2012011 (Migration)

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a Malaysian national, a Bridging E (Class WE) visa. The applicant had arrived in Australia in December 2015, held a student visa that was cancelled in November 2017 for non-compliance, and was subsequently located in immigration detention in July 2020. At the time of the application for the Bridging E visa, the applicant had also applied for a Protection visa, which remained undetermined. The delegate refused the Bridging E visa because they were not satisfied the applicant would abide by certain conditions that the delegate considered appropriate to attach to the visa, thus failing to meet the criteria under cl.050.223 of the Migration Regulations.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 050 Bridging E visa. Specifically, the Tribunal had to assess if the applicant satisfied cl.050.211 regarding their immigration status and cl.050.212 concerning the grounds for seeking the visa, including whether a valid application for a substantive visa had been made and was not finally determined. Furthermore, the Tribunal had to consider cl.050.223, which requires satisfaction that the applicant will abide by the conditions of the Bridging E visa.

The Tribunal found that the applicant satisfied cl.050.211 as they were an unlawful non-citizen at the time of application and not an excluded eligible non-citizen. The Tribunal also found that cl.050.212(3)(a) was met, as the applicant had made a valid application for a Protection visa (a substantive visa) in Australia, which had not been finally determined. However, the Tribunal affirmed the delegate's decision, concluding that the applicant had not satisfied the requirement under cl.050.223. The Tribunal was not satisfied that the applicant would abide by the conditions of the Bridging E visa, which included reporting and notification requirements, and importantly, a "no work" condition. The Tribunal noted that the applicant had previously failed to comply with the conditions of a student visa and had been found in immigration detention.