Liao (Migration) - [2024] AATA 2980

Liao (Migration) [2024] AATA 2980 (16 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Runkai Liao
CASE NUMBER:  2426199
Home Affairs REFERENCE(S):               BCC2024/4041608
MEMBER:Alan McMurran
DATE:16 August 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 16 August 2024 at 6:33pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – period of unlawful residence – acceptable arrangements to depart Australia – criminal convictions – airline ticket purchase – outstanding court matter – access to legal assistance – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 116
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221 - 050.223, 050.617; Schedule 8
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Background

This is an application lodged 29 July 2024 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).
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 as at time of application and 050.223 at the time of decision.
The applicant, Mr Runkai Liao, is a single 24-year-old Chinese citizen from Hunan Province who arrived in Australia on 7 July 2018 on a TU 500 student visa granted 22 June 2018.The visa was cancelled under s 116(1)(b) of the Act on 18 October 2023 for non-compliance, and the applicant became unlawful. The applicant did not communicate with the Department after his visa was cancelled. The Department movement records for the applicant show that he has departed Australia while the holder of his student visa on 18 December 2018, 28 June 2019, and on 29 November 2019. He last entered Australia on 16 December 2021.
The applicant has a criminal history in NSW since 27 November 2023 when he was charged, convicted and subsequently fined for having goods in custody suspected of being stolen, including fraudulent identification documents and a credit card, and for being an excluded person entering a casino. Prior to this history, the applicant is recorded as having no interaction with the Department.
The applicant was apprehended by NSW Police on 27 July 2024 when charged with intimidation and trespassing offences. He had a dispute with a landlord because the landlord had locked him out for allegedly not paying a rental deposit. He was bailed to appear at Bankstown Local Court on 14…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liao (Migration)

Details

AGLC: Liao (Migration) [2024] AATA 2980
Case: [2024] AATA 2980
Decision Date: 16 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Bridging E (Class WE) visa. The applicant had been found to be an unlawful non-citizen following the cancellation of his Student (subclass TU 500) visa due to non-compliance. The primary dispute concerned whether the applicant had made acceptable arrangements to depart Australia, a key criterion for the grant of the Bridging E visa.

The Tribunal was required to determine if the applicant met the criteria for the Bridging E visa, specifically subclause 050.212(2) of Schedule 2 to the Migration Regulations 1994, which mandates satisfaction that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal also had to consider the genuineness of the applicant's intentions and arrangements for departure, as informed by relevant case law.

The Tribunal affirmed the decision to refuse the visa, finding that the applicant had not satisfied the criterion of making acceptable arrangements to depart Australia. While the applicant presented evidence of a purchased airline ticket for departure, the Tribunal found this arrangement lacked genuineness. This conclusion was based on the applicant's statement that the ticket's validity was not important to him, his admission that the money was not important, and the fact that the ticket appeared to have been purchased around the time of his arrest and not by him directly. Furthermore, the applicant's stated intention to depart only after an outstanding court matter was resolved, which was beyond his control, indicated that his departure was contingent on external factors rather than a firm commitment to the purchased ticket. The Tribunal also noted that a purported offer for a further student visa had lapsed without acceptance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.The hearing – oral evidence and applicant’s claims - 9 August 2024 and 15 August 2024 The Tribunal commenced the hearing on 9 August 2024. The hearing was adjourned to 15 August 2024 when the applicant re-appeared and the hearing process was concluded.9 August 2024 On 9 August 2024, the Tribunal explained the process for the applicant and that it was only considering the issue of whether the applicant met criteria for the Bridging visa to be granted. The Tribunal explained the criteria, including that the Tribunal must find if there were acceptable arrangements made for the applicant to depart[1] Australia, and as relevant, any conditions[2] which would apply to the visa if granted.[1] Cl 050.212(2)[2] Cl 050.223 The applicant confirmed his visa history as contained in the following Department summary:· 14/06/2018- Student (subclass TU 500) application commenced (offshore) · 22/06/2018 - TU500 application granted 15/03/2024.· 07/07/2018 -Arrived on a TU500 visa 18/12/2018 – Departed.· 29/01/2019 - Arrived on a TU500 visa 28/06/2019 – Departed.· 23/07/2019 -Arrived on a TU500 visa 29/11/2019 – Departed.· 16/12/2021 -Arrived on a TU500 visa.· 18/10/2023 - TU500 visa cancelled under s116(1)(b) for non-compliance.· 18/10/2023 – UNC.· 27/07/2024 - Located by NSWPOL and detained. (Under s189) The applicant was asked why he had not contacted the Department about his visa status. The applicant responded simply that he “did not take the Department seriously” . He said that he had only learnt of his unlawful status and the cancellation of his visa when he entered detention on 27 July 2024. He maintained that he had remained an unlawful noncitizen for 9 months from 18 October 2023 until 27 July 2024, unaware of his status. The Tribunal asked why he wanted the visa. The applicant stated that he had already purchased an airline ticket to return to China on 16 August 2024. He had produced for the Tribunal a copy of a chat message on WeChat from his mobile phone showing a Booking.com confirmation for his travel, and receipt for payment of $388.15 for the fare. He wanted to leave detention before then, so he could organise his personal affairs, recover his passport and depart. He also said he did not want the court matter “hanging over my head”. The Tribunal asked about any further visa intentions or further applications for a visa. the applicant stated he had no intention to apply for any further visas and all he wanted to do was to return to China to his family who were waiting for him in Beijing. He explained that he was to go to Bankstown Local Court in a few days, on 14 August 2024, and believed the Court matter, concerning an AVO dispute with a landlord, would be resolved on that occasion and he would then be able to depart as he had planned on 16 August 2024. He said he had received some advice from a lawyer about the process.

Decision

Reasons for decision

He stated he had purchased the ticket for Beijing and his reason for applying for the BVE is to enable him to secure his belongings and to depart. He intends to stay with a friend pending his departure.Department decision The decision to refuse to grant the Bridging visa was made on 1 August 2024 on the basis that the delegate was not satisfied that the applicant met sub-clause 050.212(2) which requires that the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The delegate recounted the applicant’s history which is not in dispute. The delegate found that the applicant’s intention to depart Australia was not genuine. This was because the applicant had stated he would not depart Australia until an AVO charge against him (still to be determined by a court) had been “dropped” and that these were matters beyond the applicant’s control. The delegate considered that the purchase of an airline ticket was simply designed to support the BVE application and was not genuine. The delegate further found that the applicant had overstayed an earlier student visa after it was cancelled, and had become unlawful, and despite being aware of his unlawful status, did not attempt to rectify his circumstance. The delegate found that the applicant had claimed to have engaged a migration agent to obtain a further student visa, but had produced no supporting documentation for any proposed further visa. The delegate found the applicant did not satisfy any of the remaining requirements in clause 050.212 of schedule 2 to the regulations.Tribunal process The applicant appeared by video from Villawood Immigration Detention Centre in Sydney before the Tribunal on 9 August 2024 and 15 August 2024, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. No issues were raised concerning the interpreter and both the interpreter and the applicant confirmed they had understood each other in the language used. The applicant consented to the hearing and confirmed he was ready and willing to proceed as scheduled. The applicant was not represented and had no assistance for the hearing. The applicant made submissions prior to the hearing. He submitted a copy of:· his Court Attendance Notice for Bankstown Local Court for 14 August 2024 and his related Bail Acknowledgement and conditions issued 27 July 2024. · a copy of a student Certificate of Enrolment (CoE),including pre-paid tuition fees of $1900, for a Diploma course commencing 1 April 2024 concluding on 29 June 2026. · a Letter of Offer from the course provider, Choice Academic, dated 9 March 2024. The offer was for a CRICOS registered course for a Diploma of Leadership and Management at a Paramatta campus, commenced 1 April 2024, and expected to finish on 29 June 2026. The course duration was for 102 weeks at a total cost of $12,400.00, payable pursuant to a student payment plan. The offer expired on 9 April 2024. The Offer Letter was not signed and was not accepted by the applicant and has now lapsed without acceptance.

Ratio Decidendi

Legal Principle Established

The criteria has considered the available information and the Tribunal’s reasons for this decision are set out below.Immigration status of the applicant - cl 050.211 Clause 050.211 is met if, at the time of application: (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and (2)the applicant was not an eligible non-citizen of the kind set out in reg 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. The Tribunal is satisfied from the available evidence and information from the Department following interviews with the applicant that at the time of application, the applicant was (and remains) an unlawful non-citizen. The applicant does not hold any current visa which entitles him to remain in the country. Accordingly, the applicant meets cl 050.211(1). 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 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 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.[4] [4] 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. The Tribunal has had regard to the relevant court decision where it was considered that ‘genuineness’ should be considered. (Lin at [30]). The Tribunal has considered the evidence concerning the applicant’s arrangements for departing Australia. The applicant claims he had a ticket purchased from an airline booked for Friday 16 August 2024. The Tribunal accepts the evidence of purchase, notwithstanding no airline ticket was provided and confirmation comes from a social media platform and an accompanying receipt for payment. The ticketing appears to have been done from outside Australia, and not by the applicant himself. The applicant’s ticket was purchased online and around the time of his arrest on 27 July 2024. There is no date evidencing the purchase of the ticket on the document provided from the applicant’s social media platform. According to the applicant’s evidence, the ticket purchase will be “invalid” when he does not depart as scheduled. He stated he “does not care about that”, which he later explained means the “money was not important”.