2436172 (Migration)

This matter concerned an application for a Bridging E (Class WE) visa by an applicant who arrived in Australia in 2012 and subsequently became an unlawful non-citizen after his Safe Haven Enterprise Visa was refused and his appeals were unsuccessful. The applicant had also been convicted of several offences and served a three-year prison sentence, after which he was taken into immigration detention. The applicant sought the Bridging E visa on the basis of Ministerial intervention, providing statements from his mother and a Member of Parliament in Sri Lanka regarding his fear of returning to his home country. The Tribunal was required to determine whether the applicant met the criteria for the grant of a Bridging E visa under clause 050.212 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied any of the grounds specified in clauses 050.212(2) to (9) for the grant of a Bridging E visa, particularly in relation to his claim for Ministerial intervention. The Tribunal also considered whether the applicant met the criteria under clause 050.211 regarding his immigration status, and whether he continued to satisfy the relevant criteria at the time of the decision as required by clause 050.221. The Tribunal examined subclauses 050.212(5B) and 050.212(6), which relate to requests for Ministerial intervention under sections 48B, 345, 351, or 417 of the Migration Act 1958.

The Tribunal found that the applicant met clause 050.211 as he was an unlawful non-citizen at the time of application and decision, and was not an eligible non-citizen of a kind excluded by subregulation 2.20. However, the Tribunal was not satisfied that the applicant had made, or that there had previously been in relation to him, a request for Ministerial intervention of the types specified in subclauses 050.212(5B) and 050.212(6). This conclusion was based on the applicant's evidence that he had made past attempts to seek Ministerial intervention by post without response, and the Department's records showing no ongoing requests. Consequently, the Tribunal determined that the applicant did not meet the grounds for Ministerial intervention under clause 050.212. The Tribunal also considered, but did not find met, clause 050.212(2) concerning arrangements to depart Australia. The Tribunal affirmed the decision not to grant the applicant a Bridging E visa.