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January 28, 2020

The 491 Visa and Condition 8581

The 491 and 494 visas are now held by many temporary residents of Australia and we wish you all the best in trying to meet the requirements for permanent residency later. However will you be ready if you are asked to attend an interview with DOHA?

Those who have read their grant letters will notice that the DOHA is imposing all sorts of obligations on you while you hold the visa. These obligations are outlined in the conditions of the visa itself, 8578, 8579, 8580 and 8581 in particular.

We first introduced these conditions in our previous newsletter regarding the introduction of the new laws last year.

Read: Introducing The New Regional Provisional 491, 494 Visas And The New 191 PR visa

The conditions have imposed a new level of scrutiny of our temporary residence on an unprecedented level. Whilst we can appreciate the need for some of these requirements we argue that Condition 8581 breaches the visa holders human rights in Australia, the right to peaceful enjoyment of this great country.

Condition 8581 states;

If requested, in writing, by the Minister to do so, the holder must attend an interview:
(a) at a place and time specified in the request; or
(b) in a manner, and at a time, specified in the request.

The DOHA web site explains Condition 8581 as;

​We might ask you to attend an interview at a specific address or we might conduct the interview over the phone or internet. The letter will contain the details of the interview time and how or where you must attend.

We have expressed our thoughts about this condition previously;

Read: 491 And 494 Visas Conditions 8580 And 8581

What actually constitutes “the holder must attend an interview”. There is currently no policy guidelines on 8581 and it is not that the DOHA has not enough time to write some. We believe there is no policy because they don’t want people to actually know what their rights are in relation to this condition.

It’s natural for people to think, “oh I have to attend an interview and answer their questions”. There are two parts to that logic.

1) Attend. This word is not defined in the migration regulations so therefore it has to be taken as its common known meaning. The Merriam Webster Dictionary defines attend as, to be present at to go to”. So yes you need to go to the meeting as specified in the notice or if they want to arrange one by Skype (or similar) make sure your online when specified.

2) Answer Questions: Do you have to answer any questions? Most people would think they would but in reality you do not. The Regulations says nothing about having to answer any questions during the interview. The DOHA has no power to force you to answer. You may attend the interview and listen to what they have to say but there is no requirement to make a response.

There is no doubt that in breaching a visa condition your visa can be cancelled under Section 116 of the Migration Act. But failing to answer questions of a DOHA officer during a requested interview does not constitute a breach of 8581.

The Purpose of Interviewing

Remember one crucial fact, the DOHA is only arranging an interview by using condition 8581 to compel you to comply. They will be seeking information or evidence in relation to a possible breach of Condition 8580, 8579 or 8578. They are not spending their time just to see how you have settled in Australia and to make sure you are happy. No, the DOHA will be on a fishing expedition looking for information to use against you, not to help you.

In fact they will already have some information they are planning to use against you. They will have a file on their desk with your name on it. For some reason you will have come to their attention and you can bet they are already considering to cancel your visa. They will just be after more information to assist them to cancel and that no doubt will be the purpose of the chat.

The No Comment Interview

For police officers, one of the most frustrating circumstances when you ask someone to attend an interview is the “no comment” interview. You can try and charm them or make out it is in their best interest to respond to questions otherwise all sorts of bad things may happen to them, like having their visa cancelled. In the end the smartest people just say “no comment” to every question.

You will be entitled to do the same without breaching the condition. Over the decades we have fought hard to ensure the rights of international students are protected. This new condition 8581 represents an abuse of power and its presence is against everything we believe in. If you get one of these please attend an interview requests from DOHA please contact us and we will consult with you at no charge in what to do considering all your individual circumstances. You must have received an invitation notice for this particular free of charge help.

We are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. Save time and book a Skype appointment if you like! All other migration issues to discuss will attract the usual consultation fee.






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