One of the more challenging things about immigration is the large and complex amount of regulations that can make a huge difference in a visa applicant’s success. A classic example of this is a little known regulation called Regulation 2.27C which is part of the Migration Regulations 1994 (Cth):
Reg 2.27C Skilled occupation in Australia
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
It is often possible to get work rights while holding a Bridging Visa C (BVC) – some BVCs come with work rights from the outset, and others can have work rights added onto them. However as Reg 2.27C proves, it may not be enough just to have work rights – if you want to count work experience for a skilled visa (subclass 489, 189, 190), you must have done the work while holding a substantive (non-bridging) visa, or while holding a Bridging Visa A or B. Bottom line: work experience in Australia while holding a Bridging Visa C, even with work rights, cannot be counted for points in an application for a points-tested skilled visa.
Interestingly, a similar regulation exists for study – Reg 2.27D prohibits counting study in Australia towards the Australia Study Requirement (ASR 5 points) for points tested visas unless that study was done while the applicant held a substantive visa or a Bridging Visa A or B. Just like with work experience, even holding a Bridging Visa C with study rights doesn’t mean the study can be counted towards the ASR.
Why do these regulations exist? I imagine to try an discourage people from holding BVC’s which are usually held by people who have applied for a visa while holding only a bridging visa from a previous application, or people waiting for a tribunal or court outcome. But what’s the benefit to Australia? Yet more twists and turns in what is arguably the most complex maze of immigration laws, regulations and policies in the world.
Imagine the applicant who has paid thousands of dollars of application fees for a skilled visa, only to find out that due to these little-known regulations, work experience done in Australia while holding a bridging visa C with full work rights – work experience that was legal in every way – cannot be counted for points for a skilled visa. What choice does the applicant have? Very little. The situation happened in the past, and points claims are locked in at the time of invitation for skilled visas. It’s a choice of facing a refusal or withdrawing – either way, the government gets to keep the thousands of dollars of visa application fees and the applicant ends up with no visa. In my view, that’s just not fair.