Manuhaapai (Migration)

[2024] AATA 2868

Manuhaapai (Migration) [2024] AATA 2868 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lafaele Lata I Moana Manuhaapai

CASE NUMBER:  2422152

Home Affairs REFERENCE(S):               BCC2024/3513418

MEMBER:Wan Shum

DATE:19 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

·cl 050.212 of Schedule 2 to the Regulations.

·cl 050.221 of Schedule 2 to the Regulations.

Statement made on 19 July 2024 at 2:02pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – intention to lodge a partner visa application – previous relationships not legally ended yet – financial capacity to make the visa application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 48, 73
Migration Regulations 1994 (Cth), r 2.12; Schedule 2, cls 050.212, 050.221

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 3 July 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 includes cl 050.212 which sets out the types of grounds for which the visa may be sought.

3. The decision to refuse to grant the visa was made on 8 July 2024 on the basis that none of the alternative grounds were met. The applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Malia Maamaloa, the current partner of the applicant.  

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

5. The applicant, male, is a national of the Kingdom of Tonga and was born there in July 1977.

6. He first entered Australia on 13 December 2010 holding a Class TR (Subclass 676) which allowed him to travel to Australia multiple times and stay until 7 June 2011.

7. The applicant departed on 3 March 2011 and then returned to Australia on 7 March 2011. The applicant then lodged an application for a Class UP Subclass 461 (New Zealand Citizen Family Relationship) visa on 18 May 2011 which was granted on 8 June 2011 and permitted him to remain in Australia for 5 years. He was granted a further visa of the same subclass on 17 August 2016.

8. On 10 May 2021, the applicant’s Subclass 461 visa was cancelled under s116(1)(g) and reg.2.43(1)(oa), and he then became an unlawful non-citizen in Australia. The applicant did not appeal that decision.

9. Departmental records reflect that the applicant was remanded into criminal custody on 4 November 2022, upon conviction for contravening a prohibition or restriction in an apprehended violence order (domestic).

10. On 15 December 2022, the applicant was released and then located by Australian Border Force (ABF) officers who subsequently detained the applicant pursuant to s 189 of the Act. The applicant was transferred to VIDC and on 22 December 2022, the applicant lodged his first application for a Class WE Subclass 050 (Bridging Visa E or BVE) whilst in immigration detention. The application was refused on 29 December 2022, and then affirmed by the Tribunal, differently constituted on 9 January 2023. This was because the Tribunal was not satisfied that the applicant would 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 as the applicant had not demonstrated to the Tribunal that he had the (financial) capacity to do this within a meaningful timeframe.

11. On 3 July 2024, the applicant lodged a further application for a BVE and the form was completed with the reason for applying to make an “application for a substantive visa”.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether any of the alternate grounds for seeking the visa are met at the time of the visa application: cl 050.212. On the application form for the current BVE the applicant indicated he wished to apply for a substantive visa which is set out in cl 050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl 050.212 and there is no information before the Tribunal which indicates that he would satisfy any of the alternate grounds. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

    Substantive visa application

13. 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.

14. ‘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.

15. The visa that the applicant intends to lodge an application for is a Partner (Temporary) (Class UK) (Subclass 820) visa. Although the applicant is a non-citizen whose visa has been cancelled, pursuant to s 48 of the Act, a Partner (Temporary) (Class UK) (Subclass 820) visa is a prescribed visa that can be made in these circumstances: reg 2.12(a). The applicant claims that he is in a relationship with Ms Malia Maamaloa. The Tribunal notes that in his previous BVE application, lodged around 18 months prior, that he was intending to apply for a partner visa based on his de facto relationship with Ms Renee Susan Roberts. In the circumstances of this case, the delegate did not accept that the applicant would apply for a visa in Australia, within a reasonable period, for a substantive visa of a kind that can granted if you are in Australia. This was based on the view that to validly lodge an application for a Partner visa, the applicant must satisfy all of the requirements for that visa.

16. However, this is incorrect. The applicant will only be granted the Subclass 820 visa if he satisfies the primary visa criteria. But a valid application only requires that the applicable paragraphs of items 1214C and 1124B are met which require that the correct form and fee are paid, and not relevantly in this matter, for certain visa holders, that the visa had been held for a specific amount of time. The visa application charge is now $9,095.

17. Therefore, while the Tribunal acknowledges that the applicant remains in a registered relationship with Ms Roberts and Ms Malia Maamaloa remains legally married to another person, the Tribunal does not consider that the applicant’s “ability to validly lodge a partner visa application is contingent on these processes being finalised...”. While both the applicant and Ms Maamaloa have not legally ended their previous relationships yet, in the Tribunal’s view, this is relevant to whether they have a mutual commitment to the exclusion of all others and whether the definition of spouse or de facto partner is met and not relevant to the validity of the Partner visa application which the applicant states he intends to make.

18. On review, while the Tribunal did have concerns as to whether he will lodge a partner visa application with Ms Maamaloa given that 18 months prior he stated an intention to lodge the same kind of visa but with a different sponsor, Ms Renee Susan Roberts, the circumstances then were different in another material aspect, being the financial capacity to make the visa application. Without undertaking an assessment of their relationship, the information provided reflects that he and Ms Maamaloa do currently have sufficient funds to lodge the visa application. When asked why he had not already done so, the applicant said that his lawyer had advised him to apply for the Bridging Visa E first. The Tribunal is cognisant that the balance in Ms Maamaloa’s bank account is only marginally above the visa application charge to be paid but notes that Ms Maamaloa’s expenses are limited to food and groceries as she is now living with her parents. She is also currently employed working full-time hours and receives a regular income from that. The Tribunal spoke to both the applicant and Ms Maamaloa about their intentions to lodge the application and their living arrangements if the bridging visa is granted and formed the view that the applicant would make a partner visa application within a reasonable time. A Partner (Temporary) (Class UK) (Subclass 820) visa is a prescribed class of visa which can be made by a non-citizen whose visa has been cancelled, as in the applicant’s case. In the Tribunal’s view, a reasonable time would be 28 days.

19. The Tribunal accepts that, at the time of application, the applicant would make a valid application for a substantive visa that can be granted in Australia, being a Partner (Temporary) (Class UK) (Subclass 820) visa, within a period allowed by the Minister for the purpose. Accordingly, the applicant meets cl 050.212(3) and therefore satisfies cl 050.212. The applicant has expressed an intention to make the application on review and, as the applicant was an unlawful non-citizen when he made this application, the Tribunal the finds that the applicant continues to satisfy the criteria in cl 050.211 and cl 050.212 on the same grounds at the time of decision. He therefore satisfies cl 050.221.

20. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:

    ·cl 050.212 of Schedule 2 to the Regulations;

    ·cl 050.221 of Schedule 2 to the Regulations.

    Wan Shum
    Member