Taufa (Migration)

[2022] AATA 1025

Taufa (Migration) [2022] AATA 1025 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodney Tuipulotu-Manu' Ahea Taufa

REPRESENTATIVE:  Ms Anna Joyce Ryburn

CASE NUMBER:  2205119

Home Affairs REFERENCE(S):               BCC2022/812347

MEMBER:Karen McNamara

DATE:14 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 April 2022 at 5:04pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – criminal offences, convictions and imprisonment – special category visa cancelled – immigration detention – no application for substantive visa made within specified time – department case officer unavailable to assist – intention to apply for parent visa – now prevented from applying for all visa classes except bridging or protection visas – plain legislative intent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), (9), 73, 194, 195(1), (2), (3)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212(3)

CASE
Liu v MIAC [2008] FMCA 725

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. Mr Rodney Tuipulotu-Manu' Ahea Taufa (the applicant) applied for the visa on 30 March 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 4 April 2022, on the basis that the delegate found that the applicant did not satisfy any of the grounds for being granted the visa. In particular the delegate was not satisfied that, at the time of application, the applicant had made a valid application for a substantive visa or would apply for such a visa within a period specified for doing so: cl.050.212(3).

4. On 8^th April 2022, the Tribunal wrote to the applicant inviting him to appear before the Tribunal on 13 April 2022 at 11:30am, to give evidence and present arguments relating to his case.

5. On 12 April 2022, the Tribunal received a request from the applicant’s solicitor (the representative) requesting a postponement of the scheduled hearing until 20 or 21 April 2022, due to her other work commitments. Following careful consideration, the Tribunal declined to grant this request for postponement, given the applicant is in immigration detention and would remain in immigration detention awaiting his hearing.

6. The applicant appeared before the Tribunal by video link on 13 April 2022 from Villawood Immigration Detention Centre (VIDC), to give evidence and present arguments. The applicant confirmed that he was comfortable in participating in the hearing by video. The Tribunal also received oral evidence from Ms Neomai Lata I Starkey Helu, Mr Paul Taufa, Mr Sunia Takai and Ms Lupe. The Tribunal also received evidence by telephone from Ms Gina Movsessian. 

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video link.

8. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant including Statutory Declarations signed and declared by the applicant, Mr Paul Michael Taufa, Ms Neomai Lata I Starkey Helu and Ms Gina Movsessian, letters of support from Mr Maliu Takai and Dr. Derek McCulloch and drawings by the applicant’s children. While the Tribunal has considered all evidence before it, only that which was considered material to its decision has been expressly referred to herein.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant satisfies the requirements of cl.050.212 and if so whether he satisfies the remaining requirements to be granted the Subclass 050 visa.

    Background

11. Information before the Tribunal including the delegate’s decision record as provided to the Tribunal by the applicant, shows that the applicant is a New Zealand citizen who first arrived in Australia with his family from New Zealand in 1995, on a Subclass 444 visa. The applicant in his statutory declaration states he was 5 years old when he came to Australia and has lived in Australia since and has not returned to New Zealand.

12. The delegate noted that between 2005 and 2008 the applicant was convicted of serious criminal offences, including robbery in company and robbery whilst armed. He was sentenced to imprisonment for 4 years and 3 months in July 2008 with a non-parole period of two years and three months. In February 2009, the Department decided not to cancel the applicant’s Subclass 444 visa, instead issuing him with a warning letter pursuant to s.501 of the Act.

13. Between 2010 and 2017, the applicant was charged and convicted of multiple further criminal offences, including assaulting a Police Officer in the execution of their duties. For this conviction he received a sentence of imprisonment of 3 months. In April 2017, the applicant was charged with further offences including assault, detaining another and occasioning actual bodily harm.

14. On 17 August 2017, the Department cancelled the applicant’s Subclass 444 visa pursuant to s.116(1)(e) of the Act. The applicant sought merits review of his visa cancellation but withdrew his application for review on 8 February 2018. In April 2019, the applicant was convicted of several offences arising from the charges levied in 2017. He was sentenced to four years and six months imprisonment with a non-parole period of two years and nine months commencing 27 May 2017.

15. On 26 November 2021, upon the applicant’s release from criminal custody, the applicant was taken into immigration detention. On 27 November 2021, the applicant sought a 5 day extension pursuant to s 195 of the Act, to lodge an application for a substantive visa. The delegate noted that at the time of their decision, the applicant had not lodged a substantive visa application within the timeframe that ceased on 7 December 2021.

16. On 7 December 2021, the applicant applied for a Bridging Visa E (class WE) (Subclass 050 WA-050) (BVE). On 9 December 2021, the Department refused this application and on 10 December 2021, the applicant sought merits review at the Tribunal. On 21 December 2021, the Tribunal affirmed the Department’s decision to refuse the applicant’s BVE application.

17. On 30 March 2022, the applicant lodged a further BVE application on the grounds that he intends to apply for a substantive visa. It is this BVE application and its subsequent refusal by the Department, that is the subject of this review before the Tribunal.

18. At the hearing the Tribunal discussed with the applicant the requirements of the law. It explained that it was taking a fresh look at his application, including whether it is satisfied he meets a ground for seeking the visa. In this case, whether he has made, in Australia a valid application for a substantive visa, or whether the Tribunal will be satisfied that he would apply for such a visa within a period specified for doing so.

19. 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.

20. In this case, the applicant is seeking to meet subclause.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 applicant does not meet cl.050.212.

    Substantive visa application

21. 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.

22. ‘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.

23. At the hearing the Tribunal discussed with the applicant the reason the delegate refused his application, that being the delegate was not satisfied that the applicant had lodged an application for a substantive visa within the requisite timeframe and as such could not be satisfied that if granted a Bridging Visa that he would apply for a substantive visa.

24. Information before the Tribunal supports that on 27 November 2021, following the applicant’s detainment by the Australian Border Force on 26 November 2021, the applicant sought a 5 day extension pursuant to s.195 of the Act, to allow him to lodge an application for a substantive visa. The time allowed under s.195 in this instance ended on 7 December 2021. 

25. The Tribunal discussed with the applicant its concerns that based on the information currently before it, that he had not made a valid application for a substantive visa and that despite being granted until 7 December 2021, to make an application, he had failed to do so.

26. The applicant told the Tribunal his reason for not making a substantive visa application by 7 December 2021, being his Department case officer was unavailable to assist him and that she did not provide paperwork or advice regarding the requirements for the application be made within the time limit. In his statutory declaration of 12 April 2021, the applicant states he was unable “to take advantage of the 7 days’ post prison because it wasn’t sufficient time in which to provide full instruction, obtain old file material and get full advice.” Furthermore, the applicant did not hold a valid passport. Evidence before the Tribunal shows that the applicant was issued a New Zealand passport on 22 December 2021. 

27. The Tribunal explained to the applicant that the timeframe for the application to be lodged is relevant to his case, in that the Tribunal may form the view that this means under s.195 of the Act that he is no longer able to apply for a partner visa in detention. The Tribunal explained that this is important in his case because the Courts have said that a person cannot be released from detention to apply for a visa that they would not have been allowed to apply for in detention. What this may suggest is that he may not meet the ground for grant of the Bridging Visa E on the basis of wanting to apply for a Partner visa.

28. The Tribunal noted that an alternative interpretation open to the Tribunal’s consideration, may also be provided to evidence before it to support the applicant’s intention to apply for a substantive visa if released from detention.

29. Evidence before the Tribunal including the oral submission provided by the applicant’s representative state that the applicant now wishes to apply for a Parent visa as opposed to his previous indication that he wished to apply for a Partner visa.

30. The Tribunal discussed with the applicant his criminal history and plans for the future. The applicant in his evidence before the Tribunal did not seek to diminish his criminal history and accepted responsibility for his actions. He told the Tribunal that he is remorseful for his conduct and wants to dedicate his life to his children and give back to his kids. He regrets what has happened in the past and that he is “done and dusted” with crime.

31. At the hearing the Tribunal heard evidence provided by the applicant’s family members including his brothers, sister, sister-in-law and partner. In summary they contend that the applicant has paid his dues and is a reformed character who wishes to be part of his children’s lives, he is a dedicated and loving father who wishes to support his partner and children. Ms Helu (the applicant’s partner) was somewhat vague in providing oral evidence before the Tribunal stating that she needs him back home and that the past few years have been a struggle. The applicant was diagnosed with Chronic Myeloid Leukaemia (CML) in 2017. His family want to be around him to provide him with their support whilst he undergoes therapy and will support him in obtaining legal advice and representation in regard to making subsequent visa applications. The applicant’s representative told the Tribunal in her oral submissions that she has provided advice in regard to an application for a Parent visa.

32. The Tribunal explained that even if the Tribunal was satisfied that the applicant, if released from detention would within a period allowed, make a substantive visa application, it has to consider whether it is also satisfied he will comply with conditions imposed on a bridging visa. It noted conditions 8101- no work; 8401 -report as required, 8506 notify of new address, and 8564 – must not engage in criminal conduct. The Tribunal explained that it may be concerned that the applicant given evidence provided at the hearing may not comply with conditions imposed on a bridging visa including not working and engaging in criminal conduct.

33. The applicant told the Tribunal that he did not know that he may not be able to work. His witnesses confirmed that the family will provide financial support. The Tribunal noted that the applicant’s criminal history in itself may raise concerns about whether the Tribunal can rely on the applicant’s assertions that he will comply with these conditions.

34. The applicant told the Tribunal that he understands that his criminal history is a “big thing” but he has changed his ways. 

    Consideration

35. Section 195 of the Act limits the ability of a detainee to apply for a visa other than Bridging or Protection visas. There is no evidence before the Tribunal to support that the applicant has claimed to be seeking or intending to apply for a Protection Visa. Section 195 provides that detainees may apply for a visa within 2 working days (following compliance with s 194) or 5 working days after those 2 working days, if an officer is informed in writing of their intention to apply.[1] However, a detainee who does not apply within these time periods may not apply for a visa, other than a Bridging or Protection visa, after that time. 

    [1] s 195(1).

36. The Tribunal has afforded careful consideration to the evidence before it. The Tribunal accepts that the applicant was informed of the consequences of s195 of the Act at the time of his detention on 26 November 2021, therefore s.194 was complied with. On 27 November 2021, the applicant sought a 5 day extension under s.195 of the Act, to allow him to lodge an application for a substantive visa. That period ended on 7 December 2021. The Tribunal acknowledges the reasons purported by the applicant for not making an application, however the legislation provides that a detainee may apply for a visa within this timeframe. Regardless of the reasons preventing the applicant for not making such application, the applicant did not apply for a visa on or before that time and is now prevented from doing so by the operation of s.195.

37. Clause 050.212(3)(b) allows an applicant for a substantive visa, who is entitled to apply for such a visa, more time in which to do so by the grant of a Bridging Visa. However, in Liu v MIAC the Court was of the view that the grant of a bridging visa under s 195(2) should not be used to circumvent the plain legislative intent of s 195(1) so as to enable an applicant to be released from detention.[2] In other words, if the BVE application is lodged after the s.195 bar takes effect, then the applicant cannot satisfy cl 050.212(3)(b) unless the substantive visa application is for a Protection Visa.

    [2] Liu v MIAC [2008] FMCA 725 at [55].

38. The Tribunal acknowledges the evidence provided at hearing attesting to the applicant’s intentions that if released from detention he will apply for a Parent visa and accepts on balance (given his limited options to stay in Australia) that there is a high possibility that in this instance he would make such an application.

39. However, having considered all the evidence before it, the Tribunal has afforded regard to the reasoning in Liu and is of the view that the applicant cannot now apply for the substantive visa, given the provisions of s.195 of the Act and interaction with cl.050.212(3). The applicant has not applied for a substantive visa and therefore he cannot now apply for a Parent visa whilst he is detained. To release him from detention in order to do so at some future point appears to the Tribunal to frustrate the intent of s.195.

40. For these reasons, the Tribunal is not satisfied that at the time of application, the applicant satisfies the requirements of cl.050.212(3).

41. The Tribunal notes that there is no compelling evidence before it to indicate the applicant satisfies any of the other subclauses of cl.050.212, pertaining to the time of application. Accordingly, the Tribunal finds that the applicant does not satisfy cl.050.212.

42. As the applicant has not satisfied the criteria of cl.050.212, the Tribunal notes that is not necessary for the Tribunal to consider the time of decision criteria, including cl.050.223 concerning whether the applicant would abide by imposed visa conditions.

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

44. 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

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

    Karen McNamara
    Member