Case Type

A recent successful representation by ISL of an unlawful non-citizen in detention and who was barred by section 195 from making a substantive visa application

Case Background/Difficulty

Our client who was an unlawful non-citizen approached us for advice after the expiry of the time limits stipulated for people in detention to lodge a substantive visa application under section 195 of the Migration Act. Our client was in a spousal relationship with an Australian citizen and has three young Australian citizen children. We lodged a bridging visa E application for our client on the basis of lodging a substantive visa application which was refused. The refusal was based on the fact that the applicant had failed to apply for a substantive visa within the timeframe stipulated under section 195 of the Migration Act and therefore barred from making a substantive visa application whilst in detention and could not meet cl 050.212(3).

Case Strategy

We then sought a review of the decision at the former Administrative Appeals Tribunal (AAT).

We submitted that our client intends to make a partner visa application, and understands that he cannot make that application whilst in detention, due to the s 195 bar, but that he will make the application within a period specified by the Minister to do so and once released from detention on the bridging visa E.

We further stated that the delegate was wrong in following the view in Liu v MIAC [2008] FMCA 725). The Judge in Liu expressed the view that the grant of a bridging visa under s 195(2) should not be used to circumvent the plain legislative intent of s 195(1) so as to enable an applicant to be released from detention. That is, if the bridging visa application is lodged after the s 195 bar takes effect, then the applicant cannot satisfy cl 050.212(3)(b) unless the substantive visa application is for a protection visa. We submitted that this interpretation is only obiter and our interpretation of cl 050.212(3)(b) is that it permits a bridging visa to be granted to enable the applicant to apply for a substantive visa, where the applicant would not be able to do so in detention because of s 195. We further submitted that the Departmental policy appears consistent with our interpretation as it identifies factors to consider in determining whether an applicant can make a valid application, including any statutory limitations, previous visa conditions and access to funds for fees, but does not mention s 195 as a bar to satisfying cl 050.212(3)(b).

Case Outcome

The AAT agreed with our interpretation and overturned the bridging visa E refusal. This was a great outcome which allows our client to be granted a bridging visa E, released from detention and lodge a partner visa application to reunite with his family unit.