Over the years we have received many enquiries from permanent residency visa holders overseas who did not meet their “initial entry date”.
It is confusing because this initial entry date is not a condition that usually appears on the visa itself however it still is a “condition” and if not complied with there are cancellation issues. We will try and explain how it works as simply as possible.
Condition 8504
The department can place numerous conditions on a visa holder and most of the time they will start with the number 8 such as 8504 which states;
“the visa holder must enter Australia before a specified date (known as “the first entry date”)”
However what makes it confusing is that this condition can applied to the visa without it being listed as 8504. If this is the case the grant letter will state what is the “initial entry date” and even though it is not listed as 8504 it still has the same power and must be complied with. This condition is usually associated with the grant of permanent residency visas and the date given to you is normally set before your health and character checks expire. Remember you can meet this condition with only a one day visit to Australia. You do not have to stay for any particular time period.
Of course if you are already in Australia when the visa is granted there will be no initial entry date to meet.
Breaching this condition
By not arriving by your initial entry date will be a breach of the condition of your visa but it does not mean the visa ceases to exist. We have had clients hold their visas for years after they did not meet the initial entry date requirement. However a breach of a visa condition make the visa liable for cancellation.
Cancellation is Discretionary
Visa cancellation in response to a breach (or potential breach) of an entry-related condition is a discretionary power, to be exercised only after all the circumstances of the case are considered. There is considerable policy on how this discretion decision can be reached as outlined below and case offers are meant to flexible in enforcing this policy.
If you have past your initial entry date requirement you should make contact with the overseas post and discuss the issue. Be advised the departments policy states;
“As a matter of policy, 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 exceptional and compelling reasons should have an element which is outside the control of the visa holder. In all cases exceptional and compelling reasons should be considered in the first instance before considering other aspects relating to the breach of condition.
Examples of such cases may include, but are not limited to:
- a visa holder who could not enter by the initial entry date due to the sudden and serious illness of their sponsoring Australian partner or
- a visa holder in a remote area unable to travel because of a natural disaster or
- a visa holder is in the late stages of pregnancy and is unable to travel.”
What if I don’t meet any of these examples?
Despite the policy seeming restrictive and difficult to meet, it does depend upon the individual overseas post flexibility in how it is applied. If the overseas post decides not to cancel the visa then it remains valid for multiple travel until it expires. There is no legal power to amend the initial entry date visa condition. Despite the fact that the police clearances and medical tests are no longer valid this is not a reason where the visa can be cancelled.
The overseas post can facilitate your late entry to Australia by supplying a letter and make a note on the system that they have considered your circumstances and decided not to cancel the visa despite being outside of your original entry date. This will assist with you possibly not being delayed at the airport when you board your plane or when you arrive in Australia at the clearance section.
What if I don’t get the letter or cant contact the post?
If you arrive in Australia and are pulled aside by departmental officers then they will consider the following policy of whether or not to let you in or cancel your visa on the spot;
“For decisions made in immigration clearance, in addition to the usual considerations when deciding if a person should be immigration cleared, the following should be considered when deciding whether to cancel a visa because of breach of condition 8504:
- the visa holder’s reasons for travelling in breach of the initial entry condition should be established – whether they contacted an overseas post before travel and the outcome of that contact would also be relevant. If they did not contact the department prior to travelling, why not
- whether the prolonged/significant delay is due to circumstances that are exceptional and compelling
- how much time has elapsed since the initial entry date.
Given that a decision not to cancel will rely to a large extent on the information provided by the visa holder, they should be warned of the potential for cancellation under s109 after entry, should the information prove to have been incorrect. Where relevant and possible, the appropriate overseas post (or visa issuing office) should be contacted by phone to corroborate and/or supplement the information provided by the 8504 visa holder.”
So there you have it. You may be lucky and they will let you in but that will depend upon what you have to tell them. If you provide a good explanation at the airport then they would have to take it on face value for they will not keep you until the can verify everything you say. However as the policy states there is the threat of possible cancellation later if they discover you have been telling porkies at the airport. This however perhaps will be difficult for them to prove.
Good luck in what you may decide what to do for it is a difficult area to advise clients what is their best options considering the circumstances can be so varied and the discretion power is so broad.
Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists if you are concerned you may not be able to meet your entry date requirement or if it it has long past.
