Did you know that in many cases you may obtain a Bridging Visa E (BVE) to remain in Australia even though you applied for your visa offshore?
Most of you know that when you apply for a visa when you are in Australia and you hold a substantive visa, you are granted a Bridging Visa A (BVA) . This BVA lasts until that application is finally determined which also covers review (AAT) and Federal court applications.
When you lodge a visa outside Australia you are not granted a BVA. This means many people think because they were never granted a BVA, if they enter Australia after they have lodged they cannot stay here because of that application.
If you held a substantive visa (such as a 485 or 482 visa) when you applied offshore then when you come back you can apply to have the BVA granted to you.
The issue of todays topic is how to get a BVE since you did not have a substantive visa when you applied for your visa offshore.
Example 1
Jessie was in Australia on a BVA whilst his refused 189 application was waiting to be heard at the AAT. He then got lucky and then found a sponsor for the RSMS 187 visa. Because he was already refused a visa and on a bridging visa he was not able to apply for the 187 visa onshore.
Jessie obtained a BVB and traveled to N.Z for the weekend. Whilst he was away his 187 application was lodged. He then returned to Australia on that BVB. After he returned his AAT review was unsuccessful. His BVA was going to expire in 35 days. What can Jessie do to remain here?
Answer
The day after Jessie’s BVA expires he can apply for a BVE.
How is this possible? Applying for your BVE
When we first did this operation, obtain a BVE for a client like Jessie, the immigration department had no idea of what we were talking about and said it was not possible. In fact on the first attempt when the client went on their own to the Sydney Compliance Section they refused the application. We applied again and this time explained it in writing for them and they and they granted the BVE.
You see in the BVE regulations, Part 3 states the following;
(3) 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 that application has not been finally determined;
In the beginning the department refused to accept that when an applicant was offshore when they lodged the visa, they actually made the application “in Australia”.
However these days most applications are actually “internet applications”. Under their own policy based upon a number of laws, these internet applications are considered to be made “in Australia”.
The Compliance Section at Sydney CBD then conceded that even though the visa applicant was physically outside Australia when the application was lodged, as far as the law was concerned the applicant has made a valid application “in Australia”. This is one of the crucial requirement to meet the BVE regulation.
The 187 visa application is also a type where the applicant maybe in or outside Australia at the time of grant.
Still today there are still many immigration department case officers unaware that in many cases BVE’s can be obtained in this manner.
The Disadvantage of Obtaining a BVE
There is one major disadvantage to this procedure. To make this work you must let yourself become unlawful for at least one day. A BVE can only be granted when an applicant is unlawful. This is in itself not a major issue because you are not going to get locked up or anything like that, however there will be a citizenship implication for the future.
In applying for Citizenship, the current law stipulates you must not have been unlawfully in Australia in the 4 years before the application is lodged. In effect then it may take you longer to get Citizenship than you hoped but on the good side Jessie was able to remain in Australia and keep working until his 187 was granted.
BVE’s also do not come with automatic work permission and an application must be made under the financial hardship provision.
Read: Applying For Work Rights
Example 2
Joan was overseas when her husband lodged their 186 ENS application. She did not have a visa to travel to Australia before he lodged the application but she was included in the application as his spouse. Six months later Joan was able to be granted a Tourist visa and spent some time with her husband. After she arrived in Australia their 186 application was sadly refused. In the refusal letter it indicated that Joan was eligible to be included in the appeal to the AAT and the couple applied.
Joan can apply for a BVE since she was able to be included in the 186 AAT review application. She will need to wait until the tourist visa expires and become unlawful and then present herself to the department to obtain the BVE. The 186 AAT review could take at least two years so it is important for the couple to be together over this extended period of time.
In Joan’s example she was lucky and was in Australia at the right time when the application was refused because this gave her the review right. The laws about the AAT reviews are that an application must be for a permanent visa and the applicant must be in Australia at the time of the decision and at the time the AAT application is lodged.
These days with the modern GSM applications (189,190,186,187 etc) and others, they are visas which can be granted whether you are in or outside Australia. This means it is possible to obtain a Bridging Visa E.
Conclusion
If you are considering to apply for a BVE under these circumstances then you need to seek professional advice and preferably from an agent or lawyer who has done it before. The information given above is not something the immigration department want you to do, that is deliberately become unlawful in order to obtain the BVE. However the law is the law and in acting for the best interests of a client at all times, we explain what is possible, not what the department wants us to do.
In most cases we find that our clients want to remain in Australia until their visa is granted and do not mind the issue of being unlawful for the day. As a consequence we have lodged many of the BVE applications and now the Compliance Section in Sydney are used to them.
If you are still confused about at which point you can apply for the BVE call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.
