2438992 (Migration) - [2024] ARTA 820

2438992 (MIGRATION) [2024] ARTA 820 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2438992
Tribunal:General Member S Durvasula
Place:Sydney
Date:  23 October 2024
Decision:The Tribunal affirms the decision under review.

Statement made on 23 October 2024 at 10:10am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – the deemed grant of a bridging visa to the applicant – applicant was not in immigration detention when he made the application for a bridging visa – was not making any plans to depart Australia – criminal charges – pending court case – the applicant had not made an application for a substantive visa which had not been finally determined – was on bail awaiting trial both at the time of application and decision – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 73, 189
Migration Regulations 1994, Schedule 2, r 2.24, cl 050.212
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 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 23 September 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(2), cl 050.212(3) and cl 050.212(7).
The decision to refuse to grant the visa was made on 16 October 2024 on the basis that the applicant did not meet any of the grounds for seeking a bridging visa in cl 050.212. In particular the delegate was not satisfied the applicant did not meet cl 050.212(2). This requires that the applicant is making, or is the subject of, acceptable arrangements to depart Australia at the time of application.
The applicant appeared before the Tribunal via video link on 22 October 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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether:
·     the applicant is making, or is the subject of, acceptable arrangements to depart Australia at the time of application (cl 050.212(2)) and at the time of decision (cl 050.221); or
·     the applicant has made a valid application for a substantive visa that has not been finally determined at the time of application (cl 050.212(3)) and at the time of decision; or
·     the applicant is in criminal detention at the time of application (cl 050.212(7)) and time of decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
Background and applicant’s immigration history
The applicant first arrived in Australia on [date] September 2012 on a Subclass 976 Electronic Travel Authority (ETA) visa. This visa ceased on [date] December 2012 and the applicant became an unlawful non-citizen. He departed Australia on [date] August 2014.
The applicant again arrived in Australia on [date] October 2014 on a Subclass 601 visitor visa. This visa ceased on [date] January 2015 and the applicant became an unlawful non-citizen. He departed Australia on [date] April 2016.
The applicant’s last arrival into Australia was on [date] October 2016 on a Subclass 601 visitor visa. This visa ceased on [date] January 2017 and a Bridging visa granted to him ceased on 29 March 2017. He became an unlawful non-citizen on 30 March 2017.
The applicant applied for a protection visa on 5 December 2018 and was granted various Bridging C visas associated with this application. The protection visa was refused on

14 December 2022 and the applicant was notified by email on the same day. The applicant’s last Bridging C visa ceased on 18 January 2023, and he became an unlawful non-citizen.
The applicant was granted a Bridging E visa on 18 September 2024, and this ceased on 25 September 2024. He became an unlawful non-citizen on 26 September 2023.
The applicant applied for the Bridging E visa which is the subject of this review on 23 September 2023. In the application, the applicant stated that he was applying for a bridging visa to depart Australia, with a proposed departure date of 30 September 2024.
The applicant is subject to criminal charges in Queensland. On 17 August 2024 he was granted bail by a Victorian court and was required to attend the [Court 1] on 23 September 2024. He attended on that day and was granted bail.
Bail orders from the Victorian court (dated 17 August 2024) and the [Court 1] (dated 1 October 2024), state the applicant must not attend any international points of departure or travel internationally; must surrender any current passport; and must not apply for a new passport.
At an interview with the delegate on 14 October 2024, the applicant stated that had been in the Queensland watch house from 23 to 26 September 2024 and in prison/remand from 26 September to 1 October 2024. He was released from criminal custody on bail on 1 October 2024.
On 1 October 2024 the applicant was interviewed by an Australian Border Force (ABF) officer. On the same day, the applicant was detained as an unlawful non-citizen under s 189 of the Migration Act 1958 (the Act) and transferred to the Brisbane Immigration Transit Accommodation.
On 2 October 2024, the applicant applied for a review of his protection visa refusal with the then Administrative Appeals Tribunal. On 14 October 2024 this became an application for review with the Administrative Review Tribunal (ART). It appears the application for review was made outside the prescribed period for seeking review. The ART is yet to decide whether it has jurisdiction to review the matter.
On 16 October 2024, the delegate refused to grant the Bridging E visa.
At the hearing, the applicant confirmed the above history. He confirmed that he was granted a Bridging E visa on 18 September 2024 so he could attend court. This visa ceased on 25 September 2024. He travelled from Victoria to Queensland on 22 September 2024 to attend the [Court 1] on 23 September. At the court hearing, he did not have his passport with him as it had been surrendered to the Magistrates Court in [City 1]. He was therefore taken to the Queensland watch house from 23 to 26 September 2024 and then went to prison from 26 September to 1 October 2024.
The applicant confirmed that he was not in immigration detention when he applied for a Bridging E visa on 23 September 2024. He was in the Queensland watch house. He held a Bridging E visa at that time until 26 September 2024. He did not go into immigration detention until 1 October 2024, after he was interviewed by an ABF officer.
The Tribunal explained to the applicant, the alternative grounds for applying for a bridging visa. When asked why he was seeking a bridging visa, the applicant stated that he wanted a visa so he could attend his court hearing and deal with other things. He believes his next court date will be in November 2024, but it keeps getting postponed.
After the hearing, the applicant’s representative provided a submission which the Tribunal has considered below under the heading ‘Findings and Reasons’.
Findings and Reasons
The Tribunal is satisfied the applicant met cl 050.211(1) at the time of application on

23 September 2024. He was not an unlawful non-citizen as he held a valid Bridging E visa at that time. However, as the holder of a Bridging E (Class WE) visa, he met cl 050.211(b) and in turn met cl 050.211.
Deemed grant of bridging visa.
The applicant’s representative claims the applicant should be deemed to be granted a Bridging E visa under s 75 of the Act as the delegate’s decision was not made within 2 days of the visa application. The visa application was made on 23 September 2024 and the delegate did not make a decision until 16 October 2024.
Section 75 is set out below:
When eligible non - citizen in immigration detention granted visa
(1)  If:
(a)  an eligible non - citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b)  the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non - citizen is taken to have been granted a bridging visa of the prescribed class
on prescribed conditions (if any) at the end of that period.
(2)  The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.
Section 75 of the Act, in conjunction with reg 2.24, operates to deem a Bridging E visa to be granted, if an application is made by an eligible non-citizen in immigration detention and the Minister does not make a decision within a specified period. In this case, the relevant specified period is 2 working days from when the application is made.[1]
[1] Reg 2.24, amended by SLI 2011, No 105 with respect to the prescribed periods in which the Minister must make a decision on a Bridging E Visa application.
In addition, under s 46 of the Act, the Regulations can prescribe requirements for a valid application. This includes reg 2.10A which prescribed requirements for a person in immigration detention who applies for Bridging E (Class WE) visa. Reg 2.10A requires the person lodging the application to give written notice of the application to an officer of Immigration appointed by the Secretary to be a detention review officer in the State or Territory in which the applicant is detained.
The applicant’s representative claims that the deemed grant provision in s 75 of the Act comes into effect if the applicant is detained, regardless of where the applicant was when the bridging visa application was made. He claims that the Act does not require the applicant to be in immigration detention at the time the visa application is made. It is sufficient that that the applicant is in immigration detention at any point before a decision is made. The 2-day time limit should have been applied from when the Department acknowledged the applicant’s visa application.
The Tribunal does not agree with this view. The Tribunal considers that s 75 of the Act is clear on its face and refers to ‘an eligible non-citizen who is in immigration detention’ who ‘makes an application for a bridging visa’ (s 75(1)(a)). The Act requires that for the deemed grant provisions to work, the person must be in immigration detention when the application is made.
In this case, the Tribunal finds the applicant was not in immigration detention when he made the application for a bridging visa on 23 September 2024. On 23 September 2024 he still held a Bridging E visa and was not an unlawful non-citizen. There would have been no reason for the Department to detain him for being an unlawful non-citizen. His evidence was that when he applied for the bridging visa, he was in the Queensland watch house held on criminal charges, which is not immigration detention. It was not until 1 October 2024 that he was detained under s 189 of the Act and taken to immigration detention. The Tribunal therefore finds that s 75 of the Act does not apply in this case, and the applicant cannot be deemed to have been granted a bridging visa due to the decision not being made in 2 working days.
Further, the applicant did not give written notice of the application to a detention review officer, as required by reg 2.10A and s 46 of the Act. His evidence was that his agent lodged an online application for a Bridging E visa on his behalf. Therefore, he did not meet the requirements for making a valid application by a person who is in immigration detention.
For the reasons, the Tribunal finds that s 75 does not apply in this case to allow the deemed grant of a bridging visa to the applicant.
The grounds for seeking the visa - cl 050.212.
At the time of the visa application, the applicant must meet also 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.
Acceptable arrangements to depart Australia.
In this case, the applicant stated in the visa application that he is making or is the subject of, acceptable arrangements to depart Australia and meets cl 050.212(2). His representative submits that the applicant wants to regularise his status so he can attend court and if he completes the court proceedings, he will 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]).
The applicant confirmed at the hearing that his passport had expired on [date] 2021 and he was not able to apply for a new one as he had to surrender his passport. He had not purchased a ticket. He agrees that his current bail conditions prevent him from applying for a new passport, depart Australia or go to international points of departure. He does not know when he will be able to leave Australia – he wants to wait until his court hearing has finished. He was not making any plans to depart Australia.
Based on this evidence, the Tribunal does not accept the applicant is making any arrangements to depart Australia. His passport has expired, and he has not applied for a new one. He has no ticket. He is unable to leave Australia or apply for a passport due to bail conditions. He has expressed no intention to depart Australia in the immediate future and he wants to remain here until his court case is finished. There is no indication as to when this case will be finalised.
For the reasons given above, the Tribunal is not satisfied that the applicant is making, or is the subject of, arrangements to depart Australia. The Tribunal does not accept that the applicant has a genuine intention to depart Australia. Therefore, the Tribunal is not satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia, at time of application or decision. Therefore, the applicant does not satisfy clause 050.212(2) at time of application or at time of decision.
Substantive visa application
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.
‘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 not or is no longer subject to any form of review by application to the Tribunal under Part 5 of the Act, or any period within which such application must be submitted has passed without an application being made: s 11A of the Act.
The Tribunal finds the applicant applied for a protection visa on 5 December 2018 and this visa was refused on 14 December 2022. The applicant was notified of the refusal by email on the same day. At the hearing, the applicant advised that he received the email notifying him of the protection visa refusal on 14 December 2022, but it went into his ‘junk email’ folder and he did not look at it. He was not aware of the refusal until he had to go to court. That is why he instructed his agent to apply for review with the ART.
The Tribunal finds that at the time of application on 23 September 2024, the applicant had not made an application for a substantive visa which had not been finally determined. His application for a protection visa had been finally determined on 14 December 2022. While the applicant lodged an application for review with ART on 2 October 2024, this was made after he had applied for a bridging visa on 23 September 2024 and cannot satisfy the time of application requirements. The Tribunal also notes that the ART review application was lodged approximately one year and 11 months after the applicant was notified of the protection visa refusal, which was outside the prescribed period for lodging a review application.
On this basis, the Tribunal is not satisfied that the applicant has made or would have made a valid application for a substantive visa that can be granted in Australia. Accordingly, the Tribunal finds the applicant does not meet cl 050.212(3) at time of application.
Criminal Detention
Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force.
At the hearing, the applicant claimed that the main reason he wanted a bridging visa was to attend his criminal trial at court and ‘deal with other things’ he did not finish. He believes the Department gave him a bridging visa on 18 September 2024 so he could attend court so he does not understand why he cannot be granted one now. He believes it is not his fault that his previous visa ceased.
The Tribunal has considered the applicant’s claims but finds there is no basis to grant a Bridging E visa if the applicant wishes to attend court on criminal charges. The Tribunal is unable to comment on why the applicant was previously given a Bridging E visa by the Department and must consider only the current application before it and whether he meets one of the alternative grounds in cl 050.212.
As stated above, cl 050.212(7) is only met if the applicant is in criminal detention at the time of application and decision. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (reg 1.09). Periodic detention is defined in reg 1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
In this case, the Tribunal finds the applicant was not serving a term of imprisonment following a conviction for an offence, and he was not in prison on remand, either at the time of application or decision. He was on bail awaiting trial both at the time of application and decision and was therefore excluded from the definition of being in ‘criminal detention’ under reg 1.09.
Accordingly, the Tribunal finds the applicant does not meet cl 050.212(7) at the time of application or at the time of decision.
Conclusion
No claims have been made in respect of the other grounds in clause 050.212 and there is no evidence before the Tribunal to suggest that the applicant meets any of the other grounds at time of application or at the time of decision. The Tribunal is not satisfied that the applicant meets any of the primary criteria for a Bridging visa in subclauses 050.212(2) to (9) at time of application or at the time of decision. Therefore, the applicant does not meet subclause 050.212 or clause 050.221.
As the applicant does not meet the primary criteria for a bridging visa, it is not necessary for the Tribunal to determine whether the visa applicant would abide by the conditions it would impose on a bridging visa, or to consider the issue of a security. The Tribunal must affirm the decision refusing to grant the applicant a bridging visa.

For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
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
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Date of hearing: 22 October 2024
Representative for the Applicant: Mr Stanley CHAN (MARN: 0430097)