2119935 (Migration)

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning her application for a Bridging C visa. The applicant had previously applied for a protection visa, which was refused by the Department on 4 November 2021. She then applied for a Bridging C visa on 6 December 2021, stating it was to maintain lawful status while awaiting the outcome of judicial review proceedings. The AAT, acting as the review body, was required to determine the validity of this Bridging C visa application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Bridging C visa as set out in Schedule 1, Item 1303 of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the applicant had made a valid application for a substantive visa that had not been finally determined, or alternatively, whether she had made a valid application for judicial review of a decision in relation to her substantive visa application within statutory time limits, with those proceedings not yet completed. The Tribunal also had to consider the applicant's migration status and the circumstances surrounding her purported judicial review application.

The Tribunal found that the applicant's protection visa application had been finally determined on 4 November 2021, and she had not lodged an application for merits review with the AAT. Furthermore, the Tribunal was not satisfied that the applicant had made a valid application for judicial review to the Federal Circuit and Family Court of Australia (FCFCOA). Evidence suggested that the FCFCOA had not accepted her application, and searches of relevant court portals and departmental litigation reports did not reveal any such application. Citing the principle that the FCFCOA has no jurisdiction in relation to a primary decision without a valid application, the Tribunal concluded that the applicant did not meet the criteria under Item 1303(3)(c)(i) or (ii).

Consequently, the Tribunal determined that the Bridging C visa application was not validly made. The Tribunal set aside its previous decision refusing to grant the visa and substituted a decision that the application was invalid and could not be considered.