Kim (Migration)

This matter concerned an application for a Bridging E (Class WE) visa by an individual seeking to satisfy the criteria for a Subclass 050 visa. The applicant had been in Australia unlawfully for seven years before voluntarily presenting to authorities and being placed in detention. The applicant expressed a strong desire to live a lawful life and avoid further illegal status, indicating that friends would assist them if they could live in the community. The applicant also indicated a willingness to depart Australia if a new visa could not be obtained within two months.

The primary legal issue before the Tribunal was whether the applicant met any of the criteria set out in subclause 050.212 of the Migration Regulations 1994 at the time of their application and continued to meet such criteria at the time of the decision. Specifically, the Tribunal considered whether the applicant satisfied the 'substantive visa application' ground under cl.050.212(3), which requires either a valid, undetermined application for a substantive visa made in Australia, or satisfaction that the applicant will apply for such a visa within a period allowed by the Minister. The Tribunal also considered other potential grounds for meeting the criteria, including acceptable arrangements to depart Australia, judicial review proceedings, and ministerial intervention.

The Tribunal found that the applicant did not meet the criteria for the grant of a Subclass 050 visa. While the applicant expressed a desire to apply for a new visa and to live a proper life, the Tribunal was not satisfied that the applicant had made a valid application for a substantive visa that had not been finally determined, nor that the applicant would make such an application within a specified period. The applicant also sought to satisfy the criteria for a Subclass 051 (Bridging (Protection Visa Applicant)) visa, but was found not to be a relevant eligible non-citizen. Consequently, the Tribunal affirmed the decision not to grant the applicant a Bridging E (Class WE) visa.