Langatau (Migration) - [2022] AATA 2954

Langatau (Migration) [2022] AATA 2954 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Epalahame Tuli Langatau
CASE NUMBER:  2202424
Home Affairs REFERENCE(S):               BCC2022/330607
MEMBER:Sean Baker
DATE:3 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 03 March 2022 at 11:52am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – intent to lodge partner visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 194, 195, 196
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212
statement of decision and reasons
application for review

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).
The applicant applied for the visa on 17 February 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 050.212.
The decision to refuse to grant the visa was made on 22 February 2022 on the basis that the delegate found the applicant did not satisfy any of the grounds for being granted the visa. The applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Milne, the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the ground for seeking the visa is made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The grounds for seeking the visa - cl 050.212 and cl. 050.221.
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.
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
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.
‘Substantive visa’ in this context…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Langatau (Migration)

Details

AGLC: Langatau (Migration) [2022] AATA 2954
Case: [2022] AATA 2954
Decision Date: 3 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by Mr. Langatau. The delegate had refused to grant the visa, finding that the applicant did not satisfy any of the grounds for its grant. Mr. Langatau appeared before the Tribunal to present his case, with the assistance of an interpreter, and gave evidence alongside his partner, Ms. Milne.

The central legal issue before the Tribunal was whether the applicant satisfied the grounds for seeking the Bridging E visa, specifically under clauses 050.212 and 050.221 of the relevant regulations. The applicant sought to rely on clause 050.212(3), which requires that the applicant has made a valid application for a substantive visa in Australia that has not been finally determined, or that the Tribunal is satisfied the applicant would apply for such a visa within a specified period. A substantive visa is defined as any visa other than a bridging, criminal justice, or enforcement visa.

The Tribunal found that the applicant did not meet the requirements of clause 050.212(3). While the applicant expressed an intention to apply for a partner or working visa to enable him to work and seek permanent residency, he confirmed that no such application had yet been lodged. His stated reason for seeking the bridging visa was to be released from detention to facilitate this application. Ms. Milne also confirmed that no partner visa application had been made. The Tribunal noted that the applicant had been provided with information regarding time limits for visa applications under section 195 of the Migration Act, suggesting a very short window, potentially only two working days, to apply for a partner visa after his detention notification. Even if the applicant's stated intention to apply was considered a request for further time, this period would have expired before the hearing. Consequently, the Tribunal concluded that the applicant had not satisfied the criterion of having made a valid substantive visa application or demonstrating a clear intention and ability to do so within the required timeframe. The Tribunal also noted that the application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa was not met as the applicant was not a relevant eligible non-citizen.

The Tribunal affirmed the decision not to grant Mr. Langatau a Bridging E (Class WE) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The decision to refuse to grant the visa was made on 22 February 2022 on the basis that the delegate found the applicant did not satisfy any of the grounds for being granted the visa. The applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Milne, the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.CONSIDERATION OF Claims and evidence The issue in this case is whether the ground for seeking the visa is made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.The grounds for seeking the visa - cl 050.212 and cl. 050.221. 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. 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 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. ‘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. The applicant told me at the hearing that he wished to be released from detention in order to work and apply for permanent residence. When I asked for more detail, he said that he would like to apply for either a partner or working visa. He told me he had not applied for a substantive visa yet. When I asked why he said that he was still thinking of it and would try and apply, he was not sure what procedure to take so he wanted a bridging visa so he could then apply for the right visa. Ms Milne explained that she was willing to sponsor the applicant for a partner visa but confirmed that they had not yet applied for this or any other substantive visa for the applicant. I explained to the applicant that when he was detained it appeared, he had been provided with information about the time limits on applying for visas in s 195 and the consequences of not applying within those timeframes as well as the duration of detention under s 196. I explained that the effect of this was that the applicant had only two working days after this notification to apply for the partner visa. I noted that there was provision for a request for further time to be made in writing to extend this time. Even if I took the view that he had done this when he noted in his interview that he wished to apply for a visa, this period would have ended on 28 February 2022, the day prior to the hearing. As he and his partner had clearly told me that they had not yet applied for the partner visa, it might appear to me that he was out of time to lodge a partner visa under s. 195. The applicant indicated he understood this but explained that this was the reason he wished to be released from detention on a bridging visa so he could apply for the partner visa.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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