I will go back to S. Korea in a normal way."

    In making the decision on Mr Goh's application for a BVE, I have taken into consideration information provided by him, available information on Departmental databases and Departmental legislation and policy.

    An applicant meets the requirements of subclause 050.212(2) if the Minister is satisfied that that the applicant is making, or is the subject of, acceptable departure arrangements to depart Australia.

    Whilst not defined in the Regulations, policy (Procedures Advice Manual 3) provides

    some guidance:

    Acceptable arrangements to leave Australia

    When assessing this criterion, officers may take into account any or all of the following factors in satisfying themselves that the applicant is making, or is the subject of, acceptable arrangements to leave Australia:

    ·The applicant has a valid ticket for travel and a booking or reservation to leave Australia.

    ·The applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period.

    ·The applicant also holds a valid travel document or could obtain a valid travel document within a reasonable period (possibly through the assistance of IOM).

    ·The applicant is actively engaging in a Status Resolution service (including assisted voluntary return (A VA) arrangements).

    ·The applicant is a minor whose parent/guardian is making, or has made, departure arrangements on the minor's behalf.

    ·The applicant is the subject of departure arrangements in .circumstances where they have a medical condition that limits their capacity to travel (for example, physical or mental health considerations) but otherwise would leave Australia if they were physically able to do so.

    ·The department is making arrangements on the applicant's behalf to facilitate the applicant's departure (for example, obtaining a travel document on behalf of the applicant).

    It is also open to the Minister to consider whether the applicant's intentions were genuine in deciding whether the applicant was making acceptable arrangements to depart (Lin at [30]).

    In this instance, I note that Mr Goh does not have a confirmed ticket and valid passport. Instead he has provided a reservation to leave Australia on 3 August 2018. He has provided a copy of his South Korean [passport], which expired on 19 September 2016 with his BVE application. Therefore he has no paid ticket and valid passport to depart Australia.

    On 11 July 2018 during the Located Person Interview (LPI), Mr Goh stated he intends to apply for" 457 visa — wants to join family's application (who are currently on associate bridging visa)." When asked are there any reasons why you cannot return to your home country, he stated "my family lives here in Australia. I have no one else there." When asked why didn't regularise his immigration status when his visa was expired, he stated that "I thought I didn't need to, I thought we were applying for a 457 visa as a family. I was too busy (working) to contact immigration when I found out (since Dec) 2017." When asked if you were not located by ABF officers, what you were going to do about your immigration status then he stated "/ was too busy working, I couldn't focus on my immigration issues."

    Further in his BVE application, Mr Goh stated that "I found student visa expired on Mar 2017 later because I thought that my ex-wife applied for her visa on April 2017 and I was included with that application."

11. In advance of the hearing, the applicant provided a statement and documents to the Tribunal. In the statement, the applicant indicated that he set up his own business in December 2014 when he was holding his student visa. The business grew quickly. The applicant indicated that he transferred ownership in May 2018 to his business partner, mr Lee, because he wanted to go back to South Korea at that time. An ASIC document is provided showing the one share in the applicant’s business being held in the name of this individual with that person appointed a director of the company on 10 May 2018.

12. The applicant indicates that the business bank account is still in his name and he has to complete the business transfer process. The applicant provided copies of bank statements and correspondence of an account in the name of Ik Facility Service P/L. A share certificate dated 12 December 2014 shows the applicant as the shareholder of the one share in the company. The applicant indicates that his passport has expired and he needs to renew it to depart Australia. The applicant indicates that he was living with his ex-wife and children and he does not wish to return to South Korea under Departmental supervision but he wants to go back to South Korea voluntarily after he completes the business transfer process.

13. In the Tribunal hearing, the applicant indicated that his ex-wife, who he had divorced in 2008, and children, arrived in Australia in 2015 on a work-related visa. Their arrival in Australia was not connected with the applicant, although the applicant indicated that prior to detention he had been living with his ex-wife for the last one to two years.

14. In the hearing, the applicant indicated that in March or April 2017, when it was clear that his ex-wife did not want to reconcile with him, he made the decision to return to South Korea.  He needed to sell his cleaning business as a precursor to this. He did not get firm offers for the price that he wished for the business. He ended up transferring the business to Mr Lee, his cousin (and witness in the hearing) for $100,000 with a $20,000 down payment and the balance to be paid. In the hearing, Mr Lee confirmed payment arrangements for the business.

15. Both the applicant and Mr Lee gave evidence in the hearing that logistical matters such as banking, email accounts, web hosting and customer relations need the presence of the applicant out of detention to facilitate.

16. In the hearing the Tribunal put the following information adverse to the applicant to him under the procedural requirements of s.424A of the Act:

    ·     In the Record of a Located Person Interview by Australian Border Force held on 11 July 2018, the applicant answered ‘no’ to the question as to whether he was willing to depart Australia voluntarily and gave an indication that his family lives in Australia and he has no one else there [in South Korea].

    ·     An indication in that interview by the applicant that he runs his own business.

    ·     An indication in that interview by the applicant that he was too busy working to focus on his immigration issues, namely that he was an unlawful noncitizen.

    ·     An indication in the delegate’s decision that on 12 July 2018 the applicant indicated in an interview his intention to launch a substantive visa application. An extension of time for the applicant to make such an application had been given.

17. The Tribunal put to the applicant in the hearing that this information was relevant because it is undermining of the applicant’s claim in the hearing that he had intended to depart Australia for South Korea as early as March or April 2017. It was undermining of the genuineness of the applicant’s claim when applying on 13 July 2018 for the bridging visa that he intended to depart Australia.  Such a claim is inconsistent with claims made by the applicant in the previous days that he intended to lodge a substantive visa to remain in Australia, that he did not intend to leave Australia voluntarily, and that he was busy with his business. The statements provided by the applicant on 11 and 12 July 2018 that he does not intend to leave Australia voluntarily and that he is very busy running his business are inconsistent with written claims to the Tribunal that the applicant transferred his business interests to another individual in May 2018 because he wanted to go back to South Korea at that time. It is clear from statements on 11 and 12 July 2018 that the applicant had no prior intention to return to South Korea. The fact of the applicant later indicating that he was very busy with the business, notwithstanding the earlier claimed transfer, is not consistent with a later claim of the applicant to have wound down involvement in the business, albeit that the ownership structure had changed.

18. The Tribunal indicated that the consequence of relying on this information could be for the Tribunal to not be satisfied that the applicant has a genuine intention to depart Australia and to conclude that the applicant was not making, or was not the subject of, acceptable arrangements to depart Australia.

19. In response, the applicant indicated that these issues must be due to miscommunication with Departmental officers interviewing him and because there was no interpreter. In relation to the need for an interpreter the Tribunal noted that the applicant, as he had indicated in the hearing, had completed a diploma course in business in Australia taught in English with the applicant studying English as a precursor. The Tribunal had difficulty accepting in such circumstances that interview records which are clear and unambiguous could have been as a result of the absence of an interpreter.

20. The applicant’s migration agent made oral submissions in the hearing and written submissions after the hearing that there was miscommunication between the applicant and Departmental interviewers including due to the lack of an interpreter. He indicated that the applicant thought if he signed anything he would be immediately returned to South Korea. Written submissions indicate that the applicant did not know what a substantive visa means and that he intended to apply for a bridging visa for voluntary departure. Written submissions indicate that statements made by the applicant in interviews with the Department that he was busy with his business are as a result of a serious misunderstanding. It is claimed that the applicant was divorced from his ex-wife so it does not make sense that he claimed that he wanted to apply for a 457 visa as a dependent.

21. The applicant says that he did not indicate his intention to apply for a substantive visa but that he intended to apply for a bridging visa. In this respect the Tribunal notes that the  Located Person Interview undertaken with the applicant on 11 July 2018 specifically notes the applicant answering ‘no’ as to whether he intended to apply for a substantive visa, and adding that he wanted to join his family’s application for a 457 visa. The Tribunal is not persuaded that this record of the interview could have been a product of miscommunication. Further, in the bridging visa application the applicant specifically says that he thought that he was included with his wife’s visa application in April 2017, which undermines arguments that it does not make sense that the applicant would say he was applying for a substantive visa associated with his wife as he was not a dependent as being divorced from his ex-wife.

22. The record of this interview on 11 July 2018 is clear that the applicant answered ‘no’ to the question as to whether he was willing to depart Australia voluntarily. On multiple indications in the interviews the applicant has referred to being busy running his business without ever mentioning that he has transferred this business to his cousin with an intention to depart Australia. The Tribunal is also not satisfied that these answers recorded in the interviews are a product of a misunderstanding. The Tribunal is not satisfied, on the basis of the applicant’s history in Australia, including studying a business degree in English, that problems with English have led to misunderstandings.

23. Considering all of the evidence and for the reasons set out, including in paragraph 17, the Tribunal is not satisfied that the applicant has been genuine in his claims of an intention to depart Australia or truthful in claims that he had formed an intention to depart Australia in the first half of 2017 or thereafter. Including for the reasons set out in paragraph 17, the Tribunal is not persuaded that the applicant wound down his involvement in the business after it was transferred in May 2018.

24. The Tribunal accepts that the applicant has transferred his business but that does not persuade the Tribunal that the applicant has a desire to devolve himself of all practical involvement in the business as a precursor to departing Australia.

25. Considering all the evidence, the Tribunal is not satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal is not satisfied that the applicant’s claimed intentions in this respect are genuine.

26. The Tribunal acknowledges that the applicant remaining in detention will create logistical problems for the applicant and Mr Lee in relation to arrangements that need to be put in place to facilitate the continuing running of the business and transfer issues. The Tribunal does not have discretion to take these matters into account if threshold issues for the granting of the bridging visa are not met.

1. For these reasons, the Tribunal is not satisfied that 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).

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

3. 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

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