Ruffini (Migration)

Ruffini (Migration) [2018] AATA 4853 (12 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Stefania Ruffini
CASE NUMBER:  1828091
DIBP REFERENCE(S):  BCC2018/3594825
MEMBER:Michael Ison
DATE:12 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 12 October 2018 at 6:04pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – unlawful status – dependent on a student visa – new relationship – lost contact with fiancé – intention to apply for partner visa – financial support from a friend – email exchange with parents – parent’s willingness to provide financial support – retrieval of possessions – no acceptable arrangements for departure – failure to regularise immigration status – rejected Department’s departure pathway – not applied visa within time limits – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 194, 195
Migration Regulations 1994 (Cth),Schedule 2 cls 050.212, 050.221

CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant is Ms Stefania Ruffini, a 29 year old Italian national. At the time of this decision Ms Ruffini did not hold a substantive or bridging visa and is being detained in immigration detention as an unlawful non-citizen. Ms Ruffini seeks a Bridging E visa so she can be released from immigration detention.
Ms Ruffini applied for the visa on 21 September 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, Ms Ruffini 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.050.212 which sets out 17 separate criteria, each of which provides a ground for the grant of a Subclass 050 visa.
The decision to refuse to grant the visa was made on 24 September 2018 on the basis that the delegate was not satisfied that Ms Ruffini met any of the criteria in cl.050.212 for the grant of a Subclass 050 visa.
The issue in this case therefore is whether Ms Ruffini meets any of the criteria in cl.050.212 of Schedule 2 to the Regulations to be eligible to be granted a Bridging E visa and if she does so, whether Ms Ruffini will then comply with the conditions the Tribunal may impose on any Bridging E visa granted to Ms Ruffini.
Ms Ruffini appeared before the Tribunal on 2 October 2018 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The background to Ms Ruffini’s application is set out below. Unless stated otherwise, the information below is taken from Ms Ruffini’s oral evidence to the Tribunal and reflects her evidence only.
Ms Ruffini first came to Australia on 25 October 2012 on a working holiday visa and then returned to Italy on 21 March 2013. Ms Ruffini then arrived back in Australia on 1 November 2013 on an electronic travel authority and returned to Italy on 15 July 2014.
Ms Ruffini came to Australia a third time on 30 July 2014 on a Student (Subclass 572) visa as a dependent of Mr Giacomo Grassini. Ms Ruffini departed Australia on 7 July 2015, returning on another Student (Subclass 572) visa as a dependent of Mr Grassini on 17 October 2015.
Ms Ruffini’s dependent Student visa was cancelled on 6 March 2018 shortly before it was due to expire because her relationship with Mr Grassini had ended in around April 2017. Mr Grassini sent Ms Ruffini a text message from a blocked number toward the end of 2017 stating that he was renewing his Student visa and had nominated his new partner, not Ms Ruffini, as a dependent member of his family unit when doing so, such that Ms Ruffini’s visa would be cancelled. From this time, Ms Ruffini expected her visa to be cancelled. Since the cancellation of her Student visa Ms Ruffini has been in Australia without a visa.
Ms Ruffini has completed a Diploma of Marketing whilst in Australia and also studied for a further six months but could not recall what she studied.
After her relationship with Mr Grassini ended, Ms Ruffini entered into a relationship with Mr Nikola Predojevic in June-July 2017. Ms Ruffini now describes Mr Predojevic as her fiancé as Ms Ruffini and Mr Predojevic intended to marry and still intend to marry. Their intent after getting married was for Mr Predojevic to sponsor Ms Ruffini’s application for a partner visa.
Ms Ruffini and Mr Predojevic had arranged to marry but could not afford at the time to go through with the wedding or to apply for a Partner visa, which Ms Ruffini thinks will cost her around AU$7,500 to apply for. Mr Predojevic has a 4 year old son who lives with the child’s mother, who he also tries to support financially.
[Paragraph deleted].
Ms Ruffini thinks she and Mr Predojevic had approximately AU$10,000 saved in a bank account.
On 16 September 2018 Ms Ruffini and Mr Predojevic were apprehended by Victoria Police at a Kennards self-storage warehouse in Maribyrnong[1] where they store their personal possessions.[Sentence deleted].
[1] Decision letter, Tribunal file, folio 6 (back).
Ms Ruffini was identified as an unlawful non-citizen and after a telephone interview with a an officer from the Department at the Footscray police station was placed in immigration detention.
Ms Ruffini has not been able to contact Mr Predojevic since being detained as he has not answered his mobile telephone and she does not know his current location.
Ms Ruffini’s personal possessions, [remain] in the storage unit. Ms Ruffini has the access code to the warehouse but Mr Predojevic has the key to access the storage unit they use.
Ms Ruffini has not been able to access any of her social media or bank account as each relies on two factor identification where a secondary code is sent to Ms Ruffini’s mobile telephone.
Ms Ruffini created new email and social media accounts in immigration detention and eventually re-established contact with Ms Fileccia and with her parents in Italy.
After the Tribunal hearing, on 4 October 2018, Ms Ruffini sent the Tribunal a copy of the emails between her and her parents, which are in Italian, and her translation of the contents of those emails into English.
Ms Ruffini had a short telephone conversation with Mr Predojevic’s father whilst she was in immigration detention. That conversation did not assist her to find out where Mr Predojevic is or to re-establish contact with him.
On 21 September 2018 Ms Fileccia sent an email to the Department offering to provide ongoing accommodation and financial support for Ms Ruffini’s basic needs.[2]
[2] Tribunal file, folio 25.
On 21 September 2018 Ms Ruffini applied for a Bridging E visa.
On 24 September 2018 a delegate of the Minister refused Ms Ruffini’s application.
On 25 September 2018 Ms Ruffini applied to the Tribunal to review the decision of the delegate to refuse to grant her a Bridging E visa. In that application, Ms Ruffini stated:
Our initial intention, my fiancé’s and mine, was to apply for a partner visa, but because since I have been hold (sic) in the immigration detention centre (with nothing more than the clothes I am wearing with me) I had no way to either get in contact with anyone or to let my fiancé Nikola Predojevic know about where I am at the moment, I decided to apply for a bridging visa, hoping to be able to go back to my residential address which also means to go back to my family where Cleo Von Trapp and Jessica Fileccia of [address deleted] will be able to economically and morally support me as they did in the past. I am confident that from there and with their help I will finally be able to get hold of my fiancé to let him know what happened and together to finally progress with the application for the partner visa.[3]
[3] Tribunal file, folio 20.
The Tribunal has independent documentation to support and accepts Ms Ruffini’s evidence in relation to her migration history, her apprehension by Victoria Police, the support of Ms Fileccia and her re-establishing contact by email with her parents.
The Tribunal does not have any independent evidence or documentation in relation to Ms Ruffini’s evidence above and below about the circumstances of her relationships with Mr Grassini or Mr Predojevic, her and Mr Predojevic’s intentions to marry and for Ms Ruffini to obtain a Partner visa, her property being held in storage and not being able to access it, Ms Ruffini having completed study in Australia or her conversation with Mr Predojevic’s father.
The Tribunal found Ms Ruffini’s evidence of her commitment to Mr Predojevic, her intention to marry him and to apply for a Partner visa, her distress at being unable to contact him and her evidence of being unable to access her property to be generally spontaneous, consistent and credible and therefore accepts Ms Ruffini’s evidence on those matters.
The grounds for seeking the Subclass 050 visa - cl.050.212
At the time of the visa application, Ms Ruffini must meet one of the alternatives set out in cl.050.212(2)-(9). Ms Ruffini must continue to satisfy this criterion at the time of the Tribunal’s decision: cl.050.221.
Ms Ruffini provided a copy of the delegate’s decision to the Tribunal, prior to the hearing.
The delegate’s decision reviewed the potential application of all 17 criteria in cl.050.212 to Ms Ruffini’s circumstances, but focused on two criteria in greater detail than the others being cl.050.212(2) that the applicant is making, or is the subject of, acceptable arrangements to depart Australia and cl.050.212(3) that the applicant has made, or will make, in Australia, a valid application for a substantive visa
Ms Ruffini did not specify which subclause of cl.050.212 she claims to meet. The Tribunal reviewed with Ms Ruffini whether she met any of the 17 subclauses in cl.050.212. For the reasons below, the Tribunal found that Ms Ruffini does not meet any of the requirements in cl.050.212 for the grant of a Subclass 050 visa.
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 Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chen v MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).
At the time of this decision, PAM3 provided in summary:
·the assessment as to whether an applicant is making, or is the subject of 'acceptable arrangements' to leave Australia will depend on the applicant's individual circumstances;
·lists seven factors decision makers may take into account when satisfying themselves whether the applicant is making, or is the subject of, acceptable arrangements to leave Australia which include:
oThe applicant has a valid ticket for travel and a booking or reservation to leave Australia.
oThe applicant could obtain a ticket for travel and will make a booking or reservation to leave within a reasonable period;
·states an applicant will satisfy 050.212(2) if they provide evidence acceptable to the decision maker of a valid ticket and a reservation to leave Australia within an acceptable timeframe;
·that an applicant will satisfy 050.212(2) if they indicate an intention to arrange departure from Australia, provided officers are satisfied the applicant will make the necessary arrangements within an acceptable timeframe;
·lists seven circumstances as examples where decision makers may find an applicant is not making, or is not the subject of, acceptable arrangements to depart Australia including not having a travel booking or reservation to depart within two weeks, not having a valid travel document (e.g. passport) or having a booking or reservation to go to a country the applicant is not permitted to enter (at least without a visa); and
·that an applicant may be granted a Bridging E visa on the basis of acceptable departure arrangements if, although they are not currently making arrangements to leave, they have acknowledged they are on a departure pathway, and are prepared to engage with the Status Resolution Service on that basis.
Ms Ruffini’s evidence to the Tribunal in relation to this consideration is that, as noted above, she has been emailing her parents while in immigration detention and they have offered to support Ms Ruffini and her fiancé financially including covering the cost of applying for the Partner visa or covering the cost of Ms Ruffini’s departure from Australia.
Ms Ruffini sent the Tribunal 21 pages of emails between her and her parents. The email chain commences on 22 September 2018 with the last email provided to the Tribunal being sent on 1 October 2018. The Tribunal accepts the translations of those emails from Italian to English as provided by Ms Ruffini.
Ms Ruffini applied for the Bridging E visa on 21 September 2018. The Tribunal finds that there is no evidence before the Tribunal that at the time of that application Ms Ruffini was making or was the subject of acceptable arrangements to depart Australia. This finding could be sufficient for the Tribunal to find that Ms Ruffini does not meet the requirements of cl.050.212(2).
The Tribunal is sympathetic to Ms Ruffini’s circumstances of having been apprehended by Victoria Police and then placed in immigration detention in circumstances where she has been unable to contact her fiancé, unable to access her finances or social media accounts and has not been in a position since being detained to access migration or legal advice prior to the Tribunal hearing.
The Tribunal accepts that at the time of her application for a Bridging E visa Ms Ruffini was making efforts to re-establish contact with her fiancé, parents and Ms Fileccia and these efforts culminated in a genuine offer from her parents to cover the cost of her return to Italy.
Ms Ruffini’s parents first made a general offer of help to their daughter by email on 23 September 2018 and the emails between them include the following relevant exchanges for the purposes of this consideration:
[24 September 2018 15:10] I don’t know Mum. My visa got cancelled and I’m in immigration detention and until I work this visa situation out I am gonna be kept in this centre. It is a week I am not able to talk to Nik. I just received a really quick phone call from his dad. At the centre they offered me the chance to sign some paperworks and be able to come home to you in two days but that would means I’m not going to see Nik ever again… . So I lodged an appeal at the immigration Tribunal hoping they will give me the chance to go out talk to Nik and my lawyer and work this situation out. I can’t give up. Nick and I made a lot of sacrifices to be able to save for this visa, I can’t give up. But for now I gotta stay in this centre. I didn’t want to tell you to don’t make you worry, but it is too much to face all by myself without Nik. (sic)
[26 September 2018 15:04] Dad, I feel really low. I miss Nik and I want to come home, but we made so many sacrifices, Nik sacrificed so much to look after me and I can’t give up. I gotta stay strong in here, for me, for Nik and for our future. It would be so unfair on him that worked so hard to look after me to just give up and come home just cause I want to come home. But Dad it is very difficult. I am here with other people came from the local prisons, treated exactly like them. I don’t talk to anyone, I don’t have a way to contact Nik, I can just talk to you and Mum. Would be enough for me to sign a piece of paper and I could be home in two days, but I can’t give up. I gotta try to get this visa you understand me right Dad? (sic)
[26 September 2018 15:38] I understand love but if you see that being there is too difficult or is taking too long to work that situation out, sign that paper and come home. Then we will work it out from here, we can ask for help from your uncle and your cousin that are both lawyers. Don’t forget you are a ‘Ruffini’. It is an important name the one you wear… and hug and a kiss.
[26 September 2018 15:50] Dad it is very difficult but if I come home right now (even if I know I will have to do soon…). I won’t be able to apply for another visa for up to 3 years. I know already I will have to, but I would like to have the chance to see and talk to Nik first and my lawyer or at least have the chance to go get my belongings. Hopefully after the appeal and Tribunal I will have the chance to work it out.
[27 September 2018 no time stamp] … Go there [to the Tribunal] and politely explain your situation. That you have been there for quite a bit and if they won’t give you the chance to apply for a visa we will start to organise for you to come home but ask if you could talk to Nik and go get your things first. Explain also that for now you don’t have access to your bank account, but if they allow you we will make sure to cover all the expenses for either a new visa or for you to come back home.
[1 October 2018 19:28] Ste, tell the member tomorrow that we can pay for the visa you need to be given the chance to go out because you don’t have 8K $ cash in your pocket obviously. I know you will do so but just a reminder. (sic)
[1 October 2018 22:01] Of course I will Dad as I will also say I’m happy and willing to come home if they just give me the chance to go out few days (sic) to say goodbye to Nik, get my things and organise my return. But I really hope if they let me go I will also be allowed to apply for that visa.[4]
[4] Tribunal file, folios 30 to 40.
The Tribunal asked Ms Ruffini what she would do if she was granted a Bridging E visa. Ms Ruffini replied that she would first hug her partner, then seek migration advice and if it is not possible for her to apply for the Partner visa then she will definitely arrange to return home to Italy. Ms Ruffini indicated she would like to be given the opportunity to collect her belongings from the storage unit, not because of their financial value but because of their sentimental value to her after having lived in Australia for five years.
Ms Ruffini said her parents will have no problem supporting her financially and if she returned to Italy she would live with them in the small town of Loreto on the East coast of Italy, where they live.
Ms Ruffini has indicated a willingness to return Italy and the Tribunal accepts the offer of Ms Ruffini’s parents to cover the cost of her departure from Australia as genuine. However, earlier in her evidence when describing her attempts to arrange access to the storage unit so she could access funds, Ms Ruffini told the Tribunal that was so she could apply for any kind of visa or “worst case scenario” to allow her to get her things so she can organise her departure from Australia.
When the Tribunal referred Ms Ruffini to the delegate’s decision letter where it stated that the delegate found Ms Ruffini was not making acceptable arrangements to depart Australia because her application stated that she wishes to remain in Australia to pursue a partner visa,[5] Ms Ruffini commented that would be her first intention.
[5] Tribunal file, folio 6 (back).

The Tribunal read the following passage from the delegate’s decision letter to Ms Ruffini:
During the interview you stated to me that you will depart if required and therefore I will also assess this application under the grounds that I am satisfied that you are making acceptable arrangements to depart (Subclause 050.212(2)). At interview conducted on 21/09/2018 you stated you would need to have two weeks or so in the community to locate your fiancé as you are unable to get an answer on his phone, do not know his location and last saw him when he was arrested by Police. You also stated that you required (sic) to make arrangements for and locate your personal belongings. You are not in possession of your passport and have stated it remains in a storage unit where you are located by Police. When asked if a friend was able to access your passport you stated that they were unwilling or unable to do so. You have not purchased a ticket for travel and stated that although you have funds they are not available to you as all funds are in your fiancé’s bank account and currently you cannot contact him and are unsure if he has been placed in criminal custody. When asked during the interview if there were reasons why you could not return to Italy you stated your life was in Australia and that in Italy you had no one and nowhere to go. When asked why you did not depart when your visa was cancelled you stated you wished to remain in Australia with your fiancé although you were aware the Department was intending to cancel your visa and therefore assumed you were unlawful after speaking to the visa holder you were dependent upon. Since coming to the Department’s attention and being detained you have not requested removal. I am not satisfied that you are making or are subject to acceptable arrangements to depart.
Whilst this passage was being read to Ms Ruffini she explained the location of the storage unit and that Ms Fileccia was the only person she was able to make contact with to try and get to access the storage unit.
The Tribunal asked Ms Ruffini to comment on the delegate’s note that she had no-one and nowhere to go in Italy. Ms Ruffini responded that at the time of interview she was not in contact with her parents [but] since the interview they have re-established contact and her father is willing to financially support her and her fiancé.
Ms Ruffini explained that Ms Fileccia could not retrieve her possessions from the storage unit because it requires a key that her fiancé has with him and until Ms Ruffini can locate her fiancé she cannot arrange for anyone to unlock the storage unit.
Ms Ruffini also explained that she had not purchased a ticket because her and her fiancé’s intention was to apply for a Partner visa and while she cannot guarantee how much is in their bank account they could not afford to pay for a Partner visa and lawyer which she thought would cost over AU$8,000. Ms Ruffini indicated her fiancé was the only one working and they had expenses such as bills, food, rent and also supporting her fiancé’s young son.
Ms Ruffini indicated she was not sure how much was in the bank account but thought it could be around AU$10,000 as they were hoping to rent their own place and then apply for the partner visa as she was concerned they were abusing the hospitality of Ms Fileccia. Ms Ruffini said her fiancé works in information technology cyber security and had a three day job coming up that would have given them enough money to apply for the visa but they were arrested only days before he was due to commence that job.
The Tribunal informed Ms Ruffini about information in the Department’s file being notes of her Located Person Interview during the hearing in accordance with s.359AA of the Act. The Tribunal read the relevant part of the notes to Ms Ruffini and then handed the notes to Ms Ruffini so she could read them herself. The notes were in a table format and read:
19. Do you intend to apply for an Australian visa? Yes. [Answer] If I am allowed, yes.
What would you apply for? [Answer] I don’t know what I am eligible for. We were supposed to get married last December. Due to unfortunate events I haven’t had a chance to work it out.
20. If required, are there any reasons we cannot return to your home country? No. [Answer] No particular reason but it’s just that I had the wedding organised with all the invitations printed. That was all meant to happen. My fiancé was meant to be my husband.
21. Are you willing to depart Australia voluntarily? Yes. [Answer] If I have to.
22. Do you have a valid air ticket to depart Australia? [Answer] No.
23. If not, are you able to purchase your own ticket? Unknown. [Answer] I would have to discuss with my fiancé.
24. If not, do you wish the department to purchase a ticket for you? Unknown. [Answer] Possibly.[6]
[6] Department file, Located Person Interview notes, p.9.
The Tribunal explained this information was relevant to Ms Ruffini’s application because it could show that Ms Ruffini is not making and does not intend to make any arrangements to depart Australia which would mean that she is not eligible to be granted a Bridging E visa under cl.050.212(2). The Tribunal explained that without explanation from Ms Ruffini it could form this view because Ms Ruffini has not purchased a ticket to depart because it appears she wants to stay in Australia permanently and does not want to depart. The Tribunal further explained the consequence of the Tribunal relying on that information was that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
The Tribunal offered Ms Ruffini an adjournment before inviting Ms Ruffini to respond to this potentially adverse information. Ms Ruffini did not want an adjournment and responded that at the time of the interview she was being held at the police station, the interview occurred by telephone and she was terrified and petrified, not previously having had any involvement with police. She told the Tribunal she was not sure what to say, did not know what the next step would be and her answers do not make sense to her now. While the Tribunal accepts that Ms Ruffini’s apprehension by Victoria Police and the arrest of her fiancé may have been traumatic for her, it does not accept that her answers at interview do not make sense. Those answers seem consistent with her subsequent email correspondence with her parents and her oral evidence to the Tribunal, as noted above and below.
The Tribunal finds that Ms Ruffini has not purchased a valid ticket for travel or made a booking or reservation to leave Australia within a reasonable period of time but with the support of her parents she may be able to arrange such a ticket or booking or reservation.
The Tribunal also finds that Ms Ruffini has not made and is not making acceptable arrangements to depart Australia. It is clear to the Tribunal from Ms Ruffini’s evidence and the documentary material referred to above that Ms Ruffini’s current intention remains to stay in Australia (to marry her fiancé) and to try to apply for a Partner visa before she intends to consider departure from Australia.
The Tribunal further finds Ms Ruffini’s evidence of her intention has been consistently presented as she is willing to arrange her departure from Australia if she is not able to apply for a substantive visa in Australia. In her evidence to the Tribunal on 4 October 2018, her emails to her parents between 24 September 2018 and 1 October 2018 and in her Located Person Interview with the Department on 16 September 2018, being the day of her apprehension by Victoria Police, Ms Ruffini expressed an intent or desire to apply for a visa in Australia but if she could not do so then she would depart or consider departing Australia.
The Tribunal is not confident even in the circumstances of Ms Ruffini not being able to apply for a substantive visa in Australia that if Ms Ruffini is granted a Bridging E visa she will make acceptable arrangements for her departure from Australia within a reasonable period of time. Ms Ruffini’s evidence is that she was aware her visa would be cancelled and she did not contact the Department to seek to regularise her immigration status at any stage prior to her apprehension by Victoria Police. Ms Ruffini’s dependent Student visa had been cancelled for over six months at the time of her apprehension.
Ms Ruffini explained the financial and other circumstances that prevented her and her fiancé from marrying and applying for a partner visa to date. It was not apparent to the Tribunal that Ms Ruffini’s circumstances over the past six months had reasonably prevented her from contacting the Department to seek to regularise her immigration status when her evidence is that at that point in time she thought she no longer held a valid visa to remain in Australia.
There is no evidence before the Tribunal that Ms Ruffini is prepared to engage with the Status Resolution Service on the basis she is on a departure pathway. The evidence before the Tribunal, as indicated in the emails to her parents quoted above, is that when the Department offered Ms Ruffini a departure pathway she has rejected that offer in the hope that she will still be able to apply for a substantive visa in Australia.
For these reasons, the Tribunal is not satisfied that at the time of application Ms Ruffini was making or was the subject of acceptable arrangements to depart Australia. Therefore Ms Ruffini 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: 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.
As noted above, it is Ms Ruffini’s evidence that she intended to apply for a substantive visa being a Partner visa but has not been able to apply since being detained on 16 September 2018 because she has not been able to contact her fiancé or access their joint savings account since she was detained.
Section 195(1) of the Act provides, in summary, that a detainee may apply for a visa within two working days of the day on which they are told of the consequences of detention in accordance with the obligations set out in s.194. If the detainee informs an immigration officer in writing during those two days of their intention to apply for a visa, they must then apply for the visa within the next five working days after the initial two working days.
A detainee who does not apply within the time allowed in s.195(1) may not apply for a visa other than a bridging or protection visa, after that time: s.195(2).
Ms Ruffini’s evidence to the Tribunal was that she obtained the extension of time to apply for a substantive visa within the two working days. The delegate’s decision letter states that this extension was obtained on 17 September 2018[7]. Ms Ruffini could not recall the specific dates of her detention or Bridging E visa application or notification of intention to apply for a visa.
[7] Tribunal file, folio 5.
The Department file contains the last page of a form 1423 which appears to be the last page of the Very Important Notice that the Department uses to fulfil its obligations under s.194. Ms Ruffini signed that form at 2.48pm on 16 September 2018 and her signature was witnessed by an immigration officer.
On the information before it, the Tribunal finds that s.194 was complied with on 16 September 2018 which means Ms Ruffini had the 17^th and 18^th to notify an immigration officer of her intention to apply for a visa. The Tribunal finds Ms Ruffini notified an immigration officer of her intention to apply for a visa on 17 September 2018 which meant under s.195(1)(b) Ms Ruffini had, at the latest, until and including 25 September 2018 to apply for a visa. This allows the 17^th and 18^th as the initial two working days and then the 19^th, 20^th, 21^st, (the 22^nd and 23^rd were a Saturday and Sunday), 24^th and 25^th as the next five working days.
At the time of the hearing on 4 October 2018 Ms Ruffini’s evidence was she had not applied for any visa other than the Bridging E visa that is the subject of this review.
The Tribunal is therefore satisfied that at the time of hearing Ms Ruffini had not applied for a visa within the time limits allowed under s.195(1) and now cannot apply for a visa in Australia (other than a protection visa).
There is no information before the Tribunal to indicate that Ms Ruffini intends to or would be eligible to apply for a protection visa.
Accordingly, Ms Ruffini does not meet cl.050.212(3) because the Tribunal is satisfied that Ms Ruffini:
·has not made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia where that application has not been finally determined; and
·will not 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.
The Tribunal also discussed the other criteria under cl.050.212 to be eligible for a Bridging E visa with Ms Ruffini and is satisfied that none of the other criteria under cl.050.212 apply to Ms Ruffini’s circumstances.
For these reasons, Ms Ruffini does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
Other matters
Ms Ruffini made a closing statement to the Tribunal responding to what she alleges are errors and incorrect assumptions in the delegate’s decision letter about her personal circumstances. The matters raised are personal to Ms Ruffini and it is not necessary in this decision for the Tribunal to set those matters out. The Tribunal acknowledges Ms Ruffini’s statement but makes no findings in relation to it. It has not been necessary for the Tribunal, when considering whether Ms Ruffini is eligible for the grant of a Bridging E visa, to address the issues raised in Ms Ruffini’s closing statement.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2018] AATA 4853

12 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction