Vu (Migration)

[2024] AATA 2214

Vu (Migration) [2024] AATA 2214 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Hieu Vu

REPRESENTATIVE:  Ms Cheryl Khurana

CASE NUMBER:  2416014

Home Affairs REFERENCE(S):               BCC2024/880572

MEMBER:Member Nathan Goetz

DATE:14 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 3 June 2024 refusing to grant the applicant a Bridging E (Class WE) visa.

Statement made on 14 June 2024 at 3:42pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – making acceptable arrangements to depart Australia – unlawful non-citizen for a significant period of time – genuine intention to depart Australia – prohibited from leaving Australia by bail conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Bridging E (Class WE) visa.

2. The applicant was represented in the review by an Australian legal practitioner.

   BACKGROUND

3. The applicant is a male citizen of Vietnam who was born on 14 September 2000 in that country and is presently located in Australia.

4. On 18 January 2019 the applicant was offshore was granted a student visa. On 9 February 2019 the applicant arrived in Australia holding this visa. That visa ceased on 25 August 2021 and the applicant became an unlawful non-citizen in Australia.

5. On 10 April 2024 the applicant was arrested by Australian Border Force / Australian Federal Police and charged with importing a border-controlled precursor under s 307.13(1) of the Criminal Code Act 1995 (Cth) and was remanded in criminal custody.

6. On 11 April 2024 the applicant appeared at the New South Wales Local Court at Bankstown and was remanded into criminal custody. He made no application for bail. The criminal proceeding was adjourned to 30 May 2024 but was abridged to 29 May 2029 on application by the applicant.

7. On 10 May 2024 the applicant was granted a Bridging E (Class WE) visa to regularise his migration status while he was in criminal custody.

8. On 29 May 2024 the New South Wales Local Court at Bankstown granted the applicant bail, and he was released from criminal custody. The applicant’s criminal case is listed for a brief status (committal) hearing on 24 July 2024 at the New South Wales Local Court at Burwood. The Tribunal was told that this was a directions hearing to determine whether the prosecution brief of evidence is complete. At this stage, the criminal proceeding is proceeding through the committal stream but there is a possibility that the matter may determine summarily in the Local Court.

9. On 29 May 2024 the applicant’s bridging visa ceased when the applicant was released on bail from criminal custody.

10. The applicant was then detained under s 189 of the Act by Australian Border Force and placed into immigration detention because the applicant became an unlawful non-citizen in Australia. He remains in immigration detention to date.

    Current visa application

11. On 29 May 2024 the applicant applied for the Bridging E (Class WE) visa. At that time Class WE contained two subclasses: Subclasses 050 and 051. The criteria for the grant of the visa are contained in cl 050 and cl 051 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

12. In the visa application form, the applicant claimed that he was applying for the bridging visa on the basis that he was satisfies cl 050.212(2) of Schedule 2 to the Regulations which requires:

    An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

13. On 3 June 2024 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 050.223 and did not satisfy cl 051.211 of Schedule 2 to the Regulations. The decision record makes it clear that the delegate was satisfied that the applicant met cl 050.212(2) which is why the delegate went on to consider cl 050.223.

14. These clauses provided the following:

    050.223 

    The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it

    051.211 

    The applicant is an eligible non - citizen referred to in subregulation   2.20(7), (8), (9), (10) or (11).

15. On 7 June 2024 an application was made to the Tribunal for review of the delegate decision.

16. The Member considered the material provided in support of the visa application and the review application. While looking at that material, the Member determined that it would consider cl 050.212(2) before proceeding to determine whether the applicant satisfied cl 050.223.

17. On 12 June 2024 the Tribunal wrote to the applicant via the representative and advised the applicant of how the Tribunal would consider the issues for determination on the review. In the event that the Tribunal was satisfied that the applicant met cl 050.212(2), it would then proceed to consider whether the applicant met cl 050.223. The Tribunal asked for submissions, accompanied by any evidence available, to be relied on in support of the claim that the applicant satisfied cl 050.212(2). The Tribunal was provided with submissions and documents concerning this issue, together with submissions and documents concerning cl 050.223.

18. On 14 June 2024 the applicant, representative, and an interpreter in the Vietnamese language appeared at the Tribunal hearing. The tribunal hearing was conducted via audio visual link which the Tribunal determined was appropriate in all the circumstances.

19. At the Tribunal hearing, the Tribunal advised the applicant that it would reflect on whether the applicant satisfied cl 050.212(2) and if the Tribunal found the applicant did satisfy this clause, the Tribunal would arrange for the applicant to again appear at a Tribunal hearing to discuss cl 050.223.

20. Given the ultimate finding concerning cl 050.212(2), it was unnecessary for the Tribunal to hold another Tribunal hearing.

    CONSIDERATION OF MATERIAL RELEVANT TO THE FACTS IN ISSUE

21. The issue in this review is whether the applicant satisfies either cl 050.212 or cl 051.211.

22. If the Tribunal finds that the applicant satisfies either cl 050.212 or cl 051.211, the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa, and remit the visa application back to the delegate for reconsideration with a direction about the criteria the Tribunal has found the applicant satisfies.

23. If the Tribunal finds that the applicant satisfies either cl 050.212 and cl 051.211, the correct or preferable decision is to affirm the decision the decision of the delegate refusing to grant the visa.

24. The Tribunal considered all the material provided in support of the visa application form, and the review application, including the oral evidence provided by the applicant at the Tribunal hearing on 14 June 2024.

25. The Tribunal has only detailed the evidence provided necessary to the resolution of cl 050.212(2) and cl 051.223.

26. At the Tribunal hearing, the Tribunal was told that the applicant was not claiming to meet any of the other subclauses of cl 050.212. He was only seeking to satisfy cl 050.212(2).

27. At the Tribunal hearing, the applicant told the Tribunal that his only intention coming to Australia was to study. He said that he was enrolled in a leadership and management course at University Preparation College (UPC) in Surry Hills, New South Wales but only attended for one year and did not complete the course. He estimated that he stopped studying towards the end of 2020. He told the Tribunal that he stopped studying because he could not afford the tuition fees which had previously been paid for by his parents until their financial situation meant they were no longer in a position to pay for the fees.

28. The applicant told the Tribunal that he did not return to Vietnam when he stopped studying towards the end of 2020 because he was young and thought that this brought shame and embarrassment to his family. Noting that the applicant continued to hold a student visa until 25 August 2021 despite no longer studying, the Tribunal asked the applicant why he did not return to Vietnam when his visa expired. The applicant repeated that he was embarrassed and that he was sorry and made the wrong decision and also suggested that the COVID pandemic border closures was also a reason for him not returning to Vietnam. The Tribunal questioned the applicant why he did not return to Vietnam when international travel resumed, and he responded that it was because of embarrassment. He told the Tribunal that he has now spoken to his family about his situation in Australia and is not embarrassed to return home.

29. The applicant told the Tribunal that prior to coming into criminal custody on 10 April 2020 he made no contact with the Department to regularise his migration status. He said that he told his lawyer about his immigration status on 10 April 2020.

30. In the visa application form, the applicant claimed a proposed departure date of 1 December 2024 by flight to Vietnam. Concerning the arrangements, the response in the form was

    “The applicant currently has a legal matter with the NSW Local Courts.

    It is anticipated that it will be some time until the matter is resolved as the matter is only at the early stage at the moment.

    The applicant will make arrangements to depart Australia as soon as his legal matter is resolved.

    Passport/ticket details: The applicant has a valid passport to make travel arrangements.

    A copy of the passport is provided with this application.”

31. A copy of the applicant’s Vietnamese passport was included with the visa application form and is valid until 22 October 2028. The Tribunal was told that the passport is in the custody of Police/Australian Border Force as required by his bail conditions. The applicant provided the Tribunal with a copy of the bail conditions which demonstrate a requirement to report daily to Cabramatta Police Station, to require at a particular address in Canley Heights, New South Wales, only possess one mobile telephone, not attend any places of international departure, and have a person provide a cash surety deposit for the grant of bail.

32. At the Tribunal hearing, the Tribunal was told that the proposed departure date of 1 December 2024 was an estimate of how long it would take for the criminal case against the applicant to be resolved. The submission detailed that the applicant was pleading not guilty, and the material demonstrates that the defence submission is that the substance seized is not a border-controlled precursor, meaning that the prosecution will be required to be put to proof that the material seized is what the prosecution claims it to be.

33. The Tribunal was told that the applicant intends to depart Australia once the case against him is concluded, either through the charge being withdrawn, or the applicant being acquittal, or in the event the applicant is found guilty and is sentenced and the sentence is completed, at that point.

34. In the submission to the Tribunal, it was claimed that the applicant’s father in Vietnam would financially support the applicant to return to Vietnam and that this capacity, together with a current and valid Vietnamese passport means that the applicant is making acceptable arrangements to depart Australia, but that part of the arrangements is the necessary conclusion of the criminal case against the applicant.

35. The Tribunal was told that the applicant had not booked a flight to Vietnam at this stage, but would be willing to do so, subject to letting the prosecutors know that this was not being done to depart Australia immediately, but rather to demonstrate his intention to leave Australia at the conclusion of the criminal case against him.

36. In the submissions from the representative, the applicant conceded that he did not satisfy cl 051.211.

    FINDINGS AND REASONS

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

    The grounds for seeking the visa - cl 050.212

38. 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.

39. In this case, the applicant is seeking to meet cl 050.212(2).

40. On the basis of the applicant’s concession that he did not satisfy s 050.212(3), (3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (5B), (6), (6AA), (6A), (7), (8), or (9), the Tribunal finds that the applicant does not satisfy any of those clauses.

41. Subclause 050.212(2) is met if the decision-maker is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

42. ‘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].

43. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

44. The applicant has been an unlawful non-citizen in Australia for a significant period of time since his student visa ceased. He made no attempt to regularise his migration status with the Department until he was arrested and placed into criminal custody. While his past period of unlawfulness and failure to depart Australia may demonstrate a future intention to continue to remain in Australia and not depart this country, the Tribunal is satisfied in the circumstances of this applicant that he goes genuinely intend to leave Australia at the conclusion of his criminal case.

45. This is because of the fact that he has now been charged with criminal offending and has spoken to his family about his circumstances in Australia. Whatever shame he may have felt being a failed student has clearly overtaken his desire to leave Australia following being charged with a criminal offence.

46. The Tribunal is satisfied that whatever the outcome of the applicant’s criminal case, he does intend to depart Australia as soon as he is able to do so, and he expressed nothing in his oral evidence to demonstrate he fears harm in Vietnam and will not return to that country. The Tribunal is also satisfied that there is evidence that family will pay for a flight for the applicant to return to Vietnam.

47. However, the fact that the applicant genuinely intends to depart Australia does not equate to the applicant making, or being the subject of, acceptable arrangements to depart Australia. The Tribunal’s assessment is that those are two very different things.

48. The fact is that at the present time, the applicant cannot leave Australia, despite possessing a valid Vietnamese passport that would enable him to return to his country of citizenship. He possesses no flight to do so and is prohibited from leaving Australia by his bail conditions. His plan is no more than intention to leave Australia as soon as it is possible for him to do so.

49. While the Tribunal accepts that the finalisation of his criminal case is a pre-condition to him being able to depart Australia, the Tribunal is not satisfied that the resolution of his criminal case is ‘making’ acceptable arrangements to depart Australia because ultimately, whether the applicant can finalise the criminal case on acceptable terms will be a matter for both the applicant and the prosecuting authorities. This is because the applicant is at this stage pleading not guilty and if the charge is not withdrawn by the prosecution, it will ultimately be a matter to be contested in Court.

50. In the Tribunal’s judgement, the term ‘making’ or being ‘the subject of, acceptable arrangements’ to depart Australia means practical arrangements to depart Australia, such as signing a request for the Department to remove the applicant (for which there is no evidence), possessing a valid passport and arranged travel by sea or air that the applicant is able to take. In the present case, the applicant is not able to depart Australia because he is prohibited from doing so, despite the possession of a valid passport.

51. In all the circumstances, the Tribunal is not satisfied that the applicant is making, or the subject of, acceptable arrangements to depart Australia.

52. Therefore, the applicant does not satisfy cl 050.212(2).

    Eligible non-citizen - cl 051.211

53. The applicant conceded that he was not an eligible non-citizen for the purpose of cl 051.211. Based on that concession, the Tribunal finds that the applicant is not an eligible non-citizen for the purpose of cl 051.211.

    CONCLUSION

54. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl 050.212 for the grant of a Subclass 050 (Bridging (General)) visa.

55. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl 051.211 for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

56. The Tribunal affirms the decision dated 3 June 2024 refusing to grant the applicant a Bridging E (Class WE) visa.

    Nathan Goetz

    
    

    Member