The refusal of granting a Bridging Visa E at the time when the applicant wants to work be free from detention if he or she is in the immigration detention facility is not as simple as others may think.
The application for Bridging Visa E may have been the result of the cancellation of substantive visa and whilst at the detention, the applicant can apply for Bridging Visa E to be able to do some of these options: arrange to depart, apply for further substantive visa available or even apply for Ministerial intervention or judicial review.
Once granted the Bridging Visa E, the person can do what she or he thinks is best for her or him. But the option is limited depending on the applicant’s circumstances. The applicant may have some refusal already and could not lodge further application following section 48 of the Migration Act 1958 (‘the Act’). But this can mean that if the applicant has eligibility to apply for Protection Subclass Visa 886 or other visa, then that will be enough to keep her or him from being removed or deported.
The most difficult issue arises when there is cancellation of visa by reason of criminal charge proven or unproven and the person is detained under section 501 of the Act. Then this means continued detention is inevitable that may go beyond the prison term or sentence. If the prison term is six months for attempted rape, the person can be detained for more than 6 months if the visa is not restored allowing the person to stay or remain when Bridging Visa E is not successfully granted.
Although the threshold period for substantial criminal record is 12 months or more and the person passes the character test, another question will be asked on whether or not the person will re-offend and could be a risk to a certain segment of the community. So detention and removal will continue to hover and there is a question of likelihood to keep or not the applicant or person in the country. If the person can continue to fight the government because she or he has funds to litigate, then she or he may get justice or fairness. But if the applicant has no means to do it, then he or she is likely to fail and can be removed from the country.
The applicant may have all the reasons to remain in Australia, but if she or he is not able to articulate the merit of her or his case then that can be a problem and this is happening in reality.
A Filipino worker is a holder of 457 visa. His visa was cancelled when he was charged of sexual assault (by touching). The person during the investigation was not able to get his temporary freedom with Bidging Visa E although bail may be granted because visa was not granted to him. But the Department of Home Affairs can hold him indefinitely even if the criminal charge is not proven yet. This is the irony of the immigration matter muddled up with criminal case.
