A New Interpretation of When Bridging Visas Come Into Effect in Relation to Situations of Visa Cancellations
In the case of K (name redacted), the Applicants failed on the Schedule 3 requirement at the Tribunal but successfully won the case on a jurisdictional error at the Federal Circuit Court of Australia.
Background of the Visa Applicant and Subclass 187 Grant
The Applicant held a 457 visa since October 2013. In September 2015, he applied for a subclass 187 visa. He was granted a Bridging Visa A which was not in effect because at that time he was still holding a subclass 457 visa. On 29 March 2016, his 457 visa was canceled due to non-compliance with visa condition and as a result, his Bridging Visa A was canceled as well. It is worthwhile to note that he voluntarily presented himself at the Department’s office the following day and was granted a Bridging Visa E the next day.
Just over two (2) weeks after his subclass 457 visa was canceled, his 187 visa was granted.
He applied for Australian citizenship in April 2017 which was refused as the delegate found that he had been unlawful (from 29 March 2016 to 30 March 2016) during the period of 4 years immediately before the date of application.
Overcoming the Australian Citizenship Refusal and Winning the Case at the Tribunal
Although the case mainly won on the grounds that the cancellation involved an administrative error, the Tribunal Member went on to consider whether K (name redacted) was, in fact, an unlawful non-citizen for a period of time.
As above, the general approach and understanding is that once the subclass 457 visa is canceled, the inactive Bridging Visa A associated with the RSMS 187 visa would also cease. This derives from the following legal criteria in relation to when the Bridging Visa is in effect:
010.5 When visa is in effect
010.511
(1) In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa:
(a) coming into effect:
(i) on grant; or
(ii) when the substantive visa (if any) held by the holder ceases; and
(b) permitting the holder to remain in Australia until:
(i) if the Minister’s decision in respect of the substantive visa application is to grant a visa – the grant of the visa; or...
(vi) if the substantive visa (if any) held by the holder is cancelled – that cancellation.
As evident in the final line, the bridging visa permits the holder to remain in Australia until the substantive (if any) held by the holder is cancelled. The Tribunal Member expressed (inconclusively) that he preferred the interpretation that departs from the traditional understanding of all within the immigration industry. That is, he understands that all of the events occur sequentially:
(1) The bridging visa A is not in effect.
(2) The 457 visa ceases by way of cancellation.
(3) The bridging visa A comes into effect per 010.511(1)(a)(ii).
(4) 010.511(b)(vi) where it says it is valid until any substantive visa held by the holder is cancelled is not engaged because at the time the bridging visa A comes into effect, the holder no longer holds any other substantive visa.
What Do We Think and What Does Everyone Else Think?
This is truly a radical interpretation of the legislation. I (as the writer) would be inclined to follow suit with the traditional interpretation as the Tribunal Member’s interpretation would mean 010.511(b)(vi) would have no utility since engagement of this legal criteria means the person must hold an active bridging visa A at the time of cancellation which could never occur.
Unfortunately, the Tribunal’s decisions are not binding unlike judicial decisions. Therefore, this bears little utility but it would be interesting to see how this interpretation fairs if and when it reaches a judicial setting.
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