Thai (Migration) - [2022] AATA 5186

Thai (Migration) [2022] AATA 5186 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Do Muoi Thai
CASE NUMBER:  2217028
Home Affairs REFERENCE(S):               BCC2022/4845600
MEMBER:Amanda Mendes Da Costa
DATE:30 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 30 November 2022 at 10.31am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart – migration and criminal history – enrolments cancelled, student visa ceased and substantial period as unlawful non-citizen – criminal convictions, imprisonment, parole and immigration detention – limited contact with former girlfriend and son – no definite living arrangements if visa granted – airline ticket purchased after hearing – passport expired – relationship with son a strong incentive to remain – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 189(1), 375A
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(2), 050.221
CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 14 November 2022. 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.which provides 17 separate criteria, each of which provides a ground for the grant of a Subclass 050 visa. The primary criteria for the grant of a Subclass 051 visa include cl 051.211 which provides five separate criteria, each of which provides a ground for the grant of the Subclass 051 visa.
The decision to refuse to grant the visa was made on 17 November 2022 on the basis that the delegate was not satisfied that the applicant met any of the criteria in cl 050.212 or in cl 050.211 for the grant of a Subclass or Subclass 051 visa respectively.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 28 November 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal has considered the information in both the Departmental and Tribunal files, including notes of the delegate’s interview with the applicant (dated 16 November 2022), the delegate’s decision (dated 17 November 2022) and a flight itinerary for the applicant’s proposed travel.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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Details

AGLC: Thai (Migration) [2022] AATA 5186
Case: [2022] AATA 5186
Decision Date: 30 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050, by a citizen of Vietnam. The applicant sought to satisfy criterion 050.212(2), which requires the applicant to be making, or be the subject of, acceptable arrangements to depart Australia. The Tribunal was required to determine whether the applicant met this criterion at the time of his application and continued to meet it at the time of the decision.

The legal issues before the Tribunal were whether the applicant had made "acceptable arrangements to depart Australia" and whether his intentions in making any such arrangements were genuine. The Tribunal considered the applicant's extensive migration and criminal history, which included remaining in Australia as an unlawful non-citizen for a substantial period, his conviction for cultivating a commercial quantity of drugs and fraudulent use of a licence, and his subsequent imprisonment and release on parole. The Tribunal also considered the applicant's stated desire to visit his son, his limited contact with his son prior to his detention, and the fact that he had purchased an airline ticket only after the hearing.

The Tribunal reasoned that "acceptable arrangements" is not a defined term and that while departmental guidelines offer guidance, the genuineness of the applicant's intentions is paramount. Despite the applicant's stated desire to visit his son and his purchase of a ticket, the Tribunal found no evidence of concrete arrangements to depart Australia. The applicant's history of unlawful status and his strong ties to his son and former girlfriend were considered significant incentives for him to remain in Australia. The Tribunal concluded that the applicant had not demonstrated that he was making acceptable arrangements to depart Australia, nor that his intentions were genuine.

Accordingly, the Tribunal affirmed the decision under review, finding that the applicant did not meet the requirements of subclause 050.212(2).

Orders

Orders of the court

Full text does not contain this section.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether at the time of application the applicant was making acceptable arrangements to depart Australia and whether he continues to meet that requirement at the time of decision.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 that the applicant satisfies the requirements of cl 050.211 because at the time of application, the applicant:·Was an unlawful non-citizen as required by cl 050.211(1)(a); and·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl 050.211(2). Accordingly, the applicant meets cl 050.211(1).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: 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]).Applicant’s migration and criminal history in Australia The applicant is a citizen of the Republic of Vietnam (Vietnam) and is aged 30 years of age. He arrived in Australia on 6 May 2009 as the holder of a TU571 Student visa. Information from the provider Registration and International Student Management System (PRISMS) confirms that confirmation of the applicant’s enrolment for secondary education were cancelled on 16 April 2010 and 18 March 2012. Following the cancellation of these enrolments, the applicant’s TU571 Student visa ceased on 15 March 2012. On 16 March 2012 the applicant became an unlawful non-citizen and remained residing in the Australian community without a valid visa. On 16 October 2015 the Department received information from Victoria Police which stated that the applicant was wanted for cultivating cannabis at an address in Springvale. Victoria Police officers further advised that when they spoke to him by telephone, the applicant stated that he was in Australia illegally and refused to hand himself into police.

Decision

Reasons for decision

Upon his release from custody on 25 October 2022, the applicant was detained under s.189(1) of the Act and transferred to immigration detention. On that date the applicant signed a s.198 form, consenting to be voluntarily removed from Australia.Reason for the delegate’s decision In her decision the delegate notes that on 16 November 2022 the applicant was interviewed by Departmental officers during which he stated that the reason he had lodged an application for a bridging visa to be able to visit his son in Australia. The applicant told Departmental officers that he had last seen his son on 12 November 2022 when the applicant’s girlfriend and son visit him in detention. Prior to this, the last time the applicant saw his son was whilst he was in prison prior to the Covid pandemic. The applicant explained that due to his imprisonment and the Covid pandemic, he had not been able to see his son for over two years. During his interview the applicant said that he wanted to have his contact with his son Jonny (DOB 27 May 2014) and take him school pending his departure from Australia. The delegate further notes that when the applicant signed the s.198 form, he told Departmental staff that it was his desire to return to Vietnam. The delegate was not satisfied that there was any evidence the applicant had made any arrangements to leave Australia. In her decision, she notes that at interview the applicant stated that he could purchase a departure ticket and when asked to provide information about his departure plans, the applicant only responded that he wished to spend time with his son. The delegate found that as the applicant had not made acceptable arrangements to depart Australia, she place little weight on his assurances that he would depart Australia voluntarily. The delegate considered that the applicant’s strong ties with his girlfriend and son and desire to spend time with his son provided a strong incentive for him to remain in Australia. The delegate was further concerned that the applicant’s history of residing in the community as an unlawful non-citizen from March 2012 to January 2019 raised concerns about the genuine nature of his claim to be prepared to leave Australia voluntarily. Accordingly, the delegate was not satisfied that the applicant met the requirements in cl 050.212(2).Applicant’s oral evidence - at hearing The applicant told the Tribunal that he arrived in Australia (from Vietnam) on 13 May 2009 (aged 17 years) on a Student visa. After studying English, he enrolled in secondary school and commenced studies at Year 11 level. He did not complete those studies as his family in Vietnam experienced financial difficulties and could no longer afford to provide him with financial support. He subsequently obtained employment as a tiler and worked in this occupation for four years. The applicant explained that after his student visa expired on 15 March 2012, he remained in Australia without a valid visa. When the Tribunal questioned the applicant about his reasons for remaining in Australia as an unlawful non-citizen after 15 March 2012, he said that he was young and didn’t understand much about Australia’s migration laws and thought he might be placed in jail if he presented himself to the Immigration Department. When the Tribunal suggested that he could have sought advice from the Department about his migration situation, the applicant replied that he had no one to guide him or give him advice. He explained that apart from his young son he has no relatives in Australia.

Ratio Decidendi

Legal Principle Established

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: 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]).Applicant’s migration and criminal history in Australia The applicant is a citizen of the Republic of Vietnam (Vietnam) and is aged 30 years of age. He arrived in Australia on 6 May 2009 as the holder of a TU571 Student visa. Information from the provider Registration and International Student Management System (PRISMS) confirms that confirmation of the applicant’s enrolment for secondary education were cancelled on 16 April 2010 and 18 March 2012. Following the cancellation of these enrolments, the applicant’s TU571 Student visa ceased on 15 March 2012. On 16 March 2012 the applicant became an unlawful non-citizen and remained residing in the Australian community without a valid visa. On 16 October 2015 the Department received information from Victoria Police which stated that the applicant was wanted for cultivating cannabis at an address in Springvale. Victoria Police officers further advised that when they spoke to him by telephone, the applicant stated that he was in Australia illegally and refused to hand himself into police. On 11 January 2019 the applicant was arrested by police and charged with the following offences:·Cultivate commercial quantity of drugs.·Fraudulent use of licence. He was remanded in custody until 16 November 2020 when he pleaded guilty to the above offences and convicted and sentenced by the County Court at Melbourne to four years and nine months imprisonment. On 21 October 2022 the Adult Parole Board of Victoria ordered that the applicant b released on parole on 25 October 2022 with his period of parole expiring on 1 September 2023. Upon his release from custody on 25 October 2022, the applicant was detained under s.189(1) of the Act and transferred to immigration detention. On that date the applicant signed a s.198 form, consenting to be voluntarily removed from Australia.Reason for the delegate’s decision In her decision the delegate notes that on 16 November 2022 the applicant was interviewed by Departmental officers during which he stated that the reason he had lodged an application for a bridging visa to be able to visit his son in Australia. The applicant told Departmental officers that he had last seen his son on 12 November 2022 when the applicant’s girlfriend and son visit him in detention. Prior to this, the last time the applicant saw his son was whilst he was in prison prior to the Covid pandemic. The applicant explained that due to his imprisonment and the Covid pandemic, he had not been able to see his son for over two years.