Bridging Visas: Necessary or Nefarious?

The topic of bridging visas continues to attract a considerable level of controversy from media outlets around Australia. Despite being a mainstay of Australian migration for many years, bridging visas often find themselves the ‘flavor of the month’ controversy among the media nationwide. 

Though the furor dissipates as suddenly as it comes about, there remains a question as to whether the current policy surrounding bridging visas opens our migration laws up to wholesale abuse. Does the bridging visa scheme require an overhaul, or are current circumstances indicative of a much more fundamental problem?

 

What Are Bridging Visas?

For the sake of brevity, a bridging visa is most commonly issued to persons who lodge a valid visa application whilst they are physically present in Australia. This bridging visa is of indeterminate duration and will remain in effect until a final decision is made on said person’s pending application.

Those applying for permanent visas will generally be issued bridging visas without any work limitations, and, in some circumstances, allow them access to Australian public health insurance.

Not all applications will permit a person to obtain a bridging visa, offering some protection against specious applications.

Key to this discussion is the matter of visa processing times. As the duration of a bridging visa is contingent on the time taken to approve or refuse a given application, the underfunding and inefficiency of government departments will inevitably place bridging visas at the risk of exploitation as a means of extending one’s stay.

 

What is the Big Deal?

Visa applications take time. In fact, in recent years, visa applications are taking more time than ever. This has resulted in an explosion of bridging visa holders, all joining an ever-growing queue of applicants. Some bridging visa holders are given access to unrestricted work rights and public health insurance, all at the perceived expense of the Australian taxpayer.

Furthermore, provided one has the available funds, the bridging visa obtained through a fraudulent application may be extended via lodgment of an appeal. Between the initial refusal and a Tribunal hearing, more than 500 days may elapse. Thereafter, matters may be escalated to the Federal Circuit Court at considerable cost. This may result in upwards of 5 or 6 years of full work rights before an applicant is finally required to depart the jurisdiction.

Given the above, it becomes clear that fraudulent applications are incentivized by their long processing times and the rights given to applicants during this period. The more time taken between application and decision, the more time such an applicant will have to enjoy the privileges of their bridging visa.

 

Bridging Visas and Applications for Protection visas

When issued a bridging visa, generally only those given pursuant to permanent residency or protection visa applications will allow for full work rights. By contrast, most temporary visa applications will result in the applicant being subject to the same conditions of their most recent substantive visa. In many cases, permanent residency proves an expensive proposition, often separated into numerous preliminary steps. This results in a ‘filtering out’ of aspiring fraudsters long before they have the opportunity to lodge an application.

The Subclass 866 Protection visa, however, does not suffer from these issues. It may be applied for immediately upon arrival in Australia, is not subject to any preliminary invitation process, and costs the prospective applicant no more than a mere $40. This is in stark contrast to the $7,715 fee of most partner visas, or the $9,820 total, payable by an applicant and their employer for the Subclass 186 Employer Nominated Sponsored visa. Furthermore, due to a glut of applications, a Subclass 866 application may take multiple years to be finalised. This provides plenty of time to work and save up for an eventual tribunal appeal, which will then extend one’s bridging visa for another several years.

Any migration agent with an ounce of experience will tell you, false protection visa applications happen. Even a cursory glance of past tribunal matters reveals migration agents advising clients to lodge fraudulent protection visas as an easy way to net a couple years work rights. (See, eg, Gao and Migration Agents Registration Authority (Migration) [2020] AATA 258 (21 February 2020)).

 

What is the Harm?

Whatever your political leanings, the following are undoubtedly unfavorable consequences of this practice.

• Growing the backlog: For every false application, a genuine refugee is spending more time in limbo. No matter the stage of the application, whether under departmental or judicial review, another genuine matter is put on ice whilst the fraudulent one is being considered.
• Pressure on health services: As discussed, certain bridging visa holders are eligible for Medicare. This care is provided at the expense of the Australian taxpayer and places additional strain on our public healthcare system.
• Foiling policy objectives: Whatever one’s political persuasion, it is in our mutual interests that the government be able to achieve policy objectives. The back door provided by bridging visas permit applicants to take advantage of bureaucratic exigencies to extend their stay by multiple years.

 

What can be done?

Even upon consideration of the above, it must be recognized that the bridging visa serves a pivotal role in the Australian migration regime. This importance must be kept in mind when assessing possible solutions to the issue.

Some commonly proposed solutions include:

 

Disallowing Appeals

A knee jerk reaction may be to propose limiting avenues for appeal. These are known as ‘privative clauses’ and have been subject to endless scholarly analyses. Whilst achievable to an exceedingly limited extent, appellate rights cannot be done away with completely. Attempting to do so will, at best, place undue burden on our superior courts, whose appellate jurisdiction is Constitutionally entrenched. 

In addition to being ineffectual, such measures may deny applicants procedural fairness, prejudicing genuine applicants and presuming the infallibility of the original decision maker.

 

Abolition

Others may request that we do away with bridging visas completely. This is to focus on the outlier and throw the baby out with the bathwater. Bridging visas are vital to our migration system. They provide flexibility in migration planning, facilitate the appeals process and are pivotal to employer nominated schemes. Abolishing bridging visas would add undue delay and expense to the visa application process, all to the detriment of policy objectives and legislative intent.

 

Limiting Eligibility

Others still propose setting additional restrictions on the issuance of bridging visas where applications for protection are concerned. This, however, poses a dilemma. Limiting access to the protection scheme will place genuine refugees at risk of falling through the cracks. Others propose only targeting these restrictions at citizens of countries who are over-represented in Subclass 866 refusals. Once again, this results in a level of inflexibility which fails to account for fringe circumstances in which applications are genuine.

Ultimately, limiting access to our asylum system puts economic interests ahead of lives. Whilst the point may be argued to the contrary, it is still the case that maintaining flexibility in our protection system allows us to minimise the risk of refoulement of people at genuine risk of harm.

 

Punishing Agents

Ethics has always been a hot topic issue within the migration industry. With increasing competition and slimmer pickings, many migration agents go to great lengths to find solutions to sell. Where no other option exists for a prospective client, it is tempting for the less scrupulous among us to resort to specious applications. This course of action, as we’ve seen, is already grounds for disciplinary proceedings, and yet the fraudulent applications continue.

It is entirely appropriate to hold agents accountable in this way, however, this addresses only a small part of the greater issue. In truth, we know that many of these applications are lodged on the advice of non-agents, often those with connections within the vulnerable diaspora. In this sense, many of these applicants are, in fact, unaware of the nature of their applications or the source of their right to work. More must be done to hold false agents to account and to ensure migrants are alerted to the risks which face them.

 

Faster Processing

Yet another solution, and one which we are most in favour of, is to facilitate timely processing of applications. Underfunding of the Department of Home Affairs presents a false economy, saving money on case worker wages, yet incurring a less easily calculable expense by way of prolonged bridging visas. 

By lessening the processing times of more exploitable permanent residency applications, the attraction to bridging visas as a means of attaining an extended stay diminishes. As such, the preferred solution may simply be to reduce the processing times of various applications. This would not only foster efficiency in our migration scheme, but also limit the utility of proceeding with fraudulent applications for the purpose of attaining work rights and so on.

If one can expect a refusal notice mere weeks from their application, what utility is there in submitting a fraudulent application in the first place? This is especially true when one considers the way in which past unsuccessful protection visa applications may eliminate the prospects of future temporary visas to Australia. 

Timely processing would not only reduce the number of fraudulent applications but also provide great convenience for all legitimate visa applicants and give some much-needed efficiency to our migration system.With that said, we would love to know your view of this matter. Do you believe there is even a question to be answered? Or do you have your own proposal for future reform?

Ultimately, the bridging visa system is vital for facilitating immigration to Australia. Whilst unscrupulousness exists, it should not be grounds for adversely impacting the thousands of visitors and migrants in Australia who do the right thing.