Kaur (Migration)

The applicant, a citizen of India, sought review of a decision not to grant her a Bridging E (Class WE) visa. The applicant had arrived in Australia in 2015 on a student visa and, following the breakdown of her marriage and subsequent struggles with drug use and criminal activity, had become an unlawful non-citizen. She was granted a Bridging E visa in October 2020 based on an intention to apply for a substantive visa, but failed to do so before it expired. She was subsequently detained and applied for the Bridging E visa under review while in detention.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 050.212(3) of the Migration Regulations 1994. This clause requires an applicant to have made, or to intend to make, a valid application for a substantive visa in Australia that can be granted while the applicant is in Australia. The applicant claimed she intended to apply for a protection visa.

The Tribunal considered the applicant's history, including her academic difficulties, marital breakdown, drug use, and criminal charges, which led to her becoming an unlawful non-citizen. It noted that the applicant had previously expressed an intention to apply for a substantive visa in October 2020 but failed to do so. While the applicant claimed a renewed intention to apply for a protection visa, the Tribunal found that she had ample opportunity to do so, even while in detention, during the period between her detention and the hearing. The Tribunal concluded that the applicant had not demonstrated a genuine intention to apply for a substantive visa, and therefore did not satisfy clause 050.212(3).

The Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa. The Tribunal also noted that the application was also considered as an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but the applicant did not meet the requirements for that visa either.