1921368 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa, subclass 050, by an unlawful non-citizen. The applicant sought to satisfy the criteria for the visa, which required that they be an unlawful non-citizen or the holder of a Bridging E or Subclass 041 visa at the time of application and decision, and crucially, that they not be an "eligible non-citizen" as defined in regulation 2.20 of the Migration Regulations 1994. The decision was made by Steven Griffiths, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 050.211 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was an eligible non-citizen of the kind set out in regulation 2.20(17). This sub-regulation applies to an unlawful non-citizen where section 195A of the Migration Act 1958 is not available to the Minister, and the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable.

The Tribunal found that the applicant was an unlawful non-citizen at the time of application and continued to be so at the time of the decision, thus satisfying the first limb of clause 050.211. However, the Tribunal considered regulation 2.20(17) and noted the absence of evidence or submissions from the applicant supporting their claim for ministerial intervention, which was stated as the reason for applying for the bridging visa. While accepting the applicant's oral evidence regarding their unlawful status and desire to remain in Australia due to safety concerns, the Tribunal found no evidence that section 195A of the Act was unavailable to the Minister or that the Minister was satisfied that removal was not reasonably practicable. The Tribunal also noted that the applicant was not an eligible non-citizen for a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.