Visa conditions – what are they and what do they mean? Section 41 of the Migration Act enables the Migration Regulations to provide for visas to be subject to specified conditions. Reg. 2.05 provide for each visa subclass be prescribed with certain conditions.
Visa conditions can be mandatory by operation of law at the time of visa grant or discretionary or by the discretion of the s 65 delegate (only if Sch 2 clause 6 for the relevant subclass lists the condition).
Discretionary visa conditions are part of the decision to grant. Once the visa is granted, the conditions have been lawfully imposed and cannot be revisited with a view of removing the condition from the visa.
Conditions for the main visa holder can be quite different from the conditions of secondary visa holder.
Breach of visa conditions
Failure to comply the conditions do not in themselves cause the visa to cease. The only circumstances that cause a visa to cease are those set out in s 82 (visa is cancelled or another substantive visa is granted or a bridging visa ceased if another visa (other than a special purpose visa or a maritime crew visa) comes into effect or deported under s 200 or a visa used to enter Australia for a particular period and at the end of that period, the visa cease to exist or a visa (eg ex Citizen subclass 150) to remain in, but not re-enter, Australia and the holder departed Australia and these circumstances do not include failure to comply with the condition.
Failure to comply with a condition or a breach of a condition renders the visa liable for cancellation.
Most temporary visas have a Sch 2 primary and secondary criterion that states:
“If the application is made in Australia the applicant has complied substantially with the visa conditions to which the last substantive (including bridging) visa held, or las held, by the applicant, and any intervening bridging visa held’.
Substantially complied with visa condition mean more than partial compliance. For eg, a visitor complied with the “no work” condition for 1 month but worked for 2 months.
When assessing whether a visa holder has complied substantially with their visa, all conditions must be assessed and if only a few conditions have been complied and the other conditions have not been complied, then it is unlikely the visa holder has substantially complied with the visa conditions.
A visa holder may be considered to have ‘complied substantially’, for eg, if they would have complied with their condition but for some circumstances beyond their control which lead to their non-compliance.
For most temporary visas, Sch 2 prescribed the person is a genuine applicant and Sch 3 (3003 or 3004) also require the visa applicant intends to comply with any conditions subject to which the visa is granted. This requires an assessment of the applicant’s stated intentions and prior conduct or compliance or previous migration history of overstaying and incentive to abide by conditions or previous compliance with conditions in other countries.
Examples of visa conditions
Conditions:
- 8515 – Must not marry before first entry
- 8519 – Must marry within visa validity
2. Student (Class TU) (Subclass 500)
Conditions:
- 8105 – Work limitation
- 8202 – Meet course requirements (must be enrolled in a f/t course of study or registered course)
- 8501 – Maintain health insurance
- 8516 – Must maintain eligibility (continue to satisfy the primary or secondary criteria for the grant of the visa)
- 8517 – Maintain education for dependants
- 8532 – Under 18 approve welfare (must stay in Australia with parent or guardian or relative
- 8533 – Inform provider of address (within 7 days to education provider)
3. Visitor (Class FA) (Subclass 600)
Conditions:
- 8101 – No Work
- 8201 – Maximum 3 months study
4. Electronic Travel Authority (Class UD) (Subclass 601)
Conditions:
- 8115 – Must not work other than engaging in a business visitor activity
- 8201 – Maximum 3 months study
- 8527- Must be free from Tuberculosis at the time of travel to Australia
- 8528 – Must not have 1 or more criminal convictions (less than 12 months imprisonment, served or not) at the time of travel to Australia
5. Protection (Class XA) (Subclass 866)
Condition:
- 8559 – Travel restriction unless approved in writing
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies).
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
