2403679 (Migration)

[2024] AATA 820

2403679 (Migration) [2024] AATA 820 (11 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403679

MEMBER:Namoi Dougall

DATE:11 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.212 of Schedule 2 to the Regulations;

·cl 050. 221 of Schedule 2 to the Regulations and

·cl 050. 223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be imposed if the visa is granted; and

·to require a security of $5,000 for compliance with the conditions.

Statement made on 11 March 2024 at 12:48pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – immigration history – criminal convictions – failure to depart Australia – failure to attend parole appointment – several AVO breaches – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5, 73, 189
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 050.222, 050.223; Schedule 8; r 2.20

CASES

Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289

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

2. The applicant applied for the visa on 22 February 2024. 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 1994 (Cth) (the Regulations). Relevant to this matter is whether the applicant meets any of the primary criteria in cl 050.212.

3. The decision to refuse to grant the visa was made on 27 February 2024 on the basis that the applicant did not meet any of the grounds in cl.050.212 and cl.050.221. The applicant appeared before the Tribunal on 7 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant meets any of the requirements set out in cl.050.212.

Applicant’s migration History

1. [In] April 2019, the applicant arrived in Australia on a Subclass [visa] which was valid until 5 May 2019. Once the subclass [visa] expired the applicant did not depart Australia and became an unlawful non-citizen (UNC).

2. [In] December 2022, the applicant was remained into criminal custody and charged with ‘sexually touch another person without consent (DV) – T2’ and two counts of ‘sexual intercourse without concern (DV) – S1’.

3. [In] January 2024, the applicant was released on bail. The applicant is scheduled to appear in court [in] March 2024.

4. [In] February 2024, the applicant was remanded into criminal custody for breach of his bail conditions.

5. [The following day], the applicant was released from criminal custody, located by Australian Border Force officers and subsequently detained pursuant to s.189 of the Act and transferred to [a named detention centre]. The applicant is currently [residing there].

6. At the hearing the applicant confirmed he came to Australia in 2019 on a [visa] which was valid for a month. After he had done what he came to do he was at a kava party with a group of people from Fiji and Australian Fijians. After they had kava, he had alcohol and then slept. He overslept and woke in the early afternoon and was surprised that the members of his [group] had left. After he woke up, he was grateful that one of his distant cousins took him to his home and he slept there overnight. When he woke up in the morning his cousin was not there as he was visiting his partner. The cousin knew that the applicant was going to depart the following day. The applicant stated he was new to Australia, and he could not communicate with his cousin or his group as he did not have a mobile, he could not contact his cousin or his group nor did he know about the available public transport. He, therefore, stayed in the house. The cousin did not return to until late in the afternoon. He expressed his concern as his group had left. He informed the cousin and the cousin stated that he will make enquiries about how he could return to Fiji.

7. The Tribunal asked if he did not have [phone numbers for his group] to contact to them. The applicant referred to being left on his own. The Tribunal referred to that being one night, and the applicant was still in Australia.

8. The applicant met his current partner in 2021. Prior to that he had a relationship with an Australian woman until her mother did not approve of their relationship. He asked her to move on and they separated. The applicant’s first partner was [Ms A] and he met her in early 2020. He first met her when she he is waiting on the street and a criminal threatened her and he went to her assistance. They lived together in her home for about one year. He moved out after her mother did not want him to be in a relationship with her daughter, so he separated from [Ms A].

9. At the hearing the applicant stated that before he was living with [Ms A] he was living with the cousin. This was another cousin who he was able to contact him as he had by then a mobile phone. He got his phone about one or two weeks after the party. He met a Fijian friend who helped him get a mobile phone, but he paid for the sim. The Tribunal referred to him not leaving Australia and returning to Fiji even once he had his mobile phone and asked why he did not return to Fiji. He was brought up by a single mother, it was painful seeing his mother suffer after their father left the family. This is why he took up [occupation 1] so he could help his family. When he arrived in Australia, he realised the opportunities offered in Australia. He was able to do cash jobs for friends and it was a lot of money he could send back to his mother in Fiji. This influenced his decisions as it was better to stay in Australia to obtain gainful employment opportunities so he could assist his mother back home.

10. The applicant confirmed that it was [Ms A] who brought the charges against him. The terms of his bail after being released wasthat he had to find his passport in 24 hours. He and [Ms B] looked for the passport but could not find it but anyway the passport had expired. Another condition was that if he could not find his passport he had to report on Monday, Wednesday and Friday to the police station. There was no bail attached to his release.

11. The applicant stated that he regularly reported but he was also trying to obtain his passport. He was shocked when he was arrested [in] February 2024. On the day he was told that he breached the condition to obtain the passport.

12. He and [Ms B] have one child together, but he considers her son to be his as he came into their family when the boy was very young. He has lived with [Ms B] and their children at the [Suburb 1] address since he moved in to at the beginning of 2021.

13. At the hearing the Tribunal asked if he informed that interviewing delegate at the interview conducted at [the detention centre] that he would apply for a visa. The applicant stated that he did advise the delegate that he wanted a Bridging visa E. The Tribunal asked if he stated he wanted to apply for another type of visa and he said after he asked for a Bridging visa E. He advised the delegate later after being asked what sort of other visa he would be applying for, and he told the delegate then that he had discussion with his partner, and they will be lodging an application for a Subclass 482 in August 2024 as that would be an appropriate time for her employer.

14. At the hearing the applicant stated that she is in the process of applying for a Subclass 482 visa and will include all of their names. The Tribunal asked if [Ms B] was an Australian citizen, permanent resident or on a visa. The applicant stated that she is her on a temporary skilled visa. The applicant provided this partner’s full name and was asked for her date of birth. He could not recall her date of birth including the month of her birthday.

15. At the hearing the Tribunal referred to [Ms B] being in Australia on a Bridging A visa and not a temporary work visa. The applicant confirmed that she had mentioned to him that she was is on a Bridging visa A and when asked what was the visa she had applied for, to be granted a Bridging visa A. The applicant stated that all [Ms B] told him was that she is on a Bridging visa A and that she will be applying for a Subclass 482 in August 2024 and will include him and the children on that visa. The Tribunal advised that [Ms B] had applied for a protection visa which had been refused by the Department and that this decision was currently before the Tribunal for review. The applicant stated that he is aware of this as [Ms B] had shared her visa journey with him.

16. At the hearing the Tribunal asked if the delegate advised him that he had to make a visa application within a specific period of time. The applicant confirmed that the delegate had told him this and he stated that when they asked what type of visa he wanted to apply for, and he told them a Bridging visa E. When they asked him later what sort of further visa he was going to apply for, and he then explained what his partner had told him she was going to apply for.

17. The Tribunal asked if he was told that there were timeframes as to when he needed to apply for a visa. He did further mention that it was his understanding that his partner would lodge an application by 22 August 2024. The Tribunal explained there are timeframes within which a substantial visa must be lodged.

18. At the hearing the Tribunal asked if he was going to apply for a protection visa and the applicant stated that he intended to apply for the other visa. The Tribunal asked again if he intended to apply for a protection visa and the applicant stated yes. The Tribunal asked when he intended to apply for a protection visa. The Tribunal asked why he had not applied foy a protection visa before now and the applicant stated that he intended to apply for a protection visa and he was advised against it by friends as Fiji has returned to normalcy. Therefore, he applied for a Bridging visa E and was looking at other options.

19. At the hearing the applicant confirmed that the grounds on which he was applying for a Bridging visa E was that he would be applying for a protection visa.

20. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

21. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

22. The applicant’s last held [visa] ceased on 5 May 2019, and the applicant has been an unlawful non-citizen since 6 May 2019. Accordingly, the applicant meets cl 050.211(1).

23. Therefore, the applicant meets cl 050.211.

24. 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.

25. In this case, the applicant is seeking to meet cl 050.212(3) or (6). 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 an application being made: s 5(9) of the Act.

3. The applicant stated in his visa application that the most appropriate reason for applying for a Bridging E visa was an application for a substantive visa and ministerial intervention. Later in the visa application the applicant answered ‘No’ to the question asking him hf he was waiting on a decision from the Department or the Tribunal about a substantive visa and to the question about his intention to apply for a substantive visa.

4. On 19 February 2024, the applicant was interviewed by the delegate (the first interview) and was recorded as stating that he wished to lodge a Bridging visa E application or a Protection visa application.

5. The applicant at the interview further stated as follows:

   ·He originally came to Australia [for a specified event] in 2019. He was staying at his cousin’s place, and this caused him to miss his flight as he did not know how to use public transport and did not have a phone. He waited for his cousin to return, and his cousins arranged for him to stay with him. It was during this time that he met his partner and decided to stay because of her.

   ·He lives with his partner and their two children.

   ·He has no interest in returning to Fiji because if he returned, he would be unemployed and unable to support his family. He wants to remain with his partner and two children. He is the primary carer of his children as he does not work, and his partner is the sole income earner for the household.

   ·The applicant’s partner is [an occupation 1]. They have no one else in Australia, and if he leaves there will be no none to look after the children.

6. The applicant was interviewed for a second time on 23 February 2024 by the delegate and was recorded as stating that his partner intended to lodge a Subclass 485 visa on 22 August 2024, and he will be included as a member of the family unit in the application. The applicant also confirmed at the interview that there were no other applications that he intended to lodge. The Tribunal notes that the reference to a Subclass 485 visa may be an error on the part of the applicant or the delegate as and that the visa subclass should be Subclass 482 as there is reference to the applicant’s partner being sponsored by her employer.

7. The Department and the Tribunal were provided with letters of support from the applicant’s partner. The letter provided to the Tribunal was in similar terms to the one provided to the Department and stated as follows:

   ·She requested that the applicant be allowed to stay in Australia.

   ·She has known him for five years and since he came into their lives in 2020 the applicant has nurtured and help her raise her son born on [date].

   ·She lost her parents in 2021 and 2022 and does not have any siblings in Australia and it was the applicant that supported her through her grief and depression.

   ·Their [next child] was born on [date] and is very attached to her father, their children rely on him for emotional and physical support.

   ·She works full time as [an occupation 1], and she too relies on him for her physical, emotional and spiritual work. She also trusts him to manager their welfare at home and he is an essential part of the family unit.

   ·The applicant takes care of the children while she works.

   ·The applicant is deeply rooted in the Australian community with his home and family. His presence is crucial for her and the children’s lives.

8. The applicant’s partner also provided a reference from her employer which confirmed her full time work as [an occupation 1].

9. As referred to above, at the hearing the applicant confirmed that the grounds on which he was applying for a Bridging visa E was that he intended to apply for a substantive visa. The Tribunal explained that [Ms B] is barred for lodging a Class GK Subclass 482 visa as she has had a substantive visa application refused. The Tribunal explained that this would mean that at the application could not apply for a substantive visa which is a Subclass 482 visa and, therefore, would not meet the preliminary requirements for a Bridging visa E. The Tribunal explained the requirements of cl.050.212(3) and asked if he intended to apply for a substantive visa and the applicant responded that he will apply for a protection visa as soon as possible. The Tribunal allowed the applicant additional time until Friday, 8 March to lodge a protection visa application which the applicant did on that day.

10. Accordingly, the applicant meets cl 050.212(3).

11. The Tribunal is satisfied that the applicant continues to satisfy the requirements of both clauses at the time of this decision as the applicant remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense, he has made an application for a substantive visa able to be granted in Australia, in this case a Subclass 866 protection visa and that application is yet to be determined.

12. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and cl.50.212 and therefore meets cl.050.221.

The requirement to be interviewed by an authorised officer - cl 050.222

1. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause. The exceptions are either: the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

2. The applicant was interviewed by the delegate on 19 and 19 February 2024. Accordingly, the applicant meets cl 050.222.

Whether the applicant will abide by conditions - cl 050.223

1. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

2. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

1. In this case, cl 050.223 applies. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

   ·     8101 (No Work)

   ·     8207 (No study)

   ·     8401 (Report as directed)

   ·     8506 (Notify change of address)

   ·     8564 (Not engage in criminal conduct)

2. In relation to condition 8101 (No work) the applicant stated that his partner works full time and she is paid well and he is normally a full time carer for his children. The Tribunal has been provided with a work reference for the applicant’s partner confirming that she works full time as [an occupation 1] and accepts that he could reside with her and their children without having to work as this is a continuation of their domestic arrangements.

3. In relation to condition 8401 (Report as directed). At the hearing that the breach of bail conditions related to him not being able to locate his passport and not the reporting conditions. The Tribunal stated that the reporting conditions would continue as the bail conditions. The applicant stated that he reported every Monday Wednesday and Friday to [a named] police station between 08:00 am to 4:00 pm and these should continue to comply with condition 8401.

4. In relation to condition 8207 (No study) the applicant stated that he understood. The Tribunal accepts that he applicant will not be engaging in any study.

5. In relation to condition 8506 (Notify change of address) the applicant understood that he must notify any change of address within 5 working days. The Tribunal considers that the applicant would remain at the [Suburb 1] address so long as his partner and children are at that address as well.

6. In relation to condition 8564 (Not engage in criminal conduct) the applicant fully acknowledged this condition. The criminal charges against the applicant are serious and the Tribunal considers that a security is required to ensure that this condition is meet and for the reasons discussed at the hearing and set out below.

7. At the Tribunal explained that it is considering whether a security is required to satisfy the Tribunal that he will abide by the conditions discussed. The applicant stated that he understood, and he is prepared to pay $2,000. The Tribunal referred to the length of time he has remained in the community as an unlawful non-citizen and that the Tribunal has some concerns about his breach of bail conditions. However, he has been in a relationship with his partner and lived with her and his family from 2021. The Tribunal stated the security will be $5,000.

8. On the above the Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted with a security of $5,000. Therefore, the applicant meets cl 050.223.

9. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

   ·cl 050.212 of Schedule 2 to the Regulations;

   ·cl 050. 221 of Schedule 2 to the Regulations and

   ·cl 050. 223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker

·to indicate to the applicant that conditions 8101, 8207, 8401, 8506 and 8564 will be imposed if the visa is granted; and

·to require a security of $5,000 for compliance with the conditions.

Namoi Dougall
Member