2541769 (Migration) - [2025] ARTA 1621

2541769 (Migration) [2025] ARTA 1621 (19 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2541769
Tribunal:General Member S Fitzsimons
Place:Melbourne
Date:  19 August 2025
Decision:The Tribunal affirms the decision under review

Statement made on 19 August 2025 at 3:45pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 – Unauthorised Maritime Arrival – complying with visa conditions – existing application for judicial review – previous criminal conduct – relationship with an Australian citizen – Australian-citizen child – poor health of the child – protection claims – time of decision criteria not met – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212, 050.221, 050.223
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s73 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 July 2025. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.212 and cl 050.221 of Schedule 2 of the Regulations.
The decision to refuse to grant the visa was made on 5 August 2025 on the basis that the applicant did not meet the criterion in cl 050.223 of Schedule 2 of the Regulations. In coming to this decision the delegate was not satisfied the applicant would comply with the discretionary conditions 8401 (report at specified time and place), 8506 (notify change of address) and 8564 (must not engage in criminal conduct) should they have been imposed on the visa if it was granted.
A hearing was listed for 11am on 19 August 2025. The applicant appeared before the Tribunal today to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The hearing commenced at 11:13am.
The applicant was represented by a lawyer in relation to the review. The applicant’s representative attended the hearing. The hearing was held by video and both the audio and video was clear and the internet connection was stable.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
THE APPLICANT’S IMMIGRATION BACKGROUND
The applicant is [an age]-year-old Sri Lankan national.
The decision record of the delegate that is the subject of this review indicates that [in] October 2012, the applicant arrived at [Location 1] as an Unauthorised Maritime Arrival (UMA). He was transferred onshore [in] November 2012. He has not departed Australia since then. Upon arrival onshore, he was detained. The applicant was released from detention in April 2013 upon the grant of a subclass 449 visa to him.
On 16 June 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) which was refused on 21 December 2016 by the Department. The Immigration Assessment Authority (IAA) affirmed the refusal decision [in] February 2017. The Bridging E visa held by the applicant in association with his SHEV application ceased on 10 March 2017.
[In] July 2017 the applicant sought judicial review in the (then) Federal Circuit Court (FCC) of the IAA decision. Departmental records indicate that the applicant’s judicial review application in the FCC was finalised in July 2018 in favour of the Minister. Since then the applicant has either been unlawful or held a series of Bridging E visas. The most recent Bridging E visa (BVE) held by the applicant ceased on 11 December 2020.
At the time of lodging the BVE application that is the subject of this review, the applicant was unlawful.
PROCEDURAL FAIRNESS PRIOR TO THE HEARING
In accordance with procedural fairness requirements, on 13 August 2025, the Tribunal wrote to the applicant and his lawyer pursuant to s359A of the Act inviting comment from him regarding information which, subject to his comment or response, would provide the reason, or part of the reason for affirming the decision under review. The s359A letter stated:
“In conducting the review, we are required by section 359A of the Migration Act 1958 to invite you to comment on certain information which we consider would, subject to your comments, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·According to a Notice of Filing and Hearing issued by the Federal Circuit and Family Court of Australia (FCFCOA) (which is on the file of the Department sent to the Tribunal for the purposes of your review), your application for judicial review was lodged with the FCFCOA [in late] July 2025;
·Departmental ICSE records also indicate that your application for judicial review was lodged with the FCFCOA [in late] July 2025;
·Departmental records indicate that your Bridging visa E application was lodged with the Department on 8 July 2025.
This information is relevant to the review because cl 050.212(3A) of the Migration Regulations 1994 requires either you, as the applicant or the Minister to have already applied for judicial review of the decision to refuse to grant the substantive visa at the time of application for the Bridging visa E. Cl 050.212(3A) is a criterion that must be met at time of application:
050.21  Criteria to be satisfied at time of application…
050.212
(3A)  An applicant meets the requirements of this subclause if: 
(a)  the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)  either:
(i)  the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceeding (including any proceedings on appeal) have not been completed; or
(ii)  the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant’s substantive visa, and the judicial review proceeding (including any proceedings on appeal) have not been completed.
It appears that on the basis of the above information, as your Bridging visa E application was lodged on 8 July 2025, and your judicial review application was lodged [in late] July 2025, you did not, at the time of lodging your Bridging visa E application had already applied for judicial review. If this information is true you do not meet the criterion in cl 050.212(3A).
There is no information currently before the Tribunal to indicate that you meet any of the other alternative time of application criteria in cl 050.212(2)-(9) (which is attached to this letter).
At the time of your Bridging visa E application you must meet one of the alternatives set out in cl 050.212(2)-(9). Cl 050.221 requires that you must continue to satisfy the relevant criterion in cl 050.212(2) at the time of decision. Cl 050.221 provides:
050.22  Criteria to be satisfied at time of decision 
050.221 
The applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212.
If the Tribunal relies on this information in making its decision, it may find that you do not meet the time of application criteria in cl 050.212 which then would mean it is not possible for you to satisfy the time of decision criterion in cl 050.221 which would be a reason or part of the reason in affirming the decision under review.” [emphasis in the original]
The applicant and his lawyer did not respond directly to the s359A letter. They did both confirm their attendance at the hearing.
Documents received by the Tribunal prior to the hearing
At 6:35pm last night the applicant’s lawyer sent a 108-page bundle of documents to the Tribunal in support of the applicant’s review application. At 9:19am this morning the applicant’s lawyer sent the Tribunal a support letter from the applicant’s partner [Partner A].
I have reviewed these documents which in summary provide a background to the applicant’s previous criminal conduct, his relationship with an Australian citizen, their Australian citizen child and the poor health of their child, the applicant’s protection claims in his SHEV and IAA applications and his need to be released from detention to support his partner and unwell child. The written submissions from the applicant’s lawyer contained in the bundle of documents do not refer to the issue put to the applicant under s359A.
EVIDENCE AT HEARING
At the beginning of the hearing I explained my role to the applicant and that whilst the review I was conducing was a review of his case on its merit, I was bound by the same law as the delegate. I explained to the applicant the material I had before me, being the Departmental file (which included his BVE application, the interview notes the delegate made during the BVE application process, the delegate’s decision record, the IAA refusal decision, ICSE Departmental file notes, his movement records and the July 2025 notice of filing from the Federal Circuit and Family Court of Australia (FCFCOA)), the Tribunal file, as well as the submission and documents from his lawyer sent to the Tribunal, including those sent last night and this morning.
At the hearing I summarised the applicant’s immigration history as set out in the delegate’s decision record and confirmed with him that it was correct. I also confirmed with him that at the time his BVE application was lodged on 8 July 2025, he was unlawful.
I explained to the applicant that there are two broad types of criteria that apply to his BVE application which are time of application criteria and time of decision criteria. I explained that the delegate in his case was not satisfied that he met a time of decision criterion, being that he would comply with conditions imposed on his BVE should the visa have been granted.
I then explained to the applicant that in relation to the time of application criteria, there were two criteria to be met on the day his application was lodged, being 8 July 2025. One of those was his immigration status and the other was his eligibility for the BVE application. I explained to him that whilst I was satisfied of his immigration status (being unlawful) at the time his application was lodged, I was not satisfied that he met the eligibility criteria because there was nothing before me to indicate the eligibility criteria other than that relating to a pending judicial review application were relevant in his circumstances and that the law required his judicial review application to be already lodged and pending with the FCFCOA at the time his BVE application was lodged which does not appear to be the case. I put to the applicant that Department records indicate his BVE application was lodged on 8 July 2025 and the Notice of Filing from the FCFCOA shows his judicial review application was lodged with the FCFCOA [in late] July 2025 and that at the time his BVE application was lodged he did not have a pending judicial review application before the FCFCOA.
I put to the applicant that as per the correspondence[1] the Tribunal sent to him and his lawyer on 13 August 2025, if I was to rely on information before me, it may lead me to find that he does not meet the time of application criteria for his eligibility for the BVE and as it is a requirement at the time of my decision that I am satisfied he meets the time of application criteria then that would be a reason in affirming the decision under review.
[1] The s359A letter dated 13 August 2025.
In response the applicant told me that he did not know about the timing requirement of his court application and his bridging visa application and that he had left that up to his lawyer to organise. The applicant’s lawyer then responded that whilst he understood the judicial review application had been lodged after the bridging visa application, he thought I could use my discretion to grant the applicant a bridging visa and if I could not, to refer his case to the Minister to grant the applicant a bridging visa because the applicant’s partner was alone caring for their unwell Australian citizen child and the applicant needed to be released from detention to help his partner and [child]. I explained to the applicant and lawyer that I can only exercise discretion in applying the law if the law so allows, and in this case given the issue in dispute, the relevant legal provision was not a provision that allowed for the discretion the lawyer was asking me to exercise.
The applicant and the lawyer then said they understood.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets cl 050.212, cl 050.221 and cl 050.223 of Schedule 2 of the Regulations.
The grounds for seeking the visa - cl 050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl 050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
In this case, the applicant is seeking to meet cl 050.212(3A). The applicant does not claim to meet any of the other alternative criteria in cl 050.212.
Judicial review – onshore substantive visa refusal
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
I have before me the applicant’s Bridging visa E application form dated 8 July 2025, and the delegate decision record which states the applicant’s BVE application was lodged on 8 July 2025. On this basis, I accept the applicant’s BVE application was lodged on 8 July 2025.
I also have before me a Notice of Filing from the FCFCOA stating that the applicant’s judicial review application was lodged with the FCFCOA [in late] July 2025. There is no evidence before me of any pending (not finalised) judicial review application relating to the applicant with the FCFCOA on or prior to 8 July 2025. On this basis I accept that the applicant’s judicial review application was lodged with the FCFCOA [in late] July 2025 and that is pending with the FCFCOA as of the time of my decision.
As I am satisfied that at the time the applicant’s BVE application was lodged on 8 July 2025 there was not a pending judicial review application in relation to the applicant, I am satisfied that the applicant does not meet cl 050.212(3A). There is nothing before me to suggest the applicant meets any of the other alternative criteria in cl 050.212. I am satisfied therefore that the applicant does not meet cl 050.212 of Schedule 2 of the Regulations.
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.212 at the time of decision.
As I have found the applicant does not satisfy cl 050.212, I find the applicant cannot and does not meet the time of decision criteria in cl 050.221 of Schedule 2 of the Regulations.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.
As I am not satisfied the applicant meets cl 050.221, which is a time of decision criteria, it is not necessary for me to consider whether the applicant will abide by conditions as per cl 050.223 of the Regulations.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Date of hearing: 19 August 2025
Representative for the Applicant: Mr Muhammad Iqbal Chaudhry