FASI (Migration)

[2022] AATA 3766

FASI (Migration) [2022] AATA 3766 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AFA FASI

REPRESENTATIVE:  Mr Simar Hermis

CASE NUMBER:  2211060

Home Affairs REFERENCE(S):               BCC2022/2897274

MEMBER:Nora Lamont

DATE:12 August 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 12 August 2022 at 10:41am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – application for a substantive visa – extended period of unlawful residence – applicant charged with criminal offences – compelling need to work – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 5, 48, 73, 189, 269
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; rr 1.03, 1.08, 2.20

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

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 (the Department) to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.

2. The applicant applied for the visa on 26 July 2022. 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). Relevantly to this matter, the primary criteria include cl 050.211.

3. The decision to refuse to grant the visa was made on 28 July 2022 on the basis that the applicant is not an eligible non-citizen of the kind set out in regulations 2.20(7), (8), (9), (10) or (11).

4. The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de-facto partner, Ms Helen Afa. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

5. The applicant was represented in relation to the review.

   Summary of delegate’s decision

6. For an applicant to be granted a BV (E) (Subclass-050), the applicant must satisfy the criteria in clauses 050.21 and 050.22 of Schedule 2 of the Regulations.

7. In their decision, the delegate concluded that:

   • The applicant satisfied subclause 050.211(1) at the time of the application because at that time the applicant was an unlawful non-citizen.

   • The applicant satisfied subclass subclause 050.211(2) because he was not an eligible non-citizen of the kind set out in regulation 2.20(7), (8), (9), (10), (11) or (17);

   • The applicant did not satisfy requirements of subclause 050.212(2) which states:

   An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

   The delegate provided the following reason for the above conclusion:

   The applicant was not seeking a visa on the basis of making acceptable arrangements to depart Australia.

   • The applicant did not satisfy requirements of subclause 050.212(3) which states:

   An applicant meets the requirements of this subclause if:

   (a) 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

   (b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

   The delegate provided the following reason for the above:

   There was no evidence before the delegate at the time of their decision that indicated that the applicant had applied for a substantive visa of a kind that can be granted in Australia. Furthermore, the delegate was not satisfied that the applicant can and will apply for a substantive visa of kind that can be granted if the application is in Australia within a specified timeframe.

8. The delegate further explained in the decision that at the time of decision, the information provided by the applicant in his visa application and the searches conducted on the Department systems did not indicate that the applicant had lodged a substantial visa.

9. The delegate also highlighted the point that the applicant indicated in his Department interview that his intention to apply for BV (E) visa was to allow him to apply for a substantive visa however as of 28 July 2022 no such application had been made.

10. Considering the above and the applicant’s un-lawful status since November 2016, the delegate concluded that the applicant has had ample of opportunities to apply for a substantive visa but failed to do so and hence concluded that the applicant will not apply for a visa if he was granted BV (E).

11. The delegate also assessed the applicant’s application and his circumstances and found that the applicant did not meet the requirement of clauses 050.212(3A), 050.212(4), 050.212(4AAA), 050.212(4AA), 050.212(4AB), 050.212(5), 050.212 (5A), 050.212(5B), 050.212(6), 050.212(6AA), 050.212(6A), 050.212(6B), 050.212(7),050.212(8) and 050.212(9).

12. Cumulatively, the delegate found that at the applicant did not meet the legislative requirements of clause 051.211 of Schedule 2 of the Migration Regulations and therefore does not satisfy the criteria for grant of BV (E) (Subclass-050) visa.

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

    CONSIDERATION OF Claims and evidence

    Background

14. The applicant is a 35-year-old male national of Samoa who was born in the town of Faletagaloa Safune in the state of Apia in Samoa.

15. He arrived in Australia on a Temporary Work (Short Stay) visa (Subclass-400) on 30 October 2016 and has remained onshore since. This visa expired on 13 November 2016 and from 14 November 2016 the applicant became an unlawful resident in Australia.

16. The applicant was charged on 18 July 2022 with the following criminal offences and was remanded on custody:

    • Common Assault (DV) T2

    • Common Assault T2

    • Destroy or Damage property >$2000 & <=$ 5000 T2

    • Stalk/Intimidate intend fear physical harm (personal) T2

    • Enter enclosed land not prescribed premises W/O lawful excuse

17. He was released on bail the following day on 19 July 2022 where he was located by ABF officers because of his unlawful visa status since 14 November 2016 and he was put into immigration detention at Villawood Immigration Detention Centre, NSW pursuant to s 189 of the Act. He continues to be there as of 12 August 2022.

18. While in detention, the applicant’s de-facto partner Ms Helen Afa applied for a BV (E) (Subclass-050) visa on 26 July 2022 which is refused by the Department on 28 July 2022. The applicant applied for a merits review of the Departments above decision on 1 August 2022.

19. The applicant appeared in Bankstown, NSW court on 10 August 2022 to answer for charges laid against him however, the case was put off on two occasions until October.

    The grounds for seeking the visa - cl 050.212

20. 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.

21. 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

22. 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. The Department's Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chen v MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant's intentions in making any arrangements to depart, were genuine (Lin at [30]).

23. The applicant does not wish to depart Australia. Therefore, the applicant does not meet cl. 050.212 (2).

    Substantive visa application

24. 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.

25. ‘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.

26. The applicant is wanting to make a partner visa application but at the time of application had not made any application for a substantive visa. Further, the applicant’s previous subclass 400 visa which expired in 2016 had a 8503 no further stay which has not been waived. Accordingly, the applicant does not meet cl 050.212(3).

    Further Subclause criteria

    Judicial review, merits review, s 137K revocation

    Judicial review – onshore substantive visa refusal

27. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

28. Subclause 050.212(4) is met if:

    Judicial review – substantive visa decision (other than refusal)

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    Visa cancellation – merits review / s 137K revocation

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4) [ (b) or (ba) or (bb)]; or

29. Accordingly, as the applicant has not applied for judicial review the applicant does not meet cl 050.212(3A) or (4).

    Ministerial intervention

30. Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss 345, 351 or 417 of the Act.

31. Accordingly, as the applicant has not put in for Ministerial Intervention, the applicant does not meet cl 050.212

    Compelling need to work

32. Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl 050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss 345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.

33. ‘Compelling need to work’ is defined in reg 1.03 of the Regulations as having the meaning set out in reg 1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.

34. The applicant is in immigration detention and accordingly, the applicant does not meet cl 050.212 (6A) or (8).

    Background

35. The applicant said he came in 2016 to play sports and he played in a team that was arranged for the Melbourne Cup (Volleyball). He said he was told that his visa was valid for 6 months. He went to Sydney for three months and then returned to Melbourne. Someone rang him on a private number and told him that his visa was only valid for 2 weeks. He was anxious and scared and worried and thought he should just stay in Sydney with his partner and her children.

36. I asked him if he thought he should regulate his status with immigration and he said he was worried and anxious but would just behave himself. He said because he couldn’t work, he helped his partner and children as his partner was working. He did get some work through friends for cash, doing casual work.

37. I asked if during the 6 years that he was unlawful if he discussed with his partner what they were going to do? They got some advice from a pastor who told them to get a partner visa. But they went to see him for an appointment, and he couldn’t see them and said he would ring them, but he didn’t and then COVID happened, and everything stopped.

38. I asked him about his family in Samoa and he said his parents split up when he was young, and his uncle raised him and his sister. He speaks to his sister very infrequently.

39. I asked the applicant to tell me what happened on the day he was arrested. He said that like all couples he and his partner had an argument. He said on that day he wasn’t the person he really is and they had a disagreement over dinner and his wife had a bad day at work. They had an argument outside and that was how it started, his wife was screaming and raising her voice, so the neighbours called the police. The neighbours came over with some kind of metal in their hands like they were going to do something to him. He never laid a hand on his wife ever.

40. His partner drove away, and he asked the neighbours for peace, then the police came. After being remanded the applicant was taken into immigration detention.

41. I spoke with the applicant’s wife who said that the neighbours called the police and that her children think of the applicant as their father, with her youngest daughter struggling to get to school since the incident. She said they want to out in for a partner visa and get the family back together.

42. A friend of the couple has given an undertaking that they will pay the visa fee for the partner visa.

    Findings

43. The applicant currently has no application for a substantive visa, and he has an 8503 no further stay which still requires a waiver. It is my understanding a waiver was refused but the applicant will make another application at some point.

44. The applicant was unlawful for a period of almost six years and really made little attempt to regulate his status with the Department. It is only now as he is in detention that he is attempting to v late his status and apply for a substantive visa. Whilst I accept that the applicant was scared or stressed about his visa status, he continued to live in the community unlawful for many years.

45. I found the applicant to be honest and open about his background and the incident which led to his arrest and his detention. It was clear to the Tribunal that the applicant and his partner share a life together and would like to remain a couple. I accept that the applicant has been in a long-term relationship and that his partners children consider him to be their father. However, as the applicant does not have an application for a substantive visa and has not fulfilled the requirements for the bridging visa the application must be affirmed.

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

47. 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

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

    Nora Lamont
    Member

    
    

    Submissions

    1. Support letter from Helen.
    2. Driver’s License.
    3. Leave Hours.
    4. Australian Citizenship.
    5. Name change.
    6. 2 Birth Certificates.
    7. Personal health information.
    8. School Attendance since arrest.
    9. Psychologist referral.
    10. Passport.
    11. Photos with the family.
    12. Certificate of Service.