Have you been granted a bridging visa? We hope that you don’t see condition 8101 on it.
Condition 8101: The holder must not engage in work in Australia
If you have condition 8101 applied on your visa, you do not have work rights. If you really need to be earning, don’t despair, you can still change your situation by apply for work rights, but you will need to substantiate to the Department of Home Affairs that you have have a “compelling need to work”.
You may apply for work rights on the basis of compelling need to work if:
- You are on bridging visa A, C or E without work rights
- You are on a bridging visa without work rights and have applied for a Temporary Work (Skilled) visa (subclass 457)
Applying for work rights will require you to apply for a new Bridging Visa with information supporting your compelling need to work. The Department may also refer to the information that has been provided in previous visa applications or permission to work applications. If there may be conflicting evidence in the information that you have provided the Department, it is advisable to include explanations or evidence where possible.
In this article we will discuss gaining work rights on a Bridging Visa A, C or E that is not related to the 457 visa. Look out for the next article where we will expand on what to do if you have no work rights and are applying for a Temporary Work (Skilled) 457 visa!
Compelling need to work
What is construed as “compelling need to work” to the Department is basically your facing financial hardship. The Department definition is “the cost of reasonable living expenses exceeds your ability to pay for them”. Of course you will need to provide evidence as to such in the form of documents on your savings, income, expenses and support available from other persons
It is not that direct however. It is important to consider how the Department’s looks at those factors.
- Expenses are reasonable
- How the applicant has supported themselves up until the point of application and how that support will continue
- If there are other possible means of support such as via their sponsor or nominator, relatives or friends in Australia or overseas
- If the applicant will become a burden on public funds or charitable institutions
- When the substantive visa application is likely to receive a decision
Claimed expenses should be reasonable given the applicant’s situation. Including unnecessary expenditures such as fancy meals and branded goods would obviously not be taken into consideration. Consideration of the applicant’s circumstances could include factors such as dependent children. Possible compelling reasons may be that the applicant’s means of support has been through savings and their savings are running out, or that the applicant has recently lost a stream of income. Also considered, is if a decision on applicant’s substantive visa application is likely to happen sooner or later; a long processing time for that substantive visa will skew the situation more in favor of the applicant’s compelling need to work.
I am a Bridging Visa C holder
If you are a Bridging Visa C (BVC) holder with condition 8101 applied you may apply for work rights and if the Department of Home Affairs is satisfied that you indeed have a compelling need to work, you will be granted a further BVC with work rights. Your previous BVC will cease on the grant of the new BVC with work rights.
However if your BVC was granted on the basis of your having applied for judicial review and has condition 8101 attached, you will not be eligible to apply for work rights.
I have a Bridging Visa A and C
Have you made two applications for different visas? There is a chance that you hold both a Bridging Visa A (BVA) from your first substantive visa application and a BVC from your second. If both your BVA and BVC do not have work rights, you may apply for work rights, given that you have a compelling need to work. You will need to make two applications for your work rights for both your BVA and your BVC.
I am a Bridging Visa E holder
If you hold a Bridging Visa E (BVE) on the basis of cancelling your current substantive visa and making made an application for another substantive visa, you may apply for work rights if you have a compelling need to work. However if the circumstances under which condition 8101 was applied to their visa was mandatory, such as they being granted the BVE on the basis of their having applied for judicial review, you would not be eligible for a BVE with work rights.
Read: The ABC’s of Bridging Visas
BVE on applying for a Protection visa
If you are on a BVE because you have applied for a protection visa, it is a smidge more complicated. You will still need to prove a compelling need to work. You will also need to satisfy a further requirement of “acceptable reason for delay”.
A visa applicant receives a BVE when they have spent a period of time as an unlawful citizen. As such, acceptable reason for delay refers to the delay in applying for a protection visa, resulting in the applicant holding a BVE. Otherwise it is where a protection visa was applied for and a BVA or BVC was granted, but has ceased before a decision on the protection visa application was made. The Department will look into the period of delay and any evidence that might point to the applicant attempting to extend their stay in Australia outside reasons related to their protection claims.
Acceptable reasons may include any circumstances that prevented them from making the protection visa application that was outside of the applicant’s control or changes in their situation in their home country that arose after their arrival in Australia. Examples include:
- Serious accident or illness affecting the applicant or a member of the family unit
- Invalid protection visa made due to a small error such as the incorrect payment of a visa application fee, but was quickly rectified
- Need for protection, such as political unrest, happened after the applicant arrived in Australia. The circumstances must also reflect a significant change from before the applicant decided to apply for protection visa
The period of delay must also be reasonable. If the applicant has been living unlawfully in Australia for many years and the reasons applying for a protection visa has only recently arisen, then the applicant has no acceptable reason for delay. If the applicant’s change in their home country’s situation occurred around the time their substantive visa ceased, and the applicant moved quickly and made a protection visa within a few weeks of their substantive visa expiring, they may be considered to have an acceptable reason for delay.
Actively breaching visa conditions or only making an application on having been discovered by the Department to be an unlawful citizen demonstrate that the applicant has no intention to comply with visa regulations and will not be taken positively. The applicant must avoid excuses such as not knowing about requirements, not being proficient in English or waiting on documents to make an application.
Minors (Under 18 years of age)
Minors who are included in the main applicant’s visa application are also able to apply for work rights if they are dependent on a parent who holds a visa that has permission to work. Therefore if the parent can satisfy the Department that they are in financial hardship and have compelling need to work, the child is eligible. Whether there is actual intention for the child to work is a non-issue; a minor who is granted work rights may be eligible for Medicare benefits.
In the case where the child is the main applicant, condition 8101 should not be imposed as it would would have adverse consequences for their Medicare and schooling.
Not having work rights can make surviving in Australia very difficult. Are you unsure about how to go about making an application for a new bridging visa with permission to work or have you applied for a protection visa and are confused about how to satisfy the criteria of acceptable reason for delay? Experienced agents are your best bet. With all the changes going on at the Department, it would be best to lodge decision ready applications and avoid complications at all costs.
