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Bridging the
Department's
Visa Blindspot
Rights Advocacy Project
libertyvic.rightsadvocacy.org.au
'Bridging the Department's Visa Blondspot', Joel Townsend and Maria O’Sullivan, for
published December, 2020. their support, encouragement and guidance
throughout the project. They also thank their
About the Report team contact, Rochelle Francis, and fellow
This report was written by Baneen Saberi, members of the RAP Steering Committee. They
Emma Blakey, Isabella Farrell-Hallegraeff, are also very grateful to Michael Precel for
Kate Vanrenen, Samudhya Jayasekara, Sione assistance with the design of the report and
Pemberton and Zoe Brown. The authors were Rowena Lloyd for creating an animated video to
members of Liberty Victoria’s Rights Advocacy launch the report.
Project (RAP).
The authors also wish to thank the following
About the Rights Advocacy Project organisations for their support for the project:
RAP is a community of lawyers and activists
↳ Asylum Seeker Resource Centre
working to advance human rights in Australia
across a range of issues including equality, ↳ Brigidine Asylum Seekers Project
government accountability, refugee and asylum
↳ Baptcare Sanctuary
seeker rights and criminal justice reform. RAP
is part of Liberty Victoria, one of Australia’s ↳ Tasmanian Asylum Seeker Support
leading human rights organisations.
↳ National Justice Project
About Liberty Victoria ↳ Jesuit Refugee Service
Liberty Victoria has been working to defend and
↳ Refugee Legal
extend human rights and freedoms in Victoria
for over 70 years. The aims of Liberty Victoria
are to:
↳ help foster a society based on the
democratic participation of all its
members and the principles of justice,
openness, the right to dissent and respect
for diversity;
↳ secure the equal rights of everyone and
oppose any abuse or excessive power by
the state against its people;
↳ influence public debate and government
policy on a range of human rights issues.
Liberty Victoria has policy statements on
issues such as access to justice, a charter
of rights and freedom of speech and
privacy; and
↳ prepare submissions to government,
support court cases defending
infringements of civil liberties, issue
media releases and hold events.
Rights Advocacy Project
rap@libertyvictoria.org.au
libertyvic.rightsadvocacy.org.au
Acknowledgements
The authors wish to thank their supervisors,
Bridging the Department's Visa Blindspot
Table of Contents
Glossary4 Appendix A: Guidance for
writing to Member of Parliament 38
Foreword6
Appendix B: Guidance for
Executive Summary 7 making a complaint 39
Key Recommendations 7
Appendix C: Guidance for
1. Introduction 9 submitting an FOI request 40
1.1 Project Outline 10
1.2 Seeking Asylum and the Statutory Bars 11
1.2.1 History of the provisions 12
1.2.2 Statutory bars 12
1.2.3 Discretionary Powers 13
1.2.4 ‘Unlawfulness’ 15
1.3 Australia’s Obligations under
International Law 16
2. Impact of Denial of Bridging Visas 18
2.1 Existing research on impact 19
2.2 Our Research: Impact on People
Seeking Asylum 20
2.2.1 Housing 20
2.2.2 Work Rights 21
2.2.3 Study Rights 22
2.2.4 Financial Support 22
2.2.5 Health Care 23
2.3 Impact on Community
Organisations and Support Services 24
2.4 COVID-19: Individual and Public Health
Concerns24
3. Governmental and Ministerial
Accountability27
3.1 What is meant by
ministerial ‘discretion’? 27
3.2 Ministerial Responsibility 27
3.3 Australian Public Service Protocols 28
3.4 Consistency in Decision-Making 29
4. Freedom of Information 31
4.1 Discussion of FOI Results 31
5. Recommendations 34
6. Conclusion 36
States of Refuge
4 Rights Advocacy Project
Glossary of Terms
AAT Administrative Appeals Tribunal
AHRC Australian Human Rights Commission
APS Australian Public Service
ASRC Asylum Seeker Resource Centre
CAT Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, opened for signature 10 December 1984,
1465 UNTS 85 (entered into force 26 June 1987)
CESCR United Nations Committee on Economic, Cultural and Social Rights
Department Department of Home Affairs
FOI Freedom of Information
FOI Act Freedom of Information Act 1982 (Cth)
IAA Immigration Assessment Authority
ICCPR International Covenant for Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23
March 1976)
ICESCR International Covenant on Economic, Social and Cultural Rights,
opened for signature 16 December 1966, 993 UNTS 3 (entered into
force 3 January 1976)
Medevac Home Affairs Legislation Amendment (Miscellaneous Measures) Bill
2018
Migration Act Migration Act 1958 (Cth)
Minister Minister for Home Affairs
PAM Procedural Advice Manual
Public Service Act Public Service Act 1999 (Cth)
Refugee Convention Convention relating to the Status of Refugees, opened for signature
28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) and
Protocol relating to the Status of Refugees, opened for signature 31
January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Glossary of Terms
Bridging the Department's Visa Blindspot 5
Statement Australian Government Statement of Ministerial Standards
UMA Unauthorised Maritime Arrival
UNHCR United Nations High Commissioner for Refugees
Glossary of Terms
6 Rights Advocacy Project
Foreword
Upon first reading a draft of this report I was considered by policy makers. This is important
struck by a memory from my time in the not just for the several thousand people seeking
Department of Home Affairs. At a protection asylum who are awaiting a final outcome on
visa interview an applicant enquired about the their protection visa application, but for all
status of their bridging visa, which was due future people seeking asylum. Regardless of
to expire in the next few months. I followed method of transport, direct asylum seeking
up the request with one of my colleagues who to Australia will continue indefinitely. It is
asked me whether the applicant was on a incumbent on the government, and all of us,
positive or negative pathway. When I replied to ensure we understand the impact that the
that the applicant was most likely a refusal their denial of bridging visas has on people seeking
response was that their bridging visa most likely asylum and take that into account in the design
wouldn’t be renewed as ‘we wouldn’t want to of any future policy interventions in this area.
send the wrong message’. My reaction was to
Shaun Hanns
simply think ‘that makes sense’ and go about
Former Officer at the Department
my work day. The question of what this would
of Home Affairs
mean for the applicant never entered my mind.
The point of the above anecdote is not
to demonise my former colleague, myself or
Departmental staff in general. For the most
part, the Department is staffed by good people
genuinely trying to do their best in what can
be a very challenging environment. Rather it’s
to highlight just how completely the rights of
people seeking asylum have been reframed as
privileges, to be granted or revoked on the basis
of compliance goals, within the Department.
The utilisation of notionally administrative
processes for coercive purposes has become
so normalised within the Department that it,
and the damage it causes, has become almost
invisible to us.
That is what makes reports such as this
one so important. Whilst I am sure there is
an awareness in pockets of the Department
of the impact the denial of bridging visas can
have on individuals, it is unlikely that these
understandings are as comprehensive as the
picture outlined in this report. Equally unlikely,
given the lack of statistics highlighted, that the
issue is being taken seriously at a high level
within the Department. An issue that remains
unseen cannot be resolved.
I hope that the report and its key findings,
particularly the appropriate reporting of
the number of people affected, are seriously
ForewordBridging the Department's Visa Blindspot 7
Executive Summary
The Minister is no stranger to scrutiny of significant attention by government authorities,
the exercise of his ministerial powers and the situation for refugees and people seeking
discretions. Under the Migration Act, the asylum has deteriorated with little government
Minister has extraordinary powers and the attention or assistance.
ability to influence the lives of people seeking While this situation is alarming, it is
asylum in Australia. One of these powers is in not inevitable. Our report also outlines the
relation to the ability to grant or deny a bridging principles of ministerial accountability and
visa to people seeking asylum. public service protocols which support our
A bridging visa is a temporary visa assertion that the current system needs to
granted to a person to allow them to remain change so that people seeking asylum in
lawfully in the Australian community whilst Australia are able to apply for and access
their immigration status is resolved. Bridging bridging visas on a fair, transparent and
visas are vital for people seeking asylum. They consistent basis. The Minister and his delegates
allow access to basic rights and services while have a duty to act in the public interest, and
individuals await determination of their claims to engage in decision-making that is fair,
for protection, which often takes many years. consistent and transparent.
Without a valid bridging visa, a person seeking In light of this, we call upon the Australian
asylum is left in a precarious situation at the government and the Department to implement
risk of detainment or deportation. Despite a system for bridging visa applications which is
this, under sections 46A, 46B and 91K of fair and transparent to people seeking asylum.
the Migration Act, certain cohorts of people
seeking asylum are barred from applying for Key Recommendations
bridging visas, or being granted them, without
intervention by the Minister. The operation To achieve such a system, we make the following
of these provisions and the accompanying recommendations:
exercise of ministerial powers has created
1. Increased transparency of government
unsustainable, dangerous and unliveable
policy: The Department should have
conditions for people seeking asylum in
clear and publicly available guidance on
Australia.
how the granting and renewal of bridging
As part of our research, we conducted
visas will be dealt with for people seeking
interviews with a woman with lived
asylum who are barred from making visa
experience of seeking asylum in Australia
applications. This guidance should clearly
without a bridging visa and with community
set out how the Minister will consider
organisations providing essential services to
these applications for bridging visas,
this cohort of people. Although people living
including what the central considerations
without bridging visas are impacted in many
will be in the Minister’s exercise of power.
diverse ways, we identified and examined five
This would also be beneficial for the
significant areas; housing, lack of employment
Minister and his delegates, as it would
rights, lack of study rights, financial support
likely reduce the number of invalid
and healthcare. Our report unpacks these issues
or ineligible applications they have to
and examines the detrimental impacts of the
consider.
denial of bridging visas on not only people
seeking asylum, but also the community at 2. Fair processes: The Department must
large. Moreover, while the impact of COVID- communicate to people seeking asylum
19 on ordinary Australians has received about how to request a bar lift to apply for
Executive Summary8 Rights Advocacy Project
a bridging visa. bridging visas (see Appendix C for further
guidance).
3. Introduce data collection and reporting:
The Department should gather
information about the number of people
living in the community who are impacted
by the provisions of the Migration Act
discussed below. This is particularly
important as the Department is under a
statutory obligation to identify and detain
anyone they reasonably suspect of living in
the community without a valid visa.1
4. Timely access to information: The
Department should take steps to ensure
FOI requests regarding Ministerial
interventions for bridging visas are
responded to with relevant information, in
a timely manner.
We also note our concerns with the absence of
progress made so far towards achieving a fair
and transparent system, particularly given
that we received little information through
submitting FOI requests in relation to this
issue. We have therefore included the following
actions that could be taken by advocates and
members of the public in raising the profile of
this issue:
1. Write to local your Members of Parliament
to raise this issue and encourage the
government to change their current
practices (see Appendix A for further
guidance).
2. Write a complaint to the Department
regarding their lack of transparency and
unfair processes, and failure to collect and
report data in relation to people impacted
by the statutory provisions discussed (see
Appendix B for further guidance).
3. If the complaint to the Department does
not provide a satisfactory outcome,
write a complaint to the Commonwealth
Ombudsman (see Appendix B for further
guidance).
4. Submit an FOI request for information
on any policies (internal or external) and
other criteria used by the Minister and
his delegates in determining when to
‘lift the bar’ to allow people to apply for
1 See Migration Act s 189.
Executive SummaryBridging the Department's Visa Blindspot 9
1. Introduction
People seeking asylum and refugees come has a significant impact on the physical and
to Australia seeking protection, security and mental wellbeing and safety of these persons, as
safety. Australia’s current migration law, well as on the communities in which they live.
however, prevents certain people seeking In the course of our research we submitted
asylum who arrive in Australia from applying an FOI request to the Department requesting
for and obtaining valid visas. Practically, these data on the number of people who live
laws force some people seeking asylum to unlawfully in the community subject to the
reside in Australia ‘unlawfully’ without access operation of the provisions we have mentioned.
to basic rights and necessary services for The response we received from the Department
surviving such as access to Medicare or work confirmed that it has no knowledge of how
rights. Their ‘unlawful’ status also places them many people are languishing in the community
at risk of immigration detention and imminent without bridging visas as a consequence of
deportation. This leaves them vulnerable in the these provisions. This alarming fact not only
community and reliant on the support from reinforces the inefficiencies of the system
charities and community organisations who but creates a serious public health concern,
bear the cost and responsibility of providing particularly in light of the COVID-19 pandemic.
vital care. These laws also lead to other people It is also problematic from the Department’s
being unjustly held in immigration detention for perspective, considering they are under a
protracted periods with no legal right to apply statutory obligation to identify and detain
for a visa to allow their release. anyone they reasonably suspect of living in the
The aim of this report is to examine the community without a valid visa.2
unjust and unfair effects of these parts of the In many instances, the Minister, at his
Migration Act and inefficiencies of the system sole discretion, may allow a person seeking
which lacks transparency and certainty and asylum to apply for a visa if he determines it
continues to hold people in limbo without legal is in the public interest to do so. Very little is
rights in Australia. Specifically, this report known about the considerations which might
focuses on provisions in the Migration Act persuade the Minister to personally grant a
which operate to ‘bar’ or prevent people seeking visa or ‘lift the bar’ to allow an individual to
asylum who have arrived by boat, have been apply for a visa. It is also unclear which persons
transferred to Australia for medical treatment seeking asylum might be prioritised to have the
from Manus Island or Nauru, or who have a ‘bar’ lifted to allow them to apply for a visa. It is
temporary safe haven visa, from applying for a important that this process is fair, transparent
visa, including a bridging visa. and compliant with Australia’s international
People seeking asylum and refugees human rights obligations. Consistency in
are entitled to be treated with human dignity. decision making and administrative discretion
Therefore, they should be granted basic rights is a crucial tenet of public and administrative
and access to basic services whilst their refugee law and gives certainty to public policy. This
claims are being assessed. However, the effect legal issue therefore has broader implications
of the provisions of the Migration Act mentioned for the policy of the Australian Commonwealth
above, as they are administered by the Minister government.
and Department, is to deny basic rights such Asylum seeker and refugee policy is a
as access to housing, work and study rights, highly political topic in Australia that produces
financial support and health care. Our findings divided opinions. The aim of this report is to
demonstrate that denying rights, security and
stability to people seeking asylum and refugees 2 See Migration Act s 189.
1. Introduction10 Rights Advocacy Project
go beyond the political debate and examine Furthermore, in order to understand the
the human impacts of Australia’s migration administrative processes of sections 46A, 46B
policy on the basic human rights of people and 91K of the Migration Act, we analysed
seeking asylum in Australia. One consequence Ministerial policies and procedures, and sought
of Australia’s migration laws is that some to use FOI requests to obtain departmental
people seeking asylum are left in limbo when Ministerial briefings and submissions on behalf
their bridging visas expire, making them of people seeking asylum who have requested a
dependent on the Minister to grant them leave bar lift in conjunction with many stakeholders.
to seek renewal of their bridging visas. There These FOI requests were lodged with the
is no rational policy argument for putting assistance of the ASRC.
people seeking asylum in such circumstances, The FOI requests specifically sought the
especially in the context of the uncertainties of following information from the Department of
COVID-19. Home Affairs:
• a copy of the applicant’s complete
1.1 Project Outline
protection visa file, including all
documents that were provided to the IAA
The realities of being unable to apply for or
under s 473CB of the Migration Act;
being refused a bridging visa are serious for
a large cohort of people seeking asylum in • a list of all the country information that
Australia. While this issue attracts less attention was made available to the delegate and the
than the protection visa application process, we IAA;
know through our discussions with community
• a copy of the recording of the applicant’s
organisations that there are many individuals
entry interview;
who live undocumented and unlawfully in
the community due to their bridging visa • a copy of the recording of the applicant’s
lapsing whether by reason of deliberate interview with the delegate;
government policy, arbitrary decision-making
• a copy of any certificates issued under
or administrative oversight. Anecdotal evidence
s 471GA or s 473GB in relation to the
indicates that many asylum seekers wish to
applicant’s case; and
have their bridging visas renewed, but have no
power to apply for a renewal. If the expiry dates • a screenshot of the applicant’s screen
of their bridging visas pass without the Minister portal.
exercising a personal power to ‘lift the bar’ to
To date, no results have been received from
allow them to apply, they are left living in the
these applications. As no decisions were made
community as ‘unlawful non-citizens’. This, we
on the requests within the statutory time limits,
heard from our interviews, has led to a good
these applications are deemed to have been
deal of uncertainty and hardship.
refused and notice given under the FOI Act3,
In order to ground our legal analysis in the
but as a practical matter our efforts to use FOI
stories of human hardship caused by the effect
to understand Departmental processes were
of the legislation, we aimed to examine its
stymied.
impact in relation to two different stakeholder
In addition to the individual FOI requests
groups:
lodged by the ASRC on behalf of clients, we
1. Refugees and people seeking asylum who also lodged an FOI request on 30 October 2019
are without bridging visas and therefore requesting information with respect to the
lack access to social security, study rights, known numbers of persons living unlawfully
work rights, healthcare, housing and in the community in 2013, 2014, 2015, 2016,
certainty; and 2017 and 2018 as well as the number of ‘bar lift’
requests made. We received a decision refusing
2. The Department of Home Affairs and
access to this information under section
associated agencies, to examine how
24A(1) of the FOI Act, on the grounds that no
the legislation affects the integrity,
transparency and consistency of their
decision-making process. 3 Freedom of Information Act 1982 (Cth) s15AC(3)(a)-(b).
1. IntroductionBridging the Department's Visa Blindspot 11
documents exist. and onshore protection program.4 This report
The lack of information provided by is concerned predominantly with the onshore
the Department affected the conclusions we program. The onshore program applies to those
could draw from our research. This lack of who arrive in Australia without their refugee
information also highlighted the absence of status already being recognised. People seeking
clear guidelines and processes in this area, asylum onshore have their protection eligibility
which has ramifications for government and assessed under the Migration Act, including
ministerial accountability, as discussed below. whether they meet Australia’s statutory
An important part of this report is looking definition of refugee (which differs from that
at the operation of the above-mentioned under the Refugee Convention), or are otherwise
provisions on people seeking asylum. This eligible for complementary protection (which
is important, as individuals can be left in draws on Australia’s other international
precarious and vulnerable positions as a result obligations5). This applies to people who arrived
of unfair and inconsistently applied policies in Australia either by boat or by plane and have
and laws. Our research and engagement with made an application for protection.6
community stakeholders demonstrates that A person seeking asylum who arrives in
the denial of bridging visas with access to Australia needs to lodge a valid application
basic services including housing, work and for a protection visa. Once their application
study rights, financial support and health is lodged, a person seeking asylum may be
care, has profoundly detrimental impacts on granted a bridging visa, which regularises
people seeking asylum who are living in our their status in Australia and allows them to
community. It also places a huge strain on the live in the community and to access basic
community organisations that support these rights whilst their protection claims are being
people, and that bear the immense challenge of processed. If a person in the community is not
filling the legal and material aid gaps for those granted a bridging visa, is barred from applying
who are denied a bridging visa. In light of the for a bridging visa, or has their bridging visa
COVID-19 pandemic, our research shows how it cancelled, they are left without the access to
is now more important than ever that everyone many support services and face the risk of being
living in our community, including people detained and removed back to their country of
seeking asylum and refugees, have their basic origin.
needs met and their human rights respected.
Based on this information, the report
makes recommendations as to what the
Minister and the Department could do to ensure 4 This report is not concerned with Australia’s
offshore program, which applies to persons who
a more transparent and fair system of bridging
have already had their refugee status recognised
visa applications for people impacted by these outside of Australia. That is administered by the
provisions. It also outlines further steps that UNHCR and resettles refugees by reference to
can be taken by members of the community criteria and selection policies chosen by Australia.
if substantive changes to this system are not 5 Australia’s international obligations for protection
made. extend to the obligations it owes under the CAT and
the ICCPR. These obligations have been imported
into the Australian domestic legal framework such
1.2 Seeking Asylum and the Statutory Bars
that a person can be granted a protection visa on
the basis of complementary protection if there are
In order to understand the relevant provisions substantial grounds for believing that there is a real
of the Migration Act and their impact on the risk the person will suffer ‘significant harm’ if they
various stakeholders, it is important to first were removed from Australia to their home country.
understand the process for a person seeking ‘Significant harm’ is defined as arbitrary deprivation
of life, the death penalty, torture, cruel or inhuman
asylum and protection as a refugee in Australia.
treatment or punishment, or degrading treatment of
The refugee processing regime in punishment. See section 36(2A) Migration Act.
Australia consists of an offshore resettlement
6 The Australian domestic legal framework under
which a person is assessed for protection differs
depending on the person’s mode and date of arrival
in Australia.
1. Introduction12 Rights Advocacy Project
1.2.1 History of the provisions had been living in the community without visas,
In 2001, in response to MV Tampa, the waiting to apply for protection. As of March
Howard Government introduced the Migration 2019, 70% of this cohort had been found to be
Amendment (Excision from Migration Zone) Act owed protection and granted protection visas.12
2001 (Cth). This Act created special laws for The Migration Legislation Amendment
a new category of ‘offshore entry persons,’7 (Regional Processing Cohort) Bill 2019 is currently
which prevented people in this category before the House of Representatives. This Bill,
from lodging valid visa applications if they if passed, would prevent UMAs and transitory
arrived at an ‘excised offshore place’ within persons13 who were at least 18 years of age and
the ‘migration zone’.8 These excised locations were taken to a regional processing country
included a number of Australian territories, after 19 July 2013 (collectively, termed the
including Christmas Island. From 1 June 2013, ‘designated regional processing cohort’) from
the Gillard Government excised the whole of the making a valid visa application while in or
Australian territory (including the mainland) outside Australia.
and designated any person who arrived by boat
without a visa as a UMA.9 1.2.2 Statutory bars
Following the passage of legislation in For people who arrived by boat without a valid
2014, the Coalition government established visa, there is a ‘statutory bar’ in section 46A of
a new ‘fast-track’ legal process for assessing the Migration Act which prevents them from
these UMAs.10 In mid-2015, the Minister began applying for a visa. A person who arrives by boat
‘lifting the bar’ and allowing valid protection must be detained according to law,14 and will
visa applications to be lodged by approximately not be able to apply, as of right, for a bridging
30,000 people who arrived by boat before visa. People who fall into this category can
January 2014.11 The majority of these people only apply for a visa if the Minister personally
decides to lift the bar and invites them to apply
7 The category of ‘offshore entry persons’ was
for a visa of a specified kind. In July 2015, for
created by a new definition inserted into section example, the Minister began lifting the bar for
5(1) of the Migration Act of ‘excised offshore place.’ the ‘fast track’ cohort and invited them to apply
Offshore entry persons are those who have entered for a Temporary Protection visa or Safe Haven
Australia at an excised offshore entry place after
the excision time and become an unlawful non-
12 See Andrew & Renata Kaldor Centre for
citizen by that entry. Such places include Christmas
International Refugee Law, ‘The ‘Legacy’ Caseload’
Island, Ashmore and Cartier Islands, Cocos
(Factsheet, April 2019) .
8 ‘Migration Zone’ is given a specific meaning under
13 Under section 5(1) of the Migration Act, a ‘transitory
section 5 of the Migration Act. It is taken to mean
person’ is: a person taken to a place outside
the area consisting of the State, the Territories,
Australia under the repealed s198A; a person who
Australia resource installations and Australian sea
was taken to a regional processing country under
installations including land that is part of a State and
s198AD; a person taken to a place outside Australia
Territory at mean low water, sea within its the limits,
under s245F(9)(b) of the Act or under a certain
port, piers, or similar structures and any part of
provisions of the Maritime Powers Act 2013 (Cth);
which is connected to such land or to ground under
or a person who, while a non-citizen and during
such sea but does not include sea within the limits of
a particular period was transferred from the MV
a State or Territory but not in a port.
Tampa or MV Aceng to the MV Manoora and taken
9 Section Migration Act, 5AA(1), as inserted by the to another country, and disembarked in that other
Migration Amendment (Unauthorised Maritime country. A person born to a ‘transitory person’ in
Arrivals and Other Measures) Act 2013 (Cth), which the migration zone or a regional processing country,
commenced on 1 June 2013. and who is not an Australian citizen at birth, is also a
10 This was implemented through the Migration ‘transitory person’.
Amendment (Resolving the Asylum Legacy Caseload) Act The Migration Act s 5(1) defines a ‘regional
2014 (Cth). processing country’ as a country designated by the
11 Emily McDonald and Maria O’Sullivan, ‘Protecting Minister under subsection 198AB(1) as a regional
Vulnerable Refugees: Procedural Fairness in the processing country. Papua New Guinea and Nauru
Australian Fast Track Regime’ (2018) 41(3) UNSW have been designated under this section.
Law Journal 1003, 1005. 14 Migration Act s 189.
1. IntroductionBridging the Department's Visa Blindspot 13
Enterprise visa. one. Temporary Safe Haven visas were created
Similarly, section 46B of the Migration Act to accommodate refugees displaced from
prevents persons who have been transferred conflict in the Kosovo region of the Republic
to Australia for medical treatment from Nauru of Yugoslavia in 1999.17 The Australian Prime
or Manus Island from making a valid visa Minister at the time, John Howard, announced
application of any kind. For people who were that those people would be given a three month
transferred to Australia under the Medevac stay with the possibility of extension depending
law passed early in 2019, until they are given on the circumstances.18 By operation of the
a bridging visa they are effectively under Migration Act, section 91K prevents many
government control. Without being granted people seeking asylum in Australia who were
a bridging visa, these people are held in previously holders of this visa from being able
Australian detention facilities or ‘alternative to apply for a visa, including a bridging visa.19
places of detention’ (often motels) under strict It appears that in recent years, these visas have
supervision while they are receiving treatment continued to be used out of context for the
and can be returned offshore at any time.15 purpose they were originally intended.
Those transferred for medical treatment and
who are given bridging visas are allowed to 1.2.3 Discretionary Powers
live in the community while receiving their For each of these provisions, the Minister has
treatment and a select group of these people are the discretion to ‘lift the bar’ and allow people
also permitted to work. Although all groups of seeking asylum to apply for visas he or she
people seeking asylum in Australia are entitled is personally satisfied that it is in the ‘public
to access emergency medical care, access to interest’ to do so. Under the PAM, section 46A
Medicare benefits for medical treatment is (Minister’s s 46A(2) Guidelines), the Minister
dependent on having a valid bridging visa. This states that he will generally only consider the
has broad implications for accessing basic exercise of his public interest power in cases
health care; without public health benefits which are referred to him by the Department
people must pay full price to see general following consideration of the guidelines in the
practitioners and for prescription medication. PAM.20 Departmental employees are therefore
While refugee health organisations in some the gatekeepers with respect to the Minister
states make care available to asylum seekers exercising his or her power to ‘lift the bar’ in
without Medicare entitlements, capacity is often relation to this section. Moreover, there are no
very limited and people face lengthy waits. specific guidelines in the PAM in relation to
These services which operate on a charitable sections 46B or 91K.
basis eliminate the amount of choice people The High Court has consistently
have over their health care and the practitioners acknowledged the wide range of subject matters
they see. that may be taken into account in making
Section 91K of the Migration Act prevents
some people who were previously granted a
Temporary Safe Haven visa from making any
valid visa application whilst they are onshore.16 17 The Hon John Howard MP, Transcript of Press
People seeking asylum and refugees do not Conference, Parliament House, 6 April 1998.
typically apply for Temporary Safe Haven visas, 18 Ibid.
they are instead granted to them involuntarily 19 See, e.g., Plaintiff M79/2012 v Minister for Immigration
by the Minister without the person applying for and Citizenship (2013) 252 CLR 336.
20 Procedural Advice Manual (‘PAM’) is a set of detailed
15 Refugee Council, ‘Medical transfers and Medevac’, instructions for Departmental officials which shape
Australia’s Offshore Processing Regime: The Facts (Blog to a substantial degree how the power conferred by
Post, 20 May 2020) . Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
16 Note: UMAs and transitory persons are exempt at 644-5 concluded that decision-makers charged
from this bar under s 91J(2) but s 91K does apply with the responsibility of undertaking merits review
to people who arrived at Ashmore reef and ‘direct should apply ministerial policy unless the policy
entry’ arrivals who arrived before 1 June 2013 on was unlawful or ‘there are cogent reasons to the
the mainland or another place that was not excised. contrary’.
1. Introduction14 Rights Advocacy Project
decisions ‘in the public interest’21 and has relevant legislation, clearly unintended
stated: ‘[w]hen we reach the area of ministerial consequences of legislation, or the
policy giving effect to the general public application of relevant legislation leads
interest, we enter the political field. In that field, to unfair or unreasonable results in your
a Minister or a Cabinet may determine general case; or
policy or the interests of the general public free
• you cannot be returned to your country/
of procedural constraints’.22 The High Court has
countries of citizenship or usual residence
held also that ‘national interest’ which is largely
due to circumstances outside your control.
analogous in this context with ‘public interest’,
cannot be given a confined meaning and ‘what Additionally, the Minister has provided
is in the national interest is largely a political a list of the types of circumstances which are
question.23 inappropriate for the Minister to consider.25 It is
The Home Affairs website provides stated that if a case has one or more of the below
guidance and examples on the types of circumstances, the Department will finalise
unique and exceptional circumstances that the request without referral to the Minister.
could be brought to the Minister’s attention Relevantly, a request will not be considered by a
when requesting Ministerial Intervention.24 person who is in the community and:
The list is non-exhaustive and providing the
• is an unlawful non-citizen and remains
documents listed or meeting one of the unique
an unlawful non-citizen throughout the
or exceptional circumstances stated in the list
course of their Ministerial intervention
does not mean that a request to the Minister will
request;
be successful. Types of unique or exceptional
circumstances listed include: • does not cooperate in ensuring that a valid
travel document is available (or has not
• strong compassionate circumstances
satisfied the Department that they are
that if not recognised would result in
stateless);
serious, ongoing and irreversible harm
and continuing hardship to an Australian • who has an ongoing application for
citizen or an Australian family unit; a substantive visa (either onshore or
offshore) with the Department;
• compassionate circumstances
regarding your age and/or health and/or • who has an ongoing application for merits
psychological state, that if not recognised review of a visa decision with a relevant
would result in serious, ongoing and review tribunal;
irreversible harm and continuing
• who has had a remittal or a set aside
hardship;
decision from a relevant review tribunal or
• exceptional economic, scientific, cultural a court;
or other benefit that would result from you
• whose review tribunal decision was in
being permitted to remain in Australia;
relation to the refusal or cancellation of a
• circumstances not anticipated by Bridging Visa E;
• who has an ongoing ministerial
21 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at
502 [331]. See also O’Sullivan v Farrer (1989) 168 CLR
intervention request under any of the
210 per Mason CJ, Brennan, Dawson and Gaudron JJ powers covered by the guidelines;
at 216–17.
• who has been issued with a Notice of
22 O’Shea (1987) 163 CLR 378 per Brennan J at 411. intention to remove and the ministerial
23 Plaintiff S156/2013 v Minister for Immigration and intervention request has not been initiated
Border Protection (2014) 254 CLR 28, per French CJ,
by the Department;
Hayne, Crennan, Kiefel, Bell and Keane JJ at 46 [40].
24 Department of Home Affairs, Australian • who holds a Bridging Visa E with visa
Government, ‘Ministerial Intervention’, Status condition 8512 which specifies that the
Resolution Service (Web Page, 17 March 2020)
. 25 Ibid.
1. IntroductionBridging the Department's Visa Blindspot 15
person must leave Australia by a specified no work rights attached. In some cases, the
date; or conditions on the bridging visa are not final, and
the Minister may have the power to remove the
• the request raises claims only in relation to
‘no work’ and other restrictions from a person’s
Australia’s non refoulement obligations.
bridging visa if the person applies for a ‘change
Relevantly, these guidelines do not appear of condition’ on their visa.27
to recognise or take into account that there are The major difference between people with
many people living in the community whose and without bridging visas is their legal status.
bridging visa is expiring or expired and who Persons who have bridging visas (irrespective
are barred from applying for another visa by of the conditions attached), are deemed ‘lawful’.
operation of one of the statutory bars mentioned In comparison, those who do not hold a bridging
above. visa are ‘unlawful’. This is complicated by
The Minister also has a personal and non- the Migration Act which contains statutory
compellable power in s 195A of the Migration bars, including (but not limited to) in sections
Act to grant a visa to any person held in 46A, 46B and 91K, that prevent individuals
immigration detention if the Minister believes from making further valid visa applications,
it is in the ‘public interest’. This power is at the including bridging visa applications, despite
Minister’s sole discretion and is not reviewable. having an unresolved substantive visa matter.
Between 1 July 2018 and 30 June 2019, 1006 The consequence, as we have noted above, is
persons made requests under s 195A of the that there is a cohort of asylum seekers living
Migration Act and the Minister decided to in the community who see their bridging visas
intervene in 449 cases.26 expire because the Minister does not act to ‘lift
the bar’ to apply for a new bridging visa. They
1.2.4 ‘Unlawfulness’ are powerless to prevent themselves falling into
After lodging an onshore application for an circumstances of ‘unlawfulness’.
Australian visa, including a protection visa, an The legal ramifications of being unlawful
applicant will usually be issued with a bridging include detention and removal from Australia
visa. This is a temporary visa that allows an ‘as soon as reasonably practicable’. Under
individual to remain lawful in Australia while section 189 of the Migration Act, officers must
their immigration matter remains unresolved. detain any person they reasonably suspect
The rights attached to an individual’s bridging of being unlawful and they must be kept in
visa, which may include the right to work and immigration detention until a visa is granted or
access to Medicare, will vary depending on they are removed.28 When a person who does
which class of bridging visa they hold and the not have a substantive visa process on foot is
conditions attached. The class and conditions held in immigration detention, the Migration
are largely determined on the basis of the visa Act generally obligates the Department to
conditions that the applicant had at the time of remove that person from Australia as soon
making their substantive visa application. An as reasonably practicable and irrespective
individual who makes an onshore application of whether Australia owes that person non-
for protection while they hold substantive visa refoulement obligations.29 When people
with work rights, for example a student visa, have no choice but to remain unlawful, the
will usually see those rights transferred to a possibility of being detained and removed if
bridging visa A while they await the resolution they are discovered living in the community
of their protection application. has significant psychological implications.. The
In summary, the rights and conditions
attached to a bridging visa will effectively
27 For more information on the various subclasses
mirror those attached to the previous visa.
of bridging visa and the conditions that can be
Therefore, if an individual makes an application imposed on the visa, see: Department of Home
for protection when they do not hold any valid Affairs, Australian Government, ‘Visa List’ (Web
visa (i.e. they are ‘unlawful’), they will usually Page, 17 March 2020) .
28 Migration Act s 189.
26 FOI Request: FA 19/06/00486. 29 Migration Act ss 198 and 197C.
1. Introduction16 Rights Advocacy Project
fear of being forced to return to the countries mental health.32
they fled puts incredible strain on individuals The right to work under ICESCR is not
and families. In this way, being ‘unlawful’ not an absolute and unconditional right to obtain
only creates a number of practical barriers for employment.33 However, at a minimum
individuals, such as accessing Medicare and Australia is obliged to ensure ‘the right of access
work rights, it keeps them hostage — in a kind to employment, especially for disadvantaged
of administrative purgatory. They are without and marginalized individuals and groups’.34
status despite legitimately awaiting an outcome In addition, the CESCR has emphasised that
of their substantive visa. The uncertainty the rights under ICESCR ‘apply to everyone
surrounding the legal status of people seeking including non-nationals, such as refugees,
asylum in the community also creates asylum seekers, stateless persons… regardless
substantive issues for administering effective of legal status and documentation’.35 By denying
public policy as well as making it difficult for people seeking asylum access to the labour
community organisations to manage their market through denial of a visa with work
resources and operations to assist these people. rights, especially if this is done for such periods
of time as to force people into poverty, Australia
1.3 Australia’s Obligations under may be in breach of its obligations under
International Law ICESCR.36 For a person seeking asylum, the right
to work is also essential in order to enjoy other
The reality of the immigration system in fundamental rights. If people seeking asylum
Australia is that it often takes many years for a are denied the right to work, this is likely to
person’s claims for protection to be processed. lead to breaches of their right to an adequate
While the government processes a person’s standard of living and, consequently, breaches
claim for protection, Australia has obligations of their right to physical and mental health.37
towards that person. In particular, under People seeking asylum in Australia who
its international human rights obligations, are denied the right to apply for or be granted a
Australia is required to consider alternative bridging visa are also denied access to the rights
arrangements for people seeking asylum that can be attached to a visa, including the
before resorting to placing them in detention rights to work or study, to access government
facilities. People should be permitted to live in support, and to access health services. This
the community while their refugee claims are means in practice the Australian government
assessed, unless they pose an unacceptable is forcing these people into a situation of
risk to the Australian community and that risk destitution in which they are unable to exercise
cannot be met in a less restrictive way.30 their basic rights as guaranteed under the
Australia is a party to the ICESCR.31 It ICESCR, in breach of Australia’s obligations
therefore has obligations under international
law to take concrete and targeted steps to 32 ICESCR, art 6, art 9, art 11, art 12.
promote and protect the economic, social 33 United Nations Committee on Economic, Social and
and cultural rights of all people in Australia. Cultural Rights, General Comment No 18: The Right To
These rights include the right to work, the Work (art 6 of the International Covenant on Economic,
right to social security, the right to an adequate Social and Cultural Rights) E/C.12/GC/18 (6 February
standard of living, and the right to physical and 2006) [6].
34 Ibid [31].
35 United Nations Committee on Economic, Social
30 United Nations High Commissioner for Refugees, and Cultural Rights, General Comment No 20: Non-
Detention Guidelines - Guidelines on the Applicable discrimination in Economic, Social and Cultural
Criteria and Standards relating to the Detention of Rights (art 2, para 2, of the International Covenant on
Asylum-Seekers and Alternatives to Detention (2012) Economic, Social and Cultural Rights) E/C.12/GC/20 (2
. 36 See Penelope Mathew, Reworking the Relationship
31 International Covenant on Economic, Social and Cultural between Asylum and Employment (Routledge, 2012)
Rights, opened for signature 16 December 1966, 117.
993 UNTS 3 (entered into force 3 January 1976) 37 Australian Human Rights Commission, Tell Me About:
(‘ICESCR’). Bridging Visas for Asylum Seekers (Report, April 2013).
1. IntroductionBridging the Department's Visa Blindspot 17
under international law. The impact of this
denial of basic rights will be discussed further
below.
1. Introduction18 Rights Advocacy Project
2. Impact of Denial
of Bridging Visas
The effects of the statutory bars imposed under barred from applying for substantive visas,
sections 46A, 46B and 91K of the Migration Act bridging visas or have their bridging visa taken
1958, are twofold. They have a direct impact on away during this time, meeting basic survival
people seeking asylum themselves, but also on needs becomes extraordinarily difficult.
the community organisations that support them As discussed above, some bridging visa
throughout their substantive visa application holders are able to access support services
process. including public health and housing and the
Several years may pass from the time legal right to study and work, but this is not
a person seeking asylum first lodges their always the case. It is common for bridging
protection visa application with the Department visas to be granted with conditions attached
until they receive a decision on their prohibiting rights to employment and
application. Several more years may pass before education. Moreover, as explored in RAP’s
that person’s judicial review process is finalised. States of Refuge report, the right of people
While the Department does not officially seeking asylum to access services such as
publish processing times, applicants often health, housing and education also varies
wait between two to five years for a decision greatly across different Australian states and
from the Department.38 This waiting period territories.41 While this is a problematic issue in
will be even longer where an applicant lodges itself, the focus of our discussion below is on the
an application for merits review of an initial substantial impacts for people seeking asylum
decision39 or judicial review.40 Bridging visas, as a consequence of being left without any
which aim to bridge the legal gap throughout bridging visa (and without a right to seek one).
the protection visa process, can expire while an It is important to understand the impact
individual’s refugee status is still undetermined. of these provisions at a grassroots level when
If an individual's bridging visa expires or they considering the need for transparency in
are denied from re-applying for a bridging visa, the decision-making processes. Our aim is
either by a deliberate government decision or by to link the legal issues with the real practical
administrative fault, the common experience is difficulties faced by people seeking asylum in
that they are left in the community with limited the community, and the community members
access to support services, feeling the constant and organisations upon whom they rely for
risk of being detained as an unlawful or non- assistance. Understanding the real impact of
citizen. Transitory persons who have been these provisions:
transferred to Australia for medical treatment
• reminds us that government decisions
are also commonly left without a valid visa
impact humans in a real way;
to stay in Australia once their treatment is
complete. For people seeking asylum who are • highlights the significant implications of
policies on people seeking asylum; and
38 Danielle Munro and Niamh Joyce, ‘An asylum • affirms why transparency surrounding
seeker’s access to Medicare and associated these decisions is necessary.
health services while awaiting determination of a
Protection Visa application in Australia’ (2019) 1(13)
UNSW Law Society Court of Conscience 51.
39 This is a re-hearing of the case by the Administrative 41 Rights Advocacy Project, States of Refuge (Report,
Appeals Tribunal. July 2018) .
2. Impact of Denial of Bridging VisasBridging the Department's Visa Blindspot 19
2.1 Existing research on impact as they typically do not receive Government
funding and rely largely on donations,
There is little specific research on the effects philanthropic contributions and the support
that living without a bridging visa has on the of volunteers…despite their best efforts…these
wellbeing of people seeking asylum. However, service providers [are] not able to assist all
research on the experiences of bridging visa people…who [are] facing financial hardship’.46
holders shows that the level of uncertainty The AHRC also noted that where people seeking
(and limitation of rights) they experience asylum living in the community are stripped
is profoundly harmful.42 In this report, we of the ability to financially support themselves,
recognise the strong correlation between severe pressure is placed upon the wider
the lived experiences of people without any community (particularly the extended refugee
bridging visa and people who have a bridging community) to assist them.47
visa with conditions attached prohibiting work Significantly, research has also indicated
or study and access to Medicare. The major that extended periods without access to
themes explored by literature – the impact on Medicare can have long-term physical and
housing, financial security, work and study psychological health consequences. The AHRC
rights, physical and mental health, education found that ‘[p]eople from refugee backgrounds
and self-actualisation – are evidently relevant experience significantly higher rates of poor
to people who are barred from applying for health, including mental health’.48 These rates
bridging visas by sections 46A, 46B and 91K of are attributed, in part, to a lack of access to
the Migration Act. health services once in Australia. Research
The UNHCR reports that, in most cases, shows that ‘…if applicants are unable to engage
people live in a state of destitution while with medical services during the application
they await Department outcomes.43 Without process then they will be in a worse physical and
the opportunity to access basic community psychological condition than when they first
services and engage in stable employment made the application and…may require more
this ‘has led to an overwhelming reliance on health services than what they may have needed
community organisations (specifically, material at the onset of their visa application’.49
aid [organisations]) for food, clothing and Exclusion from meaningful involvement
furniture’.44 The AHRC has expressed deep in society during the protection visa application
concern that some of the federal government’s process and long processing times create a
policies regarding bridging visas leave people climate of anxiety that has the potential to
seeking asylum in the community without any drastically exacerbate physical and mental
source of income, and that ‘many people living health concerns. Without the ability to
in the community…are unable to meet their
basic needs, and in some cases face severe 46 Ibid, 52.
hardship’.45 Consequently, the AHRC has noted 47 Ibid.
that people seeking asylum are forced to rely on 48 Australian Medical Association, Health Care
support from non-governmental organisations Issues of Asylum Seekers and Refugees (Position
and community groups who have limited means Statement, 23 December 2015) ; Peta
who require assistance. The AHRC has said
Masters et al, ‘Health Issues of Refugees Attending
‘these organisations…have limited capacity, an Infectious Disease Refugee Health Clinic in a
Regional Australian Hospital’ (2018) 47(5) Australian
Journal of General Practice, 305; Kevin Pottie,
42 See, e.g., United Nations High Commissioner for
‘Prevalence of Selected Preventable and Treatable
Refugees, Asylum-seekers on bridging visas in Australia:
Diseases among Government- Assisted Refugees:
Protection Gaps UNHCR Consultation (Consultation
Implications for Primary Care Providers’ (2007)
paper, 16 December 2013).
53(11) Canadian Family Physician, 1928.
43 Ibid
49 Danielle Munro and Niamh Joyce, ‘An asylum
44 Ibid. seeker’s access to Medicare and associated
45 Australian Human Rights Commission, Lives on Hold: health services while awaiting determination of a
Refugees and asylum seekers in the ‘Legacy Caseload’ Protection Visa application in Australia’ (2019) 1(13)
(Report, 2019) 50. UNSW Law Society Court of Conscience 51, 54.
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