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

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 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.

3. 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

4. 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.

5. 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.

6. 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

7. 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.

8. ‘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.

9. 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.

10. 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.

11. 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.

12. I explained to the applicant that a Court had considered the effect of s. 195 and cl. 0505.212(3)(b) and had arrived at the view that the grant of a bridging visa under s 195(2) should not be used to circumvent the plain legislative intent of s 195(1) so as to enable an applicant to be released from detention.[1] 

    [1] Liu v MIAC [2008] FMCA 725 at [55].

13. The applicant reiterated that he wished to be released on a bridging visa in order to apply for a partner visa.

14. At hearing I also discussed with the applicant the question of compliance with conditions, but for the reasons that follows I have not considered this criterion further.

    Consideration

15. According to both the applicant and his partner, at the time of the hearing they had not yet applied for the partner visa, nor had the applicant applied for any other substantive visa.

16. I accept that the applicant’s intent is to be released from detention to work in order to apply for a partner visa.

17. However, on my understanding of the Act and relevant caselaw, the applicant is out of time to do so.

18. Having regard to the information on the Department file, I accept that the applicant was informed of the consequences of s 195 at the time of his detention on 17 February 2022, and therefore that s 194 was complied with. The effect of s. 195 is to limit the ability of detainees to apply for visas other than bridging or protection visas. The applicant has not claimed to be seeking or intending to apply for a protection visa. Section 195 limits the time within an applicant can make an application for any other substantive visa to two working days after being notified under s. 194, or five working days after those two working days if an officer is informed in writing of their intention to apply: s 195(1). That period ended on 28 February 2022. The applicant had not applied for a visa on or before that time and is now prevented form doing so by the operation of s 195.

19. It is accepted that the applicant and his partner have the intention to apply. However, this intention has not been manifested in any action. I accept that, were the applicant to be released from detention, he would apply for a partner visa.

20. However, having regard to the reasoning in Liu, the applicant cannot apply for the partner visa now given the provisions of s. 195. It appears to me that it is no answer to say that the applicant could have done so at the time of the visa application, and therefore could have satisfied cl. 050.212(3)(b) at that time, because he must satisfy one of the subclauses of cl. 050.212 at the time of decision: cl. 050.221. To find that the applicant could do so appears to me to be contrary to the view expressed in Liu. While I appreciate that the consideration in Liu was obiter, the reasoning appears to me grounded in the clear statutory intent of s. 195.

21. I am not satisfied that the applicant can meet cl.050.212(3) at the time of this decision given the interaction with s. 195. He has not applied for a substantive visa. He cannot now apply for a partner visa whilst he is detained. To release him from detention in order to then do so at some future point appears to me to frustrate the clear intent of s. 195.

22. Having reached this conclusion I find that the applicant does not satisfy cl.050.212(3), nor has he made claims, nor is it evident on the material that he satisfies any of the other subclauses of cl.050.212 at the time of this decision.

23. Accordingly, the applicant does not meet cl 050.221.

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

25. 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

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

    Sean Baker
    Member