Tupoutoa (Migration)

[2024] AATA 3920

Tupoutoa (Migration) [2024] AATA 3920 (8 August 2024)

DECISION RECORD       

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Taiana Tupou Tupoutoa

REPRESENTATIVE:  Mr Milinda Sanjeewa Balasuriya (MARN: 1801296)

CASE NUMBER:  2425742

HOME AFFAIRS REFERENCE(S):          BCC2024/3952134

MEMBER:Paul Noonan

DATE:8 August 2024

PLACE OF DECISION:  Melbourne

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(3)(b).

Statement made on 8 August 2024 at 1:06pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prospective substantive visa applications – contribution to the church community – caring assistance to Australian partner – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 73, 195
Migration Regulations 1994; Schedule 2, cls 050.212, 050.221

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. The applicant applied for the visa on 24 July 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 in cl 050.212 pertaining to the grounds for seeking the visa.

3. The decision to refuse to grant the visa was made on 29 July 2024 on the basis that the applicant did not meet any of the subclauses in cl 050.212. The applicant appeared before the Tribunal on 7 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stuart Hardy, the de facto partner of the applicant, and Mr Etelome Longi, the brother of the applicant, and Church Secretary, Ms Ilaisaane Tamale. The Tribunal also had regard to written submissions made by the applicant’s representative, Mr Hardy, and Pastor Atunaisa Ainuu of the New Wine Christian Fellowship.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

5. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Ms Tamale submitted that the applicant has been an essential member of the church community and has provided a lot of support to its members. Losing her would cause the community a great deal of upset.

7. Mr Longi submitted that the applicant has supported him through some personally difficult times. He is willing to support the applicant in whatever manner is required.

8. Mr Hardy submitted that he is the de facto partner of the applicant. He is dependent on her for assistance in a caring capacity due to his physical limitations caused by his defence force service. She is integral to his care. Without her, his life would be very difficult. He is very upset and can’t live without some assistance.

9. The applicant’s representative submitted in opening that, if the applicant is released from detention, she and Mr Hardy have indicated that they will pursue a partner visa application. They have not done so up to this point due to financial constraints.

10. The issue in this case is whether the applicant meets any of the subclauses in cl 050.212 as required by the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    The grounds for seeking the visa – cl 050.212

11. At the time of the visa application, the applicant must meet one of the alternatives set out in cls 050.212(2)–(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.

12. In this case, the applicant is seeking to meet cl 050.212(3). Both the applicant and her representative confirmed that she does not claim to meet any of the other alternative criteria in cl 050.212. For the reasons below, the Tribunal is satisfied the applicant meets cl 050.212(3)(b).

    Substantive visa application

13. Clause 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.

14. ‘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.

15. The applicant submitted that she wished to lodge a partner visa application if released from detention. The Tribunal discussed with the applicant and her representative that s 195 of the Act limits the time within which she could apply for a visa other than a protection visa to 5 working days after she was given a document entitled a ‘Very Important Notice’. The Tribunal noted that the papers reflect that such a notice was given to her on 13 July 2024. The Tribunal noted that, as such, the permissible time for her to apply for a visa other than a protection visa had passed and as such the Tribunal is satisfied that the applicant does not meet cl 050.212(3)(a).

16. The applicant’s representative submitted that he would discuss this consideration with his client after the hearing and make a written submission accordingly. The Tribunal notes that a post‑hearing submission was received from the applicant’s representative on the same day as the hearing.

17. The applicant’s representative advised the Tribunal that he had consulted with the applicant and she had informed him that applying for protection had been on her mind at the time of the application and that she would now do so immediately. The applicant’s representative submitted that she had not previously lodged a protection claim due to cultural influences creating stigma associated with her relationship with Mr Hardy, which caused her to be reluctant to raise these issues, but she believed that she had grounds to apply for this visa type based upon this stigma now that she had discussed the matter further. The applicant’s representative advised that the protection visa application process has commenced and that it would be lodged with the Department by 12 August 2024.

18. On the basis of the representative’s advice that the applicant will be applying for a protection visa, and the applicant’s post‑hearing advice that she had thought to apply for a protection visa at the time of the bridging visa application but was hampered in doing so by feelings of stigma associated with cultural influences, the Tribunal is satisfied that the applicant meets cl 050.212(3)(b).

19. For these reasons, the Tribunal finds that the applicant satisfies the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    CONCLUSION

20. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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(3)(b).

    Paul Noonan
    Member