Piutau Smith (Migration)

[2021] AATA 2029

Piutau Smith (Migration) [2021] AATA 2029 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Patrick Piutau Smith

CASE NUMBER:  2105581

DIBP REFERENCE(S):  BCC2021/571055

MEMBER:Peter Vlahos

DATE:10 May 2021

PLACE OF DECISION:  Melbourne

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

This Statement was made on 10 May 2021 at 11.50AM

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – no attempts to leave Australia voluntarily – criminal record – removal operations commenced – applicant consented to his removal – applicant departed Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 73, 269
Migration Regulations 1994, Schedule 2, cl 051.211

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) and a decision made by an authorised officer relating to requiring a security under s.269 of the Act.

2. The applicant applied for the visa on 21 April 2021. 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 (the Regulations).

3. The decision to refuse to grant the visa was made on 27 April 2021 on the basis that the applicant did not satisfy 051.211, had made contradictory statements, had made no attempts to leave voluntarily from Australia and has an extensive criminal record.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Removal from Australia

5. On 27 April 2021 the applicant refused to sign a notice of intention to be removed from Australia which resulted in the Australian Border Force commencing removal operations under involuntary measures.

6. The applicant applied for his visa and the Tribunal scheduled a hearing for the applicant on 10 May 2021. On 5 May 2021 the Tribunal received an email from the Department advising that the applicant was going to be removed from Australia on 6 May 2021. The Tribunal requested information from the Department in relation to the removal of the applicant as the Tribunal had scheduled a hearing on 10 May 2021.

7. Prior to the applicant’s bridging visa refusal, the applicant had not indicated that he would depart Australia voluntarily.

8. In the Detention Client Interview, the applicant again gave no indication that he wished to leave Australia but did indicate that he has a new passport (issued to him).

9. On 5 May 2021 the Tribunal received an email from Department stating that the applicant had consented to his removal from Australia.

   Conclusion

10. As the applicant was removed from Australia and he is no longer in immigration detention and in the migration zone, the applicant does not satisfy the criteria for the grant of the visa.

11. For these reasons the applicant does not satisfy the criteria for a Subclass 050 (Bridging (General) visa.

12. 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

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

    Peter Vlahos
    Member