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

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 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.

3. 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.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 28 November 2022 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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). 

11. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

12. 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

13. 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.

14. 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

15. 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

16. 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.

17. On 16 March 2012 the applicant became an unlawful non-citizen and remained residing in the Australian community without a valid visa.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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. 

29. Accordingly, the delegate was not satisfied that the applicant met the requirements in cl 050.212(2).

    Applicant’s oral evidence - at hearing

30. 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.

31. 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.

32. The Tribunal discussed with the applicant, his telephone conversation with Victoria Police on 16 October 2015 in which he told police that he was in Australia illegally and refused to come into a police station to discuss concern that he had been involved in the offence of cultivation cannabis.  The applicant conceded that he had told police he was in Australia illegally and would not cooperate with them but denied to the Tribunal that he had been involved in cultivating cannabis.

33. However, the applicant conceded that he had been arrested by police on 11 January 2019 and was charged with offences including cultivating a commercial quantity of drugs, dealing with the proceeds of crime and the fraudulent use of a licence.  He told the Tribunal that he did not apply for bail and was remanded in custody until his matters were heard on 16 November 2020.  The applicant explained that the hearing of his charges was delayed because of the effects on the Court system of the Covid-19 pandemic.  The applicant further explained that when his charges were finally heard, he pleaded guilty to the offence of dealing with the proceeds of crime (amounting to $990.00).  he said this sum represented wages paid to him by the persons organising the cultivation of the drugs involved.

34. The applicant was convicted of the offences of cultivating a commercial quantity of drugs, dealing with the proceeds of crime and the fraudulent use of a licence.  He was sentenced to a period of imprisonment of four years and nine months.

35. The Tribunal discussed with the applicant the circumstances in which he was charged with  criminal offences involving drugs.  The applicant then conceded that he had been involved in the cultivation of cannabis and explained that he became involved in the cultivation of cannabis because he was poorly paid as a tiler and had insufficient funds to financially support his son Jonny and to pay for his school expenses.  The applicant  explained that he also owed money to a person from whom he had borrowed money and could not afford to repay the debt.

36. The applicant explained that he appeared before the Victorian Parole Board in May 2022 when he was granted parole.  Upon his release from prison on 25 October 2025 he was transferred to immigration detention, where he remains.

37. The applicant told the Tribunal that he was involved in a relationship with his son’s mother after meeting her in 2013.  They separated approximately three years later and although no longer in a relationship have remained in regular contact.  When the Tribunal suggested that in his interview with the delegate on 16 November 2022, he had indicated that he and his ex-girlfriend were still in a romantic relationship.  The applicant said that when interviewed by the delegate about his former girlfriend,  to the delegate he said that they still have contact with each other and that she had brought their son to visit him in prison and immigration detention.  He explained that he did not mean by this description that they remained in a romantic relationship.  The applicant estimated that he had seen his son for a little over 10 times whilst he was imprisoned and approximately five to six times in immigration detention.  During the period of government ‘lockdowns’ in 2020 and 2021, the applicant was unable to have visits from his son for several months.

38. During the hearing the Tribunal advised the applicant that the Department had provided it with a certificate issued pursuant to s.375A of the Act, which states that the disclosure of the information in the certificate would be contrary to the public interest because it would compromise the integrity of the immigration program and its operations.

39. The Tribunal advised the applicant that if it formed the view that the certificate was validly made it was required to ensure that the document or information referred to in the certificate was not disclosed to any person other than the Tribunal.  The Tribunal notes that it has formed the view that the certificate in this matter is valid and has considered the information which is the subject of the certificate.

40. The Tribunal notes that despite being invited to provide any comments or response to the above information regarding the s.375A Certificate, the applicant did not do so.

41. The Tribunal discussed with the applicant the visa status of his former girlfriend.  The applicant said she was  Vietnamese citizen who was currently on a Bridging visa.  He explained that prior to his imprisonment (in 2017 or 2018), his former girlfriend had married another man.  Despite having contact with her when she has brought their son to visit him in prison and immigration detention, he is not aware whether his former girlfriend and her husband are still together although he thought that she had made an application for a partner visa based on her relationship with her husband.

42. The applicant explained that if his bridging visa is granted, he will live with his former girlfriend and their son until he leaves Australia. When the Tribunal asked the applicant about whether he had spoken to his former girlfriend about this plan, the applicant conceded that whilst he had told her he wanted to visit their son, he had not mentioned living with them pending his departure from Australia.

43. When the Tribunal questioned the applicant about where he would live if he did not stay with his former girlfriend and son, the applicant said that if he is granted a Bridging E visa, he does not intend to stay in Australia.

44. The Tribunal discussed with the applicant his proposed arrangements if he is granted a Bridging visa.  The applicant conceded that he had previously signed two agreements to be voluntarily removed from Australia.  The applicant explained that he currently agrees to leave Australia because he wishes to return to Vietnam to visit his elderly parents, is prepared to buy airline ticket and is prepared to pay money as a guarantee for him leaving Australia.  The applicant described his family as a large one with his parents and six of his seven siblings living there.  He has regular contact with this parent via telephone or social media.

45. The applicant explained that although he was yet to purchase an airline ticket for his return to Vietnam, he proposed to do so in the vent his Bridging visa is granted.  In answer to the Tribunal’s question about any savings held by him, the applicant said that his former girlfriend has $5,000.00 which he previously gave to her to keep on his behalf.  This sum was saved by him from his wages as a tiler.  The applicant explained that he had spoken to his former girlfriend who had agreed to return the money to him.

46. The applicant further explained that he had $20,000.00 in savings in Vietnam, which were  funds given to him by his family to assist him in establishing a business when he returns to Vietnam.  However, the Tribunal notes that the applicant provided no independently verifiable evidence of these savings or the $5,000.00 he claims is being held on his behalf by his former girlfriend.

47. The applicant told the Tribunal that the reasons for his application for a Bridging E visa was to give him free times in which to visit his son, who is now aged eight and a half years.  The applicant is concerned that when he leaves Australia, he will not see his son for a considerable period as his former girlfriend proposes to remain in Australia with their son.  The applicant is further concerned that his son’s school friends have commented on the applicant’s absence from his son’s life.  The applicant wats to take his son to school to enable his son’s friends to see them together.

48. The Tribunal discussed with the applicant its concerns that given his history of remaining in Australia as an unlawful non-citizen for seven years, he may abscond if granted a Bridging E visa.  In response, the applicant explained that his previous period in the community as an unlawful non-citizen occurred when he was young and lacked knowledge about Australia’s migration laws.  He further explained that he had signed two agreements to leave Australia and now wanted to return to Vietnam to visit his parents whom he had not seen in nearly 10 years.

49. The applicant assured the Tribunal that if granted the visa he will comply with any conditions attached to it, will refrain from engaging and will leave Australia within one to two weeks of being released from immigration detention.

50. The applicant told the Tribunal that he regrated his former criminal offending which occurred because of his stupid actions.  He noted that he had paid for such behaviour by spending nearly three years in prison and being separated from his son for most of that period. He said that he just wanted to spend one to two weeks with his son before departing Australia.

51. Following the hearing the applicant emailed[1] the Tribunal, advising that a friend had assisted him to purchase an airline ticket to Ho Chi Minh City, Vietnam.  The applicant provided a flight itinerary which shows a reservation for travel (in his name) on Bamboo Airways Company Flight QH 0089, departing Australia on 18 December 2022.

    [1] Email received 29 November 2022

    Findings

52. The findings of the Tribunal are based on the material in the relevant Tribunal and Departmental files together with the applicant’s oral evidence at hearing.

53. The basis for the applicant’s bridging visa application is his wish to spend time with his son before the applicant returns to Vietnam.  He states that he will abide by conditions that may be imposed on a visa, should it be granted and would lodge a sum of money as security to ensure his compliance with visa conditions, including a condition requiring him to depart Australia by a fixed date.

1. The Tribunal accepts the applicant’s migration and criminal history as set out in paragraphs 19 to 25 of this decision.  The Tribunal notes that this information is consistent with the applicant’s evidence at the hearing. The Tribunal further accepts that the applicant had limited contact with his young son whilst in prison and immigration detention and wishes to spend time with him in the community before returning to Vietnam.  The applicant’s son lives with his mother (the applicant’s former girlfriend) with whom he remain in Australia for the foreseeable future.  The Tribunal is concerned about the applicant’s evidence that he will reside with his former girlfriend and son if the visa is granted.  The Tribunal is not satisfied that this arrangement is currently a viable one, given that the applicant has not discussed this with his former girlfriend.

2. The Tribunal is satisfied that the applicant was aware that his student visa had expired on 15 March 2012 and that he was remaining in Australia without a valid visa.  Whilst the Tribunal acknowledges that the applicant was aged 20 at the time, it does not accept that he lacked an understanding that he required a valid visa to remain in Australia.  It further notes that when telephoned by police in 2015 he told them that he was in Australia illegally.  The Tribunal is concerned that the applicant was not only prepared to live in the community as an illegal non-citizen but also to do so for a substantial period (seven years) and when approached by police to discuss their concerns about him being involved in criminal activity, he was not prepared to co-operate with them.  The Tribunal further accepts that after his student visa expired, he did not maintain contact with the Department.

3. In his oral evidence, the applicant referred to his current situation.  He is remorseful for past events and regrets his previous criminal behaviour.  The Tribunal accepts that he has not visited his parents in Vietnam in nearly 10 years and would like to see them again.  However, it notes that he can have regularly contact with them via social media and telephone.

4. At the date of the hearing, the applicant had not purchased an airline ticket for his return to Vietnam, explaining to the Tribunal that he proposed to make any travel arrangements if he was granted a Bridging E visa.  The Tribunal further notes that there is no evidence before it that the applicant has a valid passport or identity documents.  The only such document is contained in the Department’s file and is a copy of the bio-data page of  a passport issued by the Immigration Department of the Republic of Vietnam for the applicant, which expired on 21 June 2012[2].

   [2] In his visa application form for the Bridging E visa the applicant declares that his travel document is a passport issued to him by the Republic of Vietnam on 21 June 2007 and valid until 21 June 2012.

5. The Tribunal accepts that by making a flight reservation, the applicant has made some arrangements to leave Australia and that he can make further arrangements if he is granted a Bridging E visa and is living in the community.  This includes applying for a new passport. The Tribunal also acknowledges that until recently, the applicant has been imprisoned and is currently in immigration detention, which has placed some limitations on his ability to make travel arrangements.  However,  the Tribunal is troubled by his lack of any attempt to obtain the necessary identity documentation and notes that he has had over one month since being granted parole and  transferred to immigration detention, to make such attempts.  It further considers that it is likely to take more than one to two weeks for him to obtain the necessary passport to enable his return to Vietnam.

6. The Tribunal considers that the applicant’s relationship with his son and desire to see him again in the community, provide him with a strong incentive to remain in Australia.  The applicant’s history of living in the community as an unlawful non-citizen and failure to contact the Department and cooperate with the police when requested, lead the Tribunal to believe that the applicant is not genuine in his assurances that he will depart Australia in one to two weeks of being granted a Bridging E visa.  The Tribunal has come to this view despite him providing a return flight itinerary.

7. The Tribunal notes that the applicant has indicated that he is prepared to lodge a security deposit to secure his compliance with any visa conditions.  However, given the applicant’s migration and criminal history in Australia, the Tribunal is not satisfied that the lodging of a security deposit will be sufficient to secure his compliance with the conditions of a Bridging E visa.

8. For the above reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).

   Whether the applicant continues to satisfy the time of application criteria - cl 050.221

9. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision.  The Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl 050.212 and therefore does not meet cl 050.221.

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

11. 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

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

    Amanda Mendes Da Costa
    Member