Uppiah (Migration)

[2018] AATA 827

Uppiah (Migration) [2018] AATA 827 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arnaud Noel Uppiah

CASE NUMBER:  1805842

DIBP REFERENCE:  Client ID 49088182099

MEMBER:Paul Windsor

DATE:14 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2018 at 2:14pm

CATCHWORDS
Migration – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – No substantive visa application – Little financial resources – Gambling habit – Arrangements to depart Australia

LEGISLATION
Migration Act 1958, ss 5, 73, 195
Migration Regulations 1994, Schedule 2 cls 050.212, 050.213

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 2 March 2018. 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 subclause 050.212(3) which relates to the making of substantive visa applications.

3. In his application for a Bridging E visa the applicant indicated that he intended to apply for a substantive visa.  The decision to refuse to grant the visa was made on 5 March 2018 on the basis that the delegate was not satisfied that the applicant met cl.050.212, noting that the applicant has no ongoing substantive applications before the Department or any relevant review bodies and has no desire to leave Australia.

4. The applicant appeared before the Tribunal on 13 March 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. A key issue in this case is whether, at the time of application, the applicant met the threshold criteria set out in subclause 050.212(3) (relating to making a substantive visa application) or one of the alternatives set out in subclauses 050.212(2) and 050.212(3A)-(9). 

   The grounds for seeking the visa – clause 050.212

7. At the time of the visa application, the applicant must meet one of the alternative criteria set out in subclauses 050.212(2)-(9).  The applicant must continue to satisfy one of these criteria at the time of decision: clause 050.221.

8. In this case, the applicant indicated that he is seeking to meet subclause 050.212(3).  He does not claim to meet any of the other alternative criteria in clause 050.212.  At question 10 of his application for a Bridging visa E – subclass 050, the applicant indicated that he was intending to apply for a substantive visa.  At question 15 of his application form he did not give details of any substantive visa that he intended to apply for but commented:

   ‘I will abide with all rules and regulations.  I will also provide any details required’.

9. For the reasons below, the Tribunal finds that the applicant does not meet clause 050.212.

   Substantive visa application

10. There are two alternative ways of meeting subclause 050.212(3).  Subclause 050.212(3)(a) 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.  Subclause 050.212(3)(b) is met if 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.

11. ‘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.

12. The Tribunal finds that the applicant does not meet either of these alternative means of meeting subclause 050.212(3).

13. The applicant has not indicated that he has made an application for a substantive visa.  At the hearing he indicated that his last substantive visa, the Student visa on which he entered Australia on 19 November 2009, ceased on 15 March 2012.  He indicated that he did not apply for any other visas after that time, apart from the Bridging E visa application which is the subject of this review.  When asked why he did not apply for another visa around the time his Student visa expired, the applicant indicated that he did not have enough money.  He commented that he had saved some money but lent it to a friend who did not return it.  He indicated that he also had a problem with a gambling addiction which meant he did not have a chance to save any money.  The applicant commented that while it was a really bad addiction he has been able to manage it since he has been in detention.  The applicant also indicated he was told by a lawyer, who he was put in touch with by a friend, that he would owe a lot of money, so he was afraid to approach Immigration.  He commented that friends also told him that if he was in Australia for ten years he would be able to stay permanently, but said he did not think that was correct.

14. The applicant indicated that he was taken into Immigration detention on 9 November 2017.  When asked if he had made an application for a substantive visa since that time he indicated that he had only applied for a Bridging E visa.  The Tribunal explained to the applicant that a Bridging visa application is not an application for a substantive visa.  Based on the above and in the absence of any evidence to the contrary, the Tribunal finds that the applicant has not made a substantive visa application in Australia that has not been finally determined, and therefore finds that he does not meet subclause 050.212(3)(a).

15. The Tribunal asked the applicant if he was intending to apply for a substantive visa.  He said he was planning to do so in the future.  He commented that he will try all he can and indicated that he would like to undertake study so that he could become a Protective Services Officer (PSO) in Australia.  The applicant has been an unlawful non-citizen in Australia for six years since his Student visa ceased on 15 March 2012 and the Tribunal notes that:

    ·the applicant has not made an application for a substantive visa since he ceased studying in 2010 (at the hearing he indicated that he attended his course for the first semester until June 2010 when he was told that he had failed the course);

    ·the applicant indicated he has little by way of financial resources to meet visa fees and tuition costs (at the hearing he commented that he has access to $1300-1500 that his father had sent him via his brother);

    ·the applicant would not meet item 1222(4)(c) of the Regulations for a Student (Temporary) (Class TU) visa which requires that the application, if made in Australia, be made within 28 days of the time that the last substantive visa held by the applicant ceased; and

    ·s.195 of the Act prevents Immigration detainees from applying for most visas (including Student visas) beyond 2 working days of being made aware of the relevant provisions (or an additional 5 working days where the applicant informs the Department in writing within those 2 working days of an intention to apply for a substantive visa).

16. Given the above and the fact that the applicant has not made a substantive visa application in the more than four months since he was located and detained in November 2017, the Tribunal is not 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.  Accordingly, the Tribunal finds that the applicant does not meet subclause 050.212(3)(b). 

17. The Tribunal finds that there is nothing to indicate or suggest that the applicant meets any of the other alternative criteria in clause 050.212; that is, subclause 050.212(2) or any of subclauses 050.212(3A)-(9). 

18. In relation to subclause 050.212(2), which applies where the Minister is satisfied an applicant is making, or is the subject of, acceptable arrangements to depart Australia, the applicant has made clear that he does not intend to depart Australia voluntarily.  At the hearing the applicant indicated that he returned to Mauritius in November 2010 for two months, returning to Australia on 17 January 2011.  When asked if he had thought about departing Australia after his visa expired the applicant indicated that he wanted to try to stay in Australia.  He commented that he waited more than 9 years to save to come to Australia in 2009.  He indicated that when he returned to Mauritius for two months in 2010-11 he was very depressed and just stayed at home not talking to anyone but thinking about Australia.  He said he would get depressed again if he went back to Mauritius.  The applicant commented that his father did not want him to return to Australia and told him he would end up struggling again, but he wanted to come back and was thinking of doing some course that would enable him to work as a handyman.  He indicated that his father had given him $10,000 when he first came to Australia and was disappointed that he had lost that money, but agreed to give him a further $1,000; and his brother, who is an Australian citizen living in Australia, and his uncle and his uncle’s son in law had wanted to help him, but he had a bad gambling habit at that time and gambled all the money away.  He indicated that after he gambled away the money his father had given him his brother was no longer prepared to offer him financial assistance, and he did not pursue the offers of help from his uncle and his uncle’s son in law.  When the Tribunal put to the applicant that from what he had told the Tribunal he did not wish to return to Mauritius, the applicant commented that he had made a great effort to come to Australia, that he is very close to his four year old niece and now has a three month old niece whom he has not had the chance to spend time with, and said he would like to remain in Australia.  The applicant commented that if he got the chance to stay he would not disappear and would try to be useful for Australia. 

19. The applicant also indicated at the hearing that he has been charged with criminal offences in Australia.  He commented that he is the subject of ongoing criminal charges relating to him receiving ‘nude pictures’ from two teenagers and that he has a committal hearing regarding this matter on 29 March 2018.  The Tribunal finds there is nothing to indicate that the Department is making departure arrangements on the applicant’s behalf while these criminal matters are pending.

20. Based on consideration of the applicant’s evidence the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia.  The Tribunal also finds that there is nothing to indicate or suggest that at the time of application the applicant was the subject of any arrangements for him to depart Australia.

21. Accordingly, the Tribunal finds that the applicant does not meet any of the time of application criteria at clause 050.212.

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

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

    DECISION

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

    Paul Windsor
    Member