2008466 (Migration)

[2020] AATA 2458

2008466 (Migration) [2020] AATA 2458 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008466

MEMBER:Ann Duffield

DATE:27 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2020 at 11:56am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – delay in lodging a partner visa application – security bond – history of unlawfulness – non-compliance with previous visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 194, 195
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 14 May 2020. 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 decision to refuse to grant the visa was made on 18 May 2020 on the basis that the applicant has not, and the delegate was not satisfied that the applicant would lodge an application for a substantive visa.

4. The applicant appeared before the Tribunal via telephone link on 26 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who also participated in the hearing.

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

   BACKGROUND

7. The applicant is a citizen of Fiji who first (and last) arrived in Australia [in] October 2010 on a tourist visa. He has been unlawful for significant periods of time. Relevantly, on 18 December 2012 the applicant was granted a bridging visa on the grounds that he wanted to apply for a substantive visa, namely a partner visa. The bridging visa was in effect until 7 January 2014. As the applicant did not subsequently lodge a partner visa application his bridging visa ceased on 7 January 2013.

8. The applicant was located by police and detained in November 2015 and he lodged a number of visa applications which were refused. He was granted a bridging visa in relation to an application for review of the department’s refusal of his protection visa application on 2 March 2016. That bridging visa ceased on 8 April 2016 and the applicant became unlawful again.

9. The applicant was again located by the Australian Border Force after he had been taken into criminal custody for a number of offences on 30 July 2018. He was sentenced to 2 years and 9 months on 28 April 2020. The applicant was taken into immigration detention after his release from prison and he remains in detention at the time of this review. The application for a bridging visa subject to this review was lodged on 13 May 2020.

   Tribunal hearing

10. The Tribunal put to the applicant that he had applied for a bridging visa for the purposes of applying for a substantive visa being a partner visa. The Tribunal asked him if that was still the case or if there were other grounds that he wanted the Tribunal to consider. The applicant said that he wanted a bridging visa so that he could lodge a partner application and for no other reason.

11. The applicant told the Tribunal that he had served 12 months in prison for assault and was detained upon his release from jail. He has been married for nine years and when asked why he had not applied for a partner visa in that time he said that he didn’t know what he could do as no one told him. He said that he talked to his sister about visa options and denied having legal or migration advice until recently. The Tribunal asked the applicant if his current adviser had told him about his visa options and he said that they decided to apply for a bridging visa as he didn’t know he could apply for a partner visa at the same time.

12. The Tribunal put to the applicant that he had two days from the time of his detention to lodge a partner application otherwise he could only lodge a bridging visa. The applicant denied knowing what he could have done saying that his sister had been helping him.

13. The Tribunal asked the applicant about his relationship with his wife, where she lived and whether she had visited him. The Tribunal put to him that he seemed not to have relied on her for any of his visa matters, preferring instead to ask for his sister’s help. The applicant said that they were still married but she was living in [Suburb 1] and he had been in working in Sydney when he was arrested. He said that she was not able to visit him because of Covid-19 and because she had two children to look after. As a result of further questioning the applicant said that if he was released then his wife and the two children would come down to Sydney and live.

14. The Tribunal questioned the applicant about his previous bridging visa that he received in 2012 for the purposes of lodging a partner application. The Tribunal asked him why he hadn’t lodged the partner application but instead became unlawful. The applicant said that he didn’t know what to do and he didn’t know that he had become unlawful. He assured the Tribunal that if he was granted a bridging visa now then he would apply for the partner visa. he apologised for his previous behaviour and undertook not to do anything wrong again.

15. The Tribunal put to the applicant that his previous unwillingness or inability to lodge a partner application when he was granted a bridging visa did not give it great confidence that he would lodge the application on this occasion. The Tribunal further put to the applicant its concerns that he had not lodged an application immediately upon being detained, given that it appeared as if the opportunity to do that was now closed. The applicant said that he didn’t know and the detention officers didn’t tell him about lodging a partner visa. He claims to have received no other advice in this regard except for his sister.

16. The Tribunal also put to the applicant its concerns that he did not seek the assistance of his wife either in relation to his current situation or in relation to providing some support to the Tribunal proceedings and the fact that she didn’t visit may lead the Tribunal to form a view that they were no longer in a relationship. The applicant said that his wife will come down to Sydney and they will live together. The Tribunal notes in this regard that the applicant’s sister, in her statement of support to the Tribunal, also makes reference to the applicant’s wife coming to Sydney and the support she has provided to the applicant.

17. The Tribunal asked the applicant and his adviser if there were any further submissions or evidence that they wanted to give and the applicant’s adviser said that the applicant’s sister had been very supportive of him and she had offered to put up a security payment to enable him to be released from detention. There was no suggestion of an amount. The adviser directed the Tribunal to the letter of support provided by the applicant’s sister which the Tribunal has considered.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant will loge an application for a substantive visa if he is released from detention.

    The grounds for seeking the visa - cl.050.212

19. 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.

20. In this case, the applicant is seeking to meet cl.050.212(3). For the reasons below, the applicant does not meet cl.050.212.

    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. On 18 December 2012 the applicant was granted a bridging visa on the grounds that he wanted to apply for a substantive visa, namely a partner visa. The bridging visa was granted and remained in effect until 7 January 2014. As the applicant did not subsequently lodge a partner visa application his bridging visa ceased on 7 January 2013.

24. The applicant is claiming again that he intends to lodge a partner visa. However, he has been prevented from doing so whilst in detention. The Migration Act. Section 195 requires that a detainee apply for a visa within 2 working days after the day on which section 194 was complied with in relation to his detention. The Act further states that a detainee who does not apply for a visa within the time allowed may not apply for a visa, other than a bridging visa or a protection visa after that time. When questioned by the Tribunal about these matters the applicant claimed that he was told that he could apply for the bridging visa first and then the partner visa. The Tribunal has no evidence of this and in any case, the fact that the applicant has had many opportunities to lodge a partner visa over the past ten years, including when he was last issued a bridging visa, but has not done so, indicates to the Tribunal that he is not strongly motivated to do so. His discussions about his wife’s lack of participation in his circumstances and his preference to rely on his sister do not give the Tribunal a high level of confidence that he and his wife remain in a spousal relationship. Even if this is the case, the Tribunal is not satisfied, given his previous immigration history and willingness to remain unlawful for substantial periods of time, that the applicant would lodge an application for a partner visa if he is released from detention.

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

26. The Tribunal has considered the offer of the applicant’s sister to make a security deposit on his behalf and notes in this regard that there was no mention of an amount of security that may be offered. Be that as it may, given the applicant’s history of unlawfulness and non-compliance with previous visa conditions, the Tribunal is not satisfied that any amount of security would ensure compliance.

27. Despite the applicant stating clearly that he sought no other grounds for the grant of a visa the Tribunal has considered whether placing conditions on his visa would ensure compliance and has formed a view, for the reasons above, that the applicant would not comply with any visa conditions that could be placed on a bridging visa if it was granted.

    CONCLUSION

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.

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

    Ann Duffield
    Senior Member