Foreign residents in Australia normally hold “substantive visas” with clear expiry dates. A substantive visa is any visa which is not a bridging visa or a criminal justice visa or an enforcement visa. When people normally mention that they are holding a visa (e.g. a Visitor visa, a TSS visa, a Partner visa) they are usually referring to a substantive visa.
However, in some cases a foreign resident will remain in Australia outside of the expiry date of their substantive visa. This can be because they overstayed and became unlawful or because they are lawfully awaiting the processing of a further visa. Bridging visas can be granted to allow such individuals to remain in Australia whilst they are waiting for an application to be processed, or to provide lawful status while they make arrangements to depart the country.
What are the different types of bridging visas?
There are nine types of bridging visas in Australia, though the four most common are:
- Bridging Visa A (Subclass 010) (BVA);
- Bridging Visa B (Subclass 020) (BVB);
- Bridging Visa C (Subclass 020) (BVC); and
- Bridging Visa E (Subclass 050) (BVE).
A BVA is designed to provide lawful status in Australia to a non-citizen who has applied for a substantive visa while they are in Australia and holding a substantive visa. The BVA will then allow a person to remain in Australia:
- during the processing of their associated substantive visa application until it is finally determined (including any merits review by the Administrative Appeals Tribunal (AAT)); or
- during judicial review proceedings relating to their associated substantive visa application until the proceedings are completed.
Note that a BVA allows the holder to remain lawfully in Australia but it does not allow the holder to travel to and re-enter Australia if they depart. If travel is required whilst holding a BVA, an individual should apply for a BVB (see below).
A BVA application is usually automatically made with the substantive visa application, but can also be made by separate application. For more detailed eligibility requirements please refer to the Migration Regulations 1994 (Cth).
Zion holds a Student (Subclass 500) (Student) visa which has one more month of validity. Zion has completed his course and is eligible for a Graduate (Subclass 485) (Graduate) visa but he is concerned that his Graduate visa won’t be processed prior to his current Student visa expiry. By lodging the Graduate visa using the online form whilst onshore, he is automatically granted a BVA. This BVA will allow him to remain in Australia whilst his Graduate visa is processing.
The purpose of a BVB is to allow the holder of a BVA / BVB to depart and re-enter Australia for a specified period. A separate application for a BVB must be made showing the “substantial reasons for leaving and re-entering Australia”. On return, the BVB will permit the holder to remain in Australia until:
- the processing of their associated substantive visa application (including any merits review by the AAT; or
- completion of their judicial review proceedings relating to their associated substantive visa application.
Zion is the holder of a BVA on the basis of making a valid Graduate visa application whilst onshore, which is still processing. It’s been 6 months since his Student visa expired but he wants to go back to New Orleans to see his brother Brandon who is getting married. In order to make sure he can re-enter Australia, he applies for a BVB prior to departing Australia. Once the BVB is granted, he travels to New Orleans for the celebrations. He is sure to return to Australia before the expiry period. Upon return, he continues to hold a BVB which will allow him to remain in Australia until visa processing is completed, but to travel again he would need to apply for a further BVB.
The purpose of a BVC is to provide lawful status in Australia to a person who is not the holder of a substantive visa, but has made a valid substantive visa application of a type that can be granted in Australia some time after their last substantive visa expired. The BVC will then allow a non-citizen to remain in Australia:
- during the processing of their associated substantive visa application until it is finally determined, including any merits review by the AAT; or
- during judicial review proceedings relating to their associated substantive visa application.
It’s important to note that the BVC does not have travel rights. If you choose to leave Australia for any reason, you will not be permitted back in. You also are unable to apply for a BVB to allow you to obtain travel rights whilst holding a BVC. A BVC will also not have work rights unless you have applied for one of these visas:
- a Business Skills — Business Talent (Permanent) (Class EA) visa; or
- a Business Skills (Provisional) (Class EB) visa; or
- a Business Skills (Permanent) (Class EC) visa; or
- an Employer Nomination (Permanent) (Class EN) visa;
- a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa;
- a Skilled Work Regional (Provisional) (Class PS) visa;
- a Regional Employer Nomination (Permanent) (Class RN) visa; or
- a Skilled — Independent (Permanent) (Class SI) visa; or
- a Skilled — Nominated (Permanent) (Class SN) visa; or
- a Skilled — Regional Sponsored (Provisional) (Class SP) visa.
In certain cases, a further BVC can be applied for with work rights if an applicant can demonstrate a “compelling need to work”. Contact us directly if you think you have such a need.
Zion has been in a de facto relationship with an Australian citizen for more than 12 months, so rather than apply for a graduate visa, he decided he would lodge an onshore Partner (Subclass 820 / 801) (Partner) visa application. Due to an error in remembering the dates, Zion forgets to submit his Partner visa application prior to his Student visa expiring. Although he becomes unlawful, he applies for a valid Partner visa the day following his expiry and subsequently obtains a BVC to allow him to remain in Australia. However, Zion’s BVC doesn’t have work rights. Zion has a job offer to play basketball for an NBL team but without work rights he is unable to pay for rent, food or his stay in Australia. He subsequently applies for a separate BVC with a submission for a “compelling need to work”.
A BVE is intended to allow an unlawful non-citizen who is an eligible non-citizen to lawfully remain in Australia temporarily for a specific purpose. An eligible non-citizen for a BVE application purpose includes:
- a person who has been immigration cleared;
- a person who bypassed or was refused immigration clearance on or after 1 September 1994, has not since been granted a substantive visa or entry permit and has not come to notice within 45 days of entering Australia;
- a person who last held a student visa that was cancelled under s137J and has been refused immigration clearance. It’s important to note that the BVE does not have travel rights.
The following table sets out when a BVE may be appropriate:
|A person presents to the department voluntarily as an unlawful non-citizen or located by compliance action as an unlawful non-citizen||To enable the applicant to make arrangements to leave Australia, or await final determination of a substantive visa application made in Australia, or otherwise resolve their immigration status|
|A person has had a visa refused, or is a family member of the applicant||To enable the applicant or the Minister to seek merits or judicial review of that visa refusal|
|A person has had a visa cancelled, or is a member of the family unit of the applicant||To enable the applicant to pursue merits or judicial review of the decision to cancel that visa|
|A person who has had a visa refusal or cancellation decision affirmed by a review authority||To enable the applicant to request the Minister substitute a more favourable decision under s351, s391, s417 or s454 of the Act|
|A person who has previously had a protection visa refused||To enable the applicant to request the Minister to make a determination under s48B to allow a further protection visa application be made.|
|A person who has had a student visa automatically cancelled, or is a member of the family unit of the applicant||
To enable the applicant:
|A person who is in criminal detention||To enable lawful status during criminal detention.|
|A person who has had an application for citizenship refused, or is a member of the family unit of the applicant||To enable the applicant to seek merits or judicial review of an application|
|A person who is an unauthorised maritime arrival (formerly irregular maritime arrival (IMA) or offshore entry person (OEP)) or irregular air arrivals (IAAs) released into the community under s195A visa grant by the Minister||To allow UMAs/IAAs to apply for a protection visa.|
It’s important to note that the BVE does not have travel rights. If you choose to leave Australia for any reason, you will not be permitted back in. You also are unable to apply for a BVB to allow you to obtain travel rights whilst holding a BVE.
A BVE will also not have work rights unless in certain cases, an applicant can demonstrate a “compelling need to work”. Contact us directly if you think you have such a need.
Zion’s de facto relationship broke down and his Partner visa was refused. He is distraught and stays in Australia despite the expiry date on his BVC. He has now been unlawful for 6 months whilst hoping to rekindle his relationship. After much thought, he decides it is time to move on and return to New Orleans to play basketball. He presents himself to the Department voluntarily as an unlawful non-citizen and notifies them that he intends to return home. The Department issues him with a BVE to allow him to do so.
What is a compelling need to work?
In certain cases, even if your Bridging Visa does not have work rights, you may be able to apply for a further Bridging Visa of the same class with work rights if you can demonstrate a “compelling need to work”.
The Migration Regulations (1994) (Cth) (Regulations) defines that a non-citizen has a compelling need to work if and only if:
- he or she is in financial hardship; or
- is an applicant for a Temporary Business Entry (Class UC) visa who seeks to satisfy the criteria for the grant of a Subclass 457 (Temporary Work (Skilled)) visa, has been identified in an approved nomination, and appears to satisfy the criteria for the grant of that visa.
What is financial hardship?
Generally, a person can be taken to be in financial hardship if the cost of reasonable living expenses exceeds their ability to pay for them.
Do you require further assistance?
If you find yourself unlawful, or have questions about your immigration status after a substantive visa expires, reach out to our experienced team on (03) 9016 0484 or book a consultation online.