A word of caution before we begin – this is a complex area – at Migration Regulation 050.212 there are 17 listed requirements that can be met to allow for the grant of a BVE. There is also a second visa subclass in the WE class; a WE 051 which applies to applicants who are immigration cleared and who make an application for a Protection visa. I will not discuss the WE 051 in this post.
First the applicant for a BVE must either be an unlawful non-citizen (a person inside Australia who does not hold a valid Australian visa – what most people refer to as ‘illegal’) or already hold a BVE or hold a BVD (041) (Non-applicant).
You cannot be an eligible non-citizen. This is another quite complex area but for now I’ll just say to be so recognized the Minister for Immigration & Citizenship must make this determination personally and report same to the Parliament. As with the WE 051 I will not discuss this in this post.
The simple summary of the 17 listed requirements at Migration Regulation 050.212 is that this is a BV for -
- unlawful people making arrangements to depart Australia,
- people who are detected by DIAC as being unlawful,
- unlawful people who make an application for a substantive visa or an appeal to a review tribunal or court,
- unlawful people who make a request to the Minister to personally grant them a visa,
- BVE visa holders who make an application for a substantive visa or another BVE.
Rather than try to explain the 17 listed requirements at Migration Regulation 050.212 I’m going to look at the common ways people end up on a BVE (WE 050).
- Lots of people overstay and become unlawful non-citizens– they arrive on a visa, it expires and they don’t leave. Some are detected by DIAC officers, some come forward voluntarily, of these some just want to leave and others seek to lodge applications.
- DIAC cancels a non-citizens visa. This instantly makes this person an unlawful non-citizen. There are a dizzying array of ways to get a visa cancelled – some general (not complying with visa conditions) – some automatic (s.137J relating to Student visas) – some specific (on character grounds) – some that relate to particular visa classes (Business visas).
- It is common for people who already have a BVE to apply for another BVE with changed conditions. The most common circumstance is that they can demonstrate a compelling need to work and they ask to have a no work condition changed to permission to work.
- Many non-citizens who have had visa applications refused or visas cancelled and who have subsequently applied unsuccessfully for merits review of these decisions, make requests to the Minister to personally grant them a visa. The BV that they held for the review process expires 28 days after the final decision hence they become unlawful and they must apply for a BVE in relation to their Ministerial request.
- In 1 above I mentioned unlawful non-citizens who seek to lodge applications for a substantive visa. Here you can get a BVE either when you lodge the application or by convincing DIAC Compliance that you are actively attempting to lodge said application. You may for example need to get DIAC to grant a waiver of condition 8503 (Not Further Stay) in order to be able to lodge an application. There are many similar unusual circumstances – too many to list out here.
- Students applying for Revocation (under s.137K) of a decision to cancel a student visa under s.137J will be granted a BVE.
- Students who apply for voluntary cancellation of their Student visas as a result of lodging an application for PR (perhaps Partner or GSM) will be granted a BVE (see previous post on this issue).
- Unlawful non-citizens who are testing validity or eligibility issues relating to applications before the court will be granted a BVE.
Please note that is not an exhaustive list by any means as I’m attempting to keep this relatively simple and understandable. Certain circumstances relating to members of a family unit of BVE applicants, people being released from Immigration detention and involved in criminal proceedings for example can also lead to BVE grants.
I’m sure most will have listened with interest to the Federal government and others discussing the proposed use of Bridging visas in relation to the onshore processing of asylum seekers – these will be BVEs.
How long do BVEs last?
This is a good question and the answer will vary depending on the circumstances of the grant. If the BVE is granted in relation to an application (substantive visa, review or court), the duration is similar to the BVA provisions – until it’s finally decided. If you are seeking to apply for a visa or depart or similar the duration will be quite short and specified. Some BVE grants roll with the circumstances and DIAC will grant say 1 or 3 months at a time and then check how the application or request is proceeding – this is common with Ministerial requests.
It’s also worth noting that DIAC can request a security bond from the applicant when granting a BVE. The bond is forfeit if the conditions of the BVE are not met.
It may be possible to apply for work rights on a BVE – you must demonstrate a compelling need to work.
You cannot travel on a BVE. It is not possible to change this condition.