Introduction
Receiving a visa refusal or cancellation from the Department of Home Affairs can be an incredibly stressful experience, creating immediate uncertainty about your future in Australia. The most pressing question that arises is whether you can legally stay in the country to appeal the decision, a process that hinges on securing the correct bridging visa to maintain your lawful status.
This guide provides essential information on navigating your visa options after a decision is made. It explains how to remain lawfully in Australia during the appeal process, detailing the role of bridging visas, the different types you may be eligible for, and the crucial visa conditions related to your work rights and travel restrictions.
Your Right to Stay in Australia During an Appeal
The Role of a Bridging Visa in Your Appeal
After a visa refusal or cancellation, a bridging visa serves as your legal lifeline, allowing you to stay in Australia lawfully while you appeal the decision. This temporary visa effectively “bridges” the gap between your previous visa status and the outcome of your application for review, ensuring you do not become an unlawful non-citizen.
The act of lodging a valid appeal with the Administrative Review Tribunal (ART) is what typically extends your current bridging visa. However, it is crucial to understand that simply lodging an appeal is not sufficient to maintain your lawful status. You must hold a valid bridging visa throughout the entire appeal process.
For most individuals who held a Bridging Visa A (BVA) when their substantive visa application was refused, filing a timely appeal with the ART will automatically keep that BVA in effect. This allows you to remain in Australia until a final decision is made on your review.
The Importance of Meeting Strict Appeal Deadlines
The ability to remain in Australia on a bridging visa hinges entirely on lodging your appeal within the strict time limits set by the Department of Home Affairs. These deadlines are absolute and are enforced without flexibility, as the ART generally has no power to grant an extension.
Missing the deadline is a critical error that results in forfeiting your right to a merits review, which is often your best opportunity to have the decision overturned. The specific timeframe to appeal the decision varies depending on the type of visa and your circumstances at the time of the refusal.
You must carefully read your refusal notification letter, which will state the exact deadline. Generally, the time limits are:
- General Visa Refusals: You typically have between 21 and 28 calendar days to lodge an appeal.
- Visa Cancellations on Character Grounds: The time limit can be as short as nine calendar days from the date you are notified of the decision.
- Protection Visa Refusals: If you are in immigration detention, you may only have seven to 14 days. If you are not in detention, the timeframe is usually 28 calendar days.
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Your Immigration Status & Bridging Visa Type
Bridging Visa A (BVA) For Substantive Visa Holders
A BVA, or Subclass 010, is the most common type of bridging visa. It is typically granted to you if you held a valid substantive visa when you made a valid application for a new substantive visa in Australia.
What exactly is a substantive visa? It’s any visa that is not:
- A bridging visa
- A criminal justice visa
- An enforcement visa
When you lodge a valid appeal with the ART after a visa refusal, your BVA will generally continue automatically. This ensures you can stay in Australia lawfully for the entire duration of the review process.
The BVA is typically granted automatically with your initial visa application, so you often do not need to apply separately for a BVA to maintain your lawful status during an appeal.
Bridging Visas C & E For Unlawful Applicants
A Bridging Visa C (BVC), or Subclass 030, is granted if you did not hold a substantive visa at the time you lodged your new visa application. This means you were an unlawful non-citizen or held another bridging visa when you applied.
The BVC regularises your status, allowing you to remain lawfully in Australia while your application and any subsequent appeal are processed.
A Bridging Visa E (BVE), or Subclass 050, is a different type of visa for unlawful non-citizens. You may need to apply for a BVE in situations where:
- Your visa has already expired, and you need to legalise your status while you pursue an appeal
- You are making arrangements to depart Australia
- You are awaiting the outcome of a review for a visa cancellation
Unlike a BVA or BVC that is typically granted automatically with an application, a BVE typically requires a separate application to regularise your visa status.
How Long Your Bridging Visa Lasts During an Appeal
Your bridging visa will remain in effect and allow you to stay in Australia lawfully until your appeal is “finally determined” by the ART. The outcome of the decision made on your appeal dictates when your bridging visa will cease.
If your appeal is successful and the ART remits the case, your bridging visa will continue to be valid. It will remain in effect while the Department of Home Affairs reconsiders your original visa application.
If the appeal is unsuccessful and the ART affirms the refusal decision, your bridging visa will cease a set number of days after you are notified. For bridging visas granted on or after 19 November 2016, this period is typically 35 calendar days, giving you a short window to make arrangements to leave Australia or explore other visa options.
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What Are Your Work Rights & Restrictions During the Appeal?
Work Rights on a Bridging Visa
Your ability to work while awaiting a visa appeal decision is not guaranteed and depends entirely on the conditions of your bridging visa. Therefore, it is essential to verify your specific work rights by checking your visa grant letter or using the Visa Entitlement Verification Online (VEVO) system. The rules differ significantly depending on whether you hold a BVA or a BVC.
For those on a BVA, the work conditions are typically inherited from the last substantive visa you held. For instance, if your previous student visa had work limitations, your BVA will likely have the same restrictions. Conversely, if you held a visa with full work rights, those rights usually carry over. An important exception occurs when the refused visa application was for certain permanent or skilled visas; in such cases, the BVA may be granted with unrestricted work rights.
If your bridging visa has a ‘no work’ condition, you may apply for a new bridging visa with work rights. To be successful, you must demonstrate to the Department of Home Affairs that you have a “compelling need to work” due to financial hardship. You will need to provide substantial evidence to support your claim, which may include:
- Bank statements showing low or depleted funds
- Lease agreements or proof of rent obligations
- Utility bills and evidence of other debts
- A personal statement explaining your financial distress
Travel Restrictions & Applying for a Bridging Visa B
A critical limitation of both BVA and BVC is that they do not permit you to travel internationally. If you leave Australia while holding either of these visas, it will cease immediately, and you will not be able to re-enter the country on it. This can have severe consequences for your ongoing appeal.
The only way to travel overseas and return to Australia during your appeal is by obtaining a Bridging Visa B (BVB) before you depart. A BVB temporarily replaces your BVA, granting you a defined travel period.
To apply for a BVB, you must meet specific criteria:
- Eligibility: You must already hold a BVA or an existing BVB. Holders of a BVC are not eligible to apply for a BVB.
- Substantial Reason: You need to demonstrate a compelling reason for travelling, such as visiting a seriously ill family member or attending a critical business meeting.
- Application: The application is lodged online with the Department of Home Affairs, requires a fee, and must include evidence supporting your reason for travel. It is recommended to apply at least two weeks, but no more than three months, before your planned departure.
What are the Outcomes of Your ART Appeal & Visa Options?
A Successful Appeal if the ART Remits the Visa Decision
When the ART finds in your favour, your visa application is typically sent back to the Department of Home Affairs for reconsideration. This process, known as the decision being “remitted,” represents the most common successful outcome. In less frequent cases, the ART may “set aside” the Department’s decision and substitute it with a new one, such as granting the visa directly.
If your case is remitted, several important outcomes follow:
- Your bridging visa will remain in effect, allowing you to stay in Australia lawfully during final processing
- The Department is required to follow the ART’s findings
- You will typically receive a refund of 50% of your ART application fee
The Department will usually perform final checks before deciding on your visa application, including:
- Requesting new health assessments
- Conducting character assessments
An Unsuccessful Appeal if the ART Affirms the Visa Decision
If the ART agrees with the Department’s original decision, it will “affirm” the refusal, meaning your appeal has been unsuccessful. This outcome has immediate and serious consequences for your immigration status.
The most significant impact is that your bridging visa will cease a set number of days after notification of the decision. For bridging visas granted on or after 19 November 2016, this period is typically 35 calendar days. This provides a final, non-extendable window for you to make arrangements to depart Australia.
Failing to leave within this timeframe carries serious consequences:
- You will become an unlawful non-citizen
- You may be subject to detention and removal
Appealing an Unsuccessful Decision for Judicial Review
Following an unsuccessful ART appeal, a further, more limited appeal option is available through judicial review in the Federal Circuit and Family Court or the Federal Court of Australia. It is critical to understand that this is not another merits review—the court will not re-examine the facts or evidence of your case. Instead, it will only assess whether the ART made a legal error in its decision-making process.
Grounds for judicial review are narrow and technical, such as if the Tribunal:
- Misinterpreted the law
- Failed to provide procedural fairness
- Decided that was legally irrational
This process involves several important considerations:
- Strict time limits apply, usually 35 days from the ART decision
- Experienced legal representation is required
- You must apply for a new bridging visa to remain lawful during court proceedings
- If the court appeal fails, you may be ordered to pay the government’s legal costs
The final, last-resort option is to request Ministerial Intervention. This discretionary power, following new guidelines from September 2025, is only available for cases that meet strict, objective referral criteria. For example, a case may only be referred if the person can provide evidence that they:
- Are the parent of a minor Australian citizen or permanent resident.
- Possess skills in a specified skilled occupation and are currently employed in that role.
It remains a pathway with a very low chance of success.
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Can You Apply for Another Visa During Your Appeal?
Section 48 Bar Restrictions on Onshore Visa Applications
While pursuing an appeal is a direct way to challenge a visa refusal, your ability to apply for a different visa is significantly restricted due to the Section 48 bar in the Migration Act 1958 (Cth). This provision prevents you from making a valid application for most other substantive visas if you are:
- In Australia, and
- Do not hold a substantive visa (which is the case after a refusal when you are on a bridging visa)
The purpose of this bar is to maintain the integrity of the migration system by preventing individuals from lodging one visa application after another simply to prolong their stay in Australia following an initial refusal decision.
For many applicants, this means the only options available are to either await the outcome of their appeal or depart the country.
Section 48 Bar Exceptions on Available Visa Options
The Section 48 bar is not absolute and contains a specific list of exceptions. If you are affected by the bar, you may still be able to lodge a valid visa application from within Australia for certain prescribed visas. These exceptions provide pathways for individuals with compelling circumstances.
The visa applications generally exempt from the Section 48 bar include:
- Partner Visas (Subclass 820/801): For those who are in a genuine relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen
- Protection Visas (Subclass 866): For individuals who have claims for Australia’s protection
- Skilled Regional Visas: Certain visas such as the Skilled Work Regional (Provisional) visa (Subclass 491) or the Skilled Employer Sponsored Regional (Provisional) visa (Subclass 494) are exempt
- Certain Child Visas: Visas for dependent children may also be exempt from the bar
For visas not on this list, another potential strategy exists. Since the Section 48 bar only applies to applications made onshore, you can potentially bypass it by travelling overseas. This process involves:
- Applying for and being granted a BVB
- Leaving Australia
- Lodging the new visa application from offshore
- Returning on your BVB to await the decision
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Conclusion
Receiving a visa refusal can create significant uncertainty, but lodging a timely appeal with the ART allows you to remain lawfully in Australia on a bridging visa. Navigating this appeal process requires a clear understanding of your specific bridging visa type, its conditions regarding work rights and travel, and the potential outcomes after a decision is made.
Given the complexities of the appeal process and the serious consequences of a misstep, seeking experienced guidance is essential to protect your future in Australia. Contact our experienced visa appeal lawyers at Moya Migration Law for trusted experiencedise and a tailored strategy to navigate your visa appeal and secure the best possible outcome.
