First Entry Requirements
There are many people that have been granted an Australian Visa and remain overseas. These people are affected by many issues that have arisen due to Coronavirus, including an inability to enter the country due to the Coronavirus travel ban. One specific issue some people face is an inability to enter Australia by the date required by their visa. This article will discuss these entry requirements and what will happen if they cannot be followed.
Entry-Related Visa Requirements
Two common types of entry requirements are:
- Condition 8504 attached to a visa, which states – “the visa holder must enter Australia as the holder of the visa to which the condition applies before a date specified by the Minister”.
- A similar requirement may be stated in Schedule 2 of the Migration Regulations requirements for a visa, something like – “First entry must be made before a date specified by the Minister”.
First entry date requirements are generally tied to many provisional and permanent visas granted to people that are outside Australia. The requirement ensures that new migrants enter Australia within a reasonable period after visa grant. This helps the Australian Government to ensure immigration programs stay on track (that visa grants closely line up with number of arrivals), can help with Government budget calculations and ensure that police checks and health checks remain relevant.
Breach of Entry Requirements
A breach may become relevant in several circumstances. For example, when the first entry date passes (even though the visa holder is still offshore) or where a migrant tries to enter Australia after the specified first entry date. Breaching an entry requirement will not cause the visa to cease. However, it will allow the visa to be cancelled. It is important to note that cancellation is discretionary – it does not happen automatically. Government policy encourages case officers to consider “all the circumstances of the case” before exercising the discretion to cancel.
Government policy states “migrant visas should be cancelled where the applicant breaches the initial entry condition unless exceptional and compelling reasons have prevented them from complying with the condition.” The following example circumstances are provided in policy:
- The visa holder cannot enter due to the sudden and serious illness of their Australian sponsor.
- The visa holder lives in a remote area and cannot travel due to a natural disaster.
- The visa holder is unable to travel due to late stages of pregnancy.
Policy also encourages case officers to consider the extent of the breach. For example, if a person tries to enter Australia three weeks after the first entry date, rather than 10 months afterwards, this will be considered less serious. For this reason, travel should be undertaken as soon as possible. If there are exceptional circumstances preventing travel but then there is a delay in travel for no further reason, this may result in cancellation.
No Cancellation / Revoked Cancellation – Enabling Travel
If the visa is not cancelled, the travel date on the visa cannot be modified. For this reason, Department policy is to issue a letter to enable travel. This letter will include the new travel date. The Department may request new medical checks or police checks to enable this letter to be issued with a new date. Failure to provide these new checks may result in an inability to obtain the travel letter or cancellation of the visa. Where a letter is provided, this should be presented at the airport and delays should be expected at the Australian border where the visa will need to be confirmed. Any delays to travel (as stated in the letter) should be communicated to the Department.
If the visa is cancelled (specifically under section 128 of the Migration Act 1958), this cancellation may be revoked. For example, this may occur where the person provides exceptional and compelling reasons for the breach (as discussed above). In this circumstance, the entry date can be varied on the visa when the cancellation is revoked.
The Department of Home Affairs advises that visa holders that cannot enter Australia before the initial entry date should contact the office that granted the visa. Partner Visa holders in particular are able to enter Australia after the entry date if they continue to meet all other visa requirements and conditions.
How We Can Help
Our Registered Migration Agents can assist in may ways, including:
- Assisting you to argue compassionate and compelling circumstances.
- Advising whether a revocation of cancellation is possible.
- Providing advice on your options in the circumstances.
- Advising on potential issues for future visa applications and migration strategies in light of Coronavirus.
Our Registered Migration Agents can analyse your circumstances, identify any areas of risk and discuss the most appropriate strategy to meet your goals. If you would like to know if we can assist in other ways, feel free to contact us using the below form or at email@example.com.