Condition 8558 on Visitor Visas
Condition 8558 is a visa condition that does not allow a visa holder to stay for more than 12 months in an 18 month period. It is a discretionary condition that may be imposed on visitor visas that are valid for more than 12 months, allows multiple entry and allows at least 12 months stay on each entry. It is quite common for parents visiting Australian residents to see this condition on their visitor visa grant. This condition is used to help enforce the genuine temporary stay requirement on a visitor visa. Do you have this visa? Read through your visa grant letter carefully to see if it applies to you.
12 months in any 18 month period
The difficulty with this condition is that calculations are based on “any 18 month period” as opposed to 18 month period cycles. This means a visa holder with this condition is in Australia needs to calculate the total stay in the last 18 months from every further day the visa holder remains in Australia. Alternatively, a visa holder may choose to calculate if they have spent at least 6 months in the last 18 months have been spent outside of Australia.
Let’s go through two case studies.
Case study one
The following example assume a visa grant date of 1 January 2017 for a 3 year multiple entry visa, so the assumed visa expiry date is 31 December 2019. In this case study we explore the visa holder’s possible travel plans based on his current travel history as depicted in the graph below.
The visa holder arrived on 1 February 2017 2017. They leave Australia in on 1 August 2017 and returns again on the 1 of September. The visa holder must leave before 1 March 2018 or they will be in breach of Condition 8558. The visa holder cannot return until the beginning of August. At this point, the visa holder will have accumulated 6 months outside Australia and can return.
How long can they stay?
For example, the visa holder returns on 1 August 2018. They must leave Australia by the end of January 2019, as in the 18 months before, the visa holder has already accumulated 12 months of stay in Australia and cannot to extend their stay without being in breach of Condition 8558.
Can they return again?
Yes, the visa holder will be able to return after 1 March 2019, as by this time they will have accumulated 6 months outside of Australia. They will be able to continue his stay until the end of August 2019 at which point they will be at the limit of 12 months in the last 18 months in Australia. they will not be able to return again before the visa expires on 31 December 2019.
Maximum stay each time depends on travel dates
Because of the nature of the ‘moving’ 18 month period, how long one can stay on each return is very dependent on when the actual travel occurs.
Following the same example, the visa holder was able to return from 1 August 2018. However, if the visa holder returned on 1 September, they would have been able to stay for an entire 12 months in Australia. The visa holder must leave by the end of August 2019 and they will not be able to return again before his visa expires on 31 December 2019.
It is very important therefore, that before booking flights, one must calculate his stay period in the 18 months before two dates – the intended re-entry date into Australia as well as the intended departure date. This is because the 18 months period is not static.
Case study two
The following example assume a visa grant date of 1 January 2017 for a 3 year multiple entry visa, so the assumed visa expiry date is 31 December 2019. In this case study the visa holder has travel plans and wants to know if they will cause him to be in breach of Condition 8558. Let’s answer some questions.
Q: Following the intended travel plans with the intended departure of the 28 September, is the visa holder in breach of Condition 8558?
A: No, in the 18 month period before the end of September, the visa holder has only stayed in Australia for 11 months. His travel plans do not put his at risk of breaching condition 8558
Q: The visa holder leaves in September and wants to return on 1 January 2019, will he be in breach of Condition 8558?
A: No, in the 18 month period before 1 December 2019, the visa holder has only stayed in Australia for 8 months. His earlier travel in April to June 2017 is no longer relevant to the 18 month period. His travel plans do not put his at risk of breaching condition 8558
Q: How long can he stay for if he returns on 1 January 2019?
A: The visa holder can stay until the end of June 2019. If he continues to stay in July 2019, he will not have accumulated 6 months of of Australia and will be in breach of Condition 8558.
Q: Can he return again?
A: The visa holder can return in October 2019 as at this point they will have accumulated 6 months outside of Australia in the 18 month period before October 2019.
The visa holder can continue to stay until his visa expires on 31 December 2019. In all three 18 month periods before the months of October, November and December, the visa holder still has no more than 12 months in Australia and will not be in breach before the expiry of his visa.
It is not possible to create any one way to calculate the dates one needs to stay within to avoid breaching Condition 8558 and we highly recommend that if you are trying to calculate your dates you also draw a timeline.
Breaching this condition
The DIBP Procedural Advice Manual states “If the visa holder remains in Australia for a continuous period of more than 12 months their visa will automatically be cancelled.”
It goes on to explain; “If the visa holder remains in Australia for a cumulative period of more than 12 months in an 18 month period they will be in breach of the condition but their visa will be liable for cancellation but not automatically cease.”
Given that the calculations can be confusing, it would be quite harsh if a visa was cancelled immediately on in such situations. Nonetheless it is important to understand this condition and how to calculate your time in Australia to avoid being in a difficult situation.
Cancellation because of a breach of this condition would result in the imposition of an exclusion period. An exclusion period is a period of time during which the visa holder will be not be granted any further substantive visa to enter Australia.