Visitor Visa: Genuine Temporary Stay Requirement

Visitor Visa: Genuine Temporary Stay Requirement

  • If the applicant has complied substantially with the conditions on the applicant’s last substantive visa, or any subsequent bridging visa
  • If the applicant intends to comply with the conditions to which would be attached to their visitor visa
  • Any other relevant matters

 

Previous visa compliance

If the applicant has not travelled to Australia before, they cannot be assessed for visa compliance. Where an applicant has travelled to Australia before and has a history of non compliance, including not departing Australia before their visa ceased, they would not be taken to have genuine intent to be a temporary entrant.

The DIBP will however assess if applicant has not complied with their visa conditions due to extenuating circumstances that could not have been foreseen. For example, if an applicant had not left Australia before the expiry of their last visa due to having fallen too ill to board an airplane, it would be taken as circumstances outside the applicant’s control.

 

Intention to comply

The DIBP will look for clues on if the applicant might intend to work during their stay. Working on a visitor visa would be a breach of conditions 8101 and 8115.

Condition 8101: The holder must not engage in work in Australia

Condition 8115: The holder must not work in other than by engaging in a business visitor activity

If the applicant has requested a long stay period, they may be interest in what the applicant intends to do during their stay as well as how they will supporting themselves

The visitor visa allows its holder to pick up study within the period of their visa validity. If there is evidence suggesting that the applicant intends to study for more than three months, they would be in breach of condition 8201.

Condition 8201: While in Australia, the holder must not engage, for more than 3 months, in any studies or training

 

Any other relevant factors

These include:

  • Personal circumstances
  • Credibility
  • Purpose and period of stay
  • Previous immigration/travel history
  • Intelligence reports and profiles

 

Personal circumstances

  • Personal circumstances that would encourage them to return to their home country at the end of their proposed visit. This may include:
    • ongoing employment in the applicant’s home country
    • (more) family members in the applicant’s home country
    • significant assets such as property in the applicant’s home country
    • and if the applicant resides in a country whose nationals statistically holds a low risk of immigration non compliance
  • Personal circumstances that may cause the applicant to not want to leave Australia. This may include:
    • economic circumstances such as unemployment or generally poorer employment conditions in the applicant’s home country
    • economic disruptions; non exhaustive, these are shortages, famine, high levels of unemployment, natural disasters
    • (more) family members in Australia
    • being subject to adoption proceedings that have yet to be resolved in their home country
    • military service commitments
    • civil disruption; war, lawlessness and political upheaval in the applicant’s home country

 

Credibility

If evidence exists that the applicant lacks credibility, such as having presenting false and misleading information in the application, it would weigh positively that the applicant genuine intends to be a temporary entrant

 

Purpose and period of stay

If the applicant’s purpose and proposed period of stay are reasonable; if the application for the visitor visa is consistent in being for tourism or for visiting family

 

Previous immigration/travel history

If the applicant has had previous visa applications for Australia as well as other countries, and if the applicant has complied with the immigration laws of Australia and the countries they have visited. If the applicant has travelled previously to a country that for personal or economic reasons, had significant incentive(s) for the applicant to remain and yet complied with visa conditions and left before the expiry of their visa, this would be a positive signal to the DIBP that the applicant has genuine intent in being a temporary entrant

 

Intelligence reports and profiles

No, don’t worry, the DIBP are not going to dig into your history. Intelligence reports and profiles refer to reports on statistics on the applicant’s home country that related to its nationals:

  • staying in Australia beyond the stay period of their visa
  • having their visa cancelled
  • being refused entry to Australia
  • making asylum claims or applying for a protection visa

Of course, being a national from a certain country is not ground for the DIBP to refuse an applicant. If however, the applicant’s home country appears to be high immigration risk, the DIBP may request for further documentation to support their claim of being a genuine temporary entrant.

Further documentation may include:

  • If the applicant is employed, evidence of the applicant having been employed for the last 12 months, having approved leave covering the applicant’s proposed period of stay in Australia and that the applicant will continue to be employed on returning to their home country
  • If the applicant is self employed, evidence of their having owned the business for the previous 12 months
  • If the applicant is non working or retired, evidence of having other financial commitment of familial/social ties that would provide strong incentive for the applicant to return to their home country
  • Having a good immigration history

 

Adequate means of support

Having an adequate means of support factors into convincing the DIBP that the applicant has genuine intent to be a temporary entrant. If the applicant does not have a reasonable store of finances, they may be looking for work – to remain in Australia and breaching their visa conditions.

The DIBP may take a look into the proposed activities and living arrangements. If an applicant is visiting Australia to be with family, an ‘adequate’ amount of funds to support their stay would be lower than required as their accommodation and food would largely be taken care of.

The applicant having support or guarantees by family and/or friends in Australia would not necessarily mean that the applicant has genuine intent to stay. It does however suggest that the applicant is less likely to be looking for, or need to find work in Australia during their period of stay, which would be a breach in visa conditions.

If there are doubts, addition evidence of have adequate means of support may include bank statements, bank letters, receipts for air tickets already purchased and available credit card funds.

 

Visitors who are 75 years and older

Applicants who are 75 years and older may be required to present evidence of having private health and/or travel insurance covering the applicant’s entire stay in Australia, or be able to show sufficient funds to cover potential medical/hospital costs.

 

Intention to make a further application in Australia

An applicant may have intention to make a further visa application in Australia does not necessitate that the applicant is not a genuine temporary entrant; if the applicant ends up without a further substantive visa and will comply with their visitor visa conditions, departing Australia before the expiry of their visa, they are still a genuine temporary entrant.

In the situation where the applicant has a partner in Australia and/or intends to apply for a partner visa onshore, the DIBP will still assess the applicant on if they would be comply with visa conditions. The visitor visa does not require looking into if the applicant’s relationship is genuine. It is completely within reason for an applicant to apply for a visitor visa to maintain or enter into a relationship.

 

De facto residence

An applicant cannot, except in exceptional circumstances, stay in Australia for more than 12 months on consecutive visitor, working holiday, work and holiday or bridging visas. If the applicant has visited Australia very frequently and/or for long periods of stay, the DIBP will look into:

  • Compliant travel history
  • Length of each visit to Australia
  • Length of time spent outside Australia in between visits – a visitor is expected to spend as much time outside Australia as in Australia. An exception would before parents who are eligible to stay 12 months in an 18 month period
  • The applicant’s ability to support themselves whilst in Australia without working
  • Reasons for travel and stay for the current visitor visa application
  • If there are other more suitable visa options
  • If the applicant continues to maintain financial and/or familial/social ties to their home country

Generally, the DIBP will not be worried if self supporting retirees visit for 3 to 6 months each year (family or tourism purposes), whilst maintaining residence outside Australia. This may include parents of Australian citizens or permanent residents, even those who may have lodged a parent visa application.

 

General skilled migration (GSM) visa applicants

For those who have already submitted a GSM visa application that has yet to be finalised, would you meet the genuine temporary stay requirement?

 

Onshore applicants who have left Australia

Applicants who applied onshore and have left Australia without holding a bridging visa B (BVB) may re enter Australia on a tourist stream visitor visa should they have been assessed to have met the GSM criteria and have been advised by the DIBP that they will be granted their GSM visa on re entry to Australia.

Otherwise, under compassionate circumstances, the DIBP may grant the visitor visa to applicants who:

  • held a bridging visa B (BVB) but the travel facility has ceased
  • held a bridging visa A (BVA) and left with the intention of returning as the applicant had to leave urgently and was not able to obtain a BVB

In such cases where the GSM applicant previously a bridging visa with work rights and have been granted re entry on a tourist visa, they will need to adhere to the conditions the tourist visa until it has expired and cannot work until the tourist visa has ceased.

Applicants who have not been advised that their GSM visa will be granted would not be granted a visitor visa.

Learn: Bridging Visas

 

Offshore applicants waiting on onshore partner’s GSM application

Visitor visa applications that have such circumstances are looked at on a case by case basis; factors taken into consideration include length of stay, delay to the GSM application and if otherwise the applicant has genuine intent to return to their home country should they receive no further substantive visa to remain in Australia. Generally requests for shorter stays are more likely to be granted.

 

Onshore applicant intending to make an onshore GSM application

This is taken as the applicant looking to a create a situation where they extend their stay in Australia through making an application onshore and is not supportive that the applicant has genuine intent to be a temporary entrant.

 

Ex temporary residents/future skilled applicants

International student graduates

Students in Australia who wish to stay and travel may be granted a visitor visa of up to 6 months (or more in some cases) if:

  • they do not have condition 8534/8535 on their current visa
  • otherwise meet visitor visa requirements
  • have no intention to commence another registered course of study
  • have no intention to continue of complete the course they are currently enrolled in

The DIBP will pay attention to if the applicant:

  • has adequate funds to travel; tourist visa will not allow work
  • has complied with the conditions of their student visa
  • meets the genuine temporary stay requirement – perhaps the applicant has been studying full time for several years in Australia and has not had time to engage in tourism in Australia

Other reasons for which a visitor visa may be granted to a student:

  • applicant wishes to stay to attend a graduation ceremony
  • applicant needs to re sit failed exams/tests
  • applicant needs to finalise written assignments/thesis from their final semester of student and are no longer enrolled

Should the visitor visa be granted the applicant must remember they will not hold the work rights held whilst holding a student visa.

Student visa holders who have applied for a tourist stream visitor visa for tourism purposes on completion of their studies who are intending to later apply for a GSM visa, must apply for a GSM visa within 6 months of the completion of their studies

 

457 visa applicants/holders

The DIBP will give consideration to 457 visa holders who wish to stay in Australia for a short period on the expiry of their 457 visa for tourism purposes, the DIBP will assess the application as a whole for clues on if the 457 visa holder is attempting to prolong their stay in Australia simply to look for other work.

If however the applicant is seeking a tourist visa to await the finalisation of their 457 visa application they would not meet the genuine temporary stay requirement and would not be granted a visitor visa unless there are extenuating circumstances. Having already booked flight tickets would not be considered by the DIBP as extenuating circumstances

 

In partner relationship with an Australian citizen/resident

If the applicant has already lodged a partner visa offshore, the applicant will be allowed short visits to maintain the relationship provided:

  • The applicant meets the criteria for a visitor visa
  • The relationship has existed for a significant period
  • The relationship is well established in their home away from Australia
  • There are no concerns on if the relationship is genuine
  • The applicant wishes to travel to Australia for a short stay for a special occasion
  • There are compelling circumstances that justify the grant of a visitor visa such as the Australian partner being seriously ill or if it would be in the best interests of a child

In all the above situations, the applicant will still need to meet the genuine temporary stay requirement, that is that the applicant will still comply with their visa conditions and depart Australia should they not be granted a further substantive visa to remain in Australia. Either way, offshore partner visa applicants are required to be offshore for the grant of a permanent visa.

In de facto relationships where the applicant may be looking to extend their stay in Australia to meet the duration of relationship criteria for a partner visa, the applicant will not automatically be discounted for being genuine temporary entrant – again, so long as the applicant will abide by visa conditions and depart Australia when their visa ceases, they will meet the genuine temporary stay requirement.

Even if the applicant has not lodged for a permanent visa, the applicant should not be assumed to not meet the genuine temporary stay requirement because they are in a relationship with an Australian citizen or resident. The applicant may, for example, want to visit Australia to meet their partner’s parents, however are still enrolled in a course at home country. If they do not have a bad immigration history, they should be granted a visitor visa.

 

Parents

Parents who have applied for a parent visa and are in the parent migration queue are not taken immediately to not meet the genuine temporary stay requirement although they intend to eventually reside in Australia permanently. Visitor visa applicants who have already lodged their parent visa application may be granted visitor visas with 5 year travel facility, a maximum of 12 months stay per entry and multiple entries in the interests of the family.

Parents who have not applied for a parent visa again are not automatically discounted from meeting the genuine temporary stay requirement. Parents with a good immigration history ( ‘compliant travel’) may be granted a visitor visa with an 3 year travel facility, maximum of 12  month stay per entry, and multiple entries. Parents without a travel history, and therefore no record of compliant travel, may be granted an 18 month travel period and a maximum of 12 months stay.

Now that you have a better understanding of what the DIBP will be looking out for when assessing if you meet the genuine temporary stay requirement, you can add the right kind of details and supporting documentation to strengthen your application.