1905211 (Migration)

[2019] AATA 1186

1905211 (Migration) [2019] AATA 1186 (12 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905211

MEMBER:Wendy Banfield

DATE:12 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2019 at 1:48pm

CATCHWORDS
MIGRATION –  Bridging E (Class WE) visa – Subclass 050 – no valid application for a substantive visa – previous refusals for bridging visas – in a relationship for a few months – no substantive visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5(9), 65, 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 February 2019. 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).

3. The decision to refuse to grant the visa was made on 4 March 2019 on the basis that the applicant did not meet the time of application criteria as he did not provide evidence of an ongoing substantive visa application or other grounds that would satisfy c.050.212 of the Regulations. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

   Background

4. [The applicant] is a citizen of India and is currently [age] years old. He first came to Australia [in] November 2015 as the holder of a [temporary] Visa which was valid until 30 August 2019. On 24 August 2017 this visa was cancelled under s.116(1)(b) of the Act and he became an unlawful non-citizen.

5. [In] August 2018, the applicant was arrested by [the] Police and charged with [offences]. He was released on bail by the [the] Local Court the following day, but was taken into immigration detention upon his release from criminal custody.

6. On 30 August 2018, the applicant lodged a XA866 Protection Visa application. His application for an associated Bridging Visa was refused by a delegate on 3 September 2018. The applicant applied to the Tribunal for a review of the refusal decision and on 12 September 2018 the Tribunal affirmed the decision to refuse the Bridging Visa. On 4 October 2018, a delegate refused to grant the applicant the Protection Visa. On 28 November 2018 the applicant made a further application for a Bridging Visa which was refused by the delegate on 29 November 2019. An application was again made to the Tribunal for a review of that refusal and on 7 December 2018 the Tribunal affirmed the decision to refuse the Bridging Visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets one of the alternative grounds for seeking a visa in accordance with cl.050.212 of the Migration Regulations.

   The grounds for seeking the visa - cl.050.212

9. 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.

10. In this case, the applicant is seeking to meet cl.050.212(3). 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.

    Substantive visa application

11. Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

12. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

13. The applicant gave evidence to the Tribunal that he is in a partner relationship of a few months duration. The applicant said he and his partner have known each other for some time but became a couple around Christmas 2018. The applicant stated he and his partner plan to get married after which, the applicant will apply for a Partner Visa. The applicant conceded he has not made a Partner Visa application yet and therefore, does not have a valid application for a substantive visa that has not been finally determined. As the applicant is not married to or in a de facto relationship with his partner, the Tribunal is not satisfied the applicant would apply for such a visa within a period specified for doing so. Accordingly, the applicant does not meet cl.050.212(3).

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

15. 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

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

    Wendy Banfield
    Member