The Department of Home Affairs has long taken a strict stance on visa conditions imposed during periods of unlawful status. For applicants requesting Ministerial Intervention (MI) and seeking a Bridging Visa E (subclass 050), timing is everything – particularly when it comes to condition 8101 (no work).
A recent case has drawn attention to an all-too-common pitfall: a lag between the applicant becoming unlawful and the Department receipting the MI request. While this may appear minor, it can have serious consequences for work rights – especially under current policy guidelines.
What the Policy Says
Under the policy instruction 050.615, officers must consider an applicant’s status at the time of the MI request when deciding whether to impose condition 8101. Importantly, if the person was:
- Lawful with permission to work, and
- Had remained lawful since their last substantive visa was finally determined,
then work rights should be granted, even if the applicant becomes unlawful after making the MI request.
But here’s the catch: the phrase “at the time of the request” is not clearly defined, and this ambiguity can lead to significant misinterpretation.
The Core Issue: When Was the Request Actually Made?
While the Department generally treats a request as having been made on the date it was receipted, the policy provides some room for flexibility. If an applicant can show:
- The MI request was sent while they were still lawful (via fax, email, or registered post), and
- There is clear evidence the request was actually received,
then the request date can be taken as the date of sending – not the date of receipt.
This distinction is critical. If the Department sees the MI request as being received after the person became unlawful, and that unlawful period exceeds one day, they are likely to impose condition 8101 – removing work rights entirely.
A Case in Point
In a recent case we are reviewing, the Department’s internal records show the applicant as having been unlawful for over a month before the BVE was granted. However, the actual sequence of events may reveal that:
- The MI request was submitted while the applicant was still lawful
- A BVE was not granted promptly, creating a false appearance of a prolonged unlawful period
- The gap in coverage is largely due to processing lag, not client inaction
We’re currently working with Mariam to reconstruct this timeline with evidence of when the MI request was sent and when it was received. This includes collecting:
- Email timestamps
- Fax transmission receipts
- Registered post tracking records
These details are essential to challenge the Department’s interpretation and protect the client’s eligibility for work rights.
Key Takeaways for Agents and Lawyers
- Always document the exact date and time an MI request was sent – don’t rely on the Department’s acknowledgment alone.
- Encourage clients to use methods that generate a clear send/receipt trail (email with delivery/read receipts, fax reports, or registered post).
- If there’s a risk of a lag in receipting, prepare to argue that the request was “made” when sent – with evidence.
- Build a timeline of visa events to confirm that the client remained lawful until the time of the MI request.
The threshold between one day of unlawful status and several can be the difference between being granted work rights or not. For clients relying on a BVE while awaiting a decision on Ministerial Intervention, the clarity and timing of their request is paramount.