1809860 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), made by an applicant who was in detention and whose substantive visa application had not yet been finalised. The applicant had also applied for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but was found not to be an eligible non-citizen for that visa. The Tribunal was required to determine whether the applicant met the criteria for the Subclass 050 visa, specifically clauses 050.212 and 050.223 of Schedule 2 to the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria relating to having a substantive visa application not finally determined, and whether acceptable arrangements had been made for the applicant's departure from Australia. The Tribunal also considered whether the applicant had breached conditions of a previous bridging visa and any mitigating circumstances presented. Guidance on the interpretation of "acceptable arrangements" was sought from relevant case law, including *Chen v MIMIA* and *Lin v MIMIA*, and the Department's Procedures Advice Manual 3.

The Tribunal found that the applicant met subclause 050.212(3) as he had a Protection visa application that was not finally determined at the time of the decision. This finding meant that the Tribunal did not need to make findings on other aspects of clause 050.212, including whether acceptable arrangements for departure had been made. The Tribunal noted the applicant's stated intention to depart Australia after his daughter completed her degree and recovered from illness, and his willingness to look after her. The Tribunal also considered the applicant's explanation for past breaches of visa conditions, attributing them to ambiguity regarding his departure and communication difficulties.

Ultimately, the Tribunal remitted the matter for reconsideration with a direction that the applicant met criteria cl.050.223 and cl.050.212(3). The primary decision maker was directed to inform the applicant that specific conditions (8401, 8101, 8505 & 8506) would be imposed if the visa were granted, and to require a security bond of $12,500 for compliance.