Mafoa (Migration) - [2024] ARTA 643

MAFOA (MIGRATION) [2024] ARTA 643 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Bob Mafoa
Respondent:  Minister for Home Affairs
Tribunal Number:  2442132
Tribunal:General Member S Aster
Place:Melbourne
Date:  15 November 2024
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 15 November 2024 at 12:56pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an Unlawful Non-Citizen – partner is a New Zealand citizen – criminal conviction – intend to apply for a partner visa – applicant is genuinely motivated to regularise his migration status in Australia – applicant would apply for a partner visa before the cessation of his bridging visa – decision under review remitted
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cl 050.212
STATEMENT OF 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 24 October 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.
The decision to refuse to grant the visa was made on 29 October 2024 on the basis that the applicant did not meet one of the alternative grounds for seeking the visa. The applicant appeared before the Tribunal by video on 14 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Pirikore Amanda William. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
The applicant was represented in relation to the review.
The issue for determination in this case is whether the applicant met one of the alternative grounds for seeking the bridging visa at the time he applied. The grounds for seeking the visa are set out in cl 050.212(2)-(9) of Schedule 2 to the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant arrived in Australia on 3 January 2019 on a Subclass 600 tourist visa and has remained in the country since that time. The applicant has allowed his visa to cease on four separate occasions, remaining in Australia unlawfully from:
·20 May 2019 to 19 November 2021
·13 February 2022 until 30 April 2022
·27 September 2022 until 2 April 2023
·16 May 2023 until present.
The applicant has made a total of six applications for bridging visas since his tourist visa expired in 2019. He has previously been granted three bridging visas on the grounds that he was making acceptable arrangements to depart Australia. He allowed the visas to cease without departing the country.
The applicant supplied an Australian Federal Police National Police Certificate which reports that he has been convicted of the following criminal offences:
·28 March 2023: Driving a vehicle on the road without a licence.
·30 May 2023: Driving a motor vehicle while licence suspended.
·6 December 2023: Four counts of driving a motor vehicle during disqualification period.
·30 April 2024: Driving a motor vehicle during disqualification period.
·8 May 2024: Failure to stop vehicle when directed and four counts of driving a motor vehicle during disqualification period.
·5 June 2024: Driving a motor vehicle during disqualification period.
·19 June 2024: Five counts of driving a motor vehicle during disqualification period and one count of failure to stop vehicle when directed.
·17 July 2024: threatening violence with a group of three or more persons causing fear.
The applicant commenced a period of imprisonment on 4 May 2024. On 3 September 2024, he applied for a bridging visa whilst in criminal detention. That visa application was refused.
On 16 September 2024, he was released from criminal custody and taken into immigration detention. On 24 October 2024, the applicant lodged his sixth bridging visa application. The decision to refuse that visa is currently under review.
The grounds for seeking the visa - cl 050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). In this case, the applicant was seeking to meet cl 050.212(2) and (3), however through the course of the hearing he narrowed his claim to subclause 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212. The applicant confirmed that he had no other application for merits review, judicial review or revocation of a cancellation. No such applications had been made by a member of the applicant’s family unit, or the Minister in respect to the applicant, at the time of the current bridging visa application.
Acceptable arrangements to depart Australia
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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance.[1] It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine.[2]
[1] Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26].
[2] Ibid, Lin at [30].
The applicant is a citizen of Tonga and Ms Williams is citizen of New Zealand. Before he was incarcerated, the couple lived together in Greystanes with their young daughter and Ms William’s son from an earlier relationship. The applicant expressed a desire to live and work in Australia to provide for his family. The applicant also gave evidence that he has no support network in Tonga and does not wish to return. Ultimately, the applicant conceded that he did not want to depart Australia.
For this reason, I am not satisfied that at the time of application the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Therefore, the applicant does not meet cl 050.212(2).
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.[3] An application is ‘finally determined’ when it is not or is no longer subject to any form of review by application to the Tribunal under Part 5 of the Act, or any period within which such application must be submitted has passed without an application being made.[4]
[3] Section 5(1) of the Act.
[4] Section 11A of the Act.
Departmental records show that the applicant had no substantive visa application on foot at the time he applied for the current bridging visa.
As discussed with the applicant at the hearing, he has a history of non-compliance with Australian laws. This might lead the Tribunal to question if the applicant would make a valid application for a substantive visa, or if he might simply disappear into the community if he were released from immigration detention.
In response, the applicant said he wants a valid visa so he can live and work in Australia with his partner and the children. The applicant also has an uncle, three aunties and ‘many cousins’ living in Australia. Ms Williams gave evidence that she has a sister and some aunties who live in Australia. The applicant explained that until he received advice from his representative, Mr Paulo Lasalo, he was unaware that he could apply for a visa as the partner of a New Zealand citizen. The applicant explained that he only had seven days within which to make the application when he was taken into detention, and he did not get access to a lawyer or migration agent within that time.[5] By the time he received Mr Lasalo’s advice, he could no longer apply for a partner visa while in detention.
[5] Section 195 of the Act provides that detainees may apply for a substantive visa within 2 working days (following compliance with s 194) or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply.
The decision of the delegate outlines that the applicant did not provide any documentary evidence to clearly indicate that he was able nor actively preparing to lodge an application for an “NZ partner visa”, or any other substantive visa. I do not share this view.
The bridging visa application form outlines that the applicant has a partner who is a New Zealand citizen and the couple have an infant child. The application requests that the applicant be provided with the opportunity for the family to remain together.
Provided to the Department with the application was a statutory declaration made by Ms William on 23 October 2024. In her declaration, Ms William said she was willing to lodge a partner visa for the applicant because they agreed to commit and care for their daughter. A copy of the birth certificate issued by the New South Wales Registry of Births Deaths and Marriages for Silika Lisia Mafoa, born on 25 January 2025, and a New Zealand passport issued to Ms William was attached. Also provided was the special conditions section of a rental agreement listing Ms William and Mr Mafoa as the tenants of a property in Greystanes, New South Wales. The agreement was signed on 14 December 2023.
I questioned how the couple would pay for the partner visa application and Ms William gave evidence that they have some limited savings and would call upon their large extended family network to assist. Ms William said she grew up without a father figure in her life. She expressed hope that her children would not grow up in the same situation and belief that her family would support the applicant to remain in Australia and raise their children. I accept Ms William’s evidence to be true.
I accept that the applicant is genuinely motivated to regularise his migration status in Australia. He wants a valid visa so that he might legally live and work in this country. I accept that the applicant would apply for a partner visa before the cessation of his bridging visa if he were released from detention and that this was true at the time of his bridging visa application. Accordingly, the applicant meets cl 050.212(3).
I note that no assessment has been made in respect to the applicant’s eligibility for the proposed partner visa. Further, this decision is limited to whether the applicant meets one of the grounds to apply for the bridging visa as set out in cl 050.212(2)-(9) of Schedule 2 to the Regulations. No assessment was undertaken in respect to the remaining criteria for the grant of the bridging visa.
Given these findings, the appropriate course is to set the decision aside and remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).
Date of hearing: 14 November 2024
Representative for the Applicant: Mr Paulo Lasalo