Judicial Review Bridging Visas

TABLE OF CONTENTS

Introduction

Care needs to be taken to ensure that a judicial review applicant applies afresh for a ‘judicial review’ bridging visa, on lodging an application for judicial review. [When I use the word paragraph in this section, I refer to the paragraph number in Schedule 2 of the regulations.]  One assumes that at the point when a judicial review application is lodged the applicant will hold a bridging A visa, granted by meeting the criteria in paragraph 010.212(2) which is:

(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)        he or she held a substantive visa at the time that application was made; and

(d)       either:

(i)        he or she has applied for a bridging visa in respect of that application; or

• a bridging visa can be granted in respect of that application under regulation 2.21B.

Under paragraph 010.511(b)(iii) (using a Bridging A visa as an example), that bridging visa  expires “28 days after notification of the decision of the review authority”.  So before that 28 period expires a judicial review applicant must apply afresh for a Bridging A visa relying on the criteria in

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

(a)       the applicant:

(i)        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

(ii)       held a substantive visa when he or she made the application; and

(aa)     that application was refused; and

(b)       either:

0(i)      the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or….

• at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and

Only a bridging visa granted on the basis of having commenced a judicial review application remains in force until the judicial review decision is made, as set in paragraph 010.513 which reads:

010.513           In the case of a visa granted to a non-citizen on the basis of judicial review of a decision – 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)        subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(ii)       the grant of another bridging visa to the holder in respect of the same application for judicial review; or

(iii)      if the holder withdraws his or her application for judicial review – 28 days after that withdrawal; or

(iv)       if the substantive visa (if any) held by the holder is cancelled – that cancellation; and

(c)        if a court remits a matter to which the judicial review proceedings relate to a review authority, or to the Minister, for reconsideration – permitting the holder to remain in Australia in accordance with the relevant provision of paragraph 010.511 (b).

The conditions which apply to a bridging visa A granted on the basis of having lodged a valid application for visa or having commenced a judicial review action are as follows:

(4)       In any other case: whichever of conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111 and 8112 applies to:

(a)       the visa held by the holder:

(i)        at the time of application; or

(ii)       if the bridging visa is granted under regulation 2.21B, at the time of grant; or

• if the visa mentioned in subparagraph (a) (i) has ceased, or no visa is held by the holder at the time of grant – the last Bridging A (Class WA) or Bridging B (Class WB) visa held by the holder

8101 is the work condition and if the applicant had work rights initially then those rights remain in place until the judicial review application is determined. One criterion for being granted a “judicial review” bridging visa is that the applicant already holds a Bridging A or B visa.  So as can be seen once the chain of having a valid visa is broken then the applicant is no longer eligible for the Bridging A visa. But if the change of lawfulness is broken then the applicant no longer becomes eligible for a Bridging A visa.  The applicant is then an unlawful non-citizen and is eligible for a Bridging E visa with the work rights quagmire that that visa entails.

So, if your client already holds a bridging A visa, on the day your client lodges a judicial review application, also apply for a Bridging A visa.

[1] Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898, vol 2 at 1884-1885.

[2] R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 at 586.

[3] R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131.

[4] Church of Scientology v Woodward (1982) 154 CLR 25 at 70.

[5] (1994/5) 184 CLR 163 at 179

[6] [1981] AC 374 at 383

[7] ie ss. 494A, 494B & 494C

[8] See s. 486A(1)