Lea (Migration)

[2024] AATA 4022

Lea (Migration) [2024] AATA 4022 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Preston Evans Lea

CASE NUMBER:  2436491

Home Affairs REFERENCE(S):               BCC2024/5287857

MEMBER:P. Maishman

DATE:10 October 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 October 2024 at 1:08pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – arrangements to depart Australia – no applications for a substantive visa – period of unlawful residence – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211

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 27 September 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). Relevantly to this matter, the primary criteria include cl 050.212.

3. The decision to refuse to grant the visa was made on 2 October 2024 on the basis that the delegate was not satisfied the applicant met any of the cl 050.212 requirements.

4. The applicant appeared before the Tribunal on 10 October 2024 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets one of the alternatives set out in cl 050.212(2)-(9).

   The grounds for seeking the visa - cl 050.212

8. 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.

9. At hearing the applicant told the Tribunal he had made no arrangements and did not intend to make arrangements to depart Australia. The Tribunal noted the applicant had declared he intended to apply for a substantive (Protection) visa but had heard it causes issues for staying in Australia if a Protection application is refused. The applicant then indicated he could apply for a Student visa. The applicant advised he had no other outstanding merit or judicial review of decisions; he was not the subject of a consequential visa cancellation; had not obtained any Court Order or sought Ministerial Intervention; did not hold a Bridging Visa E; and was not in criminal detention.      

10. 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

11. 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.

12. ‘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.

13. The applicant was ambivalent about his intention to apply for a Protection visa because he heard that an unfavourable outcome might affect future entry to Australia. When questioned by the Tribunal the applicant said he had no fears for his safety or welfare if he was to return to Tonga, but would prefer to stay in Australia.

14. The applicant said he had also thought about applying for a Student visa. He would study music but was unable to articulate a course or institution at which he would undertake study. The applicant acknowledged he was not currently unrolled in a course.    

15. The Tribunal noted the applicant has remained in Australia without a valid visa for more than 18 months providing ample opportunity for him to regularise his visa status by applying a for an appropriate visa. The applicant said he intended to make an application when he knew the outcome of his appeal.   

16. The Tribunal finds the applicant has not made a valid application for a substantive visa of a kind that can be granted. Further the Tribunal is not satisfied that the applicant would apply for such a visa within a period specified because he has failed to do so for 18 months and has made no steps to do so despite being in detention.

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

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

19. 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

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

    P. Maishman
    Member