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 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.
In these submissions, the applicant’s representative submitted the delegate failed to fully consider the challenges the applicant faced in obtaining an emergency certificate due to her immigration detention and lack of resources.
At the hearing on 12 September 2024, the applicant gave evidence she intended to depart Australia and return to Malaysia on [the date in] October 2024. Where relevant the applicant’s evidence is discussed further below.
Immigration status of the applicant - cl 050.211
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).
The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
The applicant’s previous bridging visa ceased [in] July 2024. The Tribunal is satisfied that, at the time of applying for this visa, the applicant was an unlawful non-citizen. She continues to be unlawful non-citizen at the time of making this decision. Accordingly, the applicant meets cl 050.211(1). The Tribunal is satisfied that the applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17). Therefore, the applicant meets cl 050.211(2).
Therefore, the applicant meets cl 050.211.
The grounds for seeking the visa - cl 050.212
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.
The issue in this case is whether the applicant was making acceptable arrangements to depart Australia.
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 and the Tribunal finds that she does not. For the reasons below, the applicant meets cl 050.212(2).
Acceptable arrangements to depart Australia
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]).
Before the Tribunal, the applicant maintained she plans to depart Australia and return to Malaysia. The applicant said she did not have a visa in Australia, and she wanted to go back to Malaysia. She has a ticket to leave Australia on [the day in] October 2024. She has [specified family members] in Malaysia. She separated from her husband long ago; she did not live with her husband before she travelled to Australia. On return to Malaysia, she plans to stay with [a] sister. She does not have any family in Australia.
The Tribunal has considered whether the applicant’s intentions to depart Australia are genuine.[1] The Tribunal has had regard to the applicant’s immigration history (set out above). The applicant told the Tribunal she applied for a student visa because a friend recommended it. She stated she attended a school once. The applicant told the Tribunal she applied for a protection visa because she wanted to work – ‘for my livelihood’ – not because she was afraid of returning to Malaysia. The applicant stated there was ‘no reason’ she was afraid of returning to Malaysia. The applicant stated the registered migration agent representing her in relation to the review application did not assist with her student visa application or protection visa application. The applicant’s evidence was that she applied for visas while in Australia on the advice of friends or agents.
[1] Lin v MIMIA [2001] FCA 283 at [30].
The Tribunal discussed with the applicant that it may appear that she had applied for visas in Australia to further her own objectives of working in Australia, and not because she believed she met the relevant visa criteria. In this context, the Tribunal put to her it may be concerned about whether her stated intention to depart Australia was genuine. The Tribunal also put to her that the delegate was concerned that the applicant blamed others for the fact she became an unlawful non-citizen and did not take responsibility for her own immigration status. In response to the Tribunal’s concerns, the applicant repeated that she had decided to return to Malaysia. The applicant said she was not blaming others; it was her all mistake. She said she was only worried about sorting out her room, her clothes, her belongings and her bank account. Once she had organised her affairs she would go back, her only wish was she could organise her affairs. In response to questions, the applicant indicated she would comply with condition 8101, condition 8207, condition 8506, and condition 8564.
The applicant gave evidence she must organise a lot of things before leaving Australia [in] October 2024. She told the Tribunal she had been in Australia for a long time, and she had belongings at her home, clothes and other things, and she need to talk to her landlord and get her deposit back (the rental bond of about $700-800). She had not spoken to her friends yet about how to get the deposit the back. Asked why she had not done this yet, she gave evidence that she did not have any motivation to do this in immigration detention. She wanted to be able to manage her personal affairs when she was not in immigration detention. She still has money in her account and needs to close her bank account as she will not use it in Malaysia. The applicant gave evidence that before she was taken into immigration detention, she was living at the address she provided to the Department. The information the applicant provided to the Tribunal about her accommodation, previous employment, and the funds she has available in her bank account (around $2000) is consistent with the information she provided the Department. The applicant stated she would comply with a no-work condition if she was granted a bridging visa on departure grounds.
The Tribunal accepts that the applicant provided evidence of a valid ticket to leave Australia on [the day in] October 2024 to the Department. The Tribunal accepts that the applicant does not currently have a Malaysian passport and that her previous passport expired in 2021. The Tribunal notes that the delegate was concerned that the applicant did not have a valid passport and, at the interview with the delegate, the applicant indicated she did not know how to obtain a passport. The delegate’s decision refers to information published by the Malaysian High Commission, which indicates that a minimum of six weeks is allowed to receive a new Malaysian passport in Australia after an application is lodged. The delegate’s decision record indicates the delegate was concerned that the applicant’s stated intention to depart Australia was not genuine because she would not be able to obtain a Malaysian passport before her departure date [in] October 2024.However, the Tribunal finds that information published online by the Malaysian High Commission indicates a Malaysian citizen cannot renew a Malaysian passport in Australia if they are an unlawful non-citizen or hold a bridging visa.[2] This is consistent with information published by DFAT that under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (regardless of if they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years.[3]
[2] Passport Renewal - Consulate General of Malaysia, Melbourne (kln.gov.my).
[3] DFAT Country Information report ‘Malaysia’, 24 June 2024, [5.31]
The Tribunal accepts that because the applicant is an unlawful non-citizen, she cannot apply to renew her passport but must apply for an emergency travel certificate in lieu of a passport.[4] The Tribunal notes that publicly available information suggests an application for an emergency certificate can be processed in days, rather than weeks.[5] At the hearing, the Tribunal discussed with the applicant its concerns that it did not appear she had taken any steps to apply for an emergency certificate. The applicant gave evidence to the Tribunal that she is going to apply for a temporary passport to go back and that she thought the ‘people here’ – she explained she meant the Departmental officers – would help her apply for a temporary passport to back to Malaysia. The Tribunal acknowledges the information on the Malaysian High Commission website suggests that the applicant cannot lodge an application for an emergency certificate online as she does not have a valid visa.[6] Having regard to the publicly available information on the Malaysian High Commission website and the checklist for the emergency certificate submitted by the applicant’s representative, the Tribunal accepts that the process of applying for an emergency certificate is complicated by the applicant’s immigration status and the fact she is in immigration detention. On the evidence before it and having regard to the written and oral submissions of her representative, the Tribunal accepts that she is making arrangements to depart Australia, and that she is seeking assistance to obtain an emergency travel document.
[4] EMERGENCY CERTIFICATE - Other Information - High Commission of Malaysia, Canberra (kln.gov.my)
[5] Malaysian Emergency Travel Document Application - Other Information - Consulate General of Malaysia, Perth (kln.gov.my)
[6] Passport Renewal - Consulate General of Malaysia, Melbourne (kln.gov.my)
The Tribunal has had regard to Departmental guidelines which indicate that an applicant will satisfy cl 050.212(2) if they provide acceptable evidence of a valid ticket and a reservation to leave Australia within an acceptable timeframe, or if they indicate an intention to arrange departure and will make the necessary arrangements within an acceptable timeframe.[7] The Tribunal accepts that the applicant provided evidence of a valid ticket to leave Australia on [a day in] October 2024 to the Department and that she maintains she plans to depart Australia on this date and that she intends to obtain an emergency travel document. While her evidence indicates that she is unsure about the process of obtaining an emergency travel certificate, the Tribunal accepts, based on the evidence currently before it, has engaged with the Department and her migration agent about this issue, and that she believes the Department may be able to assist her in obtaining the emergency travel document.
[7] Policy - Compliance and Case Resolution - Program Visas – Bridging E Visas – BVE 050 - Grounds for seeking a BVE – Making acceptable arrangements to leave Australia (re-issued 19/11/16).
The Tribunal acknowledges that the applicant has maintained that she plans to depart to Australia and that she has provided evidence of a valid ticket to leave Australia. For the reasons given above, the Tribunal accepts that the applicant cannot renew her Malaysian passport as she is presently an unlawful non-citizen. The Tribunal accepts that the applicant intends to apply for an emergency travel certificate and that she believes that the Departmental officials may assist her with this process. This is not a case where the applicant has previously been granted a bridging visa on departure grounds and failed to depart as planned or a case where the applicant has stated that she does not intend to depart. While the applicant became an unlawful non-citizen [in] July 2024, in the interview with the delegate on 2 September 2024 and in her evidence to the Tribunal the applicant has maintained that she intends to depart Australia and is making arrangements to do so.
Having regard to all the evidence before it and for the reasons set out above, the Tribunal is satisfied that at the time of application the applicant was making or was the subject of acceptable arrangements to depart Australia. Therefore, the applicant meets cl 050.212(2).
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. Having regard to the evidence before it, the Tribunal is satisfied that the applicant continues to make acceptable arrangements to depart Australia at the time of making this decision and is an unlawful non-citizen. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and 050.212 and therefore meets cl 050.221.
CONCLUSION
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 Simmons
Member