Subclass 051 — Bridging (Protection Visa Applicant)

051.1—Interpretation

Note 1: ART is defined in subsection 5(1) of the Act. Compelling need to work and criminal detention are defined in regulation 1.03. For eligible non-citizen, see regulation 2.20. For finally determined, see section 11A of the Act. There are no interpretation provisions specific to this Part. Note 2: A Subclass 051 visa may also be granted without application.

051.2—Primary criteria

Note: All applicants must satisfy the primary criteria.

051.21—Criteria to be satisfied at time of application

051.211

The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

051.212

The applicant, or a person acting on behalf of the applicant, has signed an undertaking acceptable to the Minister that:

(a) if the applicant withdraws the application for a protection visa, the applicant will depart Australia, or present himself or herself to Immigration for removal, within 28 days after the applicant withdraws the application; and

(b) if the application for a protection visa is finally determined and refused, the applicant will depart Australia, or present himself or herself to Immigration for removal, within 28 days after the latest of the following:

(i) the applicant is notified that the protection visa application has been finally determined and refused;

(ii) the applicant withdraws an application for judicial review of the decision to refuse the protection visa application (the visa decision);

(iii) proceedings for judicial review of the visa decision are completed, and the outcome is that the visa decision is maintained;

(iv) the applicant withdraws an appeal against the outcome of judicial review of the visa decision;

(v) proceedings on an appeal against the outcome of judicial review of the visa decision are completed, and the outcome is that the visa decision is maintained.

051.213

The Minister is satisfied that the applicant satisfies:

(a) the public interest criteria 4001, 4002 and 4003; and

(b) the health criteria in clauses 866.223, 866.224, 866.224A and 866.224B.

051.22—Criteria to be satisfied at time of decision

051.221

The applicant continues to satisfy the criteria in clauses 051.211, 051.212 and 051.213.

051.3—Secondary criteria: Nil.

Note: All applicants must satisfy the primary criteria.

051.4—Circumstances applicable to grant

051.411

The applicant must be in Australia but not in immigration clearance.

051.5—When visa is in effect

051.511

(1) In the case of a visa granted to a non-citizen who has applied for a protection visa—bridging visa coming into effect on grant, permitting the holder to remain in Australia until:

(a) either:

(i) if the Minister’s decision in respect of the protection visa application is to grant a visa—the grant of the protection visa; or

(ii) if the Minister’s decision in respect of that application is to refuse to grant a visa and subclause (1A) does not apply in relation to the decision—35 days after the Minister makes the decision; or

(aa) if the Minister’s decision in respect of that application is to refuse to grant a visa and subclause (1A) applies in relation to the decision— the time the Minister makes the decision; or

(b) if the protection visa application is refused and the ART decides that the holder’s application for merits review of that refusal was not made in accordance with the law governing the making of applications to the ART—35 days after the ART makes the decision; or

(ba) if the protection visa application is refused and the ART makes a decision on the holder’s application for merits review of that refusal (other than a decision to remit the application to the Minister for reconsideration)—35 days after the ART makes the decision; or

(bb) if the protection visa application is refused and the Immigration Assessment Authority makes a decision under subsection 473CC(2) of the Act, as in force at the time of the decision, on referral of that refusal under section 473CA of the Act as in force at the time of the referral (other than a

decision to remit the application to the Minister for reconsideration)—35 days after the Immigration Assessment Authority makes the decision; or

(c) the grant of a further bridging visa to the holder in respect of his or her protection visa application; or

(d) if the holder withdraws the application for the protection visa or for review—35 days after that withdrawal; or

(e) if the Minister decides that the protection visa application is invalid—35 days after the Minister makes the decision; or

(f) if the ART or the Immigration Assessment Authority remits the application for the protection visa to the Minister for reconsideration—the end of the period worked out in accordance with whichever paragraph of this subclause applies in relation to the reconsideration.

(1A) This subclause applies in relation to a decision to refuse to grant the non-citizen a substantive visa if:

(a) both of the following apply:

(i) a criterion for the grant of the substantive visa is that the non-citizen satisfies public interest criterion 4003;

(ii) the non-citizen did not satisfy paragraph (b) of that criterion; or

(b) both of the following apply:

(i) a criterion for the grant of the substantive visa is that the non-citizen satisfies public interest criterion 4003A;

(ii) the non-citizen did not satisfy that criterion.

(2) For the purposes of subparagraph (1)(a)(ii) and paragraphs (1)(b), (ba), (bb) and (e), the 35 day period begins to run:

(a) despite any failure to comply with the requirements of the Act or these Regulations in relation to the decision mentioned in the paragraph or subparagraph; and

(b) irrespective of the validity of the decision.

051.512

In the case of a visa granted to a non-citizen on the basis of judicial review of a decision to refuse a protection visa application—bridging visa coming into effect on grant and permitting the applicant to remain in Australia until:

(a) if another bridging visa is granted to the holder in respect of his or her application for judicial review—the grant of that bridging visa; or

(b) subject to paragraph (d), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(c) if the applicant withdraws the application for judicial review—28 days after that withdrawal; or

(d) if a court remits a matter to which the judicial review proceedings relate to the ART, or to the Minister, for reconsideration—permitting the holder to remain in Australia in accordance with the relevant provision of subclause 051.511(1).

051.513

(1) In the case of a visa that is taken to have been granted by operation of section 75 of the Act and that was not applied for on the basis of judicial review—bridging visa coming into effect on grant and permitting the applicant to remain in Australia until:

(a) either:

(i) if the Minister’s decision in respect of the protection visa application is to grant a visa—the grant of the visa; or

(ii) if the Minister’s decision in respect of that application is to refuse to grant a visa—35 days after the Minister makes the decision; or

(b) if the protection visa application is refused and the ART decides that the holder’s application for merits review of that refusal was not made in accordance with the law governing the making of applications to the ART—35 days after the ART makes the decision; or

(ba) if the protection visa application is refused and the ART makes a decision on the holder’s application for merits review of that refusal (other than a decision to remit the application to the Minister for reconsideration)—35 days after the ART makes the decision; or

(bb) if the protection visa application is refused and the Immigration Assessment Authority makes a decision under subsection 473CC(2) of the Act, as in force at the time of the decision, on referral of that refusal under section 473CA of the Act as in force at the time of the referral (other than a decision to remit the application to the Minister for reconsideration)—35 days after the Immigration Assessment Authority makes the decision; or

(c) the grant of a further bridging visa to the holder in respect of his or her protection visa application; or

(d) if the holder withdraws the application for the protection visa or for review—35 days after that withdrawal.

(1A) For the purposes of subparagraph (1)(a)(ii) and paragraphs (1)(b), (ba) and (bb), the 35 day period begins to run:

(a) despite any failure to comply with the requirements of the Act or these Regulations in relation to the decision mentioned in the paragraph or subparagraph; and

(b) irrespective of the validity of the decision.

(2) In the case of a visa that is taken to have been granted by operation of section 75 of the Act and that was applied for on the basis of judicial review—bridging visa coming into effect on grant and permitting the applicant to remain in Australia until:

(a) if another bridging visa is granted to the holder in respect of his or her application for judicial review—the grant of that bridging visa; or

(b) subject to paragraph (d), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(c) if the applicant withdraws the application for judicial review—28 days after that withdrawal; or

(d) if a court remits a matter to which the judicial review proceedings relate to the ART, or to the Minister, for reconsideration—permitting the holder to remain in Australia in accordance with the relevant provision of clause 051.511.

051.6—Conditions

051.611

In the case of a visa that is taken to have been granted by operation of section 75 of the Act—conditions 8101, 8201, 8402, 8506 and 8513.

051.611A

(1) In the case of a visa granted to an applicant (whether or not the applicant is an applicant to which any other clause in this Division applies) who:

(a) applies for a protection visa; and

(b) has been in Australia for a period of 45 days or more, or for periods totalling 45 days or more, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application; and

(c) is not within a class of persons specified in a legislative instrument made by the Minister for the purposes of this paragraph;

condition 8101, unless condition 8116 is imposed.

(2) If the applicant is an applicant to whom subclause (1) and clause 051.611 applies—conditions 8101, 8201, 8402, 8506 and 8513.

(3) In addition, if the applicant is an applicant to whom subclause (1) applies, any 1 or more of conditions 8104, 8116, 8201, 8401, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.

(4) Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.

051.612

(1) In any other case—any 1 or more of conditions 8101, 8104, 8116, 8201, 8401, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.

(2) Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.

051.613

In addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.