Taufa (Migration) - [2021] AATA 5096

Taufa (Migration) [2021] AATA 5096 (21 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rodney Tuipulotu-manu'ahea Taufa
REPRESENTATIVE:  Ms Anna Joyce Ryburn
CASE NUMBER:  2118883
Home Affairs REFERENCE(S):               BCC2021/2356779
MEMBER:K. Chapman
DATE:21 December 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 21 December 2021 at 10:57am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – valid application for a substantive visa – applicant convicted of criminal offences – term of imprisonment completed – balance of family in Australia – barred from applying for a Partner visa – seeking work in Australia – applicant seeking ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 116, 195, 359, 501
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.223
CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283
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 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’).
The applicant applied for the visa on 7 December 2021. 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.
The decision to refuse to grant the visa was made on 9 December 2021, on the basis that the applicant did not satisfy the time of application criteria contained in cl.050.212. In particular, the delegate was not satisfied that, at the time of application, the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Additionally, the delegate was not satisfied that the applicant, at the time of application, had made a valid application for a substantive visa or would apply for such a visa within a period specified for doing so.
The applicant was initially invited to appear before the Tribunal by video at a review hearing scheduled for 16 December 2021. His solicitor (‘the representative’) requested a postponement of the scheduled hearing until mid-January 2022, due to her other work commitments. Following careful consideration, the Tribunal declined to grant this postponement request given the duration that the applicant would remain in immigration detention awaiting his hearing. In due course, the representative advised she was available on 20 December 2021 and the hearing was rescheduled for that date.
The applicant appeared before the Tribunal by video link on 20 December 2021 to give evidence and present arguments. He was in immigration detention at Villawood Immigration Detention Centre (VIDC) at this time. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Taufa (Migration) [2021] AATA 5096
Case: [2021] AATA 5096
Decision Date: 21 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Bridging E (Class WE) visa, Subclass 050. The applicant, who arrived in Australia as a child and had resided there since, had a history of serious criminal convictions, including robbery and assault, leading to multiple terms of imprisonment. Following his release from his most recent period of incarceration, the applicant expressed a desire to apply for a Partner visa and remain in Australia, but failed to lodge a substantive visa application within the permitted timeframe. Instead, he applied for a Bridging E visa, asserting he was making acceptable arrangements to depart Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 050 Bridging E visa, specifically clause 050.212(2), which requires the applicant to be making, or be the subject of, acceptable arrangements to depart Australia at the time of application. The Tribunal also considered whether the applicant met the requirements for a Subclass 051 Bridging (Protection Visa Applicant) visa, which he had also applied for.

The Tribunal reasoned that the applicant's stated intention to seek a Partner visa and remain in Australia, coupled with his failure to lodge a substantive visa application within the allowed period, indicated he was not making acceptable arrangements to depart Australia as required by cl.050.212(2). Furthermore, the Tribunal found that the applicant did not meet the definition of a relevant eligible non-citizen for a Subclass 051 Bridging (Protection Visa Applicant) visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Bridging E (Class WE) visa. The applicant's application for a Subclass 051 visa was also refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE 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 According to material submitted by the applicant to the Tribunal, he first arrived in Australia from New Zealand in 1995 with his family at the age of 5 years. At that time the applicant was granted a Subclass 444 visa. He has not departed Australia since. Between 2006 and 2008 the applicant was convicted of serious criminal offences, including committing robbery whilst armed. He was sentenced to imprisonment for 4 years and 3 months in July 2008. In 2009, a delegate decided not to cancel the applicant’s Subclass 444 visa pursuant to s.501 of the Act, instead issuing him with a warning. Between 2010 and 2017, the applicant was convicted of several further criminal offences, including with respect to assaulting a Police Officer in the execution of their duties. He received a sentence of imprisonment of 3 months for this particular conviction. In 2017, the applicant was also charged with further offences regarding matters such as assault, detaining another and occasioning actual bodily harm. On 17 August 2017, the applicant’s Subclass 444 visa was cancelled pursuant to s.116(1)(e) of the Act. The applicant sought merits review of this 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. On 26 November 2021, the applicant was released from criminal custody and taken into immigration detention. On 26 and 27 November 2021, the applicant informed a Departmental Officer that he sought a Partner visa and did not wish to depart Australia. He sought a 5 working day extension, regarding s.195 of the Act, to apply for a substantive visa. However, the applicant did not apply for a substantive visa within the permissible time frame that ended on 7 December 2021. On 7 December 2021, the applicant applied for the Subclass 050 Bridging Visa E on the grounds that he was making, or was the subject of, acceptable arrangements to depart Australia pursuant to cl.050.212(2). This is a time of application criterion. The delegate refused to grant the Bridging Visa E to the applicant on the basis he was not intending to depart Australia. The applicant has a de facto partner, three children, his siblings and mother residing in Australia. According to the applicant, he has no family members remaining in New Zealand. He submitted Statutory Declarations from himself, Ms Neomai Helu (his de facto partner), Mr Paul Taufa (brother) and Ms Gina Movsessian (partner of a brother of the applicant). In summary, these Declarations contend that the applicant is making arrangements to depart Australia and he has changed for the better since being incarcerated. They have been duly considered by the Tribunal. Time of Application Criteria

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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