Manuhaapai (Migration)

[2023] AATA 130

Manuhaapai (Migration) [2023] AATA 130 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lafaele Lata I Moana Manuhaapai

CASE NUMBER:  2219228

Home Affairs REFERENCE(S):               BCC2022/5527428

MEMBER:Brendan Darcy

DATE:9 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 January 2023 at 10:07am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of several offences and imprisoned – relationship with an Australian resident – period of unlawful residence – no intention to depart Australia – assistance to Australian born children – valid application for a substantive visa – financial hardship – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 5, 73, 189, 359AA, 501K
Migration Regulations 1994, Schedule 1; Schedule 2, cls 050.211, 050.212, 221; r 2.43

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 22 December 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 29 December 2022 on the basis that the applicant did not have one of the eligibility reasons for a Subsclass 050 brdiding visa under subclause 050.212.

4. Via an audio-visual link between the facilities at the Tribunals Melbourne offices and the Villawood Immigration Detection Centre (VIDC), the applicant appeared before the Tribunal on 6 January 2023 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan 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

   Background

7. The applicant, male, was born on 15 July 1977 in Tonga. The applicant is a citizen of the Kingdom of Tonga.  

8. Granted a Class TR Subclass 676 visitor visa on 23 November 2010 while offshore, the applicant arrived in Australia for the first time on 13 December 2010. The Subclass 676 visa allowed the applicant to travel to Australia multiple times and stay until 7 June 2011.

9. 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 and an associated Bridging Visa A (BVA) was granted while the application was assessed.

10. On 8 June 2011, the applicant was granted a Subclass 461 visa which allowed the applicant to remain in Australia until 8 June 2016, as such the applicant’s BVA naturally ceased.

11. On 26 May 2016, a further application for Subclass 461 visa was lodged with an associated BVA granted on 30 May 2016. On 17 August 2016, a second UP461 visa was granted as such the BVA naturally ceased.

12. On 14 December 2016, the applicant departed Australia and returned on 12 January 2017. On 11 July 2018, the applicant again departed Australia and then returned on 26 July 2018 while holding a Subclass 461 visa.

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

14. Departmental records indicates that you were remanded into criminal custody on 04 November 2022, upon conviction for contravening a prohibition or restriction in an apprehended violence order (domestic).  The applicant was sentenced to nine (9) months imprisonment with non-parole period of three months.

15. During the scheduled hearing, the applicant claimed that he appealed the sentencing decision and was imprisoned only for the six weeks leading up to his release.

16. On 15 December 2022, the applicant was released and then located by Australian Border Force (ABF) officers who subsequently detained the applicant pursuant to section 189 of the ACT. The applicant was transferred to VIDC where he remains right up to the time of making this decision.

17. On 22 December 2022, the applicant lodged an application for Class WE Subclass 050 (Bridging Visa E or BVE) visa whilst in immigration detention. The Detention Review Officer was informed about the lodgement of the application on 23 December 2022 as required under Item 1305(3)(c) of the Migration Regulations. It is this BVE that is under review in this matter.

18. On 29 December 2022, a delegate acting on behalf of the Minister refused to grant the applicant a bridging visa. On the same day, the applicant validly lodged a review application of the refused bridging visa with the Tribunal.

19. On 5 January 2023. the applicant responded to a hearing invitation issued on 4 January 2022. Attached to the response was a handwritten statement by the applicant and a handwritten letter by Renee Roberts claiming to be the partner and/or fiancée of the applicant since 2020 and residing in Unanderra in the State of New South Wales. The Statements indicate the couple have been in a romantic relationship for two years and plan to marry.  

20. Also attached was a digit copy of a photograph of the applicant and Ms Roberts; and copy of the Ms Robert’s driver’s licence.

21. Also attached was a copy of an email correspondence dated 13 July 2022 from a migration agency. The email indicated that the applicant’s parent sought advice about the cost of professional fees and the visa application fee for a partner visa (which is 8005 Australian dollars).

22. Another attached statement which indicates the applicant has two children who lives with his ex-partner; that the applicant was working full time until Covid negatively impacted his work and his relationship in 2020. It was around this time the applicant became unlawful. Because the applicant has not had work and has been in detention, he has struggled to lodge a partner visa because he cannot afford the visa application charge (and other fees).

23. There is also a copy of the applicant’s relationship registration with the relevant authority in New South Wales, indicating he was in a de fact relationship with Renee Roberts.

    Unlawful migration status of the applicant - cl 050.211

24. Clause 050.211 is met if, at the time of application:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

25. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221. 

26. At the time of applying for this visa, the applicant was an unlawful non-citizen without any valid visa. Accordingly, the applicant meets cl 050.211(1).

27. The applicant was not a person who was a non-citizen or a family member of a non-citizen who was refused immigration clearance or bypassed immigration clearance or would be otherwise be facing imminent removal from Australia, but it would not be reasonably practicable to remove at the time. Therefore, the applicant is not an ineligible non-citizen of the kind outlined in cl 050.211(2).

28. Accordingly, the applicant meets cl 050.211(2).

29. Therefore, the applicant meets cl 050.211.

    The grounds for seeking the visa - cl 050.212

30. 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.

31. 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.

32. During the hearing, the Tribunal enquired if he understood the purpose of his bridging visa. The applicant asked the Tribunal to elaborate on this. By way of example, the Tribunal outlined that the granting of his visa must be for a specific purpose as outlined under cl 050.212. For example, making arrangement to depart Australia in an orderly manner; or that the applicant has a substantive visa application that is not fully determined or that there was a review of a refused or cancelled visa that had not been fully determined.

33. The applicant said he wanted to apply for a partner visa to be sponsored by Renee Roberts. He said it was not his intention to depart Australia and that he had no appeals pertaining to any visa, including for a cancelled Subclass 462 visa.

34. The applicant further explained that he had sought to apply for an onshore partner visa, and been doing so since at least July 2022. As the submitted email from a registered migration agent demonstrated, the applicant and his claimed de facto partner or fiancée had received advice that the combined professional fees for migration assistance and the visa application charge were expensive, totally up to 16,000 Australia dollars. Given his work had been impacted by Covid-19 restrictions and he could not earn money since he was imprisoned and then later detained, the applicant did not have sufficient savings. The Tribunal enquired if his de facto partner was able to afford the fees and visa application charge, to which the applicant said his partner was restricted to receiving income support through the Disability Support Pension. The applicant also said he had another compelling reason to work, which was to help with material assistance his two Australian born children required (currently living with his ex-partner, a New Zealand citizen). He said he did not have any relatives from whom he could borrow money for the visa application fee.

35. Based on the overall evidence, the Tribunal finds that, in this case, the applicant is seeking to meet cl 050.212(3)(a) or (b), and the other alternatives do not apply. 

    Substantive visa application

36. 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.

37. ‘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.

38. As discussed in the hearing, part (3)(a) of the subclause 050.212 is only satisfied 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 the application has not been fully determined.

39. Given the applicant has yet to validly lodge for an onshore partner visa or for any other substantive visa, the applicant does not satisfy cl 050.212(3)(a).

40. As further explained to the applicant, he could satisfy part (3)(b) of the same subclause, if the Tribunal is satisfied the applicant will apply, in Australia, within a period allowed by it or the Department, for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia. That is, if the Tribunal is satisfied the applicant would apply for an onshore partner or some other substantive visa within a reasonable amount of time while in the community, the Tribunal might be able reach a favourable finding in regard to this specific subclause. 

41. The Tribunal accepts the applicant has a genuine intention and interest in pursuing an onshore partner which is substantive visa of a kind that can be granted while in Australia. The applicant did not mention any interest any other substantive visa application.

42. However, an accompanying fee paid in full is required for a valid visa application of this kind under Schedule 1 of the Migration Regulations, and the applicant admits its affordability is out of reach for him and his partner in the short term.

43. After considering the applicant and his partner are unable to afford the visa application fee without him working for a considerable amount of time if this visa were to be granted, the Tribunal does not have sufficient confidence the applicant has the financial capacity to lodge for a partner visa within a timely period.

44. As the applicant did not sufficiently demonstrate to the Tribunal that he had the capacity to do this within a meaningful timeframe, the Tribunal is not satisfied satisfied that the applicant will 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. Therefore, the applicant does not satisfy cl 050.212(3)(b).

45. As the applicant satisfies neither part (3)(a) nor part (3)(b) of cl. 050.212, the applicant accordingly does not meet cl 050.212.

    decision

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

    Brendan Darcy
    Member