# Unlawful non citizen due to wrong bridging visa!!



## alandibella (Aug 25, 2013)

Afternoon every one, I would like to let you know what happened to me and many other people, that got caught in to the rules web of the OZ immigrations.
And I hope some of you can give me some advise on how to solve the problem.
I've lived in Australia since november 2005, always legally and with several different visas, finally I was able to apply for a PR, so I did and thenlet Australia for a mont holiday.
I had a working holiday visa valid to allow me in the country after one month, so I went in italy and as planed after one month I've come back to my Oz life as normal, and started to work and got back in to my normal life. 
After 2 month my working holiday expired, but due to the fact that i've previously applied within the country for a PR, I'll go in to a bridging visa, and after I'll have my Permanent Residency granted. This is actually what happened, I spend my time working at the same job, until the 24 of november 2010 when finally and luckily I've received the PR Visa.
After one year I reach the citizenship office inside the Immigration Building in the CBD, to be told that I could not apply for Citizenship because I've spent a period in the country as an unlawful non citizen during the period between the expiry of my working holiday and the grant of my permanent.
the explanation I've been given was that the bridging visa had been canceled when I left the country, and I should have asked another bridging visa once I would have been back to Australia.
But my permanent visa application was stating a complete different thing.
I've dig in to this matter a bit more and realise that it is a common problem for many people, and it is caused by a misleading communication of the department.
I've collected two court cases of different folks that took this situation to the judge and actually both won the case.
what I'm planning to ask for Ministerial Discretion and attach the two court decisions.
what do you guys think did anyone had the same situation to face?
can you guys suggest a better way of dealing with this case?
best regards
Alan Di Bella


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## CollegeGirl (Nov 10, 2012)

That's a tough one! If you are on a Bridging Visa A and you want to leave the country, you have to apply for a Bridging Visa B, and then let DIAC know when you're back in the country so you're BVA can be reactivated. 

But you weren't ON your BVA it sounds like. Very strange. Have you consulted a registered migration agent? They might be able to help!


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## alandibella (Aug 25, 2013)

CollegeGirl said:


> That's a tough one! If you are on a Bridging Visa A and you want to leave the country, you have to apply for a Bridging Visa B, and then let DIAC know when you're back in the country so you're BVA can be reactivated.
> 
> But you weren't ON your BVA it sounds like. Very strange. Have you consulted a registered migration agent? They might be able to help!


Thanks for your reply College Girl, what you are saying it's actually true, If you are on a bridging though. in my application paperworks it stated the following: 
Bridging visas
If you apply for a visa in Australia you will usually be granted a bridging visa to keep you lawful, in case your previous visa ceases before a decision is made on your application. It will also keep you lawful if your visa is refused and you seek merits review of that decision.
However, if you wish to travel overseas, you will need to seek a specific bridging visa to allow you to return to Australia (unless you already have another visa which allows you to return to Australia).

Therefore because I had a valid visa to live, leave and come back in to the country I did not need any bridging visa, but what I've been told at the counter is, that once you actually apply for a PR the bridging visa gets granted and come in to place right away even if you do not need it, therefore living the country will actually cancel your BVA.
Now: This was not written anywhere in the application, and it also does not comply with what was actually stated in the application form, furthermore I believe it doesn't even make sense; It is called bridging visa because it comes in to place once your old visa expires...
I've spoken right away to my Migration Agent, and she was actually the one that told me about this problem affecting a lot of folks. but unfortunately she did not have a solution to suggest.
What do you think? ;-)


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## Whitney (Jan 4, 2013)

Did you re-enter Australia before your WHV expired or after?

(I'm wondering because I've been trying to find an answer as to what happens if you are out of the country when your BVA comes in effect.)


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## alandibella (Aug 25, 2013)

I've come back with a working holiday that expired 2 months after. 
I've pretty much left with a WH and come back with a WH.


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## Whitney (Jan 4, 2013)

Hmm. I guess this explains why people are able to apply for a receive BVB when they have been issued a BVA even if is not yet in effect. Great info.


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## christinenstar (Aug 21, 2012)

I had the same problem and only realised it one day before my working holiday visa was expired. 

I was holding WHV last year and applied the 820 on Aug 15 2012. I received the acknowledgment letter saying I was granted with BVA but it was not going to be valid until my WHV was expired (which was 24/12/2012). I think I mis-read the condition for BVA (but after reading your case, I am not sure if it is because I mis-read it, or the instruction in the letter is not clear) so I went back to HK in sept and returned to Aus in 2 weeks.

on 23/12/2012, I didn't know why but I suddenly want to checked my visa status and called the IMMI and realised my BVA was actually cancelled because I left the country, so I immediately rush to the immi office and applied the BVA again. The officer was pissed that I physically go to the office and hand in the form because he said the best way is to mail the form. But my visa is going to expire in ONE day... how on earth would I trust Austpost and immi to process my application within one day? Luckily, I gained my BVA within a day or 2.

I think if you have two cases that successfully appeal you have a chance here.


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## CollegeGirl (Nov 10, 2012)

It's like Bridging Visas are being treated as the worst of both worlds. They don't come into effect for the purposes of lifting your work restrictions until your other visa expires... but they DO come into effect right away for the purpose of making you do the BVB/BVA dance if you want to travel. That makes no sense.


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## Whitney (Jan 4, 2013)

I know. And even worse, I was reading up about citizenship requirements the other day and they say you must contact the DIAC to check your citizenship eligibility before you apply if you have held a bridging visa at any point during your stay. I'm REALLY hoping that my 13 months on a bridging visa count towards the residency requirement for citizenship when that day comes.


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## CollegeGirl (Nov 10, 2012)

I can't imagine it wouldn't count! That would be crazy.


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## christinenstar (Aug 21, 2012)

I checked the immi website. It wouldn't count. 

Australian Citizenship Act 2007 Residence Requirements 

To satisfy the residence requirements you must have: 

4 years lawful residence in Australia. This period must include 12 months as a permanent resident immediately before making an application for Australian citizenship 

and 

absences from Australia of no more than 12 months in total in the 4 years prior to application, including not more than 90 days in the 12 months immediately prior to application. 

Lawful residence means residence in Australia on a temporary or permanent visa.


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## Whitney (Jan 4, 2013)

FYI - A bridging visa is a temporary visa and I am a lawful resident so that doesn't actually apply in my case.

I'm really hoping the bridging visa clause is maybe a road block for people who were unlawfully here and granted a bridging visa to get them _out_ of the country. I guess I should just ring them and ask!


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## MarkNortham (Dec 19, 2012)

Hi All -

Looking at the law, here's the general residence requirement for Australian citizenship:

*(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.*

It's important to note the use of the word "present", which generally infers a physical presence in a place. The key issue for citizenship is not establishing residence or not (that's not a term that's legally defined in the Migration Act or Regulations, although there is policy for the term "usually resident" that wouldn't apply here), but is concerned with whether you were legally present in Australia or not.

Re: Bridging Visas, these are called non-substantive visas, so they would not be a temporary or permanent visa. The good news is that in DIAC policy, time present in Australia lawfully, no matter what type of visa you have, is counted towards the general residency requirement. Here's the DIAC policy in this regard:

*All periods of lawful residence in Australia, such as temporary visas, visitor visas, student visas, all classes of bridging visas etc, are taken into account when calculating the four year lawful residence period.*

Yet another example of where the DIAC website is not clear - their use of the word "residence" is unfortunate, as it might lead people to think that there is more than legal presence required, when in fact that's not the case.

Hope this helps clarify things -

Best,

Mark Northam


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## Whitney (Jan 4, 2013)

Awesome! Thanks for the info Mark!


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## MarkNortham (Dec 19, 2012)

Glad I could help, Whitney!

Best,

Mark Northam


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## christinenstar (Aug 21, 2012)

Hi Mark,

I am a little bit confused.

I hold WHV between 24/12/2011 to 24/12/2012 then a bridging visa between 25/12/2012 to 14/8/2013 and granted the TR since.

In the letter for TR, it said I will receive a letter 2 years later in regard to my application for PR. If I granted a PR 2 years later, how much long do I need before I can apply for citizenship?

If my WHV and bridging visa count as lawful residency, it will be dec 2015 but if not I will have to wait till 2017 and god knows if the policy will change.


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## MarkNortham (Dec 19, 2012)

Hi Christinestar -

I'm assuming you are talking about a partner visa? If so, and if you're granted the provisional partner visa first, you are then eligible to apply for the permanent partner visa 2 years after you first applied for the partner visa. In terms of citizenship, while you'll be able to count the time on the WHV, bridging visa and TR towards citizenship (assuming you were not unlawful for any of that time), you'll have to wait until you hold the permanent partner visa for at least one year, since during the 12 months prior to applying for citizenship you need to be holding a permanent visa. Also note that "lawful residency" is not a term in the law - the term in the law is (lawfully) "present in Australia".

Hope this helps -

Best,

Mark Northam


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## christinenstar (Aug 21, 2012)

Thanks Mark.

It makes more sense now!

Yes I have lodged my partner visa (820/801) on 15th Aug 2012 (but present in Australia since 24/12/2011 with WHV) and granted a TR exactly one year after my application. 

So I am assuming I will get my PR on 15th Aug 2014 as it will be 2 years since I lodge the application. 

But I could expect to apply the citizenship on 24/12/2015 given that I have been present in Australia lawfully for a total of 4 years since 24/12/2011 and stay in Australia for one year before I lodge the citizen application. 

Is there anything I need to be aware of? ( I know that it is just the best case scenrio since I have gone overseas for a few weeks, I am actually expecting to apply the citizenship in 2016).


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## MarkNortham (Dec 19, 2012)

Hi Christinestar -

Key would be that you can apply for the PR partner visa 2 years after originally applying, however it's the grant date of that PR partner visa that starts the 12 month period that you need to be in Australia for the last 12 months of the 4-year period. Hopefully they will grant the PR visa prior to Dec 2014 (ie, between Aug and Dec 2014) so you could still keep to your plan for Dec 2015. On the immi.gov.au website in the citizenship area there is a "residency calculator" that can be handy. Other than that, make sure you read through all the citizenship requirements, etc - it's an online application - and you should be good.

Best,

Mark Northam


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## Depressedfish (Sep 27, 2013)

Removed, thanks for the help


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## Fernando (Nov 7, 2013)

alandibella said:


> Afternoon every one, I would like to let you know what happened to me and many other people, that got caught in to the rules web of the OZ immigrations.
> And I hope some of you can give me some advise on how to solve the problem.
> I've lived in Australia since november 2005, always legally and with several different visas, finally I was able to apply for a PR, so I did and thenlet Australia for a mont holiday.
> I had a working holiday visa valid to allow me in the country after one month, so I went in italy and as planed after one month I've come back to my Oz life as normal, and started to work and got back in to my normal life.
> ...


Hi Alan,

Can you please tell me how you went with this issue? I was going to apply today for the citizenship and was informed of the same issue. I went over to Brazil before my BVA came into effect, at that time I was on a student visa, came back and after a few days I was informed I had lost my BVA. Went to immigration and got it sorted, not I was told that for that period I was unlawful here.

Where did you get the court cases from please?

Thank you

Look forward to hearing from you.

Fernando


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## fernandof.giacomini (Feb 5, 2014)

*I am having the same problem*

Hi Allan di Bella,

I am having the same problem.

I arrived in Australia in 18/04/2010,

On 07/03/2014 I will be Permanent Resident for already one year,

I didn't leave Australia since March 2013,

and for the last four years, I was away for a total of 10 months.

I was very sure that I had all the criteria to apply for citizenship on the coming 18/04/2014 (after being legally in Australia for 4 years, and having already one year as Permanent Resident).

However this morning I called the Citizenship Call Center and they told me that I will be able to apply only on 22/08/2016.

They tried to help me, but they couldn't understand why the system was saying 22/08/2016.

At some point, all that they did was to repeat what was in the system. I asked for an email address that I could explain my case, but they were at this point a bit rude, saying repetitively the date that was in the system.

I called one hour later, thinking that could be the attendant, but the new one said the same.

They said I will have the right just on 22/08/2016 and if I want to apply before that, it will be forcing me through, and possibly I will not be successful.

I really don't know what to do.

I would like to know where I can find this 2 court decisions that Allan told about, and what do you recommend guys?

Thank you in advance,

Fernando Giacomini


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## RyancII (Feb 12, 2014)

Allandibella .. could you update us on ur case ?

Fernando .. so how r u dealing with ur case ?


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## RyancII (Feb 12, 2014)

Alandibella could you show us the 2 court cases


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## Kiwiana (Nov 20, 2013)

I have got granted Bridging A visa, but it isn't in effect because of my SCV444 visa is in effect.

Interesting, for the travels in and out of Australia and reading the letter, department recommend that I either get a Bridging B visa for travel in and out of Australia or apply for another Bridging A visa when I get back in Australia on new SCV444. 

Sounds like the safe side I would have to apply for Bridging B visa for travel as I don't want to get caught out on this issues when applying for Australian Citizenship in 12 months once the PR visa is granted.


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