Successful Advocacy for an Unlawful Non-Citizen in Immigration Detention

Visa TypeBridging Visa E

CategoryDetention / Unlawful Non-Citizen

Case Summary

An unlawful non-citizen held in immigration detention, barred by section 195 of the Migration Act from making a substantive visa application, successfully obtained a Bridging Visa E after the AAT overturned the Department's refusal — opening a pathway to lodge a partner visa application.

Background

The client was an unlawful non-citizen who approached us after the time limits under section 195 of the Migration Act for detained persons to lodge a substantive visa application had expired. He was in a spousal relationship with an Australian citizen and had three young Australian citizen children. A Bridging Visa E application was lodged on the basis of an intention to make a substantive visa application. This was refused on the grounds that the client had not applied for a substantive visa within the section 195 timeframe and was therefore barred from making one while in detention, meaning he could not satisfy clause 050.212(3).

Challenges

Client had missed the section 195 deadline to lodge a substantive visa application while in immigration detention
Bridging Visa E was refused as the client could not satisfy clause 050.212(3) due to the section 195 bar
Client was separated from his Australian citizen spouse and three young Australian citizen children

How We Helped

We sought a review of the refusal at the Administrative Appeals Tribunal (AAT). We submitted that the client intended to make a partner visa application but understood that he could not do so whilst detained due to the section 195 bar — and that he would do so within a period specified by the Minister once released on a Bridging Visa E. We argued the delegate had incorrectly relied on Liu v MIAC [2008] FMCA 725, in which the court expressed the view that section 195(2) should not be used to circumvent the intent of section 195(1). We submitted that this view was obiter only, and that on a proper reading, clause 050.212(3)(b) permits a bridging visa to be granted to enable an applicant to make a substantive application that he cannot make while in detention because of section 195. We further submitted that Departmental policy was consistent with this interpretation — identifying statutory limitations, previous visa conditions and access to fees as assessment factors without citing section 195 as a bar to satisfying clause 050.212(3)(b).

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Key Success Factors

Successful legal argument distinguishing the obiter view expressed in Liu v MIAC [2008] FMCA 725
Submission that clause 050.212(3)(b) permits a bridging visa to be granted to enable a substantive application to be made following release from detention
Demonstrated consistency of our legal interpretation with published Departmental policy

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Outcome

The AAT agreed with our interpretation and overturned the Bridging Visa E refusal. The client was granted a Bridging Visa E, released from detention, and was able to lodge a partner visa application to reunite with his spouse and three children.

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