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DIAC's power's when assessing bridging visas when an applicant is applying for a substantive visa

The Applicant applied for, and was granted, student visas on three different occasions. Each time, he had been issued Non-Compliance Notices for breach of his student visa conditions. After overstaying his cancelled student visa and remaining, unlawfully, in Australia, the Applicant met the Sponsor and the friendship then developed into a relationship.

The relationship was in its fourth year when NSW Compliance finally located the Applicant, and he was subsequently sent to Detention. The Sponsor sought our services, asking Immigration Solutions Lawyers to lodge an Onshore Partner Visa Application on the couple’s behalf. However, before our office could do so, we had to first apply for a Bridging Visa E on behalf of the Applicant. This Bridging Visa Application was refused by the Department and we sought review of this decision at the Migration Review Tribunal.

The MRT decided that DIAC has no discretionary powers in making their decision of the Bridging Visa E. In other words, it did not matter that the applicant was in breach of his previous student visas – if an applicant is applying for a substantive visa, then the applicant has the right to apply for a Bridging Visa E.

Though the Tribunal was concerned about the applicant’s willingness to abide by visa conditions in the future, it was satisfied that, with the appropriate incentives, the Applicant would be able to comply with the conditions imposed on his Bridging Visa.

Accordingly, the Tribunal remitted the decision to the Department for reconsideration of the matter. The Bridging Visa was granted, our office made a successful application for an Onshore Partner Visa. And now, the Applicant is a permanent resident of Australia.

This case provides hope to potential visa Applicants who have overstayed their visa and remained unlawfully in Australia, and extends to those Applicants who are even detained by NSW Compliance. Although the odds were against our client, he was still successful in his partner visa applications. Detention does not have to be the end of the road.

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