Protection Visa Work Rights

Protection visa work rights are the rights to work in Australia that a person has while their Subclass 866 protection visa application is being decided. Protection visa work rights do not come from the protection visa application itself. They come from the bridging visa the applicant holds, and from the conditions on that bridging visa. Whether a person can work, and from when, depends mostly on their visa status on the day they lodged.

This article explains protection visa work rights in practical terms. It covers who can work after lodging, when work rights start, why many applicants cannot work straight away, how an applicant on a Bridging visa E can apply for permission to work, what happens to work rights after a refusal, and the risks of working in breach of a visa condition. It is written for people who have applied for protection, or are about to, and need to support themselves while they wait. The criteria for the protection visa itself are explained on the Subclass 866 protection visa page.

Can I work while my protection visa application is processed?

Yes, most protection visa applicants can work while their application is processed, but only if the bridging visa they hold permits it and only once that bridging visa is in effect. The answer turns on three facts:

• whether the applicant held a substantive visa when they lodged the protection visa application;
• whether that substantive visa has ceased yet; and
• which bridging visa was granted and what conditions it carries.

An applicant who lodged while holding a substantive visa, such as a visitor, student or working holiday visa, is ordinarily granted a Bridging visa A. Clause 010.611(1)(b) of Schedule 2 to the Migration Regulations 1994 provides that a Bridging visa A granted to a person whose protection visa application has not been finally determined has no conditions. The Department of Home Affairs' instructions confirm that, since 1 July 2009, such a person is permitted to work, and condition 8101, the no work condition, cannot be imposed.

That is the favourable position. It is not the position of every applicant. Protection visa work rights for people who were already unlawful when they applied are much more restricted, as explained below. Waiting times for decisions are long, which is why protection visa work rights matter so much in practice. The guide to protection visa processing times explains why many applicants wait a long time for a decision.

Where do protection visa work rights come from?

Protection visa work rights come from the conditions on the applicant's bridging visa. A bridging visa is a temporary visa that keeps the applicant lawful while the application is decided. The Migration Act 1958 allows visas to be granted subject to conditions, and the Migration Regulations 1994 list which conditions can be imposed on each bridging visa subclass. Only listed conditions can lawfully be imposed.

The main bridging visas for protection applicants are:

• Bridging visa A (Subclass 010). For applicants who held a substantive visa when they lodged. No conditions while the protection visa application is not finally determined.
• Bridging visa C (Subclass 030). For applicants who held only a bridging visa from another application when they lodged, and have not held a Bridging visa E since their last substantive visa. It may carry condition 8101.
• Bridging visa E (Subclass 050). For applicants who were unlawful when they lodged. Condition 8101 is ordinarily imposed at first.

The broader rules on each bridging visa are covered in the guides to bridging visas in Australia and the Bridging visa A. This article focuses on what they mean for protection visa work rights.

When do protection visa work rights start?

Protection visa work rights on a Bridging visa A start when the Bridging visa A comes into effect, which is when the applicant's earlier substantive visa ceases. They do not start on the day of lodgement.

This is the point most often misunderstood. A person who lodges a protection visa application while their student visa still has months to run continues to hold the student visa, and the student visa remains the visa in effect. The Bridging visa A is granted, but it is not yet in effect. The student visa's work conditions continue to apply until the student visa ceases. A student who begins working unrestricted hours the day after lodging, on the belief that the protection application has given them full work rights, may breach their student visa conditions.

The same applies to visitors. A visitor visa with condition 8101 continues to prohibit work until the visitor visa ceases. Only then does the Bridging visa A, with no conditions, come into effect. The guides for international students applying for a Subclass 866 protection visa and for visitors applying on a tourist visa explain these situations in more detail.

Before starting work, an applicant should check in VEVO which visa is in effect and what conditions apply to it. An employer is entitled to check the same record.

Do protection visa work rights extend to family members?

Yes, family members who are included in the protection visa application generally receive the same kind of bridging visa as the main applicant, and therefore the same protection visa work rights. A member of the family unit who combines their application with the main applicant's application is also a protection visa applicant. If each family member held a substantive visa at lodgement, each is ordinarily granted a Bridging visa A with no conditions.

The position can differ where family members have different immigration histories. One family member may have lodged while their visa was still in effect, while another's visa had already ceased. The Department's instructions note that each applicant for a further Bridging visa E must meet the requirements individually, although family members with the same history will usually be treated alike. A child born in Australia to a bridging visa holder is taken to hold a bridging visa on the same terms as the parent.

Families should check the visa status of every family member, not only the main applicant, before anyone starts work.

Protection visa work rights on a Bridging visa E

Protection visa work rights on a Bridging visa E (Subclass 050) are restricted. The Department's instructions state that condition 8101 must initially be imposed on a Bridging visa E granted to a protection visa applicant, unless the applicant is in a class of persons specified by the Minister in a legislative instrument. A person who holds a Bridging visa E with condition 8101 must not work.

A Bridging visa E protection applicant can later apply for a further Bridging visa E without condition 8101. Under the Department's instructions, the applicant must show:

• a compelling need to work; and
• either an acceptable reason for the delay in applying for the protection visa, or that they had applied for a protection visa, were granted an associated Bridging visa A or Bridging visa C, and that bridging visa has ceased while the protection application is still not finally determined.

The Minister has also specified, by instrument, certain applicants who are not required to show an acceptable reason for delay. They must still show a compelling need to work. Whether a particular applicant falls within that instrument should be checked on the facts.

What is a compelling need to work?

A compelling need to work is defined in regulation 1.08 of the Migration Regulations 1994. For protection applicants, it means financial hardship. The term "financial hardship" is not defined, so its ordinary meaning applies. Under the Department's policy, a person can be taken to be in financial hardship if the cost of their reasonable living expenses exceeds their ability to pay for them.

The Department considers:

• whether the claimed expenses are reasonable;
• how the person has supported themselves until now, and whether that support will continue;
• whether there are other possible sources of support, such as family or friends in Australia or overseas;
• whether the person would otherwise become an unreasonable charge on public funds or charities; and
• how long the substantive visa application is likely to take.

The Department's instructions state that the likely outcome of the protection visa application is not relevant to financial hardship. The application should be supported by evidence, such as bank statements, rent and bills, and statements from anyone who has been supporting the applicant.

What is an acceptable reason for delay?

An acceptable reason for delay is a reason, acceptable to the decision maker, for the time between the applicant's arrival, and in particular the expiry of their last substantive visa, and the lodgement of the protection visa application. The Department's instructions say the reason should cover all, or almost all, of the period of delay.

Examples the Department's instructions treat as potentially acceptable include:

• a serious illness or accident, supported by a registered medical practitioner;
• having to care for a family member with a serious illness, or the death of a family member;
• a minor technical problem that prevented a valid application, which was quickly fixed;
• an administrative error by the Department; and
• a need for protection that arose after arrival because of a recent, substantial change in the home country that directly affects the applicant.

Examples the instructions treat as usually unacceptable include not knowing the process, being misinformed by a third party without evidence, not having access to advice, waiting for documents, and delaying until the Department located the person. A claimed change in circumstances caused by the applicant's own actions in Australia is not normally accepted.

This explains why protection visa work rights and the timing of the application are so closely linked. The same delay that restricts work rights on a Bridging visa E can also be examined in the protection assessment itself. The guide to whether delaying a Subclass 866 application affects the claim explains the second issue.

How to apply for protection visa work rights on a Bridging visa E

A Bridging visa E holder applies for protection visa work rights by applying for a further Bridging visa E without condition 8101. The Department's instructions identify Form 1008 as the application form for a Subclass 050 Bridging visa E. The application should explain the applicant's financial position in full and attach evidence.

A well-prepared application usually includes:

• A statement of income and expenses, showing rent, food, transport, utilities and any dependants.
• Bank statements for all accounts, in Australia and overseas.
• Evidence of support received so far, such as statements from family, friends or community organisations, and an explanation of whether that support can continue.
• An explanation of the delay in applying for protection, covering the whole period, with supporting documents such as medical certificates, unless the applicant falls within the Minister's instrument or an exception applies.

The existing Bridging visa E, and its condition 8101, continues to apply until the new bridging visa is granted. The applicant must not start work while the application is pending. If the application is refused, the refusal of a bridging visa is generally reviewable by the Administrative Review Tribunal, and the reasons for refusal should be read carefully before any further application is made.

Protection visa work rights on a Bridging visa C

A protection applicant who holds a Bridging visa C with condition 8101 can apply for a further Bridging visa C without that condition if they have a compelling need to work. The Department's instructions confirm that there is no restriction on protection visa applicants holding a Bridging visa C seeking permission to work on that basis. Unlike the Bridging visa E, there is no separate requirement to explain delay. The applicant must still prove financial hardship with evidence.

Can I lose my protection visa work rights?

Yes, protection visa work rights can be lost if the bridging visa ceases, is cancelled, or is replaced by a bridging visa with a work condition.

The main ways protection visa work rights are lost are:

• Leaving Australia. A bridging visa in effect ceases when the holder leaves Australia. A person who returns on a different visa, or who is granted a different bridging visa, may not have the same work rights.
• A final decision. When the protection visa application is finally determined, the associated bridging visa ceases a short, fixed period later. Work rights end with it.
• Court proceedings. A bridging visa granted on the basis of a court application is a new bridging visa, with its own conditions. For a Bridging visa A granted on the judicial review ground, clause 010.611(2) imposes condition 8101 if it applied to the last visa the person held.
• Cancellation. A bridging visa can be cancelled if its conditions are breached or other cancellation grounds apply. The visa cancellations page explains how cancellation works.

A person whose protection visa application is refused keeps the Bridging visa A, and its work rights, while a valid Administrative Review Tribunal application is pending. The review must be lodged within a short, strictly applied time limit. The protection visa refusals page explains what to do.

What happens if I work in breach of a condition?

Working in breach of a visa condition exposes the applicant to cancellation of their visa and, if they become unlawful, to detention. A person who holds a Bridging visa E with condition 8101, or whose earlier visa still in effect prohibits or limits work, should not work outside those limits, even if they are in financial difficulty.

A breach of a condition can also damage the protection application. The Department looks at the applicant's conduct in Australia when assessing credibility, and a history of working in breach of conditions can be used to question whether the applicant has been candid. It may also be relevant to any later request that the Minister intervene personally.

The correct course is to apply for permission to work, with evidence of financial hardship, and to wait for the new bridging visa before starting work.

Are there limits on hours or type of work?

No. A Bridging visa A granted to a protection applicant has no conditions, so it places no limit on the number of hours worked, the type of lawful work, or the employer. The same is true of a Bridging visa E or Bridging visa C once it has been granted without condition 8101. The limits that some applicants experience come from the earlier visa while it is still in effect, not from the protection visa bridging visa.

Protection visa applicants who work are treated like any other worker. They need a tax file number, they pay tax on their earnings, and they are entitled to the same minimum wages and workplace protections as other employees in Australia. An employer who asks a protection applicant to work for less than the legal minimum, or threatens to report them to the Department, is acting unlawfully. An applicant in that situation should seek advice rather than assume their visa status leaves them without rights.

Protection visa work rights and genuine claims

Protection visa work rights exist because protection applicants must support themselves while the Department decides whether Australia owes them protection. They are not a reason to apply for protection.

A protection visa is granted only to a person who meets the refugee criterion or the complementary protection criterion in section 36(2) of the Migration Act. A person who applies without a genuine fear of harm, in order to obtain protection visa work rights while the application is processed, will be refused. The consequences of that refusal are serious. Section 48A of the Migration Act prevents a further protection visa application while the person remains in Australia, unless the Minister personally intervenes. A refused applicant may also face difficulty with future visa applications.

For a person with a genuine claim, the correct approach is to prepare the claim properly and lodge it while their substantive visa is still in effect. The Subclass 866 protection visa guide explains what the Department must be satisfied of.

Protection visa work rights after the visa is granted

Once the Subclass 866 protection visa is granted, the holder is a permanent resident. The protection visa itself does not restrict work. The holder can work for any employer in any lawful occupation. The rights that come with the permanent protection visa are explained in the guide to permanent protection visa eligibility and requirements.

Protection visa work rights: a practical checklist

Before starting work, a protection visa applicant should confirm:

• Which visa is in effect. Check VEVO. If the earlier visa has not ceased, its conditions still apply.
• Which bridging visa has been granted. A Bridging visa A for a protection applicant has no conditions. A Bridging visa E usually carries condition 8101 at first.
• Whether permission to work is needed. A Bridging visa E or Bridging visa C holder with condition 8101 must apply for a further bridging visa before working.
• What evidence of hardship is available. Bank statements, rent, bills and statements from supporters.
• Whether the review deadline has been diarised. If the protection visa is refused, work rights continue only while a valid review is pending.

How My Migration Lawyers helps with protection visa work rights

My Migration Lawyers manages protection visa work rights 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 students, visitors and applicants who were unlawful when they applied, and is capable of handling the bridging visa and permission to work issues that arise.

The firm's work on protection visa work rights includes:

• Timing the lodgement so that the application is made while a substantive visa is still in effect wherever possible, preserving the Bridging visa A.
• Checking the grant to confirm the correct bridging visa and conditions.
• Preparing permission to work applications for Bridging visa E and Bridging visa C holders, with evidence of financial hardship and, where required, a clear explanation of the reasons for delay.
• Protecting work rights after a refusal by lodging the Tribunal review within time.

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

If you need to know your protection visa work rights, or you hold a bridging visa that does not allow you to work, have your position checked before you start work. Book a consultation with My Migration Lawyers online, or call 1300 040 300.