1917666 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa, Subclass 050, by an unlawful non-citizen. The applicant, a citizen of Bangladesh, had arrived in Australia in December 2012 and subsequently applied for a protection visa. After multiple refusals and unsuccessful appeals through various courts, including the High Court, the applicant's last bridging visa ceased in July 2016, leaving him without a visa. He applied for the Bridging E visa in May 2019, which was refused by a delegate of the Minister. The applicant then sought review of this refusal decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in clause 050.211 of the Migration Regulations 1994 at the time of his application for the Bridging E visa. Specifically, the Tribunal had to determine if the applicant was an unlawful non-citizen or held a specified bridging visa, and crucially, if he was not an "eligible non-citizen" as defined by regulations 2.20(7), (8), (9), (10), (11), or (17). The Tribunal also noted that the applicant must continue to satisfy these criteria at the time of the decision, as per clause 050.221.

The Tribunal reasoned that at the time of his application for the Bridging E visa, the applicant was an unlawful non-citizen who had not held any visa for a considerable period. This satisfied subclause 050.211(1)(a), meaning he did not need to satisfy the other subclauses within 050.211(1). The Tribunal then considered the definition of an "eligible non-citizen" under regulation 2.20, which typically involves having been refused or bypassed immigration clearance and having an undeterminined protection visa application or pending judicial review. The applicant's circumstances, having exhausted all avenues for his protection visa application and appeals, meant he did not fall within the categories of eligible non-citizens that would preclude him from obtaining the bridging visa. The Tribunal concluded that the decision under review should be affirmed.