Penisoni (Migration)

[2018] AATA 318

Penisoni (Migration) [2018] AATA 318 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuifua Angilau Penisoni

CASE NUMBER:  1804080

DIBP REFERENCE(S):  ADF2018/208

MEMBER:Roslyn Smidt

DATE:21 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2018 at 3:03pm

CATCHWORDS

Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General) – Previously held Australian visas – Partner visa application was refused – No current valid visa application – Unlawful non-citizen – Detained

LEGISLATION
Migration Act 1958, ss 73, 195

Migration Regulations 1994, Schedule 2 cls 050, 051.211. 050.212, 050.221 Schedule 8 Condition 8101

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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 February 2018. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.

3. The decision to refuse to grant the visa was made on 15 February 2018 on the basis that the applicant did not meet the time of application criteria under provision 050.212. In reaching this conclusion the delegate noted that the applicant had stated that he intended to apply for a substantive visa, but gave no indication of the type of visa he intended to lodge. He also indicated that he would lodge an application after he had obtained bridging visa and had the opportunity to seek advice from a migration agent.

4. The applicant is a 31 year old single man from Tonga. He first arrived in Australia on 2 August 2010 on a business (short stay) visa. He departed 12 August 2010 and returned on 10 September 2010 after which he travelled to and from Australia on multiple occasions until his most recent entry on 16 May 2012. At the time of that entry he held a tourist visa which was valid until 16 August 2012 and subject to a number of conditions including condition 8101 (no work).

5. The applicant failed to leave Australia and on 16 August 2012 he became an unlawful non -citizen. On 17 January 2014 he lodged an application for a combined partner visa 820/801 and was granted an associated bridging visa C with condition 8101 imposed. He was later granted a bridging visa C with work rights. His partner visa application was refused on 9 February 2015 as his partner advised the Department that the relationship had ended. This decision was affirmed by a differently constituted Tribunal on 20 June 2016. His bridging visa expired on 18 July 2016 and he again became unlawful. On 8 February 2018 he was located by Australian Border Force at the Campbelltown District Court cells and detained pursuant to section 189 of the Migration Act.

6. In his bridging visa application the applicant indicated that he intended to apply for a substantive visa and was granted an extension of time to do so under section 195 of the Act. This extension expired on 19 February 2018. Department records indicate that that applicant has not lodged an application for a substantive visa.

7. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. He confirmed that he had not lodged an application for a substantive visa. He said that he intended to lodge a protection visa application, but he was unable to demonstrate any knowledge of the requirements of the visa or give more than vague idea of when the application might be lodged.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant continues to satisfy the time of application criteria - cl.050.221

10. 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.

11. In this case, the applicant is seeking to meet cl.050.212 (3).  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

13. As noted above, the applicant has not lodged an application for a substantive visa. He claims that he intends to apply for a protection visa, but he has no real knowledge of the requirements of that visa, has not sought professional advice to assist him with his proposed application and could not provide more than a vague idea of when the application might be lodged. In these circumstances the Tribunal is not satisfied that he would apply for such a visa with a specified period.

14. Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl.050.211 and therefore does not meet cl.050.221.

    CONCLUDING PARAGRAPHS

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

16. 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

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

    Roslyn Smidt
    Member