2429454 (Migration)

[2024] AATA 3172

2429454 (Migration) [2024] AATA 3172 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Yick Yau

CASE NUMBER:  2429454

MEMBER:Anne Grant

DATE:30 August 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 30 August 2024 at 11:07am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements to depart Australia – lengthy stay in Australia – period of unlawful residence and employment – upcoming criminal hearings – protection application – family capacity to financially assist – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221, 051.211; r 2.20

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 16 August 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 which contains several subclauses, one of which an applicant must meet.

3. The decision to refuse to grant the was made on 21 August 2024 on the basis that the delegate found that the visa applicant did not meet any of the subclauses of clause 050.212.   In particular, the delegate found that the visa applicant did not satisfy subclause 050.212(2) on which he sought to rely, because he was not making, and was not the subject of acceptable arrangements to depart Australia. The delegate also found that none of the other subclauses applied.  Because the applicant did not satisfy any of the subclauses in cl 050.212, the delegate did not consider the other criteria and refused the visa.  The delegate also found that the visa applicant did not satisfy the criteria for a subclass 051 visa.    

4. The applicant appeared before the Tribunal on 29 August 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the matter, and the representative attended the hearing and made submissions addressing the applicant’s arrangements to depart and his circumstances generally.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant confirmed at hearing that his migration history is as follows:

   ·He arrived in Australia [in] February 2017 as a visitor on an electronic travel authority. He held no visa between 19 August 2017 and 25 June 2018. He has held bridging visas in the past, whilst his application for a protection visa was being considered and reviewed.

   ·He applied for a protection visa on 6 June 2018.  The visa was refused on 29 May 2019.  He sought review by this Tribunal.  On 22 May 2024, his application for review was dismissed by the Tribunal after the applicant failed to appear at a hearing listed on 6 May 2024.  He has not lodged an application for judicial review of that decision.

   ·His last bridging visa ceased on 26 June 2024.  He has not held a valid visa since then and was detained in immigration detention after being located by Victoria Police [in] August 2024. 

8. The issue in this case is whether the applicant satisfies the criteria for the grant of a subclass 050 visa and if not, whether he satisfies the criteria for a subclass 051 visa.   

   Cl 050.211

9. Clause 050.211 is met if, at the time of application:

   (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

   (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). 

10. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.  The applicant’s previous bridging visa ceased on 26 June 2024.  At the time of applying for this visa, he was an unlawful non-citizen.  He continues to be an unlawful non-citizen at the time of making this decision.  Cl 050.211 is met. 

    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 cl 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(2). 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.

    Acceptable arrangements to depart Australia

13. 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]).

14. In the application for the visa, the applicant relied on this ground.  He specifically requested the visa to stay in Australia so that he could attend upcoming criminal hearings, which were listed [in] August 2024 in [Town 1], [in] August 2024 in [Town 2], and [in] September 2024 in [Town 3].   

15. At hearing the Tribunal was advised that the [Town 1] and [Town 2] hearings had been adjourned to and would be heard together with the [Town 3] charges in [Town 2] [in] September 2024.  The applicant did not advise of his plea intentions with respect to the charges but did note that his lawyer had advised him that they were hopeful that he would not get sentenced to any jail time and that he may avoid a conviction. His representative noted that he has not yet been convicted of any of the charges and submitted that the Tribunal should not make any findings about the applicant’s criminal record. In any event, the visa applicant stated that he wants to be in Australia so that he can answer his bail when the criminal charges are heard in September.

16. In the event that I was satisfied that the visa applicant was making acceptable arrangements to depart Australia at the time of application, I would also need to be satisfied that he was making acceptable arrangements at the time of making this decision. 

17. The applicant said his brother would financially support him until he departed and also pay for his flight.  I asked the applicant where he would live if he were released from detention until his departure and he said that he would live with his girlfriend in [Town 2]. When asked if she had written any letter or declaration saying that he could live with her and she would support him, the applicant said she had not but had told him that it would be ok.  She had also told him that her mother would be fine with it.  His girlfriend lives with her mother and the applicant said she was [age range] (he was not sure; but said she was born in [specified year].) When it was noted that she could only be [younger age] if born in [that year], he agreed.  When asked if his girlfriend’s mother knew of his upcoming criminal charges, the visa applicant said he was not sure.  The applicant gave other evidence which would be relevant if I were considering whether he would comply with the conditions of a visa if granted.  As I am not making such an assessment, I have excluded that evidence as lacking relevance and potentially disclosing personal details of an unrelated third party.   The applicant later informed me and I accept that he had participated in drug rehabilitation programs whilst in detention.  As noted above, the applicant has not been convicted of any drug related or other criminal offences in Australia.

18. The applicant was asked what arrangements he had made to depart Australia.  He stated that he had written to the Malaysian authorities here in Australia to enquire about how to get a new passport.  His passport expired in 2022.  When asked why he had not taken steps to keep his passport current back then, given that he is a Malaysian citizen with no permanent visa in Australia, the applicant responded that he didn’t really think about it.  In that period he had a bridging visa with work rights.

19. On 28 August 2024, the applicant’s representative had sent in a copy of an email sent to the Malaysian Consulate General [in] August 2024 by the applicant and their response, received by the applicant [later in] August 2024.  The email sent and response are as follows:

    I am writing to seek assistance regarding my current situation. My Malaysian passport has expired, and I do not have a valid visa for my stay in Australia. As a result, I am currently being held in an immigration detention center. Could you please advise on the necessary procedures and steps I need to take in order to return to Malaysia under these circumstances? Your prompt response would be greatly appreciated.

    Thank you for your assistance.    

    Re: Returning to Malaysia with an Expired Passport and No Visa: [applicant’s name and email address]

    1. Passport - if lost, copy of lost passport and police report
    2. MyKad - if lost, copy of lost IC or copy of MyKad/IC Extraction (Cabutan Daftar Kad Pengenalan) from JPN inMalaysia - get your next of kin to apply this on behalf at any JPN in Malaysia
    3. Australian Visa Grant Notice current & previous *NOT VEVO check
    4. Proof of residence - Australian Driver’s License or Bank Statement

    Bank Statement

    Regards,

    Consulate General of Malaysia in Melbourne | Konsulat Jeneral Malaysia

20. It will be noticed that this request was sent on the same day as the delegate’s decision.   I also note that the Consulate General’s response is particularly unhelpful and will require clarification and follow up.  The applicant did not suggest that he or his representative had made any follow up request for clarification or asked how to simply renew his passport.

21. On 29 August 2024, the applicant’s representative forwarded two screen shots which demonstrate that the applicant has made enquiries about what is needed for his [pets] to return to Malaysia with him.  Although the screenshots have no information on them about when they were sent, it was clear from the applicant’s evidence that they were sent very recently whilst he was in detention.  He stated that he alone can arrange for the [vaccinations] needed once he is released from detention, because not every vet supplies them. 

22. The applicant gave evidence that he is not sure where his expired passport is.  He recently sent a friend to his previous accommodation to look for it but they said that the home was empty.  He was moving between that accommodation and new accommodation when he was arrested. The landlord may have cleared out his belongings.  He has not been able to speak to the landlord to find out whether he has the passport.   Some of his belongings were already in the new accommodation but he has since told his friend that he will be unable to live there with him because he can’t pay the rent.  The applicant claimed some of his belongings are valuable and he could sell them to pay for his legal representative if needed. 

23. The applicant stated that if he is released, his brother in Malaysia will provide him with financial support until he returns to Malaysia, and also fund the purchase of his ticket to return.  There is no supporting information or evidence before the Tribunal confirming the applicant’s brother’s willingness or capacity to financially assist the applicant, or that the visa applicant had the resources or access to them from his brother or otherwise to arrange for a new passport, or purchase a ticket to return to Malaysia at the time of application.  A simple assertion that someone will help with flight purchases and financial support, without any confirmation demonstrating that the supporting person is willing and has the capacity to do so is insufficient, in my view, to be considered ‘appropriate arrangements’ for departure.

24. When it was noted that after his most recent bridging visa ceased, he again made no effort to contact the department or regularise his status or even to enquire about renewing his passport before he was arrested and placed in detention, the applicant said that he had not seen any of the correspondence about the Tribunal’s decision or the ending of his visa, because he had not checked his email. He stated that he would depart Australia voluntarily once the criminal proceedings are finalised.

25. The applicant has not applied for a substantive visa apart from the protection visa application referred to earlier which has been finalised and was unsuccessful.  He said that he and his girlfriend had hoped to apply for a partner visa because they had been together for six months; but said that they could not because it was ‘not the twelve months required for the visa’.  However I note that the visa applicant had just told me that he was living with friends at one place and in the process of moving to a new rental with a different male friend when he was arrested.  He also told me that his girlfriend lived with her mother, so I am not satisfied that he is aware of the criteria for a partner visa (which requires a genuine and continuing de facto or married relationship and has additional requirements for ‘living together’) or that he has a genuine intention to apply for such a visa. 

26. No arrangements had been made, or were being made, to enable the visa applicant to depart Australia at the time of application.  I accept that since then, he has made some general enquiries about how he can return and take his [pets] with him.  He has not applied for a new passport, or provided evidence from his brother about his brother’s financial capacity and willingness to support the applicant before his departure and buy a plane ticket. The applicant has made enquiries about how he can meet quarantine requirements for his pets when he returns to Malaysia, but no arrangements are in place to send them to Malaysia.  The applicant had not purchased a ticket or demonstrated that he has the capacity to do so.  He stated that he wanted to finalise the criminal matters he is facing before he departs and that once those matters are finished, he will make arrangements to leave Australia, by buying a ticket.  He claimed that only he could make the arrangements for his [pets] to be sent to Malaysia, and he couldn’t do that from detention.

27. I am not satisfied that at the time of application, the applicant was making or was the subject of acceptable arrangements to depart Australia.  I am also not satisfied that he meets that requirement at the time of making this decision. The applicant does not meet cl 050.212(2).

    Substantive Visa Application

28. Subclause 050.212(3) is satisfied if the applicant has made 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. 

29. The applicant confirmed that he has not applied for any other substantive visa that can be granted whilst he is in Australia and which application has not been finally determined. Although the applicant said that he and his girlfriend had discussed applying for a partner visa, based on his evidence I am not satisfied such an application is open to him or that he would apply for such a visa.  The applicant does not meet cl 050.212(3).

    Judicial Review

30. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.  The applicant confirmed that he has not applied for judicial review of the decision to refuse his protection visa.  The Tribunal finds that there are no outstanding judicial review proceedings of any kind related to the refusal of a visa and so the applicant does not satisfy 050.212(3A).  

31. The applicant does not claim, and the information and evidence before me does not suggest that any of the alternative criteria in cl 050.212 apply in this case.

32. The visa applicant does not meet cl 050.212. 

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

34. 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

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

    Anne Grant
    Member