Taufa (Migration)

[2021] AATA 5096

Taufa (Migration) [2021] AATA 5096 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodney Tuipulotu-manu'ahea Taufa

REPRESENTATIVE:  Ms Anna Joyce Ryburn

CASE NUMBER:  2118883

Home Affairs REFERENCE(S):               BCC2021/2356779

MEMBER:K. Chapman

DATE:21 December 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 21 December 2021 at 10:57am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – valid application for a substantive visa – applicant convicted of criminal offences – term of imprisonment completed – balance of family in Australia – barred from applying for a Partner visa – seeking work in Australia – applicant seeking ongoing residence – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 73, 116, 195, 359, 501
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223

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 December 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 1994 (Cth) (‘the Regulations’). Relevantly to this matter, the primary criteria include cl.050.212.

3. The decision to refuse to grant the visa was made on 9 December 2021, on the basis that the applicant did not satisfy the time of application criteria contained in cl.050.212. In particular, the delegate was not satisfied that, at the time of application, the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Additionally, the delegate was not satisfied that the applicant, at the time of application, had made a valid application for a substantive visa or would apply for such a visa within a period specified for doing so.

4. The applicant was initially invited to appear before the Tribunal by video at a review hearing scheduled for 16 December 2021. His solicitor (‘the representative’) requested a postponement of the scheduled hearing until mid-January 2022, due to her other work commitments. Following careful consideration, the Tribunal declined to grant this postponement request given the duration that the applicant would remain in immigration detention awaiting his hearing. In due course, the representative advised she was available on 20 December 2021 and the hearing was rescheduled for that date.

5. The applicant appeared before the Tribunal by video link on 20 December 2021 to give evidence and present arguments. He was in immigration detention at Villawood Immigration Detention Centre (VIDC) at this time. The applicant confirmed he was comfortable participating in the hearing by video. The Tribunal also received evidence by video link from Ms Neomai Helu, Mr Sunia Taufa and Ms Gina Movsessian. Additionally, the Tribunal received evidence by telephone from Mr Paul Taufa, Ms Stephanie Aqueveque and Ms Catriona Helu. The applicant was represented in relation to the review by his solicitor, who appeared by video link.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies the requirements of cl.050.212, and if so whether he satisfies the remaining requirements to be granted the Subclass 050 visa.

   Background

8. According to material submitted by the applicant to the Tribunal, he first arrived in Australia from New Zealand in 1995 with his family at the age of 5 years. At that time the applicant was granted a Subclass 444 visa. He has not departed Australia since. Between 2006 and 2008 the applicant was convicted of serious criminal offences, including committing robbery whilst armed. He was sentenced to imprisonment for 4 years and 3 months in July 2008. In 2009, a delegate decided not to cancel the applicant’s Subclass 444 visa pursuant to s.501 of the Act, instead issuing him with a warning.

9. Between 2010 and 2017, the applicant was convicted of several further criminal offences, including with respect to assaulting a Police Officer in the execution of their duties. He received a sentence of imprisonment of 3 months for this particular conviction. In 2017, the applicant was also charged with further offences regarding matters such as assault, detaining another and occasioning actual bodily harm. On 17 August 2017, the applicant’s Subclass 444 visa was cancelled pursuant to s.116(1)(e) of the Act. The applicant sought merits review of this visa cancellation but withdrew his application for review on 8 February 2018. In April 2019, the applicant was convicted of several offences arising from the charges levied in 2017. He was sentenced to four years and six months imprisonment.

10. On 26 November 2021, the applicant was released from criminal custody and taken into immigration detention. On 26 and 27 November 2021, the applicant informed a Departmental Officer that he sought a Partner visa and did not wish to depart Australia. He sought a 5 working day extension, regarding s.195 of the Act, to apply for a substantive visa. However, the applicant did not apply for a substantive visa within the permissible time frame that ended on 7 December 2021.

11. On 7 December 2021, the applicant applied for the Subclass 050 Bridging Visa E on the grounds that he was making, or was the subject of, acceptable arrangements to depart Australia pursuant to cl.050.212(2). This is a time of application criterion. The delegate refused to grant the Bridging Visa E to the applicant on the basis he was not intending to depart Australia. The applicant has a de facto partner, three children, his siblings and mother residing in Australia. According to the applicant, he has no family members remaining in New Zealand. He submitted Statutory Declarations from himself, Ms Neomai Helu (his de facto partner), Mr Paul Taufa (brother) and Ms Gina Movsessian (partner of a brother of the applicant). In summary, these Declarations contend that the applicant is making arrangements to depart Australia and he has changed for the better since being incarcerated. They have been duly considered by the Tribunal.

    Time of Application Criteria

12. 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.

13. In this case, the applicant is seeking to meet cl.050.212(2). The applicant has not pressed any claims to meet any of the other alternative criteria in cl.050.212, despite being invited to do so at hearing. For the reasons below, the applicant does not satisfy the requirements of cl.050.212.

    Acceptable arrangements to depart Australia

14. 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’ are 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]). The Tribunal has duly considered PAM3 and also the intentions of the applicant in conducting this review.

15. Regarding relevant factors to be taken into account whether an applicant is making, or is the subject of, acceptable arrangements to depart Australia, PAM3 suggests they include whether:

    ·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 (AVR) 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; and

    ·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).

16. During the review hearing the Tribunal canvassed with the applicant his background, the particulars of any arrangements to depart Australia and his intentions for the future. The applicant explained that he attempted to obtain a New Zealand passport online shortly after he was placed into immigration detention. Due to the passage of time since he last held a valid New Zealand passport, in combination with the spelling of his middle name, according to the applicant he could not apply online. The applicant also telephoned the New Zealand authorities in Australia, who were unable to assist him with an online application. He therefore attempted to complete the hard copy application. The applicant faced difficulty in making an application for a valid New Zealand passport, given he was initially placed into quarantine when received into the Villawood Immigration Detention Centre (VIDC). The applicant advised the Tribunal that shortly before the hearing he had mailed the application for a New Zealand passport. At the time of this decision, he does not hold a valid New Zealand passport.

17. When asked by the Tribunal if he had advised the Department Officer that he did not wish to depart Australia and sought a Partner visa, as outlined in the delegate’s decision, he confirmed this to be accurate. When asked by the Tribunal if he intended to make any further visa applications in Australia, the applicant presented as coy and vague when he indicated that he wanted to obtain further legal advice before deciding. He then indicated that the Partner visa has always been ‘in the back of his head’. Additionally, the applicant directly confirmed to the Tribunal that he wishes to remain in Australia in the long term.

18. When asked by the Tribunal why he seeks the Bridging Visa E, the applicant initially provided a vague response indicating it would help his case and also his family if he obtained this visa. When asked by the Tribunal if he would seek work in Australia if granted the Bridging Visa E, the applicant unequivocally advised that he will seek work in construction with his brother Paul, who runs a construction business.

19. When asked by the Tribunal if he has, or is, making arrangements to depart Australia, the applicant responded that he doesn’t want to, but he will if he has to as he doesn’t hold a visa. He added that it would be hard to leave but if he has to he will and he just wants to sort out his affairs. The applicant confirmed he has not looked at flights to depart Australia, nor has he requested the Department to make travel arrangements for him.

20. The Tribunal raised with the applicant that he had confirmed he advised a Department Officer in immigration detention he did not wish to depart Australia and he wishes to apply for a Partner visa, and additionally at hearing he gave evidence that he will seek work in Australia and he wishes to remain in Australia in the long term. The Tribunal indicated this evidence might tend to suggest that, at the time of application for the Bridging Visa E, he intended to remain in Australia and he was not making, or was not the subject of, acceptable arrangements to depart Australia. The applicant was invited to comment and replied that he gave the information he did to the Officer when he entered VIDC, noting he didn’t have legal advice at that point. The Tribunal again raised with the applicant his evidence at hearing that he wants to work and remain in Australia, inviting his comment. The applicant advised in response that he does want to stay but if the decision is to go, he is willing to do so but wants to sort out everything else before he departs.

21. The applicant confirmed to the Tribunal that he had not made a substantive visa application, had no other matters pending before a Court or Tribunal and that he had withdrawn his application for review of the cancellation of his Subclass 444 visa in 2018. The applicant also confirmed that he does not hold a valid visa for Australia. The applicant was invited by the Tribunal to raise any other claims to meeting the time of application criteria for the Bridging Visa E, however he was not sure if he had any such claims.

22. The Tribunal raised with the applicant that the evidence might tend to suggest that he does not meet any of the time of application requirements contained in cl.050.212 for the Bridging Visa E and also that he is barred from applying for a Partner visa in immigration detention now due to the operation of s.195 of the Migration Act. The applicant was invited to comment but indicated he had nothing in reply.

23. The Tribunal took evidence by video link from Ms Neomai Helu, Mr Sunia Taufa and Ms Gina Movsessian. Additionally, the Tribunal received evidence by telephone from Mr Paul Taufa, Ms Stephanie Aqueveque and Ms Catriona Helu. In summary, the following information is available from that evidence. Ms Neomai Helu, Mr Sunia Taufa, Mr Paul Taufa and Ms Stephanie Aqueveque indicated that the applicant was making arrangements to depart Australia. However, beyond the applicant applying for a New Zealand Passport they could not provide further particulars.

24. Ms Gina Movsessian advised the Tribunal that the applicant hopes he can stay in Australia and she wants him to remain in this country to be with his family. Ms Catriona Helu advised the Tribunal that the applicant is not making arrangements to depart Australia and he is trying to stay in Australia. All witnesses spoke in favour of the applicant’s character, indicating he was a changed man following his time in custody.

25. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with the applicant that the evidence of Ms Gina Movsessian and Ms Catriona Helu tends to suggest he does not satisfy cl.050.212 of Schedule 2 to the Regulations. The Tribunal advised that if it was to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review and the consequences of the Tribunal relying upon the information. He was asked if he wished to comment on or respond to this information now or if he would like additional time to do so.

26. The applicant chose to respond immediately. He indicated that he hasn’t spoken to Catriona in the last week, so she is not clear what he is doing. He also said of Gina that ‘those are her words.’ The Tribunal has carefully considered the applicant’s response to the s.359AA information.

27. Prior to the conclusion of the review hearing, the applicant advised that he wants to stay in Australia but if the right way is to go back to New Zealand then he will do so. The representative was invited to make submissions and did so. They are summarised as follows. She submitted that the applicant has the support of his family, there were initial difficulties obtaining instructions and contacting the relevant Department Officer due to the circumstances of the applicant’s detention, the applicant and his family understand now that timelines have passed to apply for a substantive visa in detention and that he must depart Australia, his application for a New Zealand passport has been mailed, the applicant served his sentence and respects authority and the applicant has no family members in New Zealand. The representative contended this application for the Bridging Visa E on departure grounds is genuine. The Tribunal has carefully considered all submissions and evidence submitted.

28. On balance, the Tribunal does not accept that, at the time of application for the Bridging Visa E, the applicant was making, or was the subject of, acceptable arrangements to depart Australia. This is for the following reasons. The applicant in his initial evidence at the review hearing clearly indicated to the Tribunal that he wished to remain in Australia in the long term and he will seek work in Australia with his brother if he is granted the Bridging Visa E. Furthermore, the applicant confirmed that he initially advised a Department Officer in immigration detention he did not wish to depart Australia and he wished to apply for a Partner visa, matters suggestive of him not genuinely intending to depart this country. Whilst the Tribunal notes that the applicant later attempted to resile somewhat from this earlier evidence, by indicating he will depart if he has to, the Tribunal places higher weight upon his initial evidence given its spontaneity.

29. The Tribunal prefers the initial spontaneous evidence of the applicant outlined above, to the evidence of Ms Neomai Helu, Mr Sunia Taufa, Mr Paul Taufa and Ms Stephanie Aqueveque suggesting the applicant was making arrangements to depart Australia. The Tribunal also notes that the evidence of Ms Gina Movsessian and Ms Catriona Helu tends to suggest that the applicant is seeking a long term stay in Australia. On balance, the Tribunal places higher weight upon the initial evidence of the applicant, pointing to his intention to remain in Australia for the long term, to any evidence provided by the other witnesses given this lacked specificity regarding the nature of the arrangements being made to depart Australia.

30. The Tribunal accepts that the applicant has applied for a New Zealand passport and attempted to do so prior to the time of application for the Bridging Visa E. The Tribunal also accepts that it was difficult for the applicant to speak with his representative whilst in detention. Additionally, the Tribunal accepts that the applicant cannot purchase an airline ticket without a valid passport. Further, the Tribunal accepts the applicant suffers a medical condition, for which he takes daily oral medication, but there is no persuasive evidence before it to suggest this condition has hampered departure arrangements in any manner. When the evidence is considered holistically, it is apparent to the Tribunal that the intention of the applicant has always been to remain in Australia for the long term, particularly given the relevant matters highlighted above. This conclusion is buttressed by the vagary of the applicant’s evidence, previously outlined, regarding what visas he might seek to apply for in the future and his reasons for seeking the Bridging Visa E.

31. On balance, the Tribunal forms the view that the applicant has not, since being detained, genuinely sought to depart Australia. Rather, it is apparent to the Tribunal that the applicant is seeking the Bridging Visa E on departure grounds to place himself in a position to make an onshore Partner visa application if released from detention. Following careful consideration of the evidence, the Tribunal is not satisfied that, at the time of application for the Bridging Visa E, the applicant was making, or was the subject of, acceptable arrangements to depart Australia. The Tribunal so finds. Therefore, the applicant does not meet the requirements of cl.050.212(2).

1. For completeness, the Tribunal notes that there is no persuasive evidence before it to indicate the applicant satisfies any other of the requirements of cl.050.212, pertaining to the time of application (for example, cl.050.212(3) regarding a relevant substantive visa application). Accordingly, the Tribunal finds that the applicant does not satisfy cl.050.212.

2. Additionally, given the above findings, the Tribunal notes that it is unnecessary for it to consider the time of decision criteria, including cl.050.223 concerning whether the applicant would abide by visa conditions such as condition 8564 (The holder must not engage in criminal conduct).  

   CONCLUSION

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

4. 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

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

   K. Chapman
   Member