1812261 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Bridging E (Class WE) visa. The applicant, an unlawful non-citizen at the time of application, sought to satisfy the criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 050.211 of the Migration Regulations 1994. This clause mandates that an applicant must be an unlawful non-citizen or hold a specific bridging visa, and crucially, must not be an "eligible non-citizen" as defined in various sub-regulations, including regulation 2.20(17). The applicant was also required to continue meeting this criterion at the time of the decision.

The Tribunal reasoned that the applicant satisfied the first limb of clause 050.211(1) by being an unlawful non-citizen when he applied for the Bridging E visa. However, the Tribunal found that the applicant was an "eligible non-citizen" of the kind set out in regulation 2.20(17), thereby failing to satisfy clause 050.211(2). This conclusion was based on the applicant being an unlawful non-citizen, section 195A of the Migration Act 1958 not being available to the Minister due to the applicant not being in detention, and the Tribunal being satisfied that the applicant's removal from Australia was not reasonably practicable at the time of application. Consequently, the Tribunal affirmed the decision under review.