1823676 (Migration)

[2018] AATA 4053

1823676 (Migration) [2018] AATA 4053 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823676

MEMBER:James Silva

DATE:23 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 23 August 2018 at 5:37pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – lift bar for further application – previous bad legal advice – several requests for Ministerial Intervention – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 48A, 73, 75, 359AA,
Migration Regulations 1994 (Cth), r 2.24, Schedule 2 cls 050.212, 050.221


CASES
Cabal v MIMIA (No.2) (1999) FCR 314
Chenv MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. On 7 August 2018, the applicant lodged an application for a Bridging visa E (BVE).[1] On 13 August 2018, the Minister’s delegate refused the application on the basis that the applicant did not satisfy any of the grounds set out in cl.050.212 at the time of application, and the visa could therefore not be granted. The applicant seeks review of the delegate’s decision of 13 August 2018.

   [1] The decision under review refers to the application as having been lodged by email on 9 August 2018.

3. A preliminary issue is whether the delegate’s decision was made within the prescribed period, or whether the applicant is deemed to have been granted a Bridging visa under s.75.

4. The key issue in this case is whether the applicant satisfies the primary criterion for the grant of the visa. Specifically, he must meet one of the alternatives set out in cl.050.212(2)-(9) at the time of application, 7 August 2018. He must continue to satisfy this criterion at the time of this decision, hence on 18 August 2017: cl.050.221. A summary of the relevant law is at the attachment to this decision.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

6. The key issue is whether the applicant meets any of the primary criteria for the grant of a Bridging visa E. If he meets one or more of these at the time of application, and also at the time of decision, the Tribunal would be required to assess whether he would comply with the visa conditions. The attachment to this decision sets out the relevant law.

   Evidence and Background

7. The Tribunal has before it a large volume of material including, relevantly, the following: -

   §  The review application of 15 August 2018.

   §  The delegate’s decision record of 13 August 2018, a copy of which the applicant provided to the Tribunal.

   §  The Tribunal received a significant number of submissions in this matter, relating to both substantive and procedural matters.

   -   One of these is a submission stating that the applicant seeks to satisfy cl.050.212(3)(b) on the basis of an ongoing request for Ministerial Intervention This has attached to it a copy of a submission to the Minister, dated 16 August 2018, requesting the Minister to lift the bar under s.48A to allow the applicant to make a further Protection visa application. The delegate’s decision record and the submission include details of the applicant’s migration history.

   -   Of particular significance is a post-hearing submission dated 22 August 2018, which addresses and clarifies matters raised at the hearing.

   §  The applicant submitted a large volume of other material relating to his first Protection visa application (including the decisions of the (then) Refugee Review Tribunal and the Federal Circuit Court), and a range of country information and supplementary material, to support his recent request for Ministerial Intervention.

8. The Tribunal wrote to the applicant on 20 August 2018 pursuant to s.359A of the Act, inviting him to comment on or respond to potentially adverse information, at an interview to be held on 22 August 2018, immediately prior to the hearing. The letter was addressed to the applicant’s representative and authorised recipient, to the email address provided for the purpose of his application. The Tribunal copied it to the applicant in Villawood IDC. The information was taken from Department records. It related to his ability to meet the primary criteria relating to ‘Ministerial intervention’ and ‘Judicial review’, or any of the other primary criteria for the grant of a visa.

   §  At interview, the applicant’s representative claimed that she had not received the Tribunal’s s.359A letter, and that neither she nor the applicant was in a position to provide any comments or responses. In light of this advice, the Tribunal adjourned the interview and proceeded to the hearing.

   §  The Tribunal made urgent enquiries, which confirmed that the letter had been sent by email to the correct address and that there had been no transmission errors.

   §  There was full discussion of the relevant matters at the hearing. At the conclusion of the hearing, the Tribunal asked whether the applicant and the representative wished to resume the interview, to provide comments/responses to the letter. The Tribunal said it was satisfied that the letter had been sent correctly. Moreover, the discussion at hearing had covered all the relevant matters. Neither the applicant nor the representative indicated any wish to provide comments/responses at interview. The Tribunal advised that it would in any event allow further time for further submissions relating to these or other matters.

   §  Following the hearing, the representative confirmed that she had found no letter from the Tribunal conveying the s.359A letter. The Tribunal sent her a copy of the outgoing email of 20 August 2018, but the representative expressed concern that the Tribunal had not forwarded to her the actual email, or provided a delivery receipt or notification that the email had been read.

   §  The representative registered her concern that, having not received the Tribunal’s s.359A letter prior to the interview or hearing, ‘we were not given the opportunity to properly respond to it to allow our client the best chance of representation’.

9. The Tribunal is satisfied that the s.359A letter was sent to the correct address and met procedural requirements. It gave the applicant and his representative an opportunity (even if they had not read the letter) to provide any comments/response at interview, both at the start of the hearing and, after it had confirmed that the letter had been transmitted, at the end of the hearing. The Tribunal is of the view that the representative’s failure to locate the letter has not caused any detriment to the applicant’s presentation of his case. There was discussion of the contents of the letter at the hearing; the Tribunal sent to the representative a further copy of the letter after the hearing; and she addressed these points in detail both at hearing and in later submissions. In these communications, the representative agreed with the information contained in the s.359A letter and indicated that, contrary to the suggestion in the Bridging visa E application, the applicant in fact does not rely on these primary criteria.  

10. The applicant appeared before the Tribunal to give evidence and present arguments on 22 August 201. The hearing was conducted in English, in which he is fluent. The applicant is represented in this matter by his registered migration agent, [of] the [firm]. She participated in the hearing by telephone from her office in Melbourne.

    Consideration and assessment

    Claim regarding deemed Bridging visa E grant: s.75

11. The applicant lodged the Bridging visa E application on 7 August 2018. Materials before the Tribunal indicate that he completed and signed Form 1008 on 7 August 2018; that he signed a Form 956 authorising his migration agent to act on his behalf; and that she sent the completed forms to the Department late on 7 August 2018. She received an automated response confirming receipt of the applicant immediately thereafter.

12. Department records indicate that officers in Victoria forwarded the application to colleagues in New South Wales (Compliance Status Resolution Service), who then forwarded it on 9 August 2018 to the NSW Detention BVE Team. The decision under review (a copy of which the applicant submitted to the Tribunal) indicates that a Detention Review Officer (DRO) was informed of the application on 9 August 2018, as per Item 1305(3)(c) of the Regulations.

13. The applicant’s migration agent drew to the Tribunal’s attention section 75 of the Act. In conjunction with r.2.24, this operates to deem a Bridging visa E to have been granted if the Minister does not make a decision (to either grant or refuse to grant the visa) within a prescribed period. In this case, the relevant prescribed period is two working days. The representative submitted that, since she lodged the application on 7 August 2018 and there was no decision until 13 August 2018, the Tribunal should find that the applicant was taken to have been granted a Bridging visa pursuant to s.75.

14. The Tribunal notes that the prescribed period runs from when the application was ‘made’. In the case of applicants in immigration detention, this includes the specific requirement that a DRO be informed of the application. It has been held that lodging an application at an office of Immigration is not sufficient to meet this requirement.[2] The Tribunal is satisfied - on the basis of the decision record indicating that the NSW DRO was informed of the application on 9 August 2018, pursuant to item 1305(3)(c) of the Regulations, that the period prescribed in s.75 of the Act and r.2.24 commenced on 10 August 2018.

    [2] Cabal v MIMIA (No.2) (1999) FCR 314 at [31] and [33].

15. In her submission of 22 August 2018, the representative contended that there is still a basis to conclude that the applicant should be taken to have been granted a Bridging visa E pursuant to s.75.

    §  First, she stated that there is no ‘proof’ of either the time of appointment of the DRO, or when they were informed of the application. Although the submission is a little difficult to follow, she appears to argue that, if the DRO was not properly informed, then the relevant date is 7 August 2018. The Tribunal is satisfied, based on the decision record and in the absence of any evidence or suggestion to the contrary, that the DRO was in fact informed on 9 August 2018. It does not consider it necessary to seek evidentiary proof of the DRO’s appointment or that they were ‘informed’  

    §  Second, the submission refers three times to the date of the Bridging visa E refusal decision as 15 August 2018. It appears to contend that this amounts to more than two working days, and that s.75 would therefore have resulted in the (automatic) deemed visa grant even before the visa refusal decision. The Tribunal finds that the factual basis for this is incorrect. The decision to refuse the applicant a Bridging visa E was made on 13 August 2018, not 15 August 2018 (which was the date on which the applicant lodged his application for review).

16. The Tribunal is therefore satisfied that the decision under review, dated 13 August 2018, was made within the prescribed period set out in s.75 and r.2,24; and that the applicant is not taken to have been granted a bridging visa under s.75.

    Primary criteria for the visa grant

17. As noted above, at the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221. The applicant completed Form 1008, and identified as the basis on which he was seeking to meet cl.050.212 as being: ‘Ministerial Intervention and Judicial Review’. The form includes the following text:

    The applicants [sic] are a party to appeal to federal court which involves the appeal of a decision not to grant the applicants a protection visa. Further the applicants are seeking ministerial intervention in relation to the minister exercising his discretion under s.48B to life the s.48A application ban due to public interest and compelling circumstances.

18. In a note dated 5 August 2018, the applicant confirms that he intends ‘to apply for a further Protection visa’ and will seek to have the s.48 bar lifted to allow him to make a fresh application. At hearing, the applicant’s representative confirmed that he seeks to meet cl.050.212(3)(b) on the basis of his stated intention to lodge a further Protection visa application, and no other basis. There was discussion at hearing of this primary criterion; the two that had been alluded to in the visa application; and all the alternative criteria.

    Substantive visa application: cl.050.212(3)

19. The applicant has not made any application for a substantive visa, as of the time of his Bridging visa E application (7 August 2018), or the time of this decision. 

20. The applicant and his representative indicated at hearing that he seeks to meet cl.050.212(3)(b). This is met if the Tribunal is satisfied that the applicant will apply, within a period specified for doing so, for a substantive visa of a kind that can be granted if he is in Australia. In this case, he relies on his intention to make a further Protection visa application.

21. As noted in the decision under review, discussed at hearing and set out in the s.359A letter, the applicant has made a previous valid Protection visa application, which has been refused. He lodged the application on 4 November 2013; the Department refused the application on 13 March 2014; the (then) Refugee Review Tribunal affirmed the decision to refuse the application on 16 April 2015; and the Federal Circuit Court dismissed an application for judicial review on 28 October 2017. As a result of this, section 48A of the Act applies to prevent him from making a further application for a Protection visa while he is in the migration zone.

22. On 16 August 2018, the applicant made a submission to the Minister requesting him to make a determination under s.48B that he considers it in the public interest that the restriction in s.48A does not apply to the applicant, thereby permitting him to make a further Protection visa application. The applicant and [representative] provided the Tribunal with a large volume of material relating to this request. In part, this appears aimed at demonstrating the applicant’s sincere intention. For the main part, it seeks to demonstrate the public interest in this case, for instance, by pointing out that the applicant had not received appropriate legal advice in his first application, and by presenting claimed circumstances and changed conditions in Fiji. As the Tribunal noted at hearing, these are matters for the Minister (and his delegated officer(s)) to consider, and are not directly relevant to this decision.

23. [the representative] contended that the applicant has consistently stated his intention to apply for a further Protection visa, and that he has shown his resolve to act on that intention (within a period specified to make the application). She stressed that this time of application criterion refers to a future action, and that the applicant’s request to have the s.48A bar lifted should suffice to meet this criterion. She also cautioned the Tribunal against ‘reading into’ cl.050.212(3)(b) any qualifications, such as the requirement for a valid visa. She cited Department policy, which states in part: ‘While the legislation does not say that it must be a valid application, it is implied, so officers need to consider whether the non-citizen can actually make a valid application.’

24. The Tribunal finds that the s. 48A bar prevents the applicant from making a valid Protection visa application, at the time of application and this decision. It follows that he therefore cannot be granted that visa in Australia, unless and until the Minister exercises his discretion to lift the s.48A bar, or exercises his discretion to grant the visa. As discussed at hearing, the situation would be different if the Minister had exercised his discretion under s.48B favourably and permitted him to make a further Protection visa application. In the circumstances, the Tribunal is not satisfied that the applicant meets cl.050.212(3)(b) on the basis of his stated wish to lodge a further Protection visa application, namely his ongoing request for the Minister to lift the s.48A bar.    

25. There are no claims or evidence that the applicant has, or would have made, a valid application for any other substantive visa. In these circumstances, it is not necessary for the Tribunal to consider further the time limits that would apply if the applicant were intending to make such an application (and which would potentially prevent him from doing so). 

26. The Tribunal is not satisfied that, at the time of application, the applicant will make, within a period specified for doing so, a valid application for a substantive visa of a kind that can be granted in Australia.

27. Accordingly, the applicant does not meet cl.050.212(3).

    Ministerial intervention – request to lift s.48A bar: cl.050.212(5B)

28. Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

29. As noted above, the Bridging visa application form mentioned that the applicant was seeking to meet cl.050.212(5B), on the basis of the submission of 16 August 2018 (requesting Ministerial intervention to lift the s.48A bar). However, as noted in the Tribunal’s s.359A letter and discussed at hearing, and also confirmed in the submission of 22 August 2018, he has made several previous requests for Ministerial intervention, and therefore cannot meet cl.050.212(5B). Also, the applicant’s request made on 16 August 2018 does not afford him a basis on which to meet cl.050.212(5B) at the time of application. The representative clarified at hearing that the applicant was not seeking to meet this primary criterion.

30. Accordingly, the applicant does not meet cl.050.212(5B).

    Judicial review – onshore substantive visa refusal: cl.050.212(3A)

31. Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

32. As noted above, the applicant indicated on the application form that he (and family members) has applied for judicial review of a decision to refuse to grant them Protection visas. […] On 13 October 2017, the Federal Circuit Court dismissed the application to extend the 35-day period within which to lodge an application for judicial review. There is no evidence of ongoing litigation, at the time of application (7 August 2018) or the time of this decision. The submission of 22 August 2018 confirmed that there is no ongoing judicial review.

33. Accordingly, the applicant does not meet cl.050.212(3A).

    Other criteria under cl.050.212

34. The applicant does not claim to meet any of the other alternative criteria in cl.050.212. Nonetheless, the Tribunal explored with him and his representative whether he meets any of these. Its assessment of the evidence is below.

    Acceptable arrangements to depart Australia

35. Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

1. The applicant has not claimed, and there is no evidence to suggest, that he is making, or is the subject of, any arrangements to depart Australia. He confirmed this directly at hearing. On the contrary, he has stated that he intends to remain in Australia, particularly in the hope of being permitted to make a further Protection visa application in Australia. The applicant therefore does not meet cl.050.212(2).

   Judicial review, merits review, s.137K revocation

2. There is no evidence that the applicant was subject at the time of application to an application for judicial review (which the Tribunal has discussed above), merits review or s.137 revocation application, of any kind; or that he is member of a family unit of a person involved in relevant proceedings. At hearing, his representative mentioned that he has made, or intends to make, a submission to the International Court of Justice. The Tribunal has not received further details or supporting documentation. There was no direct claim or suggestion that such documentation would meet the requirements of these sub-clauses.

3. The applicant therefore does not meet cl.050.212(3A), cl.050.212(4), cl.050.212(4AA) or cl.050.212(9).

   Consequential cancellation (review/revocation of primary cancellation)

4. There is no evidence that the applicant held a visa that was cancelled pursuant to certain sections of the Act, and that an application for review or revocation of the visa cancellation has been or will be made. The applicant therefore does not meet cl.050.212(5) or cl.050.212(5A).

   Court declaration / review of citizenship decision

5. There is no evidence that the applicant has made an application for a Court declaration or for a review of a citizenship decision. Accordingly, the applicant does not meet cl.050.212(4AB) or cl.050.212(4AB).

   Ministerial intervention

6. As noted above, the applicant has made a request to the Minister to determine that s.48A does not apply, but this is not his first request and he therefore cannot satisfy s.050.212(5B) on the basis of that. There are no claims or evidence to indicate that he has made any other request to the Minister, for instance to substitute a more favourable decision following a visa refusal or cancellation, or under relevant sections of the Act. The Minister has also not substituted a decision, in effect to grant him a visa, under relevant sections of the Act. The Tribunal is therefore not satisfied that the applicant meets the requirements on the grounds of a Ministerial intervention request. The applicant therefore does not meet cl.050.212)(5B), (6), (6AA) or (6B).

   Compelling need to work

7. There is no evidence that the applicant holds a Bridging E visa. It follows that he cannot meet cl.050.212(6A) or cl.050.212(8) as the holder of a Bridging E visa, on the grounds of having a compelling need to work. The applicant therefore does not meet  cl.050.212(6A) or (8).

   Criminal Detention  

8. The applicant was not in criminal detention at the time of application. According to regulation 1.09, a person on bail awaiting trial is not considered to be in criminal detention. Accordingly, the applicant does not meet cl.050.212(7).

   Summary

9. As the applicant does not meet any of the alternatives set out in cl.050.212(2)-(9), he does not meet cl.050.212 at the time of application. As this is an essential requirement for the grant of a Subclass 050 visa, he cannot be granted the visa.

   Conclusion

10. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

11. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    James Silva
    Member

    
    

    RELEVANT LAW

    Class WE visas contains two subclasses: Subclasses 050 and 051. In the present case, the applicant seeks to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations).

    The primary criteria for the grant of a subclass 050 visa include subclause 050.212. This states that, at the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.

    Substantive visa application

    The applicant claims to meet subclause 050.212(3). This is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.

    ‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.

    Acceptable arrangements to depart Australia

    Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. ‘Acceptable arrangements’ is not defined in the Regulations. The Department’s Procedures Advice Manual 3 (PAM3), whilst not binding on the Tribunal, nevertheless provides some guidance: Chenv MIMIA [2001] FCA 285 (Chen) at [26] and Lin v MIMIA [2001] FCA 283 (Lin) at [26]. It is also open to consider whether the applicant’s intentions in making any arrangements to depart, were genuine (Lin at [30]).

    Judicial review, merits review, s.137K revocation

    Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.

    Subclause 050.212(4) is met if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or

    (c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b), (ba) or (bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.

    Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b), (4)(a), (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.

    Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.

    Consequential cancellation (review/revocation of primary cancellation)

    Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).

    Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).

    Court declaration / review of citizenship decision

    Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.

    Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.

    Ministerial intervention

    Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.

    Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _

    Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.

    Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).

    Compelling need to work

    Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.

    Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.

    ‘Compelling need to work’ is defined in r.1.03 of the Regulations as having the meaning set out in r.1.08. Regulation 1.08 provides that a non-citizen has a compelling need to work if he or she is in financial hardship. Financial hardship is not defined in the legislation, however Departmental guidelines (PAM3) provide guidance on matters that may be relevant in determining financial hardship.

    Criminal Detention

    Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force. A person is in ‘criminal detention’ if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand. However, a person is not in criminal detention where they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial (r.1.09). Periodic detention is defined in r.1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.