1910054 (Migration)

The applicants, citizens of Sri Lanka who arrived in Australia in August 2012, sought review of decisions not to grant them Bridging E (Class WE) visas. The dispute arose after their protection visa applications were refused by a delegate and this refusal was affirmed by the Administrative Appeals Tribunal (AAT). Subsequently, the applicants applied for judicial review of the AAT's decision in the Federal Circuit Court. While this judicial review was ongoing, they applied for the Bridging E visas, which were refused by a delegate on the basis that they did not meet specific criteria under clauses 050.211(2) or 051.211. The AAT, presided over by Member Nathan Goetz, affirmed these refusal decisions.

The primary legal issue before the AAT was whether the applicants met the criteria for the grant of a Bridging E visa, specifically subclause 050.211(2) and subclause 051.211. This subclause required that the applicant not be an "eligible non-citizen" of certain kinds, including those defined under subregulation 2.20(17). Subregulation 2.20(17) defines an eligible non-citizen as an unlawful non-citizen for whom removal from Australia is not reasonably practicable, and to whom section 195A of the Migration Act 1958 (Cth) does not apply. Section 195A is relevant to persons in immigration detention.

The AAT reasoned that the applicants failed to satisfy the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa because they did not meet clause 051.211. The applicants' migration history indicated they had been granted bridging visas on multiple occasions and had applied for protection visas, which were ultimately refused. At the time of applying for the Bridging E visas, they were engaged in judicial review proceedings concerning the refusal of their protection visas. The AAT noted that the applicants were not in immigration detention, and therefore section 195A of the Act was not applicable to them. Consequently, they were considered "eligible non-citizens" under subregulation 2.20(17), thus failing to meet the exclusionary requirement of clause 050.211(2) and by extension, clause 051.211.

The AAT affirmed the decisions not to grant the applicants Bridging E (Class WE) visas.