Takiari (Migration)

[2020] AATA 4890

Takiari (Migration) [2020] AATA 4890 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raven Takiari

CASE NUMBER:  2015227

DIBP REFERENCE(S):  BCC2020/2429121

MEMBER:Bridget Cullen

DATE:22 October 2020

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations.

Statement made on 22 October 2020 at 12:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ‘acceptable arrangements’ to depart Australia – opportunity to pack personal belongings and say goodbye to family – pay outstanding fines – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 73, 269
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

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 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 7 October 2020. 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). Relevantly to this matter, the primary criteria include cl.050.212(2), which requires that the applicant has acceptable arrangements to depart Australia.

3. The decision to refuse to grant the visa was made on 9 October 2020 on the basis that the applicant was not making a genuine attempt at arrangements to depart Australia. The applicant appeared before the Tribunal on 21 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant was making acceptable arrangements to depart Australia.

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. 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 meets cl.050.212.

   Acceptable arrangements to depart Australia

8. 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’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]).

9. The applicant applied for the visa on 7 October 2020, on the basis that they were departing Australia. The applicant provided a flight itinerary to the Department in support of this. The Delegate refused the visa on the basis that the applicant’s intent to depart was not genuine. This was based on the applicant’s Located Person Interview with Australian Border Force officers on 12 August 2020 where the applicant was asked if he would leave voluntarily (to which he responded no) and stated they were not willing to depart.

10. The delegate further considered that the applicant on 13 August 2020 stated they intended to apply for a further substantive visa to remain in Australia and that the applicant is subject to parole conditions preventing their departure from Australia or New South Wales until 12 April 20212.

11. The visa was refused on 9 October 2020 and the application for review was lodged on 13 October 2020. The Tribunal has before it the material provided to it by the Department which was used when assessing the original visa application, a letter of support from the applicant’s mother dated 12 October 2020; flight itineraries and an ASIC Record of Registration for Business Name dated 1 September 2020.

12. The letter of support details that the applicant’s mother is a single mother of six children, and does not have the money to ‘waste’ on airline tickets (around 700 dollars on 2 tickets as the first one was not refunded after cancellation by the airline).

13. It further states that the applicant stated no to the ABF officers in August as he was told by her to state no to the authorities because if he had said yes he would have been deported from the country then and there, without the opportunity to get his personal belongings or say good bye to his family. During the hearing, the applicant’s mother explained to the Tribunal that she had attempted to get immigration legal advice, but was unable to, and therefore instructed him not to agree. She explains that she now understands that the applicant, her son, has no option but to depart Australia and return to New Zealand.

14. The letter notes that the applicant has lived in Australia since he was 7 years old as a reason it is important that he be able to get his belongings. He does not own any property, but has personal possessions, and also needs to make arrangements to pay some outstanding fines.

15. The applicant’s mother is further willing to take personal responsibility for taking the applicant to the airport on the date of the departure ticket (10 November 2020).

16. The letter of support further mentions that due to the recent pandemic, that the applicant has not been able to see his family as physical visitations are currently banned and that being released from immigration detention would provide a final opportunity to spend time with his family as the family cannot afford to fly to New Zealand due to the cost of quarantining, and are therefore unsure when they will see the applicant again.

17. For these reasons, the Tribunal is satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant meets cl.050.212(2).

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

19. 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

20. 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(2) of Schedule 2 to the Regulations.

    Bridget Cullen
    Member