VEA (Migration)

[2024] AATA 3917

VEA (Migration) [2024] AATA 3917 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MISINALE VEA

CASE NUMBER:  2417909

Home Affairs REFERENCE(S):              BCC2024/3092507

MEMBER:Justin Meyer

DATE:27 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2024 at 10:15am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – periods as unlawful non-citizen, criminal convictions and immigration detention – previous bridging visas on departure grounds – intention to apply for substantive visas but no applications made – decision under review affirmed

LEGISLATION  
Migration Act 1958 (Cth), ss 5(1), (9), 73, 189
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212(3), 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 12 June 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.

3. The decision to refuse to grant the visa was made on 14 June 2024 on the basis that

   As you do not meet the requirements in clause 050.212, I find that you do not satisfy the criteria for the grant of a Bridging (Class WE) general (subclass 050) visa.

   As you do not meet the requirements in clause 051.211, I find that you do not satisfy the criteria for the grant of a Bridging (Class WE) Protection visa applicant (subclass 051) visa. (from delegate’s decision)

4. The applicant appeared before the Tribunal by video on 26 June 2024 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

   Background

6. As was noted by the delegate in their decision, the applicant last travelled to Australia on 21 May 2013 holding a Special Program Temporary Visa (Class TE) (subclass 416) (TE416). This visa was subject to the condition 8503 ‘no further stay’ and ceased on 17 December 2013. The applicant subsequently became an unlawful non-citizen (UNC).

7. The applicant did not regularise his immigration status and was located when stopped by NSW Police during a routine traffic stop on 23 October 2015. As he had become an unlawful non-citizen, he was subsequently detained under s189 of the Act.

8. On 29 June 2016 he was granted a Bridging visa E (BVE) visa and released from immigration detention on the basis that he was obtaining a travel document to depart Australia. He was subsequently granted three further BVEs on this basis, and for providing a valid travel document and a ticket for departure on 10 October 2016 as evidence that he was  making your arrangements to depart Australia.

9. He claimed to delegate that he intended to make a partner visa application however, he was aware that he was subject to the ‘no further stay’ condition, his requests to have this condition to be waived being unsuccessful.

10. He did not depart Australia and on 11 October 2016 again became an UNC and disengaged from the Department.

11. He did not regularise he immigration status and was located when he was remanded into criminal custody by NSW Police on 4 June 2023. He was subsequently convicted for child-related sex offences and sentenced to 15 months imprisonment. On 3 June 2024, he was released from criminal custody on parole and subsequently detained by Australian Border Force (ABF). He was transferred to the Villawood Detention Centre which is his current location.

12. He has again indicated on this BVE application that he wishes to apply for a substantive visa - a partner visa. He provided no supporting documents with this application.

13. He was interviewed on 12 June 2024 in relation to this application and confirmed his intention to lodge a partner application. During the interview, he provided details about his partner, children and financial position, and indicated that he did not yet have the funds required to lodge a partner visa application.

14. The delegate took into consideration his non-compliant immigration history, his financial position, and the fact that he remained subject to the ‘no further stay’ condition, and was not satisfied that he could make a valid partner visa application while in Australia. The delegate was not satisfied that he met the requirements in subclause 050.212.

    The hearing

15. The applicant appeared by video link. The Tribunal was told that the applicant had no witnesses in this matter.

16. The applicant had arrived in Australia to do fruit picking and concreting. He overstayed his visa.

17. He said that in 2023 he was with a partner at that time and moved into her house. After a month or two she accused him of touching her daughter who was 15. He said it arose out of an argument that they had about his being in contact with his ex-partner in Tonga with whom he has children. This was her retaliation he said - to bring charges against him that were untrue. His legal representation was from Legal Aid and it was inadequate.

18. He was not bailed and was remanded in custody. By the time he appeared in court it was advised that he plead guilty and the time already served meant that he could soon be freed from prison. This occurred but he was then placed into immigration detention.

19. I asked about his long period of unlawfulness and he said that he had tried to get help to apply for a visa. He said that the man he used to work for in concreting would be happy to sponsor him and employ him he said. He had telephoned his former boss while he was in prison. The matter has not gone further than this. He has not received or filled out documents or sought to formalise a work visa application. He has not had professional immigration advice.

20. The Tribunal enquired about his former concreting employer and whether he knew about his custodial sentence. The applicant said he was aware but he did not know what the offences were. The applicant said he did not commit the offences.

21. The applicant emphasised that he wanted to help his children in Australia by working. His children in Australia are six and seven. He has other children in Tonga.

22. He has contact with his former partner in Australia about the children but they are not together any more. He used to financially provide for the house and children before he was imprisoned, he said.

    Findings

23. The Tribunal finds that the applicant has an intention to apply for a work visa with his former employer as his sponsor, but it is embryonic in nature. Nothing has actually been done other than discussion of a more general kind. I also note that the discussion seemed general, lightly formed and the former employer does not even know the nature of the charges. A partner application has been ruled out by the applicant.

24. Thus, I make this finding:

    Substantive visa application

25. 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.

26. ‘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.

27. At the time of application the applicant has not made, and would not have made a valid application for a substantive visa that can be granted in Australia. Accordingly, the applicant does not meet cl 050.212(3).

28. For completeness I deal with other aspects of this visa subclass below:    

    Time of application criteria

29. At the time of application the applicant is an unlawful non-citizen.

30. He is not making or the subject of acceptable arrangements to depart Australia per cl 050.212(2)

31. The applicant has not made a valid substantive visa application that can be granted if the applicant is in Australia and that application has not been ‘finally determined’, nor will he, within a period allowed by the Minister, make a substantive visa application that can be granted if the applicant is in Australia.

32. There is no Judicial review application per cl 050.212(3A), (4)(a), (aa) and (d), (4AA) and (4A)

33. There is no application for, nor will he apply for, merits review of a decision to cancel a visa. Nor is there Application for revocation of a cancellation decision or merits review of a decision not to revoke a cancellation - cl 050.212(4)(ba) and (bb)

34. No visa is cancelled under s 140 (consequential cancellation) – cl 050.212(5) and (5A)

35. No application for a declaration from a court is made per– cl 050.212(4AAA), (4AB)

36. He is not the Subject of (possible) Ministerial intervention per – cl 050.212(5B), (6), (6AA) and (6B)

37. He is not the holder of BVE – compelling need to work per - cl 050.212(6A) and (8)

38. He is not in Criminal detention – per cl 050.212(7)  

39. He has no valid application for a partner visa – cl 050.212(9)

40. The applicant does not continue to meet cl 050.211 and one of the subclauses of cl 050.212, above however he has met the Interview Requirement – cl 050.222(1)

41. It is not strictly necessary to make findings about Abiding by Visa Conditions – per cl 050.223 but I would not be satisfied that, if a bridging visa is granted (which it is not), the applicant will abide by the conditions (if any) imposed if they were no work conditions, as he is intent on working.

    Whether the applicant continues to satisfy the time of application criteria - cl.050.221

42. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The Tribunal finds that at the time of decision, the applicant does not continue to satisfy cl.050.211 and/or cl.050.212 and therefore does not meet cl.050.221.

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

    DECISION

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

    Justin Meyer
    Member