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 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.
The applicant’s wife confirmed that she wants to sponsor the applicant for a partner visa. She gave evidence of how stressful it has been for the family with the applicant in detention, and how it has negatively impacted their children and her health. Her evidence was that her family support the applicant as her husband and had a family meeting following his detention to work out how to apply for the partner visa. Despite the incident on 25 August 2024 her family support the applicant and the relationship.
As raised with the applicant at the hearing, I had concerns whether I could be satisfied he would apply for a partner visa given he had not done so to date. I also had concerns of whether the current ADVO would prevent them from interacting such as to arrange a partner visa application. Of particular concern was his ability to make a valid application, as he told the delegate he has no savings or money to pay for the visa, which currently costs $9,095. The applicant submitted their families had raised the funds to cover the cost of the visa application. It was submitted his father in law would use his credit card to pay the fee, but the funds to pay that credit card bill would be coming from a number of different family members. I invited the applicant to provide evidence that his father in law had a credit card with a sufficient limit or details of a bank account demonstrating
Following the hearing the applicant provided further written statements from himself, his wife, and an aunt. A copy of the ADVO was provided which showed the order prevents the applicant from living at his wife’s address, and provides that he must not assault, threaten, stalk, harass or intimidate her or intentionally or recklessly destroy or damage any of her property, or approach her or be in contact with her for at least 12 hours after consuming any alcohol or illicit drugs. It does not prevent them from communicating or seeing each other, provided the applicant has not consumed alcohol or illicit drugs. The applicant and his wife confirmed they have maintained ongoing contact by telephone and messages whilst he has been in detention. His aunt provided a written statement saying she supports the applicant and he can live with her if released from detention whilst he waits for the ADVO to revoked. She also provided evidence of her bank account, showing she has more than $9,500 available which can be used to pay the partner visa lodgement fee. His wife also provided a copy of a bank account[1] with an available balance of $3,725 which they say can be used for any other costs involved with lodging the substantive visa application. His mother in law provided a written statement confirming she and her husband, who is working, are willing to financially support the applicant and that they with their extended family have raised the funds for the partner visa application and any other ongoing legal fees.
[1] It was not clear whether this was her mother or sister’s account, but I consider nothing turns on this.
The applicant’s oral evidence was that some of the paperwork has already been done for the partner visa application and his representative will help him to lodge it as soon as possible after his release from detention. I accept the parties now have access to funds from their families to cover the cost of lodging a partner visa application. I have taken into account the applicant’s complete disregard for migration law for more than 10 years, but I accept his financial situation in part contributed to that. His decision to remain here unlawfully has now led him to detention with the prospect of long term separation from his family. He understands he must now lodge the application or depart. The prospect of his deportation has rallied the extended family to find funds to allow him to lodge a partner visa application, demonstrating their faith in the applicant and the value they place on his relationship with his wife and children. Having regard to all the evidence before me, I am satisfied the applicant intends to apply for a partner visa, has access to the funds to pay the fee, has engaged a migration lawyer to assist him to lodge the application, and that he understands he must do so within the period that may be allowed by the Minister.
The delegate found the applicant could not meet cl 050.212(3)(b) because that subclause required the substantive visa to be applied for within the limited time period set out in the Very Important Notice provided when the applicant was taken into detention. Section 195 provides as follows:
(1)  A detainee may apply for a visa:
(a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)  if he or she informs an officer in writing within those 2   working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2)  A detainee who does not apply for a visa within the time allowed by subsection  (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
The delegate took the view the applicant was now precluded from applying for the Partner visa and could not satisfy cl 050.212(3)(b). The obiter view in the case Liu v MIAC [2008] FMCA 725 reflected such an interpretation of cl 050.212(3)(b). The Judge in Liu expressed 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. That is, if the bridging visa 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. I note this interpretation is only obiter and another interpretation appears open. This second interpretation involves cl 050.212(3)(b) permitting a bridging visa to be granted to enable the applicant to apply for a substantive visa other than a protection or bridging visa, where the applicant would not be able to do so in detention because of s 195. It relies on reading the phrase ‘within a period allowed by the Minister for the purpose’ as forward looking in manner, indicating that the Minister may stipulate a period within which an applicant must apply for the substantive visa, either through the length of the visa granted, or by conditions attached to it. Departmental policy appears consistent with the second interpretation. It identifies factors to consider in determining whether an applicant can make a valid application, including any statutory limitations, previous visa conditions and access to funds for fees, but does not mention s 195 as a bar to satisfying cl 050.212(3)(b). In the absence of further judicial consideration, and noting that Departmental policy appears to apply the second interpretation, I find the applicant is not barred by s 195 from meeting cl 050.231(3)(b) if I am satisfied he will apply for a substantive visa within a period allowed by the Minister.
For the reasons given above, I am satisfied the applicant will 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. Accordingly, the applicant meets cl 050.212(3) and therefore meets cl 050.212.
I am also satisfied the applicant continues to satisfy this criterion at the time of decision, and therefore meets cl 050.221.
Whether the applicant will abide by conditions - cl 050.223
Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.
When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].
In this case, cl 050.617 applies because the applicant meets cl 050.212(3)(b) of Schedule 2 of the Regulations. This clause provides that there are no mandatory conditions, but certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case:
8101
The holder must not engage in work in Australia.
8401
The holder must report:
(a)at the time or times; and
(b)at a place or in a manner;
specified by the Minister from time to time.
8505
The holder must continue to live at the address specified by the holder before the grant of the visa.
8506
The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
8508
The holder must make a valid application for a visa of a class that can be granted in Australia, within the time specified by the Minister for the purpose.
8564
The holder must not engage in criminal conduct.
The applicant gave an undertaking that he would abide with any conditions imposed on his Bridging visa, and is now acutely aware that any breach would likely result in being re-detained and the cancelation of his bridging visa. I consider he has the support of his wife, aunt, extended family, and migration lawyer to assist him to comply with any reporting conditions and the condition to make a valid visa application. I am satisfied he would comply with conditions 8401, 8505. 8506, and 8508.
In relation to the no work condition, I recognise that may impose financial hardship on the applicant but consider it is appropriate at this time. His migration lawyer indicted they would apply for a Bridging visa with work rights in the future, after the applicant has lodged his partner visa application. The applicant gave evidence he knew he could not lawfully work in the past without a visa, and for this reason could not obtain formal employment in Australia. He admitted to working as a gardener, removalist, and in construction to earn money and says this work was done for friends or relatives and they paid him in cash. I am satisfied that he understood the ‘no work’ requirement includes informal and well as formal work, and that the extended family will support him until such time as he may have work rights. I am satisfied that in the meantime he will comply with condition 8101.
The applicant is currently facing an assault charge. There is no evidence before me to indicate he has any prior criminal charges or convictions. The applicant has expressed remorse for his actions that led to his current situation, and appears to be genuinely suffering at being separated from his family. I am satisfied he understands the seriousness of his current situation and will comply with condition 8564 not to engage in criminal conduct.
On the evidence before me, I am satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant meets cl 050.223.
Non-disclosure certificate
The delegate placed a restriction on part of the material given to the Tribunal by the Department by certifying in writing that in accordance with s 375A disclosure of the information would be contrary to public interest. The document the subject of the non-disclosure certificate concerns Border Force’s procedure and interview when the applicant was taken into detention and contains information regarding detention procedures. The delegate says it would be against public interest to disclose that document because it would:
Disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
I invited the applicant to comment on the validity of the s 375A certificate and provided them with a copy of it. I expressed a preliminary view that the certificate may be valid, but that the information under the s 375A certificate was neutral in relation to the decision I needed to make. The applicant and his representative did not make any submissions on the validity of the certificate. I consider the s 375A certificate is valid, but in any event I have not relied on any of the non-disclosed information in making my decision.
Conclusion
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 Wilson
Member