Kim (Migration)

[2020] AATA 4200

Kim (Migration) [2020] AATA 4200 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taesung Kim

CASE NUMBER:  2014321

DIBP REFERENCE(S):  BCC2020/2335355

MEMBER:Jane Marquard

DATE:1 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2020 at 9:42am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – substantive visa application – no valid applications – statutory deadlines to apply for a substantive visa other than a protection visa while in detention – acceptable arrangements to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 194, 195
Migration Regulations 1994 (Cth), Schedule 2, cl 050.212

CASES
Chen v MIMIA [2001] FCA 285
Lin v MIMIA [2001] FCA 283

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is a 36-year-old citizen of the Republic of Korea.

2. He arrived in Australia on 4 October 2012 as the holder of a Working Holiday visa (TZ-417).  The visa expired on 4 October 2013. The applicant did not depart the country and has remained in Australia since then without a visa.

3. On 6 August 2020 the applicant was located by NSW Police and issued with a Court Attendance Notice for possessing restricted medication. The NSW Police conducted a status check with the Immigration Status Service and identified the applicant as an Unlawful Non-Citizen (UNC) and advised the applicant to report to NSW Status Resolution.

4. The applicant is facing criminal charges and is due in court on 6 October 2020. The charges include ‘custody of a knife in a public place and custody of an offensive implement, possess equipment for administering a prohibited drug and trespass and possess prescribed restricted substance’.

5. According to the Australian Border Force Immigration Status Service Located Person Interview notes dated 7 August 2020, and the Department of Home Affairs (the Department) decision record dated 22 September 2020, on 7 August 2020 the applicant presented to Sydney City Police Station requesting that he be arrested and informing police that he had consumed an illegal substance. He said that he was homeless and if not arrested would commit an offence in order to be arrested. Given his unlawful status, the NSW Police detained the applicant under s.189 of the Migration Act 1958 (Cth) (the Act). The applicant was interviewed by officers of Australian Border Force on 7 August 2020. The applicant was then transferred to Villawood Immigration Detention Centre (Villawood).

6. The applicant was interviewed by officers of the Department on 11 August 2020.

7. The applicant lodged a Bridging Visa E (BVE) application on 18 August 2020 which was refused.

8. The applicant lodged a further BVE application on 18 August 2020 which was found to be invalid.

   THIS REVIEW

9. The applicant applied online for a Bridging E (Class WE) visa under s.73 of the Act on 21 September 2020.

10. On 22 September 2020 a delegate of the Department refused to grant the application. The delegate was not satisfied that the applicant met the requirements in cls.050.211 and 050.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

11. This is an application for review of that decision, lodged on 22 September 2020.

12. The applicant provided the Tribunal with a copy of the decision record of the delegate dated 22 September 2020.

13. The Tribunal has also considered:

    ·The Australian Border Force Immigration Status Service Located Persons Interview dated 7 August 2020 (Immigration Status Service Located Person Interview).

    ·Detention Client Interview with the Department of Home Affairs dated 11 August 2020 (Detention Client Interview).

    ·Detention Review Manager notes, Department of Home Affairs dated 21 September 2020 (Review Notes).

    ·Application for a BVE (application).

    ·Decision of the delegate of the Department of Home Affairs dated 22 September 2020.

14. On 29 September 2020 the applicant appeared before the Tribunal via video from Villawood Detention Centre, to give evidence and present arguments. A Korean interpreter assisted the Tribunal. The applicant confirmed that he could see and hear clearly and could understand the interpreter well. The applicant gave evidence about his family and background in Korea, his experiences in Australia, his visa history and current circumstances. A summary of his evidence is set out below.

    Evidence of family and background

15. The applicant confirmed that he was born and grew up in Seoul. He said that he is an orphan. His father left the family when he was five years old and he ‘has not seen’ his mother since birth. His grandmother took care of him when he was a child. He is an only child, and his grandmother passed away fifteen years ago. He has no contact with any other extended family or contact details for any relatives.

16. The applicant attended school in Korea until senior high school. After school he worked for three years for ‘Keumo Rent a Car’, and then for three years in a second-hand car dealership.  After this he travelled to Australia. Asked how he heard about applying for a working holiday visa for Australia, he said he had a friend who had travelled to Australia and who recommended it. He completed the application himself online. He went on to the Department’s webpage to see what was required. He decided to apply for this visa because his grandmother had passed away and he had no more family in Korea, and so he decided to travel to Australia to live there. Asked how he funded the trip, he said that he saved money from his jobs. He was living in a one-room apartment and was paying rent at the time.

17. He confirmed that he has no relatives in Australia. When he first came to Australia, he lived in a share house. He found the room through an advertisement. He worked as a chef and then a cleaner for five years.

    Evidence of becoming unlawful

18. The applicant confirmed that his visa expired in October 2013. He was asked why he did not apply for a renewal or a different visa. He said that seven years ago, he went ‘the wrong way in life by mistake’. He said that he was gambling and did not have the funds to apply for a visa. He then became unlawful and did not know what to do. The Tribunal put to him that he had told the Tribunal he worked for two years as a chef, and then five years as a cleaner, so would have had funds to apply for a visa. He said that he used the funds for gambling. He was asked why he did not depart and return to Korea after his Working Holiday visa expired. He said that he wanted to live in Australia and did not want to return to Korea, as he had no connection there anymore.

19. He said that he quit gambling two years ago. He had money to apply for a visa, but because he was illegal he did not know what to do. The Tribunal asked him if he did not think of seeking help from a lawyer or agent, or approaching the Department for assistance. He said that he did not as he did not know what to do.

    Evidence of criminal charges

20. The applicant confirmed that he has been charged with a number of criminal offences. He said he has been charged with possessing a knife and he feels it is unfair, and he is contesting the charge. He was asked if he had been charged with other offences. He said that he was charged with sleeping in the street and illegal parking.

21. He said he had ‘gone the wrong way’ and was selling the drug ‘Ice’ for four or five months, and then he went to the police. The Tribunal notified the applicant of the privilege against self-incrimination, noting however that he had already told the Australian Border Force that he had been selling Ice.

    Evidence about returning to Korea

22. He said that he had not thought about returning to Korea or getting a job there. He said that he has lived in Australia for eight years and has not thought seriously about it. He said his ‘mind is ready for living in Australia’.

23. Asked if he had any concerns about returning to Korea, he said that he has nowhere to stay and has no family, and ‘that is his concern’.

    Evidence about immigration detention

24. The applicant told the Tribunal that he went into the police station himself because he did ‘not want to be illegal anymore’. He said that he asked for help from the Korean embassy. He was then put into the detention centre. He said that he just wanted to recover from his illegal status and did not know he would be sent to the detention centre. He said he has become healthy in the detention centre and has not been able to have any drugs, so it has been positive for him. He was asked where he would live if he was in the community. He said that he has a friend who is inviting him to stay. He was asked why he was not living with this friend before he was put in detention. He said that he did live there before. He said that he has a girlfriend who is willing to help.

    Natural justice information

25. The Tribunal put information to the applicant in accordance with the natural justice provisions in the legislation.[1] The information and the applicant’s response are discussed in the consideration paragraphs later in this decision.

    Statement read by the applicant

    [1] S.359AA of the Act

26. He said in summary that

    eight years ago I lost an opportunity to apply for a second visa. I have stayed as an illegal immigrant for seven years as I did not know how to recover my status. I do not want to live anymore under illegal status. So I walked into a police station voluntarily, and was transported to this detention centre. I have the opportunity to look back at my life for seven years and admit that I have not lived a proper life and have made mistakes. In the detention centre my heart and body have become sound and healthy. I am orphaned and have no family or relatives in Korea or Australia. I don’t know what to do if I go back to Korea as I do not have any place to stay as I do not have anyone. If I am granted two months of a bridging visa I will go back to living a proper life. If I cannot apply for a new visa in two months, I will leave Australia and return. I do not want to live as an illegal migrant. I regret living for seven years illegally and my wrongdoing. I want to live the best possible life in the future. I plan to live in the community. Friends outside will help me. I am comfortable to go back to a proper life if I can gain a protection visa. Again I promise I will never to live as an illegal migrant. I really ask you to grant me one opportunity to live in Australia.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The applicant applied for the visa on 21 September 2020. 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 Regulations. A summary of the relevant law is attached to this decision.

28. For the reasons below, the Tribunal is satisfied that the applicant does not meet cl.050.212 and the decision under review should be affirmed.  

    Did the applicant meet one of the grounds in cl.050.212 at the time of application?

29. An applicant for this visa must meet one of the criteria set out in cl.050.212 at the time of application. The applicant must continue to meet one of the subclauses in cl.050.212 at the time of decision. The issue in this case is whether the applicant has met one of these grounds. In his application, he claimed to meet cl.050.212(3), the ‘substantive visa application’ criteria, however all grounds are considered below.

    Substantive visa application

30. Subclause 050.212(3) provides that 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.

31. ‘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.

32. The applicant stated in his application that he is intending to lodge an application for a ‘student visa or refugee visa’. He said that ‘I have no home or family in Korea. I don’t want to live in Australia without a visa anymore. I want to get a bridging visa and apply for a student visa to work and study English. I want to start my life in Australia new’.

33. At the Tribunal hearing it was put to the applicant under the natural justice provisions in the legislation[2] that there was information before the Tribunal which would be the reason of part of the reason for affirming the decision under review, as it appeared from the information that he did not meet cl.050.212(3), subject to his comments or response. This information was that:

    ·There was no evidence in the Departmental records that he had made a valid application for a substantive visa on 21 September 2020.

    ·He has been in Australia since October 2012 on a Working Holiday visa (TZ-417) which expired in October 2013 and Departmental records show that he has not applied for a visa in the seven years since.

    ·When located by Australian Border Officials he said that he had no idea if he had applied for a visa and would go back to Korea if required to do so (as recorded in his Immigration Status Service Located Person Interview).

    ·He was detained on 7 August 2020 and advised by the Department of time limits for lodging visas, pursuant to s.195 of the Act. On 7 August 2020 he signed a form stating he was aware of the time limits. There is no evidence that he lodged an application within the time limits.

    [2] s.359AA of the Act

34. The Tribunal explained to the applicant that the information was relevant as the Tribunal might find that at the time of application, he had not made a valid application for a substantive visa and was not going to apply for such a visa within the permissible period.

35. The applicant responded that he had been detained in a solitary room and was not in a condition to apply for a visa. He said that he did not know what to do or how to do it. He said that he did not want to live in Australia with an illegal status. He said that he does not have any money, but his plan is to save for a while and then apply for a visa. He said that if given a chance, he knows that he can earn money and apply for a visa. He said that it is a basic human dignity to work. He said that a friend has told him that she can help him apply for a ‘marriage visa’ and he would like to do this. He said that his girlfriend is not an Australian citizen but his friend who suggested she would help him with this has a working holiday visa. He said that he did not want to live illegally. He believes this is a turning point for his life and he would like to carry out the best possible life.

36. A search of Departmental records indicates that no visa applications had been made by the applicant as at the date of application (21 September 2020). The applicant confirmed at hearing that no visa application had been made by him. Thus the applicant does not meet cl.050.212(3)(a).

37. The Tribunal has considered the applicant’s submissions carefully but is not satisfied that at the time of application the applicant ‘will apply 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.’ The reasons for this are as follows.

38. Firstly, the last substantive visa held by the applicant expired in October 2013. If the applicant wanted to apply for another visa at any time, he has had seven years to do so. If he wished to study English or apply for protection as referred to in his application, or apply for a partner visa as suggested at the Tribunal hearing, he has had seven years to do so. The Tribunal notes his submissions that after the expiry of his Working Holiday visa he did not depart because he wanted to stay in Australia and did not apply for another visa as he used his funds for gambling. He said that later he had the funds but did not know if he could apply as he was unlawful. The Tribunal is not satisfied that he had a willingness to apply for a substantive visa during these years. He was working as a chef and then a cleaner, and could have located the information about visa renewals if he had wanted to do so, given that he has told the Tribunal that he had previously utilised the Department’s website to apply for his initial visa. He has also confirmed that he did have the funds at times to apply. Alternatively, he could have asked a representative or lawyer for assistance if he wanted to apply for a visa. The Tribunal has taken note of the fact that he is feeling healthy and positive after being in detention and states that he does not want to be illegal. However, the fact that he did not have a willingness to apply for a substantive visa for this lengthy period of time, despite familiarity with the visa system, does suggest that he did not also have a willingness at the time of application for this visa.

39. Secondly, when located by Australian Border Force officials, he told them, as recorded in his Immigration Status Service Located Person Interview that he had ‘no idea’ if he had a valid visa or had applied for one. He was asked if he intended to apply for a visa and he said ‘no’. He said that if asked to go back to Korea, he would do so. In his Detention Client Interview, he said that he had no applications before the Department. The Tribunal is of the view that if at the time of application, he was going to apply for a substantive visa he would have considered this just prior to the time of application. When asked about this, the applicant said that he was not in a condition to apply at that time when placed into detention. The Tribunal accepts that he may not have been in a condition to apply but is of the view that if he had been intending to apply in the future, he would have indicated this fact. 

40. Thirdly, as noted in the delegate’s decision, the applicant has missed the deadlines to apply for a substantive visa other than a protection visa while in detention. The notes from the Detention Client Interview indicate that he was notified of applicable timeframes for lodging a visa pursuant to s.194 of the Act. A signed copy of his Very Important Notice (Form 1423) was provided, dated 7 August 2020. However, the applicant did not apply for a visa within two working days after the day on which s.194 was complied with and did not inform an officer in writing within those two days of an intention to apply within the next five days after those two working days. Thus, according to s.195(2) of the Act, the applicant may not apply for a visa, other than a protection visa after that time. Thus, he has missed the deadline for applying for a student visa as he suggested in his application, or a partner visa, as suggested at the Tribunal hearing.

41. Finally, the applicant said in his application he would like to apply for a student visa or a protection visa, however at the Tribunal hearing he said that he would like to apply for a partner visa. The Tribunal is not satisfied that he had a genuine intention to apply for a substantive visa at the time of application, given that he did not follow up on it, and has also now indicated that he wishes to apply for a different visa to that suggested in his application.

42. Taking all these factors into account the Tribunal is not satisfied that at the time of application the applicant had made a valid application for a substantive visa or that he would have applied in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted in Australia.

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

   Acceptable arrangements to depart Australia

2. 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]).

3. The applicant has not suggested at any time that he is making or is the subject of acceptable arrangements to depart Australia. At the Status Service Interview with Australian Border Force officers he said that he could not return to Korea as he had no secure accommodation and no money to buy an air ticket. In the Detention Client Interview he said that he did not have funds to purchase an air ticket. He confirmed at the Tribunal hearing that he had not thought about returning to Korea.

4. For these reasons, the Tribunal is not satisfied that at the time of application the applicant was making or is the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).

   Judicial review, merits review, s.137K revocation

5. There is no evidence that the applicant was subject at the time of application to an application for judicial review, merits review or s.137K revocation application, of any kind; or that he is a member of a family unit of a person involved in relevant proceedings. 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)

6. There is no evidence that the applicant held a visa that was cancelled 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

7. 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

8. There is no evidence that the applicant has an ongoing, first request to the Minister of any kind (such as a request to determine that s.48A of the Act does not apply, 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

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

   Criminal Detention

10. The applicant was not in criminal detention at the time of application. According to r.1.09 of the Regulations, 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

11. 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.

    CONCLUDING PARAGRAPHS

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

13. 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

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

    Jane Marquard
    Member

    
    

    ATTACHMENT: 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 meets subclause 050.212(3) if s/he 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.