2413228 (Migration)

[2024] AATA 1949

2413228 (Migration) [2024] AATA 1949 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2413228

MEMBER:Alison Murphy

DATE:3 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 03 June 2024 at 2:41pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – applicant’s wife’s pregnancy preventing travel – lengthy periods of unlawful residence – obtaining a passport – failure to depart Australia on previous Bridging visas – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 73, 359
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 051.211

CASES

Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

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 17 May 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 was made on 22 May 2024 on the basis that on the basis that the applicant did not meet any of the alternative grounds for seeking the visa set out in cl 050.212.

4. The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The hearing was scheduled to take place by video, but the video conferencing equipment in the detention centre was not operational and so the hearing took place by telephone, with the assistance of an interpreter in the Malaysian and English languages.

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

   DOCUMENTS AND NON-DISCLOSURE DIRECTION

6. There were difficulties obtaining the relevant documents from the Department. As the documents provided by the Department to the Tribunal appeared not to be complete, requests for further documents were made by the Tribunal on 27 May 2024 and 28 May 2024 without substantive response. Another urgent request was made on 30 May 2024 and further documents were finally received on 31 May 2024.

7. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act by issuing a certificate dated 24 May 2024. That certificate purports to relate to the four documents initially provided to the Tribunal by the Department. Three of those documents have been in some part redacted.

8. The certificate states that disclosure of the identified documents provided to the Tribunal by the Department in relation to the review would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.

9. The Tribunal considers that the certificate is invalid, because the information to which it attaches cannot on any reasonable reading be said to disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law.

10. In making that assessment the Tribunal notes there are only two documents of substance covered by the certificate, the first being the delegate’s decision and the second being the written record of interview conducted with the applicant on 21 May 2024. The delegate’s decision has already been provided to the applicant by the Department as required by the Act. The written notes of interview (at least in the redacted form that has been provided to the Tribunal) record only information provided by the applicant in response to questions asked of him during that interview. The remaining two documents constitute entirely mundane internal communications concerning the receipt and processing of the bridging visa application with details of the officers sending and receiving that correspondence already redacted.

11. As there is nothing in the certificated materials which is capable of disclosing lawful methods for preventing, detecting and investigating breaches or evasions of the law, the Tribunal concludes the certificate is invalid. For these reasons the Tribunal provided the documents to the applicant.

    ISSUE IN THE REVIEW

12. The issue in this case is whether the applicant meets any of the grounds for the grant of the visa.

    BACKGROUND TO THE REVIEW

13. The applicant is [an ae]-year-old male from Malaysia. He arrived in Australia in June 2015 as the holder of a visitor visa and has not departed since. At hearing he told me that prior to his detention he was living with his wife in [Town 1] and that she is one month pregnant.

14. He applied for the current bridging visa on 17 May 2024.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. In this case, the applicant is seeking to meet cl 050.212(2) on the basis that he is making acceptable arrangements to depart Australia.

17. For the reasons below, the applicant does not meet cl 050.212.

    Acceptable arrangements to depart Australia

18. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

19. The applicant stated at hearing that he wished to be granted the bridging visa so he could make arrangements to help his wife register her pregnancy with the hospital before they departed Australia together at the end of June 2024. He said it was his wife’s intention to deliver their child in Malaysia but that as a woman who became pregnant overseas she needed documents from Australia verifying her pregnancy.

20. Departmental records indicate that the applicant’s visitor visa ceased on 2 September 2015 after which the applicant remained unlawfully in Australia until February 2017, when he was granted a bridging visa after making an application for a protection visa. The applicant’s protection visa application was refused in March 2017 and in August 2017 the associated bridging visa ceased and the applicant became an unlawful non-citizen for the second time.

21. The applicant was later granted three further bridging visas in each of 2020, 2021 and 2022, with periods of unlawfulness in between the grant of those visas. The delegate’s decision records that on 27 April 2022 the applicant was granted a bridging visa for the purpose of making arrangements to depart Australia on the basis that he would present a travel ticket and valid passport to the Department. The delegate’s decision records that he did not do so, rather he disengaged from the Department and has still not made arrangements to obtain a passport. The Department’s movement records indicate that during the nine years the applicant has resided in Australia, he has only held a visa for approximately 11 months.

22. When I discussed the above matters with the applicant at the hearing, he did not dispute his visa history. He agreed that he had still not obtained a valid passport but said the Department was processing his temporary passport. He gave evidence that he did not depart Australia in April 2022 because he had COVID but maintained that it is his intention to depart in June 2024. He acknowledged that he had lived and worked in Australia without a visa in the past but said that he could no longer get work without a visa and he had not had a job in 2 months. He said he has not purchased an air ticket to return to Malaysia because his wife’s condition prevents him from doing so at present.

23. In response to the Tribunal’s letter under s 359A of the Act, the applicant stated that he had been in Australia for 9 years illegally because he is very poor with no certificate, so it is difficult to get a job to survive in his own country. He wants to stay here and work because he has to bear debts with illegal parties who will kill him if he doesn’t pay them.

24. He is also responsible for his father’s hospital costs in Malaysia because he is old with [specified medical conditions]. His father is not working and his mother works as a cleaner on a minimum salary which is not enough to support both of them. The applicant states he tried hard to get a legal visa to allow him to stay and work in Australia and paid money to a friend to help him, but he does not know what that person wrote in the visa application form. The Tribunal understands him to be referring to his earlier application for a protection visa in that regard.

25. The applicant states that he needs to protect his pregnant wife who is otherwise alone in Australia, but he realises with the current situation it is too difficult to stay and get a job because he doesn’t have any documents. He wishes to be granted a bridging visa to allow him return to Malaysia with his wife.

26. I have considered the applicant’s evidence that he intends to make arrangements to depart Australia if granted the bridging visa, but I am not satisfied that is the case. He has not renewed his passport or purchased an airline ticket or otherwise made any arrangements to facilitate his departure. While he states that he intends to depart at the end of June 2024 with his wife, he also states that his wife’s pregnancy currently prevents them from purchasing an airline ticket and that he and his wife wish to register her pregnancy with a hospital in [Town 1].

27. As well the applicant’s visa history indicates that he has not held a substantive visa since his visitor visa expired in September 2015. In the nine years he has resided in Australia, he has held a valid visa for periods totalling less than one year and has been here unlawfully for the remainder. Even when granted a visa in 2022 on the basis that he would depart Australia, he failed to do so and remained in Australia unlawfully for a further two years.

28. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making acceptable arrangements to depart Australia. Therefore the applicant does not meet cl 050.212(2).

    Other grounds for the grant of a visa

29. The applicant does not claim to meet any of the other alternative criteria in cl 050.212.

30. At hearing he confirmed that he has not applied for any other substantive visa and has no current intention of doing so. The Tribunal notes the reference to paying a friend to help him lodge a visa in the applicant’s response to the s 359A letter, and understands that to refer to the protection visa application lodged in 2017.

31. The applicant confirmed that he has no Tribunal or judicial review proceedings on foot (other than the current proceedings) and he has not sought ministerial intervention relating to any visa refusal.  Accordingly he cannot meet the criteria set out in cl.050.212(3A), (4) (5), (6), (6AA) or (9).  It is not suggested that the circumstances set out in cl.050.212(4AAA), (4AA), (4AB) or (5B) apply to the applicant.  The applicant does not hold a Bridging E (Class WE) visa and cannot meet the criteria set out in cl.050.212(6A), (6B) or (8). 

32. As a consequence he does not satisfy any of the grounds set out in cl.050.212 and therefore cannot be granted a Subclass 050 visa.

33. 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

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

    Alison Murphy
    Member