Pakofe (Migration)

[2024] AATA 3232

Pakofe (Migration) [2024] AATA 3232 (25 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eliesa Pakofe

REPRESENTATIVE:  Mrs Wendy Jennifer Milojkovic

CASE NUMBER:  2418461

Home Affairs REFERENCE:  BCC2024/3160385

MEMBER:Nicole Burns

DATE:25 July 2024

PLACE OF DECISION:  Melbourne

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(3)(b) of Schedule 2 to the Regulations

Statement made on 25 July 2024 at 2:05pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – making a valid application for a substantive visa – plans to apply for a substantive visa – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 73, 359
Migration Regulations 1994, 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 is a national of Tonga, born on 3 May 1996. He applied for the visa on 15 June 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 pertaining to the grounds for seeking the visa.

3. The decision to refuse to grant the visa was made on 19 June 2024 on the basis that the delegate was not satisfied the applicant met any of the grounds for applying for the visa set out in cl 050.212(2)-(9).

4. The applicant appeared before the Tribunal via video link from Villawood detention centre on 11 July 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The grounds for seeking the visa - cl.050.212

7. 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. For the reasons below, the Tribunal is satisfied the applicant meets subclause cl 050.212(3)(b).

8. The applicant is relying on satisfying subclause 050.212(3) which 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.

9. ‘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 application being made: s.5(9) of the Act.

10. The delegate indicated in their decision record that although the applicant stated at interview a Tongan lady had helped him apply for a protection visa in January 2024, there was no evidence that he had made a protection visa application (or any other substantive visa) with the Department.  At the Tribunal hearing the applicant said his cousin, who was detained at the same time he was before he returned to Tonga, was the one who spoke with a Tongan lady about the possibility of helping him apply for a protection visa.  However he does not know her name, never spoke to her and was unsure if she applied for protection for him.  When asked if he intended to apply for protection at this time (that is prior to the bridging visa application) the applicant said he was not sure what visa to apply for but just wanted to stay here to be close to his children, now aged seven and four (who live with their mother).      

11. The representative told the Tribunal she was having difficulty determining what advice to give the applicant with respect to visa options, because she is awaiting information from the Department about his immigration history.  She added that the applicant is also unsure of his immigration history. 

12. Pursuant to s 359AA of the Act the Tribunal confirmed (as indicated in the delegate’s decision record) with the applicant at hearing that there was no record of him applying for a protection visa with the Department.  Also in relation to the following immigration history:

    ·     That he last came to Australia on 5 April 2014 holding a visitor visa (Subclass 600), which ceased on 5 July 2014.  He has remained in Australia since.

    ·     He was granted a Bridging E visa (Subclass 050) on 20 September 2021, 26 March 2022, and 3 November 2022.

13. The Tribunal explained this information indicates that at the time he applied for the bridging visa (subject to review) the applicant had not made a valid application for a substantive of a kind that can be granted if he is in Australia and that application has not been finally determined.  If so, he would not meet the relevant criteria, and this would be the reason or part of the reason for affirming the decision under review.  The Tribunal explained several options open to the applicant to comment, including discussing this further with his representative.  The applicant indicated his preference to discuss the information with his representative, who requested additional time to provide a submission addressing this issue, and also to confirm the applicant’s intention to apply for a substantive visa.  The Tribunal agreed to adjourn the review until 23 July 2024 for the representative to provide any further submissions.

    The grounds for seeking the visa - cl 050.212

14. 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.

15. 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 Tribunal is satisfied the applicant meets cl 050.212(3)(b).

    Substantive visa application

16. The Tribunal is not satisfied the applicant meets subclause 050.212(3)(a) because there was no evidence he had applied for a substantive visa of a kind that can be granted in Australia at the time of the bridging visa application.  The applicant’s evidence to the Department and Tribunal was that he explored the possibility of lodging a protection visa application, but nothing further.  The Tribunal accepts that was the case, noting as discussed at hearing, there are no records of the applicant ever lodging a protection visa application with the Department.

17. The Tribunal has gone on to consider if the applicant satisfies subclause 050.212(3)(b) which requires the Minister (or Tribunal on review) to be 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.

18. As noted, at hearing the Tribunal agreed to adjourn the review until 23 July 2024 for the representative to provide any further submissions, reiterating it needs to be satisfied the applicant had either applied for a substantive visa at the time of application, or the applicant would apply for such a visa within a period specified for doing so.

19. On 23 July 2024 the Tribunal received a submission of the same date from the representative.  In it she advises that although they are still awaiting additional documentation from the Department, the applicant was preparing to seek a substantive visa and plans to apply for a Protection visa (Subclass 866) through the IMMI portal on 26 July 2024.  (The representative noted valuable insights gained at the Tribunal hearing about the applicant’s immigration history.)  She advised further that they were in the process of gathering witness statements to support a valid (protection visa) application.

20. On the basis of the representative’s advice that the applicant will be applying for a protection visa, as well as the applicant’s oral evidence at hearing indicating he intended to apply for a protection visa at the time of the bridging visa application (and the fact he had not previously applied for a protection visa and been refused), the Tribunal is satisfied that at the time of application the applicant would have made a valid a valid application for a substantive visa that can be granted in Australia.  Accordingly, the applicant meets cl 050.212(3)(b).

    CONCLUSION

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

    DECISION

22. 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(3)(b).

    Nicole Burns
    Senior Member