TRINACHA (Migration)

[2018] AATA 5251

TRINACHA (Migration) [2018] AATA 5251 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sutee TRINACHA

CASE NUMBER:  1833596

DIBP REFERENCE(S):  BCC2018/4995286

MEMBER:Russell Matheson

DATE:26 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2018 at 10:36am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – time of application criteria – acceptable arrangements to depart Australia – time required to finalise affairs – no genuine intention to leave Australia – lack of knowledge on appropriate visa to stay in Australia – decision under review affirmed

LEGISLATION
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. The applicant applied for the visa on 10 November 2018. 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).

2. The decision to refuse to grant the visa was made on 13 November 2018 on the basis that the delegate was not satisfied that the applicant had made acceptable departure arrangements to leave Australia. The applicant seeks review of the delegate’s decision. The applicant appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

4. The applicant first arrived in Australia on 17 January 2010 holding a Student visa (Subclass 572) as a dependant applicant. This was valid until 5 September 2012 and was subject to visa condition 8516 (Maintain Eligibility).

5. On 26 March 2012 the applicant departed Australia and returned on 7 May 2012 holding the same visa.

6. On 23 August 2012 the applicant was included as a dependant applicant in a Student visa (Subclass 573) application. On the same day he was granted a Bridging visa A (BVA).

7. On 18 September 2012 the applicant was granted a Subclass 573 visa as a secondary applicant. This visa was valid until 8 May 2015.

8. On 2 February 2013 the applicant departed Australia and returned on 3 March 2013 holding the Subclass 573 visa.

9. On 8 May 2015 the applicant was included in a Temporary Business visa (Subclass 457) application as a dependant applicant. On the same day, he was granted an associated BVA. On 30 June 2015 the applicant was granted a Subclass 457 visa, valid until 30 December 2016.

10. On 30 December 2016 the applicant’s Subclass 457 visa ceased naturally and he became an Unlawful Non-Citizen (UNC) in the community.

11. On 8 November 2018, the applicant appeared at the Downing Centre Local Court for a charge (unlicensed driving). The applicant was found guilty and the matter has been set for sentencing on 11 January 2019. After a status check with the Immigration Status Service, the applicant was detained pursuant to section 189 of the Migration Act 1958 (the Act) as an UNC. He was transferred to the Villawood Immigration Detention Centre (VIDC), where he currently remains.

12. On 9 November 2018 the applicant requested and was allowed to extend the timeframe to lodge a substantive visa application pursuant to section 195 of the Act. The applicant signed the request understanding the timeframe to lodge a substantive visa application would expire on 16 November 2018.

13. On 10 November 2018 the applicant lodged an online application for a Bridging Visa E (BVE) his online application was sighted by the Detention Review Officer on 12 November 2018, as required under item 1305(3) (c) of Schedule 1 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant is making, or is the subject of, acceptable arrangements to leave Australia as defined in cl.050.212(2).

15. 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.

16. 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

17. 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 of Immigration’s Procedures Advice Manual 3, whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 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]).

18. The applicant told the Tribunal that he did not know his visa had ceased until he was involuntarily detained when appearing at court in relation to a traffic matter and then transferred to the VIDC.

19. The applicant told the Tribunal that he has physically provided his passport to the Department and has made arrangements to depart Australia for Thailand on Tuesday 27 November 2018. The applicant provided an e-ticket itinerary/receipt indicating he had purchased and paid for his ticket.

20. The applicant told the Tribunal that he is willing to leave Australia on 27 November 2018 to return to Thailand. The applicant further stated that he needs time to finalise his affairs. The Tribunal asked the applicant how long he would need to finalise his affairs. He stated that he owned and operated a Thai restaurant in Ultimo and that he wanted to pack up the business and leave Australia. The applicant stated that he had previously requested two weeks to do so. The applicant told the Tribunal that he has to collect personal items, sign paperwork related to his lease agreement, close his bank account and disperse property associated with the business, and he had to be out of detention to achieve this. The applicant told the Tribunal that he needs to sign documents that are at his residence and he is the only person who knows where the documents are located. The applicant said that he has no family or friends in Australia who know where his property is located. The applicant said that he owned three cars and three motor scooters which are all associated with his business that he needs to sell. Based on the evidence provided, the Tribunal finds that the applicant will require a significant period of time to finalise his affairs and he has no genuine intention to leave Australia on 27 November 2018.     

21. The applicant told the Tribunal that he has been running his restaurant in Ultimo since 2015 and living at the same address in Surry Hills since coming to Australia as a dependent on a business visa. He further stated that he arrived with his wife and his intentions were to eventually bring his daughter to Australia to live because it is a safer country than Thailand. The applicant has since separated from his wife and he did not know he had overstayed his visa. The Tribunal does not accept that the applicant was unaware that his visa had ceased as he always was residing at his nominated address and he would have been notified by the Department of his visa status. The Tribunal is of the view that the applicant would still be running his business knowingly as an UNC if he was not involuntarily detained at court.  

22. For these 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).

23. The tribunal asked the applicant if he had applied for or has any future intentions of applying for a substantive visa to stay in Australia. The applicant responded that he made enquiries in detention as to what his opinions might be. He further stated that if he wanted to stay he would seek advice and apply for the right visa. He also said that he does not have to stay because he has been offered a job by a friend in the automotive industry in Bangkok. The applicant provided no corroborative evidence of any future employment in Thailand. The Tribunal places little weight on the claim of future employment overseas. The Tribunal based on the evidence provided, finds the applicant has no firm desire to depart Australia because he was involuntarily detained and has made enquiries as to what his options are in regard to remaining in Australia permanently whilst in detention.

24. The Tribunal is not satisfied that the applicant meets cl.050.212(3) for the following reasons. Despite the applicant indicating that if he did stay in Australia he would seek advice and apply for the right visa, he does not know what visa he would apply for other than indicating an intention to lodge a visa application if he decides to stay. There is no evidence before the Tribunal indicating that the applicant has already lodged, or genuinely intends to lodge, a visa application to remain in Australia.  Based on the evidence provided the Tribunal has placed more weight to the fact that he has not done so despite having ample time to do so whilst remaining and running a business in the community. On the evidence provided the Tribunal finds that the applicant does not meet cl.050.212(3).

25. The applicant has no ongoing matters with the Department, at merits review or judicial review, nor does he have any ongoing Ministerial Intervention requests.

26. No other grounds that would meet the Time of Application Criteria as per cl.050.212 have been raised by the applicant in his BVE application, nor are there any apparent to the Tribunal.

27. As such, the Tribunal finds that the applicant does not satisfy the requirements of cl.050.212. 

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

29. 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

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

    Russell Matheson
    Member