Plan B in the visa application process and the Bridging visa B

Too often, clients rely on only having one pathway to visa grant. In circumstances where a visa is refused, and there is an opportunity to apply to the AAT then clients should always be advised to think of plan B, i.e. a separate visa option. Generally, (except for certain protection visa applicants), there is no absolute prohibition on applying for a second substantive visa, especially if the matter has progressed to judicial review.

Here the Bridging visa B (BVB) is a great option in order to overcome the s48 bar on applying for another visa onshore.

This is especially the case in partner visa refusals onshore. Once the AAT has affirmed a partner visa refusal, judicial review is inevitably problematic. Niels Bohr, the Nobel laureate in Physics, once said, “Prediction is very difficult, especially if it's about the future!” – that is an accurate statement about assessing whether a judicial review application will succeed, especially in partner cases.

Hence Plan B is essential. Partner Visa refusals create many scenarios. One, the partners are still together and by the time the judicial review application is underway the partners now have a stronger provable partner relationship. This ‘new’ evidence can’t be produced at the judicial review stage because the court is only looking at the material that was before the AAT. The other partner visa scenario is where the relationship has since genuinely broken down but the partner has a new partner relationship. In either situation, the visa applicant can apply for a BVB, go offshore and return on that BVB and while offshore apply for a new subclass 309/100 partner visa.

At the moment it is still possible for any subclass 309 visa, applied for while an applicant was offshore, to be granted while the applicant is onshore – see cl 309.412 and  Reg 1.15N. The difficulty is that the ‘concession period’ identified in Reg 1.15N may come to an end at any time. The advice therefore is to apply for a possible subclass 309 visa sooner rather than later.

However even then it’s not as bad as it looks, every application for a subclass 309 visa is a combined application with the subclass 100 visa. Under cl 100.411 the applicant can be onshore or offshore at time of grant. Hence this justifies a continuing grant of a BVB while the person is present in Australia.

However probably what is not sometimes understood is that the BVB visa is available for a range of visas where the applicant can apply offshore and the visa can be granted onshore.

Clause 020.212 states:

020.212 

(1)  The applicant meets the requirements of subclause (2), (3), (4) or (5).

(2)  An applicant meets the requirements of this subclause if:

(a)  the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

(b)  that application has not been finally determined; and

(c)  the applicant wishes to leave and re-enter Australia during the processing of that application; and

(d)  the Minister is satisfied that the applicant's reasons for wishing to do so are substantial. 

All internet applications are now applications which are made in Australia, even though the applicant may be offshore at the time of visa application. All the Australian Immigration servers are in Australia. The key test for the grant of a BVB is that the visa applied for (a second time around) is “a substantive visa of a kind that can be granted if the applicant is in Australia;”

That, now applies for many many types of visa including the subclass 482 visa, the 186 ENS visa and any other visa where the applicant can be on-shore or offshore at time of visa grant. And Clause 020.212 would also apply to the subclass 100 Partner visa. However in relation to the subclass 100 visa, it would be refused simultaneously if the second visa, the subclass 309 visa were refused.

Note also carefully that to be granted a BVB one must have a ‘substantial’ reason for having a need to go offshore. That term is undefined and there would be a cornucopia of reasons why a person may have a substantial reason to go offshore temporarily, one obvious one is the attendance at a family or a close friend’s celebration.

Returning to judicial review, even in partner matters, it is still possible to apply for a second partner visa while a person is offshore and still return to Australia. One appreciates of course that there would be a second round of visa application charges to pay. However it does create a pathway for staying in Australia and gaining permanent residence even if the judicial review proceedings fail.

It is possibly too late to apply for a BVB after a negative judicial review result is handed down because in judicial review, any bridging visa held expires 28 days after the court decision. Immigration is unlikely to grant a BVB after a negative the judicial review decision has been made.

Hence there is a need to apply for the second visa offshore well before a result might occur in the judicial review proceeding.

Note in passing that the subclasses 491, 494 and 190 visas are not subject to the s48 bar on applying for a visa onshore. Judicial review is no bar to applying for any of those 3 subclasses of visas if the applicant is otherwise qualified.

Also important to note, that if a judicial review proceeding is lost or the court proceeding is discontinued, there will be a costs order against the applicant and then cl 4004 comes into play, it reads:

“The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.”

 Thus any costs awarded would have to be paid before any second visa, be it a subclass 309 or whatever, is granted.

All of the above emphasizes that a concurrent Plan B is essential in judicial review proceedings.