1917990 (Migration)

[2019] AATA 4902

1917990 (Migration) [2019] AATA 4902 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917990

MEMBER:Angela Cranston

DATE:16 July 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 16 July 2019 at 10:42am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – did not apply for substantive visa within allowable period – intended to apply for partner visa – intention not relevant – did not inform officer of intention in writing – did not apply for review of Protection Visa decision – not relevant eligible non-citizen for Protection Visa – student enrolment cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 116, 189, 194, 195,
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212, 050.221, 051.211,Condition 8202

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). Relevantly to this matter, the primary criteria include cl.050.212(3).

3.    The visa was refused on the 4 March 2019 and the applicant provided the Tribunal with a copy. The visa was refused on the following basis:

Mr [A] first and last arrived in Australia [in] November 2015 as the holder of a student visa [which] was valid until 30 August 2019 and contained conditions 8105 (work limitation), 8202 (continues studying) and 8533 (notify address) amongst other visa conditions.

[In] November 2016 the Department received two student course variation notices and they were CD 18 enrolment cancelled, fees not paid and CD 06 student did not commence course. [In] August 2017 Mr [A]’s student visa was cancelled under section 116 of the Migration Act for the breach of visa condition 8202. As a result Mr [A] became an unlawful noncitizen.

I note that Mr [A] was arrested [in] August 2018 for the following criminal charges:

[Charge 1]

[Charge 2]

[Charge 3]

[In] August 2018 Mr [A] was granted bail and he was detained by Australian Border Force officers pursuant to section 189 of the Migration Act as an UNC. He was transferred to the Villawood Immigration Detention centre where he currently remains.

On 30 August 2018 Mr [A] lodged a valid permanent protection visa application from detention. On 3 September 2018 Mr [A]’s associated bridging Visa E application was refused and on 12 September 2018 the Administrative Appeals Tribunal affirmed the Department’s BVE refusal decision.

On 4 October 2018 Mr [A]’s PV application was refused.

On 29 November 2018 Mr [A] second BVE application was refused which was lodged on 28 November 2018. The AAT affirmed the Department BVE refusal decision on 7 December 2018 for the second time.

[In] February 2019 Mr [A] was convicted and sentenced to a community correction order period of 12 months commencing from [February] 2019.

On 28 February 2019 Mr [A] lodged an application for a bridging Visa E on form 1008. The form 1008 was sighted by the Detention review officer on the same day as required under item 1305(3)c) of the Migration Regulations.

In his application for a BVE, form 1008 under question 9, Mr [A] has ticked applicant for a substantive visa and in question 15, he stated I am seeking to apply for a partner visa, I would like to marry my partner who has happily agreed to do so. Neither my partner nor I have been married, this ceremony would be important and significant to both of us, I recently was charged and issued with community corrective order as a non-threat to community. It has been a good news for my partner and myself, I would like to begin the new chapter of my life after my foolish mistakes in 2018. If this visa application is successful I will able to do so, our marriage will include our cultural ceremonies and importantly our families, it would signify our union as a couple.

On 1 March 2019 I interviewed Mr [A] over the phone. I introduced myself and explained the reasons for the call. In summary Mr [A] stated that he is planning to lodge a partner visa application. He has a girlfriend who he knew before his detention but their relationship started during Christmas 2018. They are planning to get married soon and lodge a partner visa application. His girlfriend has organised a celebrant and soon will book the venue. He holds a passport which is valid until 2023. The passport is with his friend. He claimed that he asked his friend to bring the passport at the VIDC but his friend has not delivered it yet.

In making the decision on Mr [A]’s application for a BVE, I have taken into consideration information provided by him, available information on departmental databases, departmental legislation and policy.

In reference to whether or not I am satisfied that Mr [A] meets time of application criteria ‘will make an application’ as set out in clause 050.212(3)(b) of schedule 2 to the Migration Regulations 1994 I have considered the following.

Section 195 of the Migration Act states:

1) A detainee may apply for a visa

a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention or

b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply within the next 5 working days after those two working days.

2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

At the time preparing this decision record, departmental systems do not indicate that Mr [A] has lodged a partner visa application from detention within the legislative timeframe. I note that on 16 August 2018, Mr [A] had sought the opportunity to lodge an application from detention. Mr [A]’s legislative timeframe to lodge a substantive visa application was on or before 24 August 2018.

As stated above Mr [A] lodged a PV application on 30 August 2018 from detention and this application was refused on 4 October 2018. I note that Mr [A] did not seek merits review at the AAT for this PV refusal decision.

In summary Mr [A] does not have any ongoing application for a substantive visa, merits or judicial reviews at the time of application. He does not have any ongoing ministerial intervention requests. I note that he has not provided any evidence of departure arrangements. No other grounds that would meet the time of application criteria as per regulation 050.212 have been raised by Mr [A] in his BVE application nor are there any apparent to this decision maker.

As such I find that Mr [A] does not satisfy the requirements of 050.212 (time of application criteria).

4. That decision was affirmed by the Administrative Appeals Tribunal on 12 March 2019 and the applicant applied for judicial review. The case was remitted back to the Tribunal on the basis that that the AAT fell into jurisdictional error by asking itself the wrong question in assessing whether the applicant met the requirements of cl 050.212(3). The AAT considered whether the applicant was married or in a de facto relationship with his partner and whether he would "apply for such a visa within a period specified for doing so" instead of considering and determining the relevant "period allowed by the Minister" in cl 050.212(3)(b) of the Migration Regulations 1994 (Cth) by reference to s.194 and s.195 of the Migration Act 1958 (Cth).

5.    The applicant appeared before the currently constituted Tribunal on 12 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [B].

6.    The applicant stated he had given the Tribunal notification for marriage and planned to marry when granted a bridging visa. The Tribunal talked about cl.050.212 including cl.050.212(3) and indicated that he must have made a valid application for a substantive visa or the Tribunal must be satisfied that he would apply within a period allowed for a substantive visa that could be granted in Australia.

7.    The applicant stated he had clear intentions to apply for a partner visa as soon as he married.

8.    The Tribunal put to the applicant that the department had indicated that on 16 August 2018 he sought to lodge a visa application from detention and that under the legislation he had until 24 August to apply for a visa other than the bridging visa. The Tribunal put to him he had applied for a protection visa that had been refused and he had not applied for merits review and that from what the Tribunal could see, he had no other visa application in process and had run out of time to lodge a spouse visa application. The Tribunal also put to him that the time period was determined under the legislation and had expired, that is the department had indicated that on 16 August 2018 (as indicated in its decision) he was told of his right to apply within 2 working days or within 5 working days after those two working days if he had told the department in writing of his intention to apply and at that stage, he should have applied for a partner spouse visa but now it was too late. He stated he was going through his criminal case then and did not know anything including what he was doing. He also stated at that time his relationship was on an off as they were going through a rough period but were now back together. He also stated that he had been mentally stressed at the time.

9.    The applicant stated he did not want to leave his partner in Australia and his clear intention was to apply for a spouse visa.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets cl.050.212.

The grounds for seeking the visa - cl.050.212

1. 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.

2. 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

1. 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.

2. ‘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.

3. There is no evidence before the Tribunal that suggests the applicant has made a valid application for a substantive visa. The applicant’s argument however is that he will, if released, apply for a spouse visa.

4. The applicant was detained [in] August 2018, and the compliance interview record of [August] 2018 records that the applicant was given a copy of the VIN or Very Important Notice issued pursuant to s.194, or at least, his rights including the operation of s.195 were explained to him. Accordingly, the Tribunal is satisfied that the applicant was made aware of s. 195 in accordance with s. 194 on 16 August 2018.

5. Under s. 195, a detainee may apply for a visa within 2 working days after the day on which s. 194 was complied with or if he or she informs an officer in writing within those 2 working days of his or her intention to so apply — within the next 5 working days after those 2 working days.

6. There is no evidence that the applicant informed an officer in writing of his intention to apply for a visa.

7. As 18 August 2018 was a Saturday, the two working day period referred to in s.195(1)(a) expired at the end of 20 August 2018.

8. No further visa substantive visa application can be lodged by the applicant after this date other than a Protection Visa which the applicant applied for on 30 August 2018. That was refused and the applicant did not apply for any merits or judicial review of that decision.

9. The applicant has stated that he intends to apply for a partner visa. However, the Tribunal considers that regardless of the applicant's intention at the time of the bridging visa application, he cannot do so unless there is time to do so within the time limit provided for by s.195. As he has not applied for a visa within the time allowed by subsection 195(1)(b) he cannot now do so (subsection 195(2).

10. Therefore, the Tribunal is not satisfied that the applicant at the time of application would apply, within an allowable period, for such a visa.

11. Consequently, the Tribunal is not satisfied that the applicant met the requirements of cl.050.212(3)(b) at the time of application, namely that he would apply, within an allowable period, for a substantive visa.

12. Accordingly, the applicant does not meet cl.050.212(3).

13. As applicant does not claim to meet any of the other alternative criteria in cl.050.212(1), the applicant does not meet cl.050.212.

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.

16. The Tribunal has some sympathy for the applicant and his partner as they presented as a genuine and indeed caring couple at hearing. However, the Tribunal has no discretion.

DECISION

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

Angela Cranston
Member