Telefoni (Migration) - [2024] AATA 3995

Telefoni (Migration) [2024] AATA 3995 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tevita Fatai Telefoni
REPRESENTATIVE:  Mrs Anne Frances O'Donoghue
CASE NUMBER:  2434822
Home Affairs REFERENCE(S):               BCC2024/5072933
MEMBER:Carolyn Wilson
DATE:2 October 2024
PLACE OF DECISION:  Adelaide
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 of Schedule 2 to the Regulations;
·cl 050.221 of Schedule 2 to the Regulations; and
·cl 050.223 of Schedule 2 to the Regulations.

The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8101, 8401, 8505, 8506, 8508, and 8564 will be imposed if the visa is granted.

Statement made on 02 October 2024 at 11:16am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an Unlawful Non-Citizen – criminal charges – understands the seriousness of current situation – intending to lodge a partner visa – has access to the funds to pay the fee – satisfied the applicant will apply for a substantive visa – Tribunal is satisfied that the applicant will abide by the conditions imposed on the visa if granted – decision under review remitted
LEGISLATION
Migration Act 1958, ss 73,189,375
Migration Regulations 1994, Schedule 2, cls 050.212, 050.223, 050.221
CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Liu v MIAC [2008] FMCA 725
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 17 September 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.
The decision to refuse to grant the visa was made on 20 September 2024 on the basis that the applicant did not apply for a substantive visa within the limited time allowed under s 195 and was therefore barred from making a substantive visa application whilst in detention and could not meet cl 050.212(3).
The applicant appeared before the Tribunal on 30 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant meets one of the grounds for the grant of the visa, and if so, whether the Tribunal is satisfied he…

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: Telefoni (Migration) [2024] AATA 3995
Case: [2024] AATA 3995
Decision Date: 2 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa (Subclass 050) made by an unlawful non-citizen. The applicant sought to rely on subclause 050.212(3) of the Migration Regulations 1994, which requires either a finally determined application for a substantive visa or satisfaction that the applicant will apply for such a visa within a specified period. The applicant also needed to satisfy criteria relating to compliance with visa conditions.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the grant of the Bridging E visa, specifically subclause 050.212(3), and whether the Tribunal was satisfied that the applicant would abide by any conditions imposed on the visa if granted. The Tribunal also had to consider whether the applicant continued to satisfy the relevant criteria at the time of the decision, as required by cl 050.221.

The Tribunal reasoned that the applicant intended to apply for a partner visa, a substantive visa, and understood the limitations on making such an application while in detention. The applicant's personal circumstances, including his arrival in Australia in 2014, his marriage in 2020, and the birth of his four children, were noted. The Tribunal also acknowledged the applicant's arrest and criminal charges for assault occasioning actual bodily harm, which occurred during a domestic incident involving his wife. While the applicant provided details of the incident, the Tribunal noted that further information was not sought as the matter was before the criminal courts. The Tribunal was satisfied that the applicant would apply for a substantive visa and would abide by visa conditions.

Consequently, the Tribunal remitted the matter for reconsideration by the Minister, directing that the applicant met the criteria under cl 050.212, cl 050.221, and cl 050.223 of Schedule 2 to the Regulations. The primary decision maker was also directed to inform the applicant of the specific conditions that would be imposed if the visa were granted.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant meets one of the grounds for the grant of the visa, and if so, whether the Tribunal is satisfied he will comply with the conditions it considers appropriate to impose on the visa if it is granted.The grounds for seeking the visa - cl 050.212 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. 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, and there is nothing before me to suggest that he could. 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 an application being made: s 5(9) of the Act. The applicant says he intends to make a partner visa application, and understands that he cannot make that application whilst in detention, due to the s 195 bar, but that he will make the application within a period specified by the Minister to do so. As background, the applicant came to Australia in February 2014 as the holder of a Subclass 600 tourist visa that was valid for 3 months. He says his mother told him to stay in Australia with the relatives already living here. His mother has since passed away, and his only family in Tonga now is a brother. He knew his visa lapsed after 3 months but stayed anyway. In early 2015 he met his now wife. They started living together a few months later and married in October 2020. They have 4 children aged between 9 and 3. The applicant says he knew he needed to apply for a visa to stay lawfully in Australia, but was too busy with his children and did not have the funds to lodge a partner visa. The applicant was identified as an unlawful non-citizen when he was arrested on 25 August 2024 and charged with assault occasioning actual bodily harm. The applicant says the alleged assault occurred during a domestic incident and that the person assaulted was his wife. Given the applicant is facing charges in relation to the incident I informed him he did not have to answer any questions I may have about the assault, under the common privilege against self-incrimination. However, in a written statement he chose to disclose some details of the incident. He described it as a fight between him and his wife stemming from him going out drinking. He regrets his part in the fight and that his children witnessed it. His wife also wanted to give evidence in relation to the incident, orally and by written statement. She described the incident as a ‘domestic misunderstanding’ and she regrets that police became involved. She has withdrawn the statement she gave to the police when the incident occurred. There is an Apprehended Domestic Violence Order (ADVO) in place but she has applied for it to be revoked. She says she did not seek the ADVO but that the police applied for it. The application to revoke it will be considered at the hearing for the assault charge on 15 October 2024. The parties hope the assault charge may be withdrawn by the police or dismissed by the court, as the wife says she does not want it pursued. I have limited information before me in relation to this incident, but have not sought further detail as it is currently before the court.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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 of Schedule 2 to the Regulations;·cl 050.221 of Schedule 2 to the Regulations; and·cl 050.223 of Schedule 2 to the Regulations.The Tribunal also directs the primary decision maker·to indicate to the applicant that conditions 8101, 8401, 8505, 8506, 8508, and 8564 will be imposed if the visa is granted.Carolyn WilsonMember

Ratio Decidendi

Legal Principle Established

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