2431778 (Migration) - [2024] AATA 4305

2431778 (Migration) [2024] AATA 4305 (16 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jielin Zhou (MARN: 1790009)
CASE NUMBER:  2431778
MEMBER:Frances Simmons
DATE:16 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050. 212 of Schedule 2 to the Regulations; and
·cl 050. 221 of Schedule 2 to the Regulations.

Statement made on 16 September 2024 at 1:31pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – arrangements to depart Australia – flight ticket to Malaysia – no current Malaysian passport – Malaysian passport renewal in Australia – period of unlawful residence – obtaining an emergency travel document – decision under review remitted
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 050.212, 050.221
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

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).
The applicant applied for the visa on 29 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 various criterion, one of which the applicant must meet.
The decision to refuse to grant the visa was made on 3 September 2024 on the basis that the delegate was not satisfied that the applicant: did not meet the requirements in subclause 050.212 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 12 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a citizen of Malaysia born on [date].
Immigration history.
The applicant arrived in Australia [in] April 2017 after she was granted a [visitor visa] offshore. She has not departed since.
On 26 June 2017 the applicant applied for student visa (subclass 500) and an associated bridging visa. On 1 July 2017 her visitor visa expired. On 29 August 2017 the Department refused the student visa application and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2431778 (Migration)

Details

AGLC: 2431778 (Migration) [2024] AATA 4305
Case: [2024] AATA 4305
Decision Date: 16 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by a Malaysian citizen who had been in Australia since April 2017 and had remained in the country unlawfully since July 2024. The applicant had applied for the Bridging E visa on the grounds that she was making arrangements to depart Australia. The Department refused the visa application on 3 September 2024, finding that the applicant did not meet the requirements of subclause 050.212 of Schedule 2 to the Regulations. The applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for the grant of a Bridging E (Class WE) visa, specifically subclause 050.212, which relates to making arrangements to depart Australia. The applicant's immigration history was extensive, involving multiple visa applications and refusals, and she had been in immigration detention since August 2024. A key issue was the applicant's ability to depart Australia, given that her Malaysian passport had expired in 2021 and she was unaware of how to obtain a new one in Australia, although she had been informed by the Department that she needed a temporary passport.

The Tribunal found that the applicant had made arrangements to depart Australia, evidenced by a booked flight ticket to Malaysia and an application for an Emergency Certificate from the Malaysian High Commission. Consequently, the Tribunal concluded that the applicant met the criteria under cl 050.212 and cl 050.221 of Schedule 2 to the Regulations. The Tribunal remitted the matter for reconsideration by the Minister, with the direction that the applicant met these specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a citizen of Malaysia born on [date]. Immigration history. The applicant arrived in Australia [in] April 2017 after she was granted a [visitor visa] offshore. She has not departed since. On 26 June 2017 the applicant applied for student visa (subclass 500) and an associated bridging visa. On 1 July 2017 her visitor visa expired. On 29 August 2017 the Department refused the student visa application and the applicant applied for review of this decision. On 15 April 2019 the Tribunal affirmed the decision to refuse to grant the applicant a student visa. On 20 May 2019 the applicant applied for a protection visa. On 30 May she was granted an associated bridging visa. On 8 July 2019 the Department refused the protection visa application. On 30 July 2019 she applied to the Tribunal for review of the decision to refuse to grant her a protection visa. On 22 September 2020 her bridging visa was varied (she was granted work rights). On 14 June 2024 the Tribunal affirmed the decision to refuse to grant her a protection visa. The applicant has remained in Australia as an unlawful non-citizen since [a day in] July 2024 when her Subclass Bridging Visa C (Class WC) visa expired. [In] August 2024 she was located by the Department of Home Affairs and taken into immigration detention. Application to the Department On 29 August 2024 the applicant made an application for a Bridging E (Class WE) visa on the grounds that she was making arrangements to depart Australia. Departmental records indicate the Bridging E (Class WE) visa application was not validly made until 30 August 2024 which was when an officer appointed under sub regulation 2.10A(2) of the regulations as a detention review officer for the State of Victoria had been informed of the application: Item 1305(3)(c) of Schedule 1 to the Regulations. On 2 September 2024 the applicant was interviewed by the delegate. Notes from this interview appear on the Departmental file. In this interview, the applicant said a friend had booked a ticket to Malaysia for her and that she is willing to depart Australia. The applicant said her passport expired in 2021. Asked why she didn’t apply for a new passport, she said she did not know how. She had applied for a passport in Malaysia, but she did not know how do this in Australia. When asked whether she applied for a new passport now, she said ‘I don’t know, I haven’t applied for it, has the department applied for me?. In response to the question did the department advise they were applying on your behalf, she stated when she arrested, she was told she had to go home, and she had to get a temporary passport. On 3 September 2024 the delegate refused to grant the visa because the delegate was not satisfied that the applicant met the requirements in subclause 050.212 of Schedule 2 to the Regulations. That decision is the subject of the present review. Application to the Tribunal

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa: ·cl 050. 212 of Schedule 2 to the Regulations; and·cl 050. 221 of Schedule 2 to the Regulations.Frances SimmonsMember

Ratio Decidendi

Legal Principle Established

The applicant is a citizen of Malaysia born on [date]. Immigration history. The applicant arrived in Australia [in] April 2017 after she was granted a [visitor visa] offshore. She has not departed since. On 26 June 2017 the applicant applied for student visa (subclass 500) and an associated bridging visa. On 1 July 2017 her visitor visa expired. On 29 August 2017 the Department refused the student visa application and the applicant applied for review of this decision. On 15 April 2019 the Tribunal affirmed the decision to refuse to grant the applicant a student visa. On 20 May 2019 the applicant applied for a protection visa. On 30 May she was granted an associated bridging visa. On 8 July 2019 the Department refused the protection visa application. On 30 July 2019 she applied to the Tribunal for review of the decision to refuse to grant her a protection visa. On 22 September 2020 her bridging visa was varied (she was granted work rights). On 14 June 2024 the Tribunal affirmed the decision to refuse to grant her a protection visa. The applicant has remained in Australia as an unlawful non-citizen since [a day in] July 2024 when her Subclass Bridging Visa C (Class WC) visa expired. [In] August 2024 she was located by the Department of Home Affairs and taken into immigration detention. Application to the Department On 29 August 2024 the applicant made an application for a Bridging E (Class WE) visa on the grounds that she was making arrangements to depart Australia. Departmental records indicate the Bridging E (Class WE) visa application was not validly made until 30 August 2024 which was when an officer appointed under sub regulation 2.10A(2) of the regulations as a detention review officer for the State of Victoria had been informed of the application: Item 1305(3)(c) of Schedule 1 to the Regulations. On 2 September 2024 the applicant was interviewed by the delegate. Notes from this interview appear on the Departmental file. In this interview, the applicant said a friend had booked a ticket to Malaysia for her and that she is willing to depart Australia. The applicant said her passport expired in 2021. Asked why she didn’t apply for a new passport, she said she did not know how. She had applied for a passport in Malaysia, but she did not know how do this in Australia. When asked whether she applied for a new passport now, she said ‘I don’t know, I haven’t applied for it, has the department applied for me?. In response to the question did the department advise they were applying on your behalf, she stated when she arrested, she was told she had to go home, and she had to get a temporary passport. On 3 September 2024 the delegate refused to grant the visa because the delegate was not satisfied that the applicant met the requirements in subclause 050.212 of Schedule 2 to the Regulations. That decision is the subject of the present review. Application to the Tribunal On 5 September 2024 the applicant applied to Tribunal for review of decision of the delegate to refuse to grant the Bridging E (Class WE) visa. Before the hearing, on 6 September the applicant’s representative made submissions to the Tribunal. This submission was accompanied by:·Confirmation and e-ticket flight itinerary for the applicant for a one-way flight from Melbourne to Johor Bahur in Malaysia on [a day in] October 2024. ·An invoice for the payment of the flight ticket from Melbourne to Johor Bahur in Malaysia [in] October 2024. ·A copy of checklist for the application for an Emergency Certificate provided by the Malaysian High Commission.