1835448 (Migration)

This matter concerned an application for review of a decision not to grant the applicant, a citizen of India, a Bridging E (Class WE) visa. The applicant had arrived in Australia in November 2015 and his initial visa was cancelled in August 2017, rendering him an unlawful non-citizen. Subsequently, he was arrested and charged with offences, and while released on bail, he was taken into immigration detention. He lodged a protection visa application in August 2018, and an associated bridging visa was refused by a delegate in September 2018, a decision affirmed by the Tribunal. A delegate then refused his protection visa application in October 2018. The applicant informed the Tribunal that he intended to file for judicial review of the protection visa refusal in the Federal Court but had not yet done so, citing his focus on criminal proceedings and lack of legal assistance for migration matters.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Bridging E (Class WE) visa, specifically under clause 050.212 of the Migration Regulations 1994. This clause requires the applicant to have made a valid application for a substantive visa that has not been finally determined, or that the Tribunal is satisfied the applicant would apply for such a visa. A substantive visa is defined as any visa other than a bridging visa, criminal justice visa, or enforcement visa. An application is considered finally determined when it is no longer subject to merits review or the prescribed period for lodging such a review has passed without an application being made.

The Tribunal reasoned that the applicant did not meet clause 050.212(3) because his protection visa application, refused on 4 October 2018, had not been reviewed. As no application for merits review of the protection visa refusal had been lodged, and the time for doing so had passed, the protection visa application was considered finally determined. Furthermore, the applicant did not meet the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa as he was not a relevant eligible non-citizen. Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.