UAISELE (Migration)

[2019] AATA 526

UAISELE (Migration) [2019] AATA 526 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tevita UAISELE

CASE NUMBER:  1902088

DIBP REFERENCE(S):  BCC2018/6194473

MEMBER:Robert Wilson

DATE:13 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2019 at 12:25pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – valid application for a substantive visa – unlawful non-citizen – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 73
Migration Regulations 1994 (Cth), 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 Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 January 2019. 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 (the Regulations). Relevantly to this matter, the primary criteria include cl.050.212(3).

3. The decision to refuse to grant the visa and the decision relating to requiring a security was made on 25 January 2019. The applicant appeared before the Tribunal on 8 February to give evidence and present arguments. The Tribunal also received oral and written submissions from Mr Tanguy Mwilambwe, Senior Associate Lawyer/Migration Agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Mr Uaisele last arrived in Australia on a Transit Visa subclass TA 773 on 30 December 2017. This visa allowed him to stay for ten days and was in effect until 9 January 2018.

7. After 9 January 2018 Mr Uaisele did not depart Australia nor did he regularise his immigration status but chose to remain in the community as an unlawful non-citizen.

8. After more than one year being an unlawful non-citizen in the community, on 15 January 2019, Mr Uaisele was located by NSW Police. After a status check with the Immigration Status Service (ISS), Mr Uaisele was subsequently detained pursuant to section 189 of the Migration Act (the Act). Later, he was transferred to the Villawood Immigration Detention Centre (VIDC), where he currently remains.

9. On 17 January 2019 Mr Uaisele requested an extension of time to lodge a substantive visa application pursuant to section 195 of the Act and the legislative timeframe to lodge a substantive visa was on or before 24 January 2019.

10. On 16 January 2019 Mr Uaisele lodged an online application for a Bridging Visa E (BVE) on grounds that he is or will be an applicant for a substantive visa. The Detention Review Officer was notified of the BVE application, as required under Item 1305(3)(c) of the Migration Regulations, on the same day.

11. The Tribunal notes that NSW Police issued Mr Uaisele with the following:

12. A Field Court Attendance Notice, for Driver Never Licensed, to attend Picton Local Court on 12 February 2019; and

13. A Traffic Infringement Notice for driving with an unsecured load.

14. In support of his BVE application Mr Uaisele provided copies of his passport, birth certificate, a lease agreement and a receipt of the payment for a NZ Citizen Family Relationship (Temp) subclass 461 visa application.

15. On 18 January 2019 the delegate interviewed Mr Uaisele over the phone.

16. In summary, Mr Uaisele claimed that he was not aware that he was an unlawful non-citizen. He claimed that he found out about his unlawful status after his detention. He claimed that he did not receive the invalid notification of his Residence-Carer (Residence) visa application which was lodged in October 2018. Mr Uaisele claimed that he was not working but was taking care of his father. He claimed that his family financially supported him and they can support him if he is granted a BVE. When asked if he had lodged a subclass 461 visa application, Mr Uaisele said that his family is considering to lodge it and seeking advice from a migration agent. The delegate advised Mr Uaisele that he had until 24 January 2019 to lodge a visa application from immigration detention. He claimed that his family is looking into this matter and he wished to be released from detention. Mr Uaisele requested an extension of time for his BVE application to provide further information/documents.

17. On 18 January 2019 Mr Uaisele was granted an extension of time under section 195 of the Act and a Bridging Visa E decision was due on or before 25 January 2019.

18. The Tribunal notes that on 25 January 2019 an additional online Bridging Visa E application was lodged for Mr Uaisele by his migration agent on the claimed basis that Mr Uaisele has lodged an application for a substantive visa (subclass 461).

19. Section 195 of the Act limits the ability of a detainee to apply for a visa. Detainees may apply for a visa within 2 working days (after they are notified as per section 194 of the Act), or 5 working days after those 2 working days if an officer is informed in writing of their intention to apply. These timeframes apply only if the Department officer has complied with section 194 of the Act, which requires the detainee to be made aware of the provisions of section 195 and section 196 of the Act. In this case, the Departmental officer complied with section 194 of the Act. Before the delegate, is Mr Uaisele's written request for an extension of the timeframe within which to lodge a substantive visa application pursuant to section 195 of the Act. The request, which Mr Uaisele signed on 16 January 2019 expired on 24 January 2019.

20. At the time of the visa application, the applicant must meet one of the alternatives set out in c1.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: c1.050.221.

21. '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 application being made: s.5(9) of the Act. In this case Mr Uaisele has no ongoing matters with the Department.

22. In his case, Mr Uaisele is seeking to meet cl.050.212(3) that requires him to have 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 Minister is satisfied that 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. At the time of the BVE assessment on 25 January 2019 there is no evidence on Departmental systems that Mr Uaisele has lodged a valid application despite noting a copy of payment of receipt for a subclass 461 which was automatically generated from online lmmiaccount on 16 January 2019.

23. No other grounds that would meet the Time of Application Criteria as per Regulation 050.212 have been raised by Mr Uaisele his BVE application, nor are there any apparent to the Tribunal.

24. After considering all relevant facts and matters that Mr Uaisele following a year living in Australia unlawfully, is highly motivated to remain in Australia. The Tribunal is of the view that Mr Uaisele purposefully disregarded Immigration law. The Tribunal is also mindful that Mr Uaisele was scheduled to appear at the Picton Local Court on 12 February 2019 despite Mr Uaisele's claims to the delegate that he has no outstanding court matters.

25. Therefore the Tribunal finds that Mr Uaisele for the reasons given in this decision, does not meet c1.050.212 of the Regulations and does not therefore satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

26. 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 c1.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    FURTHER CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in this case is whether the primary criteria include cl.050.212(3).

28. The grounds for seeking the visa - cl.050.212

29. 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.

30. 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. For the reasons below, the applicant meets cl.050.212.

    Substantive visa application

31. 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 was in a period specified for doing so.

32. ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s5(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 application being made:s.5(9) of the Act.

33. No other grounds that would meet the Time of Application Criteria as regulation 050.212 have been raised by Mr Uaisele in his BVE application, nor are there any apparent to this decision maker.

34. After considering all relevant facts and matters that Mr Uaisele following a year living in Australia unlawfully, is highly motivated to remain in Australia. The Tribunal is of the view that Mr Uaisele purposely disregarded immigration law. The Tribunal is also mindful that Mr Uaisele is scheduled to appear at the Picton Local Court on 12 February 2019 despite Mr Uaisele’s claims to the delegate that he has no outstanding court matters.

35. Therefore the Tribunal finds that Mr Uaisele, for the reasons given in this decision does not meet cl.051.212 of Schedule 2 of the Regulations and therefore does not meet the requirements for the grant of that visa.

36. Accordingly, the applicant does not meet cl.050.212(3).

37. 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.

    CONCLUDING PARAGRAPHS

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

39. 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

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

    Robert Wilson

    Member