2008466 (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Bridging E (Class WE) visa by a citizen of Fiji. The applicant had arrived in Australia in October 2010 and had been unlawful for significant periods. He had previously been granted bridging visas in relation to applications for substantive visas, including a partner visa, but had failed to lodge the substantive visa applications within the required timeframes. The applicant was detained in July 2018 and subsequently sentenced to a term of imprisonment. Upon his release from prison, he was taken into immigration detention, where he remained at the time of the review. The current application for a Bridging E visa was lodged in May 2020.

The primary legal issue before the Tribunal was whether the applicant would lodge an application for a substantive visa if released from detention, as required by subclause 050.212(3) of the Migration Regulations 1994. This subclause requires that the applicant either has 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 within a specified period. The Tribunal also considered whether the applicant met the criteria for a Bridging (Protection Visa Applicant) visa, subclass 051, which he had also applied for.

The Tribunal reasoned that the applicant's history demonstrated a lack of motivation to lodge substantive visa applications, despite having had numerous opportunities over many years. His explanation for not lodging a partner visa application previously, including his reliance on his sister rather than his wife and his claim of not being informed of his options, did not satisfy the Tribunal. Furthermore, the Tribunal noted that under section 195 of the Migration Act 1958, a detainee must apply for a visa within two working days of being detained, and failure to do so precludes further applications for substantive visas, other than protection visas. Given the applicant's past conduct and his failure to provide a compelling case for his intention to lodge a partner visa application, the Tribunal was not satisfied that he would do so if released. The Tribunal also found that the applicant did not meet the criteria for a Bridging (Protection Visa Applicant) visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa, nor did he meet the requirements for a Bridging (Protection Visa Applicant) visa.