2510368 (Migration) - [2025] ARTA 476

2510368 (MIGRATION) [2025] ARTA 476 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2510368
Tribunal:General Member S Sangha
Place:Sydney
Date:  20 March 2025
Decision:The Tribunal affirms the decision under review

Statement made on 20 March 2025 at 1:00pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant has no substantive visa application that has been made – has no substantive visa application nor is the Tribunal satisfied that the applicant will apply for such a visa within a specified period – an unlawful non-citizen – applicant made no genuine attempt to make arrangements to depart Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.211, 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 26 November 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.
The decision to refuse to grant the visa was made on 27 February 2025 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 that the applicant was making acceptable arrangements to depart Australia as required by cl 050.212(2). The delegate was not satisfied that the applicant made or would make a valid application for a substantive visa as required by cl 050.212(3). The delegate found no other grounds that could be enlivened. The delegate also found that the applicant did not meet cl 051.211 for the grant of a Subclass 051 visa.
The applicant appeared before the Tribunal by videoconference on 18 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant discussed his background and immigration history at the hearing and gave evidence consistent with the information before the Tribunal.
The applicant is a [age]-year-old citizen of Malaysia who first arrived in Australia on [date] March 2018 as the holder of an Electronic Travel Authority (Subclass 601) which was valid to [date] June 2018. The applicant became unlawful and applied for a Protection visa on 7 June 2018.
The Department refused the applicant’s protection visa on 3 October 2018. The applicant sought review to the Tribunal and the Tribunal affirmed the refusal on 28 November 2023. The applicant did not seek judicial review of that decision. The applicant’s bridging visa in connection with his application for review to the Tribunal ceased on 3 January 2024. The applicant then became unlawful non-citizen. [In] February 2025, the applicant was located by Victoria Police and detained under s 189 of the Act. The applicant is currently in immigration detention.
Application to the Department
On 26 November 2024, the applicant made an online application for a Bridging E visa.
The applicant’s online application form stated that he made an application for a substantive visa. The application form requested permission to work because of financial hardship. The applicant also declared that he was the subject of a domestic violence or family violence order.
The applicant uploaded the following documents in support of his application: expired passport, bank statement (period 31 December 2023 to 30 June 2024), notice of mention regarding family violence complaint (dated 23 July 2024), letter from the Tribunal acknowledging application for review (dated 30 October 2018) and copy of bridging visa grant notice (dated 7 June 2018).
Application to the Tribunal
On 11 March 2025, the applicant applied to the Tribunal for review of his Bridging E visa refusal. He provided a copy of a birth certificate for his youngest son born in [year].
The applicant also provided the following further documents in support of his application:
a.copy of the applicant’s (expired) passport;
b.applicant’s statutory declaration declared on 17 March 2025;
c.letter [regarding] counselling dated 20 July 2024;
d.letter from the Tribunal dated 13 November 2023 - notification of decision;
e.letter from the Tribunal dated 22 December 2023 - no power to take further action;
f.bridging visa grant notice (application lodged 7 June 2018);
g.medical documents relating to two of the applicant’s children;
h.photograph of medication dispensed to applicant’s wife;
i.letter from [a company] dated 9 September 2022 – no offer of permanent employment;
j.completion certificate for [a] course dated 7 July 2021; and
k.letter from [a law firm] dated 28 September 2021 regarding loan account with [an organisation] (translation).
The applicant’s statutory declaration provided a summary of his migration history. He stated that he missed his Tribunal hearing because he was unable to access his phone or email at the time. He provided a summary of his family circumstances including that he has four children, two with down syndrome who require medical treatment and support. His wife suffers from depression. The applicant set out his claims for protection due to a debt with a loan shark in Malaysia. The applicant stated that he was very affected by the increasing financial problems and family pressure and became involved in drug abuse. The applicant stated that he was arrested by the police [in] February 2025. Interim family violence intervention order was made against him, and he has an upcoming court date. His former partner and children are listed as affected family members. He has applied for a bridging visa to obtain permission to work. He has completed some worked in Australia and hopes to be given an opportunity to stay in the country legally to help his family and settle his debts before returning to Malaysia.
Tribunal hearing
The applicant’s evidence at the hearing was consistent with his statutory declaration. He spoke about his migration history as noted above.
The applicant stated that he applied for a Bridging E visa because he cannot return to Malaysia due to his debt issue which has not settled. He also said he did not wish to return because of his four children in Australia. He said two children have down syndrome and his wife was not capable of shouldering the household responsibilities on her own. He said she had a mental condition and took medication to be calm and relieve her depression. He spoke about an incident which led to an interim family violence intervention order against him.
The applicant confirmed that he separated from his wife around July 2024. She is a Malaysian citizen and has also applied for a protection visa. She works part-time in [an] industry.
The Tribunal went through the time of application criteria and time of decision criteria with the applicant in detail. The applicant’s responses where they are relevant have been set out below. The Tribunal explained to the applicant that he needed to demonstrate that he met one of the grounds for seeking a bridging visa. The Tribunal also went through the material he supplied in support of the application.
I put to the applicant that he conceded in his evidence that he did not meet any of the criteria for the grant of a Bridging E visa and this meant that the Tribunal must affirm the decision under review. The applicant responded that he would be open to the Tribunal’s decision but requested a chance to stay with his family because he was worried about his debt issue in Malaysia. He said if he cannot stay in Australia, he wanted time to settle his affairs because he was not ready to leave right now. He said his strongest reason to be here was that he could not afford to leave his wife and children here. His children have special needs and special attention should be afforded to them. He said his wife cannot handle them on her own and he was a good dad. He said he was happy to learn about Australia’s culture and he had changed to become a better person. He said he was not savvy about rules but promised to follow them. I explained to the applicant that I could not consider his claims for protection and did not have a general discretion to grant a Bridging E visa and the Tribunal was bound by the criteria. The applicant stated that he was hopeful for a favourable decision.
The issue in this case is whether the applicant meets cl 050.212.
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.
In this case, the applicant’s online visa application form stated that his reason for applying for a Bridging E visa was “Application for a substantive visa”, which would enliven cl 050.212(3).
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 applicant stated in his online visa application form that he was waiting for a decision from the Department or Tribunal and gave the following details: “I missed the hearing with AAT”. The applicant also stated that he intended to apply for a substantive visa. The delegate’s decision record states that during the applicant’s interview, he was unable to indicate what visa he intended to apply for. He initially mentioned seeking review of his protection visa refusal again because he failed to appear at his Tribunal hearing. The delegate found that the applicant had not made a decision on what substantive visa he could apply for and had not made concrete preparations to lodge a valid visa application.
The Tribunal discussed this with the applicant at his hearing. The applicant confirmed that the Tribunal dismissed his application for review in November 2023 and he had not sought judicial review of that decision. The applicant confirmed that he had not applied for any other visas and did not have any applications pending before the Department or the Tribunal. The Tribunal explored with the applicant whether he was in the process of applying for a substantive visa.
The applicant was honest and frank in his response. He stated that he did not know about other visas and was waiting for the outcome of these proceedings. The Tribunal asked if he had any assistance with his immigration matters. The applicant said he has a case manager who was discussing his options with him, but he was still in the process of working out what he could apply for. The applicant demonstrated little knowledge of his options.
The applicant has not made a valid application for a substantive visa that has not been finally determined and the Tribunal is not satisfied that the applicant would apply for such a visa within a period specified for doing so. Accordingly, the applicant does not meet cl 050.212(3).
Consideration of alternative criterion
There is no evidence before the Tribunal that the applicant meets any of the alternative criteria in cl 050.212 of Schedule 2 to the Regulations as set out below. The relevant law is summarised in an attachment to this decision.
Acceptable arrangements to depart Australia: The applicant confirmed at his hearing that he was not making arrangements to depart Australia because he wanted to stay in Australia for his children. His passport expired on [date] 2023, and he has not taken any steps to renew it. The Tribunal is not satisfied that at the time of application, the applicant was making acceptable arrangements to depart Australia as required by cl 050.212(2).
Judicial review, merits review, s 137K revocation: The applicant confirmed that he has not applied for judicial review of the Tribunal’s decision affirming his protection visa refusal. The applicant also confirmed that he does not have any merits or judicial review proceedings on foot. The applicant said he was still in the process of considering his options. The applicant does not meet cl 050.212(3A), 050.212(4), 050.212(4AA) or 050.212(9).
Consequential cancellation (review/revocation of primary cancellation): The applicant has not held a visa that was cancelled and does not meet cl 050.212(5) or cl 050.212(5A).
Court declaration / review of citizenship decision. The applicant confirmed that he does not have any Tribunal or Court proceedings pending (other than his criminal matters). There is no evidence before the Tribunal that the applicant has applied for a declaration from a Court that the Act does not apply to him, or that he is seeking review of a citizenship decision. The applicant does not meet cl 050.212(4AAA) or cl 050.212(4AB).
Ministerial intervention. The applicant has not made a request for ministerial intervention and does not meet cl 050.212(5B), cl 050.212(6) or cl 050.212(6AA).
Compelling need to work. The applicant submitted that he has a compelling need to work in order to financially support his four children and particularly as two of his children have complex health conditions. The applicant provided a copy of his bank statement and various medical documents. The Tribunal accepts that the applicant seeks to support his four children and that two of his children have complex health needs but as the applicant is not currently the holder of a Bridging E visa, he cannot meet cl 050.212(6A) or cl 050.212(8).
Criminal detention: The applicant provided documents to the Tribunal relating to his family violence matter, which is currently before [a] Court, Victoria. The applicant confirmed at hearing that the police sent him to immigration detention because he was unlawful. The applicant is not currently in criminal detention and therefore does not meet cl 050.212(7).
The applicant requested that the Tribunal considered his family and personal circumstances. However, the Tribunal has no general discretion in the matter. As discussed with the applicant at the hearing, he was required to meet one of the grounds for seeking a Bridging E visa.
The Tribunal concludes that the applicant did not meet time of application criterion, cl 050.212 of Schedule 2 to the Regulations.
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.
The Tribunal has found that at time of application, the applicant did not meet the requirements of cl 050.212 of Schedule 2 to the Regulations.
The Tribunal also finds that at the time of decision, the applicant does not continue to satisfy cl 050.212 and therefore does not meet cl 050.221 of Schedule 2 to the Regulations.
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 defined in reg 2.20, and as required by 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: 18 March 2025
Attachment - RELEVANT LAW
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]).
Consequential cancellation (review/revocation of primary cancellation)
Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s 140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).
Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s 140(1), (2) or (3) because another person’s visa was cancelled under s 137J, and that other person has applied for revocation of their visa cancellation under s 137K or has applied for merits review of a non-revocation decision made under s 137L (or alternatively, the Tribunal is satisfied the other person will make such an application).
Judicial review, merits review, s 137K revocation
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.
Subclause 050.212(4) is met if:
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or
(aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(ba)the applicant has applied under s 137K for revocation of the cancellation of a visa; or
(bb)the applicant has applied for merits review of a decision under s 137L not to revoke the cancellation of a visa; or
(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl 050.212(4)(b), (ba) or (bb)
(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.
Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl 050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.

Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl 010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
Court declaration / review of citizenship decision
Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 (Cth), and those proceedings have not been completed.
Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 1.12AA) of a person who meets the requirements of cl 050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl 050.212(4AAA) and who has not turned 18.
Ministerial intervention
Subclause 050.212(5B) is met if the applicant is a person to whom s 48A of the Act applies, and the applicant has made a request to the Minister to determine under s 48B that s 48A does not apply. There must not have previously been such a request under s 48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under s 351 or repealed s 417 of the Act.
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under s 351 or repealed s 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under s 351 or repealed s 417, and there must not have previously been such a request, or a request for a determination under s 48B of the Act. _
Subclause 050.212(6AA) is met if the Minister has substituted a decision under s 351 or repealed s 417 of the Act, but the visa has not been granted because of a visa cap in operation under s 85 of the Act.
Compelling need to work
Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl 050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under s 351 or repealed s 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.
Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.
‘Compelling need to work’ is defined in reg 1.03 of the Regulations as having the meaning set out in reg 1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines provide guidance on matters that may be relevant in determining financial hardship.
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. 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.