BRIDGING THE DEPARTMENT’S VISA BLINDSPOT

Emma Blakey and Isabella Farrell-Hallegraeff

June 2021

The refugee status determination system in Australia is well known for its serious problems and weaknesses, including the significant delays in processing applications for people seeking asylum, which can often take many years. As a result, bridging visas have become increasingly important to bridge the legal gap for people seeking asylum during this process. In April 2021, we published a report entitled ‘Bridging the Department’s Visa Blindspot’, the result of two years of research into Australia’s bridging visa system. Our report found that denying access to bridging visas with work, study and healthcare rights to people seeking asylum and refugees significantly impacted people's mental and physical health. This has placed an enormous strain on the community organisations that end up supporting them.  

What is a bridging visa?

A bridging visa is a temporary permit that allows a person to remain in the Australian community while their immigration status is resolved. A bridging visa can allow a person access to basic rights as guaranteed under international law, including access to housing, health care, work, study, and other basic services. However not all bridging visas guarantee these rights. It is common for bridging visas to be granted with conditions attached which prohibit employment and education.

While some people seeking asylum may be granted a bridging visa, sections of Australia’s Migration Act 1958 (Cth) (Migration Act)  allow the Minister of Home Affairs to deny certain people this vital lifeline. This has left many people struggling to survive in the community with no visa, without the right to work or study, and unable to access basic services such as Medicare and Centrelink. Significantly, some of these people have already been found to be refugees under international law and are legally owed protection in Australia.

How the Migration Act bars people from applying

Under sections 46A, 46B and 91K of the Migration Act, people seeking asylum in Australia are ‘barred’ from making an application for a visa, including a bridging visa. Individuals affected by these provisions include people who arrived in Australia by boat, refugees and asylum seekers who have been transferred to Australia for medical treatment, and people who were previously granted a Temporary Safe Haven visa. These people must wait for the Minister of Home Affairs to use their discretionary power to ‘lift’ these bars to allow them to apply for a bridging visa.

The realities of not being able to apply for a bridging visa are devastating, and the number of people who are unable to get access to a bridging visa without intervention by the Minister is significant. There is currently little to no publicly available information for people in this situation on how to make an application to the Minister to access a bridging visa. The factors the Minister may consider in exercising their power to allow people to apply for or be granted a bridging visa remain a mystery.

The Minister’s powers in this regard are also non‑compellable, meaning that the decision is completely at the discretion of the Minister and their department as to whether they will even consider an application for a bridging visa from someone in this situation. The result is that a large number of refugees and people seeking asylum in Australia are unable to access a bridging visa and are left neglected in the community without the ability to fulfil basic survival needs such as housing, food, or healthcare.

The impact of this system

People in this situation live in constant fear of being detained or deported. Moreover, without access to a bridging visa, people seeking asylum are forced to rely on community organisations and charities to fill the material aid gap. Community organisations are increasingly overwhelmed and unable to provide the necessary support required for everyone in this situation, leaving many people homeless and destitute.

The right to find employment and study while living in the community gives people dignity and agency to provide for themselves and forms part of their identity. Without this they are highly vulnerable to exploitation if they try to find money through the informal job market. Without a bridging visa, people are also not easily able to access health care services, as they are not entitled to Medicare. They therefore have to rely mostly on pro bono health services, which have extended wait times for appointments. In light of the widespread health concerns brought about by the COVID-19 pandemic, the inability for people to access health care on an urgent basis is clearly as much a public health concern as it is an individual concern.

The Minister for Home Affairs has an obligation to act fairly and transparently in the exercise of their discretionary powers, including their decision-making power regarding whether to allow people to apply for or be granted a bridging visa. However, there is currently no clear system to provide for this. Our research indicates that the government has little to no insight into how many people are living in the Australian community without a bridging visa and otherwise impacted as a consequence of these provisions.

Understanding the impact that the provisions have on people and the wider community reminds us that the government’s decisions affect humans in a real way. This is why we need transparency and reporting on bridging visas. The cruel realities of the bridging visa system in Australia have previously attracted little attention. However, as waiting periods for protection visa applications continue to be drawn out, this is an increasingly serious problem that needs to be resolved urgently. It is vital that the problems with this system are addressed, not only to uphold the rights and protections Australia owes people seeking asylum, but also because of the public health concerns and other problems it now poses to the Australian community as a whole. It is time for this blind spot in the bridging visa system to end, to ensure people in the community can live with dignity and are afforded their basic needs and human rights.

Emma Blakey and Isabella Farrell-Hallegraeff are members of Rights Advocacy Project’s Refugee and Asylum Seeker Rights team, and co-authors of the report ‘Bridging the Department’s Visa Blindspot.’