2108600 (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Bridging E (Class WE) visa made by an applicant who was in immigration detention. The applicant sought to satisfy the criteria for the visa under subclause 050.212(3) or (3A) of the Migration Regulations 1994. The dispute arose because the applicant's prior substantive visa application, a Protection (subclass 866) visa, had been finally determined by the AAT, and no application for judicial review had been made.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Bridging E visa, specifically whether they had a substantive visa application that had not been finally determined. The Tribunal was required to interpret the definition of "finally determined" under section 5(9) of the Migration Act 1958, which states an application is finally determined when it is no longer subject to merits review or the period for lodging such a review has passed. The Tribunal also considered whether the applicant qualified for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, which required the applicant to be a "relevant eligible non-citizen" as defined in clause 051.211.

The Tribunal reasoned that the applicant's Protection visa application was finally determined on 23 June 2021, when the AAT affirmed the delegate's decision to refuse it, and no further merits review or judicial review was sought. Consequently, the applicant did not meet the criterion under subclause 050.212(3) as their substantive visa application had been finally determined. Furthermore, the Tribunal found that the applicant was not a "relevant eligible non-citizen" for the purposes of a Subclass 051 visa.

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