Manuhaapai (Migration)

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by a Tongan national. The applicant sought the bridging visa to allow him to remain in Australia while he intended to lodge an application for a Partner (Temporary) (Class UK) (Subclass 820) visa. The primary issue before the Tribunal was whether the applicant met the criteria for the Bridging E visa, specifically concerning his intention and capacity to apply for a substantive visa.

The Tribunal was required to determine if the applicant satisfied subclause 050.212(3) of the Migration Regulations 1994, which requires the applicant to have made, or to satisfy the Tribunal that they would apply for, a substantive visa within a specified period. The Tribunal also had to consider whether the applicant continued to satisfy this criterion at the time of the decision, as per subclause 050.221. A key aspect of the dispute involved the applicant's previous intention to apply for a partner visa based on a relationship with a different individual, contrasted with his current intention to apply based on a relationship with Ms Malia Maamaloa.

The Tribunal found that the delegate's previous decision had incorrectly assessed the requirements for lodging a valid partner visa application. While a partner visa would only be granted if the applicant met all primary criteria, a valid application itself only necessitates meeting specific formal requirements, such as paying the correct fee and completing the application form. The Tribunal was satisfied that the applicant intended to apply for a Partner (Temporary) (Class UK) (Subclass 820) visa, which is a prescribed visa that can be applied for in Australia even after a visa cancellation, pursuant to regulation 2.12(a). The Tribunal concluded that the applicant met the criteria under cl 050.212 and cl 050.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the matter for reconsideration by the Minister, with the direction that the applicant meets the specified criteria for the Subclass 050 Bridging (General) visa.