2308195 (Migration)

2308195 (Migration) [2023] AATA 2237 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2308195
MEMBER:De-Anne Kelly
DATE:21 June 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 21 June 2023 at 2:32pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable arrangements and genuine intention to depart Australia – single ticket for applicant and return for partner purchased – intention to make offshore partner visa application – claim of fear of harm by ex-husband and preference to stay in Australia and lodge application here – abidance by conditions – visa history – previous protection visa applications refused, with unsuccessful tribunal and judicial reviews and ministerial interventions not considered – periods as unlawful non-citizen and immigration detention – previous non-departure and forfeit of security bond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 48A, 48B 195(2), 269, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 050.212(2), 050.223, Schedule 8, condition 8401
CASES
Applicant VAAN of 2001 v MIMA (2002) 70 ALD 289
Chen v 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act) and a decision made by an authorised officer relating to requiring a security under s 269 of the Act.
The applicant applied for the visa on 7 June 2023. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking 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 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.223 and cl 050.212(2) – (9).
The decision to refuse to grant the visa was made on 9 June 2023 on the basis that the applicant did not satisfy clause 050.212 and therefore did not satisfy the criteria for the grant of a Bridging (Class WE) general (subclass 050) visa. Also, the applicant did not meet the requirements in clause 051.211 and did not satisfy the criteria for the grant of a Bridging (Class WE) Protection visa applicant (subclass 051) visa. Therefore, the delegate refused the application for grant of a Bridging (Class WE) visa lodged on 07 June 2023.
The applicant appeared before the Tribunal on 19 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural Matters
Interpretation.
Initially the applicant had difficulty in hearing the interpreter due to some interference on the connection however this resolved itself and the Tribunal asked on further occasions if the interpretation was clear and could be understood and the applicant confirmed that was the case. Moreover, clear and appropriate responses to questions indicated that the interpretation was understood.
Adjournments
Two brief adjournments were given during the hearing mainly to relieve the interpreter.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice; the applicant could make a written submission within 14 days or an extended period of time if they requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
“The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” was imposed on this visa.
CONSIDERATION OF Claims and evidence
Background
The applicant is currently an unlawful non-citizen held in detention in Villawood Detention Centre in NSW awaiting removal to Nepal. She is a Nepal citizen born on [Date] and originally came to Australia on a Visitor visa in 2005 together with her husband, son and daughter. The applicant has an Australian citizen partner [Mr A] and a son [Mr B] as well as a daughter-in-law and grandchild in Australia. The applicant’s daughter and husband returned to Nepal several years ago. The applicant has been unlawful for extended periods of time over the nearly 18 years she has remained in Australia as can be seen from her migration history below most notably from 9 January 2010 to 4 March 2014.
Migration History
Below is the delegates summary of the applicant’s migration history which the Tribunal has condensed into a table for ease of consideration. At the hearing the Tribunal took the applicant through the migration history, and she confirmed it as correct.
“You arrived in Australia [in] November 2005 as the holder of a Visitor visa (subclass TR-676) and have not departed since. This visa permitted you to remain onshore until 28 December 2005 and Condition 8503 - “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” was imposed on this visa.
On 23 December 2005, you lodged an application for a Permanent Protection visa (subclass XA-PV)(XA-PV(1)) and were granted a Bridging A visa (subclass WA-010)(BVA(1)) in association to this application. On 15 March 2006, your XA-PV(1) application was refused. On 11 April 2006, you lodged an application for merits review of your XA-PV(1) refusal at the Refugee Review Tribunal (RRT). On 31 August 2006, the RRT affirmed the Department’s decision to refuse your XA-PV(1) application.
[In] September 2006, you sought judicial review of the RRT’s decision at the Federal Magistrates Court (FMC) and were granted a further BVA(2) in association with this proceeding. On 21 May 2007, your application for judicial review was finalised by the FMC as Minister Win and on [June] 2007, you sought further review of this decision at the Full Federal Court (FFC). On 08 August 2007, your BVA(2) ceased and you were granted a further BVA(3) in association to your ongoing judicial review. [In] August 2007, your application for judicial review was finalised by the FFC as Minister Win and on 14 September 2007, your BVA(3) ceased. On 15 September 2007, you became an unlawful non-citizen (UNC).
[In] September 2007, you sought judicial review of the FFC’s decision at the High Court (HC). On 13 November 2007, you were located by Enforcement Officers (CERF) whilst UNC and was subsequently granted a Bridging E visa (subclass WE-050)(BVE(1)) to regularise your status. On 16 November 2007, your BVE(1) ceased and you were granted a further BVE(2) in association to your ongoing judicial review. [In] April 2008, your application for judicial review was finalised by the HC as Minister Win and on 22 May 2008, your BVE(2) ceased. On 23 May 2008, you again became an UNC.
On 21 May 2008, you lodged your first request for Ministerial Intervention (MI(1)) under section 417 of the Act. Between 09 September 2008 and 10 June 2009, you were granted a further five BVE’s (BVE(3) through BVE(7)) in relation to your ongoing MI(1) request.
On 12 November 2008, you lodged a further XA-PV(2) application. However, due to your previous XA-PV(1) refusal, you were barred from lodging a further application for a protection visa under section 48a of the Act and your application was subsequently converted to an s48b request by the Department. On 11 December 2008, your s48b request was refused and you were therefore not permitted to lodge a further application for a Protection visa.
On 27 June 2009, your MI(1) was finalised as ‘Not Considered’. On 22 July 2009, your BVE(7) ceased and you were granted a further BVE(8) on departure grounds. Condition 8401 - “The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified by the Minister from time to time” was imposed on this BVE, requiring you to attend an interview at the Department on 04 August 2009. Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” was also imposed on this BVE, requiring you to “present a fully paid ticket by 04 August 2009 to depart Australia by no later than 31 August 2009.” On 04 August 2009, your BVE(8) ceased and on 05 August 2009, you again became a UNC. As you did not present to the Department on 04 August 2009 or provide an officer a valid ticket for departure as required, you did not comply with Conditions 8401 and 8511.
On 26 November 2009, you again were located by CERF while working at [a Workplace]. On that same day, you were detained under s189 of the Act and admitted to Villawood Immigration Detention Centre (VIDC).
On 02 December 2009, while in immigration detention, you lodged an application for a further BVE(9). On 04 December 2009, this application was refused by the Department under 050.223 and on 08 December 2009, you sought merits review of this refusal at the Migration Review Tribunal (MRT). On 17 December 2009, the MRT set aside your BVE(9) refusal and remitted it back to the Department for reconsideration. On 23 December 2009, you were granted BVE(9) on departure grounds and released from immigration detention. Condition 8401 - “The holder must report: (a) at the time or times; and (b) at a place or in a manner; specified by the Minister from time to time”, Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” and 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” were imposed on this visa. In addition, you paid a $22,000 security bond in order to ensure your compliance with these visa conditions. On 08 January 2010, your BVE(9) ceased and you again became an UNC. As you failed to report to the Department, present an officer a valid ticket and depart Australia on or by this date, you did not comply with the conditions imposed on your visa and your $22,000 bond was forfeited to the Department on 28 May 2012 accordingly.
On 25 February 2014, whilst still an UNC, you lodged a further application for an XA-PV(3). On 27 February 2014, your XA-PV(3) application was determined to be valid as you were affected by the SZGIZ judgement and therefore the s48b bar no longer applied to your case. On 04 March 2014, you were granted a further BVE(10) in association to your ongoing XA-PV(3) application. On 28 July 2014, your XA-PV(3) application was refused and on 26 August 2014, you applied for merits review of this decision at the RRT. On 09 May 2016, the RRT affirmed the Department’s decision to refuse you XA-PV(3) application and on 14 June 2016 your BVE(10) ceased.
[In] June 2016, you sought judicial review of the RRT’s decision at the FCC and were granted a further BVE(11) in association with this proceeding. [In] October 2016, your application for judicial review was finalised by the FCC as Minister Withdraw and your XA-PV(3) application was referred back to the RRT for reconsideration on 11 October 2016. On 10 April 2017, the RRT again affirmed the Department’s decision to refuse your XA-PV(3) application and [in] May 2017 you sought further judicial review of at the FCC. On 19 May 2017, your BVE(11) ceased and you were granted a further BVE(12) in association to your ongoing judicial review. [In] May 2018, your application for judicial review was finalised by the FCC as Minister Win and [in] June 2018, you sought judicial review of the FCC’s decision at the FFC. [In] November 2018, your application for judicial review finalised by the FFC as Minister Win and on 12 December 2018, your associated BVE(12) ceased. On 13 December 2018, you again became an UNC.
On 21 February 2022, whilst still an UNC, you lodged a second request for Ministerial Intervention (MI(2)) under s417 of the Act and on 22 February 2022 you applied for a further BVE(13). On 25 February 2022 you were granted BVE(13) which permitted you to remain onshore until 25 August 2022. On 12 May 2022, your MI(2) request was finalised as ‘Inappropriate to Consider’.
On 25 February 2022, you lodged a further application for a Protection visa (subclass XA-866), however, due to your previous XA-PV(3) refusal, you are barred from lodging a further application for a protection visa under section 48a of the Act, and your application was subsequently converted to an s48b request by the Department. On 16 November 2022, your s48b request was refused and you were therefore not permitted to lodge a further application for a Protection visa.
On 17 May 2022, you lodged a request to waive Condition 8503 - “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” imposed on the substantive visa with which you entered Australia as you were seeking to lodge an application for a substantive visa onshore. On 03 June 2022, your waiver request was refused by the Department. On 11 July 2022, you applied for merits review of your waiver request refusal at the Administrative Appeals Tribunal (AAT). On 03 November 2022, the AAT determined that they do not have jurisdiction to review your waiver refusal and your application for merits review was finalised accordingly. As of today’s date 09 June 2023, you remain subject to Condition 8503 - “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”.
On 25 August 2022, your BVE(13) ceased and you were granted a further BVE(14) on departure grounds with Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival imposed”. This condition required you to present a ticket valid for departure to the Department by 25 October 2022. On 25 October 2022, your BVE(14) ceased and on 26 October 2022, you again became an UNC. As you did not present a ticket valid for departure to the Department by 25 October 2022, you did not comply with Condition 8511 - Show Valid Ticket.
On 08 November 2022, you were granted a further BVE(15) on departure grounds. On 08 February 2023, your BVE(15) ceased and on 09 February 2023, you again became an UNC.
On 02 March 2023, you were granted a further BVE(16) on departure grounds with Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” and Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose imposed”. These conditions required you to present a ticket valid for departure to the Department and to depart Australia by 14 April 2023. On 14 April 2023, your BVE(16) ceased and on 15 April 2023, you again became an UNC. As you did not present a ticket valid for departure to the Department or depart Australia by 14 April 2023, you did not comply with Condition 8511 and Condition 8512.
On 02 March 2023, you lodged a third request for Ministerial Intervention (MI(3)) under s417 of the Act. On 13 March 2023, your MI(3) request was finalised as ‘Inappropriate to Consider’.
On 13 March 2023, you lodged a further application for a Protection visa (subclass XA-866). However, due to your previous XA-PV(3) refusal and unsuccessful request for the s48a bar to be lifted, you remain barred from lodging a further application for a protection visa under section 48a of the Act, and therefore, your application was again converted to an s48b request by the Department. On 17 March 2023, your s48b request was refused and you were therefore not permitted to lodge a further application for a Protection visa.
On 30 April 2023, you were granted a further BVE(17) on departure grounds with Condition 8512 - “The holder must leave Australia by the date specified by the Minister for the purpose” imposed. This condition required you to depart Australia by 15 May 2023. On 15 May 2023, your BVE(17) ceased and on 16 May 2023, you again became an UNC. As you did not depart Australia by 15 May 2023, you again did not comply with Condition 8512.
On 29 May 2023, you lodged an application for a further BVE(18) on departure grounds. On 01 June 2023, your BVE(18) application was refused under 050.223 and you were detained under s189 of the Act by Australian Border Force (ABF). On this date, you were again admitted to VIDC, where you currently remain.
On 07 June 2023, you lodged a further application for a BVE(19) while in immigration detention. The Detention Review Officer was notified about the lodgement of this application on 07 June 2023, as required under Item 1305(3)(c) of the Migration Regulations. It is this application that is currently under assessment. You have no ongoing immigration matters at the time of this BVE(19) application and are subject to the s48a bar and Condition 8503 - “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”.

Date Action Visa & conditions

[Nov.] 2005 Arrive Australia on Visitor visa Valid to 28 Dec 2005, 8503

23 Dec 2005 Lodged Protection visa XA-PV Bridging visa - WA-010 BVA(1)

15 Mar 2006 Protection visa XA-PV refused.

11 April 2006 Lodged merits review RRT

31 Aug 2006 RRT affirmed refusal

[Sep] 2006 Judicial review FMC of RRT decision BVA(2) granted

[May] 2007 Finalised by FMC as Minister Win

[June] 2007 Judicial review FFC of FMC decision

8 Aug 2007 BVA(2) ceased BVA(3) granted

[Aug] 2007 Finalised by FFC as Minister Win

14 Sep 2007 BVA(3) ceased

15 Sep 2007 Became unlawful non-citizen UNC(1)

[Sep] 2007 Judicial review HCA on FFC decision

13 Nov 2007 Located by Enforcement officers Bridging visa – Subclass WE-050 BVE(1)

16 Nov 2007 BVE(1) ceased BVE(2) granted

[Apr] 2008 Finalised by HCA as Minister Win

22 May 2008 BVE(2) ceased

23 May 2008 Became unlawful non-citizen UNC(2)

21 May 2008 Request Ministerial Intervention Mi(1)

9 Sep 2008 – 10 June 2009 Further 5 BVE’s BVE(3) – BE(7).

12 Nov 2008 Lodged further XA-PV(2) Barred form lodging s 48a

Converted to a s48b request by Dept

11 Dec 2008 S48b request refused Prevented from lodging further XA-PV.

27 Jun 2009 Mi(1) finalised as Not considered

22 Jul 2009 BVE(7) ceased

Granted BVE(8) on departure grounds 8401, 8511 condition to depart by 31 Aug 2009.

4 Aug 2009 BVE(8) ceased

5 Aug 2009 Became unlawful non-citizen UNC(3) Failed to comply with 8401 & 8511.

26 Nov 2009 Located by Enforcement officers, admitted to (VIDC) Working at [workplace].

2 Dec 2009 Lodge application BVE(9)

4 Dec 2009 Application refused under 050.223.

8 Dec 2009 Lodged merits review MRT

17 Dec 2009 MRT set aside visa refusal.

23 Dec 2009 Granted BVE(9) on departure grounds. Paid $22,000 security bond to ensure compliance Released from VIDC.
8401, 8511 condition to depart by 31 Aug 2009.

8 Jan 2010 BVE(9) ceased

9 Jan 2010 Became unlawful non-citizen UNC(4) Failed to comply with 8401 & 8511.

28 May 2012 $22,000 security bond forfeited.

25 Feb 2014 Lodged further XA-PV(3)

27 Feb 2014 XA-PV(3) determined valid SZGIZ. S48b bar no longer applied.

4 Mar 2014 Granted BVE(10)

28 July 2014 XA-PV(3) refused by Dept.

26 Aug 2014 Lodged Merits Review RRT

9 May 2016 RRT affirmed refusal.

14 Jun 2016 BVE(10) ceased

[Jun] 2016 Judicial review FCC of RRT decision Granted BVE(11)

[Oct] 2016 Finalised by FCC as Minister Withdraw

11 Oct 2016 XA-PV (3) referred back to RRT

10 Apr 2017 RRT affirmed again refusal XA-PV(3).

[May] 2017 Judicial review FCC of RRT decision

19 May 2017 BVE(11) ceased Granted BVE(12).

[May] 2018 Finalised by FCC as Minister Win

[Jun] 2018 Judicial review FFC of FCC decision

[Nov] 2018 Finalised by FFC as Minister Win

12 Dec 2018 BVE(12) ceased

13 Dec 2018 Became unlawful non-citizen UNC(5)

21 Feb 2022 Request Ministerial Intervention Mi(2)

22 Feb 2022 Lodged application further BVE.

25 Feb 2022 Granted BVE(13) Remain onshore to 25 Aug 2022

12 May 2022 Mi(2) finalised “Inappropriate to consider”.

25 Feb 2022 Lodged further XA-PV(4) Barred form lodging s 48a

Converted to a s48 request by Dept

16 Nov 2022 S48b request refused Prevented lodging further XA-PV.

17 May 2022 Lodged waiver of Condition 8503.

3 June 2022 Wavier request refused by Dept.

11 July 2022 Lodged Merits Review AAT.

3 Nov 2022 AAT did not have jurisdiction.

25 Aug 2022 BVE(13) ceased.

25 Aug 2022 Granted BVE(14) on departure grounds 8401, 8511 condition to present air ticket by 25 Oct 2022

25 Oct 2022 BVE(14) ceased

26 Oct 2022 Became unlawful non-citizen UNC(6) Failed to comply with 8401 & 8511.

8 Nov 2022 Granted further BVE(15) on departure grounds.

8 Feb 2023 BVE(15) ceased.

9 Feb 2023 Became unlawful non-citizen UNC(7) Failed to comply with 8401 & 8511.

2 Mar 2023 Granted BVE(16) on departure grounds. 8401, 8511 condition to depart by 14 April 2023.

14 April 2023 BVE(16) ceased. .

15 April 2023 Became unlawful non-citizen UNC(8) Failed to comply with 8401 & 8511

2 Mar 2023 Request Ministerial Intervention Mi(3)

13 Mar 2023 Mi(3) finalised “Inappropriate to consider”.

13 Mar 2023 Lodged further XA-866(5) Barred form lodging s 48a

Converted to a s48b request by Dept

17 Mar 2023 S48b request refused Prevented lodging further XA-PV.

30 Apr 2023 Granted BVE(17) on departure grounds 8401, 8511 condition to depart by 15 May 2023.

15 May 2023 BVE(17) ceased

16 May 2023 Became unlawful non-citizen UNC(9) Failed to comply with 8401 & 8511

29 May 2023 Lodged application for BVE(18) on departure grounds

1 June 2023 BVE(18) refused under 050.223.

Detained by ABF admitted VIDC.

7 June 2023 Lodged application for BVE(19)

9 June 2023 BVE(19) refused by Dept.

9 June 2023 Lodged Merits Review AAT. Current case.

There are two subclasses of visa in the class in question. These are:
- 050 (Bridging (General))
- 051 (Bridging (Protection Visa Applicant))
Under migration law, a visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and the Regulations.
The issue in this case is whether the applicant satisfies cl 050.212(2) and cl 050.223 which provide as follows.
050.212(2)
(2) An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
050.223
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
Bridging E (class WE) general (subclass 050) visa - Time of application criteria
Immigration status of the applicant - cl 050.211
Clause 050.211 is met if, at the time of application:
(1) the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and
(2) the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17).
The applicant is an un-lawful non-citizen. The applicant must continue to satisfy this criterion at the time of decision: cl 050.221.
Accordingly, the applicant meets cl 050.211(1).
The applicant is not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17). Accordingly, the applicant does not meet cl 050.211(2).
Accordingly, the applicant meets cl 050.211.
The grounds for seeking the visa - cl 050.212
Clause 050.212 (1) states that:
(1) The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).
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.
In this case, the applicant is apparently seeking to meet cl 050.212(2) since she has submitted the evidence in Schedule 1 which the Tribunal has considered.
The Tribunal took the applicant through the criteria and examined her claims. For the reasons below, the applicant does not meet cl 050.212.
Subclause 050.212(2) - Acceptable arrangements to depart Australia
This clause provides as follows.
(2) An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, 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 Departmental guidelines (PAM3), whilst not binding on the Tribunal, nevertheless provide 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]).
At the commencement of the hearing the applicant advised that in addition to her son she has a daughter who returned to Nepal in 2009 and lives there with her father.
When asked why she wants the bridging visa granted the applicant stated that she cannot go back to Nepal because she is scared of her previous husband and wants to stay in Australia and lodge a Partner visa. If she goes back to Nepal he will find her. When asked how he would know she had returned to Nepal the applicant advised that he would know and find her.
The Tribunal advised the applicant that it noted the E -Tickets for a single flight for the applicant to Kathmandu Nepal and a return flight for her partner both leaving on 22 June 2023 and the latter returning on Wednesday 28 June 2023. It noted the receipt for the e-tickets show an amount of $3,555 AUD. The applicant stated that her partner was going with her but would return and she would stay in her sister’s house.
Section 359AA
The Tribunal noted the applicant had a valid passport and had a single air ticket for travel on 22 June 2023 from Australia to Nepal and her partner had a return air ticket for travel on 22 June 2023 from Australia to Nepal with return on 27 June 2023. The Tribunal put to the applicant under s359AA that if it considered her migration history it found that she had on some 7 or 8 occasions been granted a BVE with conditions 8401 and 8511 but she had failed to comply with these conditions and had instead become a unlawful non-citizen. On one of these occasions the Tribunal had found her credible and set aside the decision to refuse her BVE but she had still not complied with the conditions of the visa. The Tribunal said it acknowledged that her partner had paid $3,555 for air tickets for both of them but she had in the past forfeited a security bond of $22,000 so the payment for the tickets was not evidence that she intended to take the flight and depart Australia. The Tribunal put to the applicant that when asked why she wanted the BVE granted she stated that she could not return to Nepal because of her previous husband and instead wanted stay in Australia and lodge a Partner visa application. The Tribunal put to her that in her own words she intended to stay and lodge a Partner visa application and if it gave consideration to this it may find that she did not have a genuine intention to depart Australia. The fact that she had a partner and son in Australia were an added incentive for her to remain in Australia.
The applicant chose to respond in the hearing and said she was leaving with her partner on 22 June 2023, and she had submitted the air tickets. She apologised for not following the laws but that she would follow them now and would not break any of the laws of the Australian government. Her partner is ready to do anything to help as required. She said she cannot apply for a Partner visa in Australia but would apply in Nepal and requested that she not face any impediments when applying for the Partner visa and said she believed the visa will take more time and her records will not be good. (The Tribunal took this to mean that her migration history should not be used to prejudice her Partner visa application however these are matters for the Department not the Tribunal). She also stated that she needs to be granted a BVE because if she remains in detention, she will have to re-pay a large amount to the Australian government and cited a figure of $30,000 to $40,000 although scant evidence of this was provided. The Tribunal said that she and her partner had some $39,000 in their joint bank account and this would cover the amount she had quoted in detention costs to which she replied that they had other loans and expenses to cover as well. She said she wants even one day out of detention to spend with her partner.
Towards the conclusion of the hearing, the applicant was invited to make any further comments and stated that she would like to get out of detention and go to Nepal freely with her partner. She would like to meet her son, daughter in law and grandchildren as she is missing them a lot. She would not breach her conditions. She wants to go to Nepal at her own expense rather under detention and wants to have justice provided. She was pleased to be able to speak up and hopes for a positive outcome.
The Tribunal has given careful consideration to these arguments and also to the judgement in Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 283 (20 March 2001) at [30] and [31].
30. In my opinion, the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant's intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable.
31 In my opinion, the Tribunal did not fall into error by inquiring into the genuineness of the applicant's intention to depart when assessing whether he was making acceptable arrangements.
In Lin, his Honour noted that even had there been formal arrangements made, as there has been in this case with the purchase of air tickets, that would not ameliorate the need to assess whether the applicant has a genuine intention of carrying through with those arrangements. His Honour stated that the Tribunal did not fall into error by inquiring into the genuineness of the applicant’s intention to depart as part of assessing if they were making acceptable arrangements and the Tribunal will be guided by this statement and similarly enquire into the genuineness of the applicants intention to depart Australia.
I have given some weight to the applicant’s assurances and those of her son and partner that she will respect Australia’s laws and depart Australia on 22 June 2023 and that she has purchased air tickets for she and her partner, however I give more weight to her initial statement that she could not return to Nepal and intended to stay in Australia and lodge a Partner application. She later acknowledged that she could not lodge such an application in Australia and could only do so offshore from Nepal. (Due to the 8503 condition from her initial Visitor visa). The Tribunal gives weight to the fact, that if the applicant is aware that she can only lodge a Partner visa application offshore, she failed to take the opportunity to do so by departing on 15 May 2023 in accordance with the conditions of her BVE(17) granted on 30 April 2023.
Some limited weight is given to the applicants concern over the detention costs that she will be required to pay however it is not plausible to grant a BVE such that an applicant can avoid legitimate costs imposed by the Australian government when those costs are brought about by the applicants flouting of Australia’s immigration laws.
Some weight is given to the applicant and her partner and family’s desire to spend some time together, even one day, before the claimed departure on 22 June 2023. The Tribunal notes the applicant’s statement that she cannot return to Nepal because of her previous husband but can give this little weight as there is scant evidence of threats from the Father of her children and it is noted that the applicants daughter is living with him.
The Tribunal gives considerable weight to the applicant’s extensive migration history that shows little respect for Australia’s migration laws. She has been granted some 7 BVE’s with among other conditions, Condition 8511 - “Within the time specified by the Minister for the purpose, the holder must, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival” and she has failed to comply with these conditions. This disregard for Australia’s laws is not in the distant past since as recently as 30 April 2023 the applicant was granted a BVE, the nineteenth BVE granted to her, with conditions including that she departs Australia by 15 May 2023. Her response has always been the same, to become an unlawful non-citizen. By the Tribunals reckoning the applicant has become an unlawful non-citizen on some nine occasions over the nearly 18 years she has been in Australia.
Taking all into consideration the Tribunal finds that the applicant has a migration history of avoiding departing Australia by becoming an unlawful non-citizen and has done so for nearly 18 years, which coupled with her concern over the debt that detention will cause, her uncertainty over the outcome of an Offshore Partner visa application and her attachment to her partner, her son and his family in Australia provide a strong incentive to make acceptable arrangements to convince the Tribunal to set aside the refusal of her BVE application however these arrangements are not made with the intention to depart Australia.
For these reasons, the Tribunal is not satisfied that at the time of application the applicant is making nor was she the subject of acceptable arrangements to depart Australia.
Accordingly, the applicant does not meet. cl 050.212(2).
Substantive visa application – cl. 050.212(3).
This clause provides as follows.
(3)  An applicant meets the requirements of this subclause if:
(a)  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
(b)  the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
Subclause 050.212(3) 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 an application being made: s 5(9) of the Act.
Section 195 of the Migration Act states that a person in detention has a maximum of seven working days in which to apply for a visa. Section 195(2) states that a detainee who does not apply for a visa within the time allowed may not apply for a visa, other than a bridging visa or a protection visa, after that time.
It is noted that the applicant had applied for a two Protection visa’s which were refused, and that refusal affirmed respectively by the High Court in 2008 and the FFC in 2018. As such, the applicant is affected by s48A and s48B of the Migration Act and cannot apply for another protection visa while she remains in the migration. She has previously made a s48B request which was unsuccessful.
The Tribunal notes that on the application form and in the supporting documents provided, the applicant’s intention to lodge an application for a partner visa to remain in Australia indefinitely, however the applicant is unable to lodge a valid Partner visa application onshore due to the imposition of Condition 8503 - “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” . This condition was placed on the substantive visa with which the applicant last entered Australia [in] November 2005. It must be noted that she applied for a waiver of this condition on 17 May 2022 which was refused by the Department on 03 June 2022 and she remains subject to Condition 8503 accordingly. As such, despite the applicant’s stated intention to apply for a Partner visa, she is unable to lodge a valid application for a Partner visa onshore.
The Tribunal put to the applicant that she is prevented from validly applying for a substantive visa and therefore it seemed she did not meet this clause. She concurred with this advice.
Given that 050.212(3)(a) requires that an applicant “HAS made…. a valid application” the fact that such an application had not been made means the applicant cannot satisfy that clause. The Tribunal finds the applicant did not satisfy this clause at the time of application.
Accordingly, the applicant does not meet cl 050.212 (3).
Subclause 050.212(3A).
This clause provides as follows.
(3A) An applicant meets the requirements of this subclause if:
(a)  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
(b)  either:
(i)  the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceeding (including any proceedings on appeal) have not been completed; or
(ii)  the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant’s substantive visa, and the judicial review proceeding (including any proceedings on appeal) have not been completed.
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.
The Tribunal notes that there is a definition of “substantive visa” in the Migration Act as follows.
Substantive visa means a visa other than;
(a)   A bridging visa; or
(b)   A criminal justice visa; or
(c)   An enforcement visa.
The Tribunal put to the applicant that she is prevented from making a substantive visa application in Australia and it seems the application does not satisfy this clause.
The applicant has not made a valid application for a substantive visa of a kind that can be granted in Australia and as such does did not meet this clause at the time of application.
Accordingly, it finds that the application does not meet cl.050.212(3A).
Subclause 050.212(4)
Cl.050.212(4) provides as follows.
(4)  An applicant meets the requirements of this subclause if:
(a)  the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a 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 a refusal to grant the substantive visa; or
(b)  the applicant has applied for merits review of a decision to cancel a visa; or
(ba)  the applicant has applied under section 137K of the Act for revocation of the cancellation of a visa; or
(bb)  the applicant has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa; or
(c)  the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b), (ba) or (bb); or
(d)  the applicant has applied for judicial review of the validity of a law that affects:
(i)  the applicant's eligibility to apply for a substantive visa; or
(ii)  the applicant's entitlement to be granted or to continue to hold a substantive visa.
The Tribunal put to the applicant that she is prevented from making a substantive visa application in Australia.
The application is in relation to the refusal to grant a bridging visa but not a substantive visa. The applicant has not had a decision to cancel a visa; nor to revoke the cancellation of a visa and is not making an application of this kind so the Tribunal finds that cl 050.212(b), (ba), (bb) and (c) are not met. The applicant has not applied for judicial review of the validity of any laws and (d) is not satisfied.
The Tribunal has considered whether the application meets (4)(a) and whether the applicant has applied for judicial review of a decision in relation to a substantive visa other than a decision to refuse to grant a visa and finds no such application has been made. It was put to the applicant that she does not meet this subclause.
Accordingly, the applicant does not meet cl 050.212 (4).
Subclause 050. 212(4AAA)
This clause provides as follows.
(4AAA) An applicant meets the requirements of this subclause if the applicant has applied for:
(a) a declaration from a court that the Act does not apply to the applicant; or
(b) judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007; and the proceedings for the declaration or review have not been completed.

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 2007 (Cth), and those proceedings have not been completed.
It was put to the applicant that she does not on the evidence satisfy this clause. There has been no decision under the Citizenship Act 2007.
Accordingly, cl 050.212(4AAA) is not satisfied.
Subclause 050.212(4AA)
This clause provides as follows.
(4AA) An applicant meets the requirements of this subclause if:
(a)  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:
(i)  paragraph (3A)(b); or
(ii)  paragraph (4)(a); or
(iii)  paragraph (4)(aa); or
(iv)  paragraph (4)(d); and
(b)  the person whose substantive visa application is the subject of the judicial review proceedings is not a party to a representative proceeding; and
(c)  the applicant made a substantive visa application that was combined with the substantive visa application mentioned in:
(i)  paragraph (3A)(a); or
(ii)  subclause (4).
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) or (4)(a) or (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.
It was put to the applicant that she was not a member of the family unit of a person whose substantive visa is the subject of judicial review proceedings since she is the principal applicant.
Accordingly, cl 050.212(4AA) is not met.
Subclause 050.212(4AB)
This clause provides as follows.
(4AB) An applicant meets the requirements of this subclause if the applicant is:
(a)  a member of the immediate family of a person who meets the requirements of subclause (4AAA); or
(b)  a brother or sister who has not turned 18, of a person who:
(i)  meets the requirements of subclause (4AAA); and
(ii)  has not turned 18.
Note:    Regulation 1.12AA defines member of the immediate family
Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under reg 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.
It was put to the applicant that she was not a member of the family unit of a person whose substantive visa is the subject of judicial review proceedings since she is the principal applicant.
The Tribunal finds that the application does not satisfy cl 050.212(4AB).
Subclause 050.212(4A)
This clause provides as follows.
(4A)  For the purposes of subclauses (3A), (4) and (4AAA), the applicant is taken to have applied for judicial review if the applicant:
(a)  is described or identified, in an application or document filed for the purposes of section 33H of the Federal Court of Australia Act 1976, as a group member to whom a representative proceeding relates; or
(b)  is a person on whose behalf or for whose benefit a person sues under rule 21.09.1 of the High Court Rules.
The Tribunal put to the applicant that she was not a group member of an action being a sole applicant and there is scant evidence that she is the beneficiary of a an action to sue under High Court Rules so it seemed that her application did not satisfy this clause.
The Tribunal finds that the application does not satisfy cl 050.212(4A).
Subclause 050.212(5) and (5A).
This clause provides as follows.
(5)  An applicant meets the requirements of this subclause if:
(a)  he or she held a visa that was cancelled under subsection 140(1) or (3) of the Act (which deals with cancellation because of the cancellation of a visa held by another person); and
(b)  either:
(i)  the other person whose visa was cancelled has applied for review of the decision to cancel his or her visa; or
(ii)  the Minister is satisfied that that other person will make an application of that kind.
(5A) An applicant meets the requirements of this subclause if:
(a)  the applicant held a visa that was cancelled under subsection 140(1), (2) or (3) of the Act because another person’s visa was cancelled under section 137J of the Act; and
(b)  one of the following applies in relation to the person whose visa was cancelled under section 137J of the Act:
(i)  he or she has applied under section 137K of the Act for revocation of the cancellation of the visa;
(ii)  he or she has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of the visa;
(iii)  the Minister is satisfied that he or she will make an application of a kind mentioned in subparagraph (i) or (ii).
The Tribunal put to the applicant that she was not the subject of a visa cancellation because another person’s visa was cancelled so it seemed that her application did not satisfy this clause.
The Tribunal finds that the application does not satisfy cl 050.212(5) and (5A).
Subclause 050.212(5B) and (6).
This clause provides as follows.
(5B)  An applicant meets the requirements of this subclause if the applicant:
(a)  is a person to whom section 48A of the Act applies; and
(b)  has made a request to the Minister to determine under section 48B of the Act that section 48A of the Act does not apply to prevent an application for a protection visa by the applicant; and
(c)  has not previously sought, or been the subject of a request by another person for:
(i)  a determination under section 48B of the Act; or
(ii)  the exercise of the Minister's power under section 345, 351 or 417 of the Act.
(6)  An applicant meets the requirements of this subclause if:
(a)  the applicant is the subject of:
(i)  a decision in relation to an application made in Australia for a visa; or
(ii)  a decision to cancel a visa; and
(b)  in relation to the decision mentioned in paragraph (a), the applicant:
(i)  is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(ii)  has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(c)  the applicant has not previously sought, or been the subject of a request by another person for:
(i)  the exercise of the Minister’s power under section 345, 351 or 417 of the Act; or
(ii)  a determination under section 48B of the Act.
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. _
The Tribunal put to the applicant that she had previously sought or been the subject of a request for a determination under s48B of the Act which was unsuccessful in March 2023, so it seemed that her application did not satisfy these clauses. The applicant has previously made a request for the Minister to exercise his powers.
The Tribunal finds that the application does not satisfy cl 050.212(5B) and (6).
Subclause 050.212(6AA).
This clause provides as follows.
(6AA) An applicant meets the requirements of this subclause if the Minister has decided, under section 345, 351 or 417 of the Act, to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act.
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.
The Tribunal put to the applicant that she was not the subject of a decision by the Minister to substitute a more favourable decision, so it seemed that his application did not satisfy these clauses.
The Tribunal finds that the application does not satisfy cl 050.212 (6AA).
Subclause 050.212(6A) and (6B).
These clauses provide as follows.
(6A)  An applicant meets the requirements of this subclause if:
(a)  the applicant holds a Bridging E (Class WE) visa granted on the basis of the applicant meeting the requirements of subclause (6AA); and
(b)  the Minister has decided, under section 345, 351 or 417 of the Act, to substitute a more favourable decision for the decision of the Tribunal but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act; and
(c)  the Minister is satisfied that the applicant has a compelling need to work.
(6B)  An applicant meets the requirements of this subclause if:
(a)  the applicant holds, or has held, a Bridging E (Class WE) visa granted before 1 July 2009 on the basis of the applicant meeting the requirements of subclause (6) or (6A); and
(b)  the applicant is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(c)  before 1 July 2009, the applicant made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(d)  the Minister has not yet made a decision to substitute a more favourable decision under section 345, 351 or 417 of the Act.
Subclause 050.212(6A) is met if the applicant holds a Bridging E (Class WE) visa granted as a result of meeting cl 050.212(6AA) however it was put to the applicant that she does not hold such a visa and certainly not one granted under subclause 050.212(6AA).
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).
The Tribunal put to the applicant that she does not have an outstanding Ministerial Intervention request.
The Tribunal finds that the application does not satisfy cl 050.212 (6A) and (6B).
Subclause 050.212(7).
The clause provides as follows.
(7) An applicant meets the requirements of this subclause if:
(a) the applicant is in criminal detention; and
(b) no criminal justice stay certificate or criminal justice stay warrant about the applicant is in force.
Criminal detention is defined in reg 1.09 to include serving of imprisonment, including periodic detention. ‘Periodic detention’ is defined in reg 1.03 to mean a system of restriction of liberty by which periods at liberty alternate with periods in prison.
The Tribunal put to the applicant that she is not in criminal detention but rather immigration detention, so it seemed that her application did not satisfy these clauses.
The Tribunal finds that the application does not satisfy cl 050.212 (7).
Subclause 050.212(8).
The clause provides as follows.
(8)  An applicant meets the requirements of this subclause if:
(a)  the applicant holds a Bridging E (Class WE) visa that:
(i)  was granted as a result of a valid application, made in Australia for a substantive visa of a kind that could be granted if the applicant was in Australia; and
(ii)  is subject to condition 8101; an
(b)  the Minister is satisfied that the applicant has a compelling need to work; and
(c)  in the case of an applicant who was an applicant for a protection visa — either:
(i)  the reasons for the delay in making the application for a protection visa are acceptable to the Minister; or
(ii)  the applicant is in a class of persons specified by the Minister by instrument in writing for this subparagraph.

100. The Tribunal put to the applicant that she does not hold a bridging visa E (Class WE) so it seemed that his application did not satisfy these clauses.
101. The Tribunal finds that the application does not satisfy cl 050.212 (8).
Subclause 050.212(9).
102. This clause provides as follows.
(9)  An applicant meets the requirements of this subclause if:
(a)  the applicant has made a valid application for a Partner (Migrant) (Class BC) visa; and
(b)  that application was refused; and
(c)  either:
(i)  the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or
(ii)  the applicant:
(A)  is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)  made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i);
and the applicant or family unit member does not satisfy the criterion in paragraph 010.211(6)(c) for the grant of a Bridging A (Class WA) visa; and
(d)  the judicial review proceedings (including proceedings on appeal, if any) are not completed.

103. 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 (Permanent Partner visa subclass 100 if previously granted a Subclass 309 visa or BI Business Innovation 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.
104. The Tribunal notes the applicant has not made a valid application for Partner (Migrant) (Class BC ) visa and is not a member of a family unit whose substantive visa application is the subject of judicial review proceedings so it seemed that her application did not satisfy these clauses.
105. The Tribunal finds that the application does not satisfy cl 050.212 (9).
106. Accordingly, the applicant does not meet cl 050.212.
Whether the applicant continues to satisfy the time of application criteria - cl 050.221
107. Clause 050.221 requires the applicant to continue to satisfy the requirements of cl 050.211 and 050.212 at the time of decision. The applicant continues to be an unlawful non-citizen at the time of decision and is still not an eligible noncitizen the kind set out in sub regulation 2.20(7), (8), (9), (10), (11) or (17).
108. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl 050.211 and does not satisfy cl 050.212 and therefore does not meet cl 050.221.
Whether the applicant will abide by conditions - cl 050.223
109. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.
110. When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl 050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl 050.223 is not met.

112. In this case, cl 050.223 applies because the Minister must be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following condition(s) should be imposed in the circumstances of this case:
8101 – No work
8401 – Report as directed.
8101 – No work
113. When asked if she would abide by this visa condition, the applicant responded that she would not work. The Tribunal finds that the applicant is likely to abide by condition 8101 – must not work.
8401 – Report as directed.
114. The applicant advised that she would report as directed.
115. The Tribunal gives weight to the applicant’s migration history and found in [30] to [39] that the applicant intends not to depart Australia. It is noted that the applicant has had condition 8401 imposed at least six BVE’s namely BVE (8) granted in July 2009, BVE (9) granted on 23 December 2009, BVE (14) granted on 25 August 2022, BVE (15) granted on 8 November 2022, BVE (16) granted on 2 March 2023 and BVE (17) granted on 30 April 2023. In each instance she failed to report as directed and these were significant breaches as they were a deliberate decision as a prelude to the applicant becoming an unlawful non-citizen. There are scant mitigating circumstances such illness or injury since the decision was made simply because the applicant did not want to depart Australia. The applicant initially made it clear that she intended to stay in Australia and apply for a Partner visa and it was only after the Tribunal put her migration history to her under s359AA of the Act that she apologised for her behaviour. The Tribunal finds her contrition contrived as part of the arrangements to convince the Tribunal to set aside the refusal of her BVE application.
116. Since, it is the applicant’s intention to again fail to depart Australia, the Tribunal finds that she will again fail to report as directed.
117. The Tribunal finds that the applicant will not abide by condition 8401 – Report as directed.
Offer of Security – cl 050.223.
118. An offer of $25,000 as a security bond has been offered by the partner and the son has also offered an unspecified amount. The applicant stated in the hearing in regard to this clause that this time she would go for sure as she would not be able to apply for a partner visa in Australia. However, the Tribunal does not consider that an offer of security is appropriate or that it would deter the applicant from failing to comply with the conditions of her visa since she forfeited a security bond of $22,000 in the past and there were no mitigating circumstances such as illness or injury as it was a deliberate decision to avoid departing Australia and as a prelude to becoming an unlawful non-citizen.
Whether a security has been lodged - cl 050.224
119. Clause 050.224 requires that if an authorised officer has requested a security for compliance with the conditions he or she has indicated will be imposed on the visa, the security has been lodged. There has been an offer of a security bond however none has been lodged because the Tribunal considers it would not secure the applicants compliance with the visa conditions.

120. Accordingly, the applicant does not meet cl 050.224.
Bridging E (class WE) Protection visa applicant (subclass 051) visa - Time of application criteria
121. Clause 051.211 states that:
The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

122. These regulations all refer to eligible non-citizens or family members of eligible non-citizens that were refused immigration clearance and since the applicant was given immigration clearance when she arrived in Australia on her visitor visa in 2005, she does not satisfy this clause.
123. Accordingly, the applicant does not meet cl 051.211.
124. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
125. 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
126. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
De-Anne Kelly
Member

Schedule 1 – Case Number 2308195.
Documents including the following were provided to the Tribunal.
1)A statutory declaration from [Mr B] who states he is the applicant’s son and an Australian citizen who always supports his mother financially and emotionally. He confirms his mother has a partner who is also an Australian citizen. He, his wife and daughter would like to visit the applicant before she leaves Australia as the child is very attached to her grandmother. He states his mother is very depressed because of her detention and she may endure psychological disturbances. He states they have purchased plane tickets to depart Australia and that she would comply with the conditions of a Visa if granted. He is also prepared to make a security bond and requests a compassionate approach. He has attached his passport and drivers license.
2)A statutory declaration from [Mr A] who states he is the applicant’s partner and an Australian citizen. He states that he and the applicant hold the responsibility to look after each other in all aspects of their shared life and he apologises to the strain on government for his partner’s failure to comply with her Visa conditions. He requests that she is not removed from Australia but be allowed to leave voluntarily and that he will depart Australia with her as he has already purchased the air tickets for both of them. He states he will take full responsibility to ensure she complies with her Visa conditions. He states it is a pain and a stigma that the applicant is in detention and this has caused him to be depressed and the applicant to be depressed and that she may endure psychological disturbances. He offers a security bond of $25,000 to ensure the applicant complies with her Visa conditions. He also attaches a copy of his passport, driver’s licence, a New South Wales relationship certificate, joint bank statement, receipt for two air tickets and E tickets. He requests a sympathetic approach by the Tribunal to the request that the applicant be released from the detention centre to depart Australia voluntarily with him on 22 June 2023.
3)One way E-ticket for the applicant departing Australia for Nepal on 22 June 2023’
4)Return E- ticket for [Mr A] departing Australia for Nepal on 22 June 2023 and returning on 27 June 2023.
5)Receipt for $3,555 for air tickets.
6)Valid passport for the applicant.
7)New South Wales relationship certificate dated [November] 2021.

8) Extract from joint bank account and letter from a banking consultant stating balance in the account as of 15 June 2023 is $31,740.

[2023] AATA 2237

21 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Date	Action	Visa & conditions
[Nov.] 2005	Arrive Australia on Visitor visa	Valid to 28 Dec 2005, 8503
23 Dec 2005	Lodged Protection visa XA-PV	Bridging visa - WA-010 BVA(1)
15 Mar 2006	Protection visa XA-PV refused.
11 April 2006	Lodged merits review RRT
31 Aug 2006	RRT affirmed refusal
[Sep] 2006	Judicial review FMC of RRT decision	BVA(2) granted
[May] 2007	Finalised by FMC as Minister Win
[June] 2007	Judicial review FFC of FMC decision
8 Aug 2007	BVA(2) ceased	BVA(3) granted
[Aug] 2007	Finalised by FFC as Minister Win
14 Sep 2007	BVA(3) ceased
15 Sep 2007	Became unlawful non-citizen	UNC(1)
[Sep] 2007	Judicial review HCA on FFC decision
13 Nov 2007	Located by Enforcement officers	Bridging visa – Subclass WE-050 BVE(1)
16 Nov 2007	BVE(1) ceased	BVE(2) granted
[Apr] 2008	Finalised by HCA as Minister Win
22 May 2008	BVE(2) ceased
23 May 2008	Became unlawful non-citizen	UNC(2)
21 May 2008	Request Ministerial Intervention Mi(1)
9 Sep 2008 – 10 June 2009	Further 5 BVE’s BVE(3) – BE(7).
12 Nov 2008	Lodged further XA-PV(2)	Barred form lodging s 48a
Converted to a s48b request by Dept
11 Dec 2008	S48b request refused	Prevented from lodging further XA-PV.
27 Jun 2009	Mi(1) finalised as Not considered
22 Jul 2009	BVE(7) ceased
Granted BVE(8) on departure grounds	8401, 8511 condition to depart by 31 Aug 2009.
4 Aug 2009	BVE(8) ceased
5 Aug 2009	Became unlawful non-citizen	UNC(3) Failed to comply with 8401 & 8511.
26 Nov 2009	Located by Enforcement officers, admitted to (VIDC)	Working at [workplace].
2 Dec 2009	Lodge application BVE(9)
4 Dec 2009	Application refused under 050.223.
8 Dec 2009	Lodged merits review MRT
17 Dec 2009	MRT set aside visa refusal.
23 Dec 2009	Granted BVE(9) on departure grounds. Paid $22,000 security bond to ensure compliance	Released from VIDC. 8401, 8511 condition to depart by 31 Aug 2009.
8 Jan 2010	BVE(9) ceased
9 Jan 2010	Became unlawful non-citizen	UNC(4) Failed to comply with 8401 & 8511.
28 May 2012	$22,000 security bond forfeited.
25 Feb 2014	Lodged further XA-PV(3)
27 Feb 2014	XA-PV(3) determined valid SZGIZ.	S48b bar no longer applied.
4 Mar 2014	Granted BVE(10)
28 July 2014	XA-PV(3) refused by Dept.
26 Aug 2014	Lodged Merits Review RRT
9 May 2016	RRT affirmed refusal.
14 Jun 2016	BVE(10) ceased
[Jun] 2016	Judicial review FCC of RRT decision	Granted BVE(11)
[Oct] 2016	Finalised by FCC as Minister Withdraw
11 Oct 2016	XA-PV (3) referred back to RRT
10 Apr 2017	RRT affirmed again refusal XA-PV(3).
[May] 2017	Judicial review FCC of RRT decision
19 May 2017	BVE(11) ceased	Granted BVE(12).
[May] 2018	Finalised by FCC as Minister Win
[Jun] 2018	Judicial review FFC of FCC decision
[Nov] 2018	Finalised by FFC as Minister Win
12 Dec 2018	BVE(12) ceased
13 Dec 2018	Became unlawful non-citizen	UNC(5)
21 Feb 2022	Request Ministerial Intervention Mi(2)
22 Feb 2022	Lodged application further BVE.
25 Feb 2022	Granted BVE(13)	Remain onshore to 25 Aug 2022
12 May 2022	Mi(2) finalised “Inappropriate to consider”.
25 Feb 2022	Lodged further XA-PV(4)	Barred form lodging s 48a
Converted to a s48 request by Dept
16 Nov 2022	S48b request refused	Prevented lodging further XA-PV.
17 May 2022	Lodged waiver of Condition 8503.
3 June 2022	Wavier request refused by Dept.
11 July 2022	Lodged Merits Review AAT.
3 Nov 2022	AAT did not have jurisdiction.
25 Aug 2022	BVE(13) ceased.
25 Aug 2022	Granted BVE(14) on departure grounds	8401, 8511 condition to present air ticket by 25 Oct 2022
25 Oct 2022	BVE(14) ceased
26 Oct 2022	Became unlawful non-citizen	UNC(6) Failed to comply with 8401 & 8511.
8 Nov 2022	Granted further BVE(15) on departure grounds.
8 Feb 2023	BVE(15) ceased.
9 Feb 2023	Became unlawful non-citizen	UNC(7) Failed to comply with 8401 & 8511.
2 Mar 2023	Granted BVE(16) on departure grounds.	8401, 8511 condition to depart by 14 April 2023.
14 April 2023	BVE(16) ceased.	.
15 April 2023	Became unlawful non-citizen	UNC(8) Failed to comply with 8401 & 8511
2 Mar 2023	Request Ministerial Intervention Mi(3)
13 Mar 2023	Mi(3) finalised “Inappropriate to consider”.
13 Mar 2023	Lodged further XA-866(5)	Barred form lodging s 48a
Converted to a s48b request by Dept
17 Mar 2023	S48b request refused	Prevented lodging further XA-PV.
30 Apr 2023	Granted BVE(17) on departure grounds	8401, 8511 condition to depart by 15 May 2023.
15 May 2023	BVE(17) ceased
16 May 2023	Became unlawful non-citizen	UNC(9) Failed to comply with 8401 & 8511
29 May 2023	Lodged application for BVE(18) on departure grounds
1 June 2023	BVE(18) refused under 050.223.
Detained by ABF admitted VIDC.
7 June 2023	Lodged application for BVE(19)
9 June 2023	BVE(19) refused by Dept.
9 June 2023	Lodged Merits Review AAT.	Current case.