Protection Visa Bridging Visa

A protection visa bridging visa is the temporary visa that allows a person who has applied for a Subclass 866 protection visa to remain lawfully in Australia while the application is decided. For most applicants, the protection visa bridging visa is a Bridging visa A (Subclass 010). For people who were already unlawful when they applied, it is usually a Bridging visa E (Subclass 050). Which one an applicant receives is decided almost entirely by timing.

This article explains which protection visa bridging visa an applicant will hold, when it starts, what ends it, what happens after a refusal, and how to avoid becoming unlawful while a protection claim is still being decided. It is written for people who have lodged a Subclass 866 application, or are about to, and want to understand their visa status. It is not a general guide to every bridging visa in Australia. That broader subject is covered in the guide to bridging visas in Australia.

What is a protection visa bridging visa?

A protection visa bridging visa is not a separate visa class with that name. It is the ordinary bridging visa that is granted in association with a protection visa application. The Migration Act 1958 and the Migration Regulations 1994 do not create a special bridging visa for protection applicants, apart from the narrow Subclass 051 category described later in this article. Instead, the general bridging visa classes apply, with some rules that are specific to people who have applied for a protection visa.

The purpose of every bridging visa is the same. A bridging visa is not a substantive visa. It does not give the holder permanent residence or any right to stay once the protection visa application has been finally decided. It simply gives the applicant lawful status in Australia during a period when the law would otherwise leave them without a visa.

That lawful status matters. A person without a visa is an unlawful non-citizen under section 14 of the Migration Act and can be detained and removed. A protection visa bridging visa protects the applicant from that outcome while the Department of Home Affairs, and later the Administrative Review Tribunal, considers whether Australia owes them protection. The substantive visa itself, and the criteria for it, are explained on the Subclass 866 protection visa page.

Which protection visa bridging visa will I get?

The protection visa bridging visa an applicant receives depends on whether they held a substantive visa on the day they lodged the protection visa application. The substantive visa is the visa the person entered Australia on or was later granted, such as a visitor visa, student visa, working holiday visa or temporary work visa.

The general rule is:

• Holding a substantive visa at lodgement: the application for the protection visa is also an application for a Bridging visa A. If the criteria are met, a Bridging visa A is granted.
• Holding only a bridging visa at lodgement, and never having held a Bridging visa E since the last substantive visa: a Bridging visa C may be granted.
• Unlawful at lodgement, because the earlier visa has already ceased: the applicant usually needs a Bridging visa E (Subclass 050) and must meet its separate criteria.

This is the single most important practical point about the protection visa bridging visa. The same person, with the same claim, can end up on a very different bridging visa depending on whether the application was lodged one day before or one day after their visa ended. The difference affects conditions, work, travel and the risk of detention.

Bridging visa A

A Bridging visa A is granted where the applicant made a valid application in Australia for a substantive visa that can be granted in Australia, and held a substantive visa when they made it. A protection visa application lodged online through ImmiAccount is an application made in Australia. The Department's procedural instructions use the example of a visitor visa holder who applies for a Subclass 866 protection visa and is granted a Bridging visa A in association with that application.

The application form for a protection visa is also an application for the associated bridging visa. Applicants do not usually lodge a separate bridging visa form at the time of lodgement. The steps for lodging are covered in the guide to Form 866.

Bridging visa C

A Bridging visa C is for applicants who did not hold a substantive visa when they applied, but were still lawful because they held a bridging visa from an earlier application. A person who has held a Bridging visa E since their last substantive visa cannot be granted a Bridging visa C. The Department's instructions state that there is no restriction on a protection visa applicant who holds a Bridging visa C applying for a further Bridging visa C without a work condition, if they can show a compelling need to work.

Bridging visa E

A Bridging visa E (Subclass 050) is the protection visa bridging visa for people who were unlawful when they applied. It is granted on conditions, and those conditions are more restrictive than for a Bridging visa A. The Department's instructions state that condition 8101, the no work condition, must initially be imposed on a Bridging visa E granted to a protection visa applicant unless the applicant falls within a class specified by the Minister in a legislative instrument. Conditions may also include reporting requirements.

Bridging visa E (Subclass 051)

Subclass 051 is called Bridging (Protection Visa Applicant), but it is not the usual protection visa bridging visa. It is confined to a narrow group of protection applicants who were refused or bypassed immigration clearance, came to the Department's attention within a short period of arrival, and fall within specific categories, such as minors certified by a child welfare authority, people aged 75 or older, people with a specialised need that cannot be met in detention, and certain spouses of Australian citizens or permanent residents. Most people who arrived lawfully on a visa and later apply for protection will never be considered for Subclass 051.

When does a protection visa bridging visa start?

A Bridging visa A granted with a protection visa application does not come into effect until the substantive visa the applicant already holds has ceased. Until then, the applicant holds the Bridging visa A, but it is not in effect. The substantive visa remains the visa that governs the applicant's stay.

This is where many applicants are misinformed. A student who lodges a protection visa application while their student visa has months left to run remains on the student visa, with its conditions, until the student visa ceases. The protection visa bridging visa does not replace the student visa on the day of lodgement. Any work limitation or study requirement on the student visa continues to apply while that visa is in effect, and a breach can still lead to cancellation of that visa. International students in this position should read the guide to Subclass 866 applications by international students.

When the substantive visa ceases, the Bridging visa A comes into effect automatically. No further application is needed. The applicant should keep the bridging visa grant notice and check their status in VEVO once the substantive visa has ended.

A Bridging visa E is different. A Bridging visa E comes into effect when it is granted, because the applicant has no other visa in effect. Until it is granted, an unlawful applicant remains unlawful. The grant of the Bridging visa E is not automatic, and the Department assesses the application against its own criteria.

What conditions apply to a protection visa bridging visa?

The conditions on a protection visa bridging visa depend on its class. The rules are set out in Schedule 2 to the Migration Regulations 1994 for each bridging visa subclass, and only conditions listed there can lawfully be imposed.

For a Bridging visa A, clause 010.611(1)(b) provides that a person who has applied for a protection visa that has not been finally determined is granted the Bridging visa A with no conditions. The Department's instructions confirm that, since 1 July 2009, a Bridging visa A holder whose protection visa application has not been finally determined is permitted to work, and condition 8101 cannot be imposed. This is a significant difference from other visa applicants, whose Bridging visa A usually inherits the work conditions of the visa they held.

For a Bridging visa E (Subclass 050), the position is less favourable. Condition 8101 is imposed at first, subject to the instrument mentioned above. Reporting conditions, address notification conditions and other conditions may also be imposed. A later application can be made for a further Bridging visa E without condition 8101, but it requires evidence of a compelling need to work, and for protection applicants, an acceptable reason for the delay in applying for protection, unless an exception applies.

The detailed rules on permission to work, including financial hardship and acceptable reasons for delay, are outside the scope of this article. For the Bridging visa A itself, see the guide to Bridging visa A work rights and conditions.

Protection visa bridging visa for visitor and student visa holders

Most people who apply for a Subclass 866 protection visa are in Australia on a visitor or student visa. For them, the protection visa bridging visa will normally be a Bridging visa A, provided they lodge before their substantive visa ceases.

Visitor visa holders often ask whether a "no further stay" condition, such as condition 8503, stops them from applying for protection. It does not. A no further stay condition limits applications for most substantive visas made while the person is in Australia, but a protection visa is an exception. The Department's instructions also confirm that a no further stay condition does not prevent a valid bridging visa application, because a bridging visa is not a substantive visa. The guide to applying for a Subclass 866 protection visa on a tourist visa explains the visitor visa position in detail.

The practical lesson for both groups is that the protection visa application should be lodged while the substantive visa is still in effect. Lodging late does not make a protection claim invalid, but it usually changes the protection visa bridging visa from a Bridging visa A to a Bridging visa E, with all the restrictions that follow. Delay also has consequences for the claim itself, which are explained in the guide to whether delaying a Subclass 866 application affects the claim.

What if my visa has already expired?

A person whose visa has already ceased is an unlawful non-citizen, and the protection visa bridging visa they need is usually a Bridging visa E (Subclass 050). They should not wait. Every day without a visa is a day during which the person is liable to be detained.

An unlawful person who wants to apply for protection has two tasks. The first is the protection visa application itself. The second is the Bridging visa E application, which is assessed against the criteria in Part 050 of Schedule 2. Where the person is making, or has made, a valid substantive visa application, that ground supports the grant of a Bridging visa E. The Department can impose conditions, and in some cases can require a security.

The Bridging visa E will ordinarily carry condition 8101 at first. The applicant should assume they will not be permitted to work until a further Bridging visa E without that condition is granted, and should not work in breach of the condition. Working in breach of a bridging visa condition can lead to cancellation of the bridging visa and detention.

A person in this position should also understand that the delay between the end of their visa and the protection application will be examined twice. It is examined once for the bridging visa, where the reasons for delay can affect work rights. It is examined again in the protection assessment, where the Department may consider whether the delay is consistent with a genuine fear of harm.

Can I travel on a protection visa bridging visa?

A protection visa bridging visa is a visa to remain in Australia. It is not a visa to travel to and return to Australia. Under section 82(8) of the Migration Act, a bridging visa that is in effect ceases when the holder leaves Australia. A Bridging visa B, used within its travel facility period, is the exception.

A Bridging visa A holder who needs to travel must apply for a Bridging visa B before departing, and the Department must be satisfied that there are substantial reasons for the travel. The procedure is explained in the guide to the Bridging visa B.

For a protection visa applicant, the legal question about travel is only half the problem. The more serious question is what the travel says about the claim. A person who claims to fear serious harm in their home country, and then travels back to that country while the application is pending, gives the Department an obvious reason to doubt the claim. Travel to a third country may also raise questions about whether the applicant has a right to enter and reside elsewhere, which is relevant under sections 36(3) to 36(7) of the Migration Act. No protection applicant should travel without advice.

What happens to my protection visa bridging visa if the application is refused?

If the Department refuses the protection visa, the protection visa bridging visa does not end on the day of the refusal. A Bridging visa A granted on or after 19 November 2016 continues for a short, fixed period after the refusal decision. If the applicant lodges a valid application for review with the Administrative Review Tribunal within the time allowed, the Bridging visa A continues while the review is pending.

The time limit to apply for review of a protection visa refusal is short and strictly applied. If it is missed, the application is treated as finally determined, and the applicant cannot rely on the Bridging visa A continuing through a review that was never validly lodged. The protection visa refusals page explains the review deadline and what to do immediately after a refusal.

Once the Tribunal decides the review, the protection visa bridging visa ceases a short, fixed period after that decision, unless the Tribunal has remitted the application to the Department for reconsideration. If the application is remitted, the application is no longer finally determined, and the bridging visa continues until a later cessation event occurs. The guide to appealing a protection visa refusal to the ART explains the review process.

Does a protection visa bridging visa continue into court proceedings?

No. A bridging visa granted with the protection visa application does not carry over to court proceedings. The Department's instructions are clear that a person who seeks judicial review of a Tribunal decision must apply for a further bridging visa on that basis, and must generally still hold their existing Bridging visa A or Bridging visa B when they file the court application. For a Bridging visa A granted on the judicial review ground, clause 010.611(2) provides that condition 8101 is imposed if that condition applied to the last visa the person held. In other words, the automatic work rights for protection applicants do not continue into court proceedings.

Protection visa bridging visa after a final refusal

When the protection visa application has been finally determined against the applicant, and the protection visa bridging visa has ceased, the applicant has very limited options to remain lawfully in Australia.

Section 48A of the Migration Act prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in the migration zone, unless the Minister personally determines under section 48B that the bar does not apply. The Department's instructions note that, since 28 May 2014, this bar applies regardless of the ground on which the second application would be made. A second protection visa application is therefore not a way to obtain a new protection visa bridging visa. This is why every claim should be raised in the first application, and why the first application must be properly prepared.

The only bridging visa option for a person who asks the Minister to intervene personally after a Tribunal decision is a Bridging visa E (Subclass 050), and it is available only in limited circumstances. The Subclass 866 refusal and ART guide sets out what happens at each stage after a refusal.

Common mistakes with a protection visa bridging visa

The most common protection visa bridging visa mistakes are avoidable. They include:

• Lodging after the substantive visa ends. This usually changes the bridging visa from a Bridging visa A to a Bridging visa E, with no work rights at first.
• Treating lodgement as the end of the old visa. The earlier visa, and its conditions, continue until that visa ceases.
• Leaving Australia. A bridging visa in effect ceases on departure, and travel to the home country can damage the claim.
• Missing the review deadline. A late review application does not keep the protection visa bridging visa alive.
• Assuming the bridging visa continues into court. A new bridging visa is required, and work rights may not follow.
• Ignoring a change of address. The Department sends notices to the address and email on file. A missed notice can mean a missed deadline.

Each of these mistakes can turn a lawful applicant into an unlawful non-citizen. None of them has anything to do with the strength of the protection claim.

How My Migration Lawyers manages protection visa bridging visa issues

My Migration Lawyers manages the protection visa bridging visa as part of every Subclass 866 matter it takes on. The firm deals with complex protection cases, acts in many protection visa applications of this exact type, including for applicants on visitor, student and other temporary visas, and is capable of managing the visa status issues that arise at every stage.

The firm's work on bridging visa status includes:

• Timing the lodgement. The firm checks the applicant's current visa and its expiry before lodgement, so that the application is lodged while a substantive visa is still in effect wherever possible.
• Confirming the grant. After lodgement, the firm confirms that the correct bridging visa has been granted with the correct conditions.
• Managing the earlier visa. The firm explains which conditions continue to apply until the earlier visa ceases.
• Protecting status after refusal. Where a protection visa is refused, the firm identifies the review deadline and lodges the Tribunal application within time, so that the protection visa bridging visa continues.
• Advising before any travel. No applicant should leave Australia without first understanding the effect on both the bridging visa and the claim.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang and acts for protection visa applicants across Australia, with consultations by video. More about the firm's protection work is on the protection visa lawyers page.

If you have lodged a Subclass 866 application, or your visa is about to end and you are considering one, have your protection visa bridging visa position checked now. Book a consultation with My Migration Lawyers online, or call 1300 040 300.