Faoa (Migration)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to refuse to grant Mr Pesamino Faoa, a Tongan national, a Bridging E (Class WE) visa. Mr Faoa was an unlawful non-citizen detained in immigration detention and sought the visa to be released. He had arrived in Australia in 2013, had his substantive visa cancelled in 2014, and remained in Australia without a visa until granted a Bridging E visa on departure grounds in late 2019, which he also overstayed. He was subsequently taken into criminal custody in May 2020 for alleged assault and breaching an apprehended violence order, and upon release from prison, was placed in immigration detention.

The primary legal issue before the Tribunal was whether Mr Faoa met the criteria for the grant of a Bridging E visa under cl.050.211 and cl.050.212 of Schedule 2 to the Migration Regulations. Specifically, the Tribunal had to determine if he satisfied the requirements relating to his immigration status and if he met any of the grounds for seeking the visa, such as making acceptable arrangements to depart Australia or having a pending substantive visa application. The Tribunal also considered whether Mr Faoa met the criteria under cl.051.211 for a Subclass 051 visa.

The Tribunal reasoned that Mr Faoa satisfied cl.050.211 as he was an unlawful non-citizen and not an eligible non-citizen of a kind excluded by the regulations. However, the Tribunal found that Mr Faoa did not meet any of the grounds under cl.050.212. His stated intention was to remain in Australia to be a father to his children, indicating he was not making acceptable arrangements to depart Australia as required by cl.050.212(2). Furthermore, the Tribunal noted that Mr Faoa had not made a valid application for a substantive visa that could be granted while he was in Australia, as required by cl.050.212(3).

Consequently, the Tribunal affirmed the delegate's decision to refuse the Bridging E visa. The Tribunal concluded that Mr Faoa did not meet the necessary criteria for the grant of the visa, and therefore, he would remain in immigration detention.