1914248 (Migration)

[2019] AATA 2047

1914248 (Migration) [2019] AATA 2047 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914248

MEMBER:Hugh Sanderson

DATE:13 June 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 13 June 2019 at 8:40am

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – intention to stay in Australia – lack of financial capacity – substantive visa application – out of time to seek review of protection visa decision – no further stay condition in Tourist visa – barred from filing any substantive visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 051.211; Schedule 8, Visa Condition 8503

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 30 May 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 3 June 2019 on the basis that the applicant did not meet the criteria in cl.050.212 because the applicant was not making any arrangements to depart Australia and had not filed a substantive visa application.

   Background

4. The applicant is a citizen of Fiji and is currently [age] years old. He entered Australia in 2005 holding a Tourist visa. That visa expired on 16 May 2005. He remained in Australia after that date as an unlawful noncitizen. The Tourist visa which was granted to him included condition 8503 which provides that he is not entitled to be granted a substantive visa, other than a Protection visa, while he remains in Australia.

5. The applicant was arrested by the police [in] February 2019 in relation to a domestic violence incident. As it was determined the applicant was an unlawful noncitizen he was then placed in detention. Those criminal proceeds have since been finalised.

6. When interviewed, the applicant claimed that he was living in a de facto relationship. He had a child from another relationship who was living with her mother in Queensland. He claimed that he had not worked throughout the time that he had been living in Australia. He claimed that he could not return to Fiji because he had no family in Fiji and had nothing in Fiji. He claimed that he had planned to apply for a visa to be able to live in Australia, but as he had no money, was not able to afford the fees to make an application.

7. The applicant applied for a Protection visa on 3 March 2019. That application was refused by the Department on 11 April 2019. The applicant did not seek a review of the decision of the Department to refuse that application.

8. The applicant applied for a Partner visa on 26 March 2019. That application was deemed invalid as the applicant was subject to the no further stay condition in the Tourist visa granted to him and that condition had not been waived. The Partner visa application had also been filed more than seven working days days after the applicant had been detained and therefore did not comply with s.195 of the Act.

9. The applicant applied for the current Bridging visa on 30 May 2019. In his application, he said the reason for applying for the Bridging visa was that he was applying for a substantive visa.

10. The delegate who considered the application noted the following:

    ·The applicant had provided no information which would indicate he has any intention of departing Australia;

    ·There was no information which would indicate the applicant was applying for the visa on departure grounds and therefore did not satisfy cl.050.212(2);

    ·Although the applicant had applied for a Protection visa, that application had been refused by the Department and no review of that decision had been applied for by the applicant;

    ·The applicant had previously applied for a Partner visa, however, that application was deemed invalid;

    ·As the applicant was detained on 3 February 2019 he had now passed the legislative timeframe to lodge any further application;

    ·There was no information which would indicate the applicant had applied for a substantive visa of any kind and therefore did not satisfy cl.050.212(3); and

    ·The applicant did not satisfy any of the alternative criteria in cl.050.212.

11. As the applicant did not meet the criteria in cl.050.212 the delegate refused the application.

    Information to the Tribunal

12. The applicant provided a statutory declaration from his de facto partner dated 12 February 2019 and a friend dated 26 March 2019 claiming that the applicant and his de facto partner are in a genuine relationship.

13. The applicant appeared before the Tribunal on 12 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

14. The applicant said that he was not making any arrangements to depart Australia. He said that he wanted to stay in Australia so that he could be with his wife and child. He confirmed that he had not filed an application but was relying upon the advice and help from an immigration agent. The Tribunal explained to the applicant the basis of the Department’s decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. 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.

    Acceptable arrangements to depart Australia

18. 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.

19. The applicant has not provided any information which would indicate that he is making any arrangements to depart Australia. He has stated that he does not wish to depart Australia and is not making any arrangements to do so. There is no information before the Tribunal that the applicant has the financial capacity to make his own arrangements to depart Australia. There is no information before the Tribunal that the applicant has any intention to depart Australia.

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

    Substantive visa application

21. 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.

22. ‘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.

23. The applicant applied for a Protection visa on 3 March 2019. This application was assessed by the Department and a decision was issued on 11 April 2019 refusing that application. Although the applicant claims he has spoken to a migration agent who was going to apply for a review of that decision, no review application has been lodged with the Tribunal and the applicant is now out of time to file such a review.

24. The applicant claimed that he wanted the Bridging visa on the basis that he was applying for a substantive visa. The only substantive visa the applicant has indicated he would be applying for is a Partner visa.

25. When the applicant was granted his Tourist visa, that visa was subject to condition 8503 which does not allow him to file any further application for a substantive visa, apart from a Protection visa, while he is in Australia. That condition has not been waived. Accordingly, the applicant continues to be subject to this condition and he is not able to file an application for a Partner visa while he is in Australia.

26. When the applicant was initially detained by the Department he signed an acknowledgement stating that if he wished to lodge a substantive visa application he was required to do so before 13 February 2019. As he has not filed any substantive visa application on or before that date he is barred, pursuant to s.195 of the Act, from filing any application for a substantive visa.

27. There is no current substantive visa application of the applicant which has not been finally assessed by the Department.

28. As the applicant has not made a valid application for a substantive visa of any kind and cannot at this time file any further application for a substantive visa the applicant does not meet cl.050.212(3).

    Other time of application criteria

29. There is no information before the Tribunal that the applicant has before the Tribunal or any court a pending application. There is no information that would indicate the applicant has applied for Ministerial intervention or is awaiting a determination of any application. There is no information which would indicate the applicant meets any of the alternate criteria in cl.050.212.

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

31. 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

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

    Hugh Sanderson
    Member