After the 16th November 2019 there were significant changes made under certain circumstances in relation to the conditions on the 489 visa. We thought it was time to re-visit these conditions to assist to clarify the confusion.
Of course the aim in being on a 489 visa is to convert it to the 887 Permanent Residency visa after you have held the visa for two years. This conversion covers two basic criteria;
- Have lived in Australia for at least 2 years in a specified regional area: and
- Worked full time for at least one year in a specified regional area
Read: From a 489 to a 887 visa
These are the basic requirements, but there’s another important one. You and any secondary applicant will also need to have substantially complied with the conditions on their 489 visa. This is unlike the above two criteria, which only one main applicant needs to fulfil. Let’s cover the details of the two primary visa conditions found on the 489 visa. You will have only one of these conditions on your visa and that depends if it was the State/Territory sponsored type or the Relative sponsored type.
This condition is applied when you have been sponsored by a State or Territory for the grant of the 489 visa.
A person whose visa is subject to condition 8539 must live, work and study only in an area specified as a regional or low-population growth metropolitan area of Australia.
Areas identified as regional or low-population growth metropolitan are specified in a legislative instrument for Schedule 6D items 6D101(b) and 6D101(c).
As legislative instruments are subject to amendment it is crucial to identify the relevant instrument applicable to an individual visa holder. The relevant instrument is the instrument in effect when the first provisional points-tested visa subject to this condition was granted.
For those who had their 489 granted before the 16th November 2019 this is the list of postcode areas that apply to you.
For those who had their visa granted after the 15th November 2019 you are lucky as you have the new list. This new list covers the sought after areas of Perth, Wollongong, Newcastle and the Gold Coast.
For this condition, whilst you remain in Australia, you (and all family members on your visa) must live, study and work only only in a designated area in Australia. The list of post codes you live in has not changed with the 16th November 2019 changes that affected Condition 8539. This means Wollongong and Newcastle are not open to you but on the bright side you can access Melbourne where the Condition 8539 does not allow.
If the visa holder has held more that one visa that is subject to condition 8549, the visa holder is subject to this condition from when the first of those visas were granted.
Do I have to stay in the State/Territory area that sponsored me? Do I have stay in the same area where my relative lives that sponsored me?
These are the most common questions we are asked and there is a great deal of confusion out there, mainly due to the incorrect information the DOHA tells people over the telephone enquiry line.
Let’s make it crystal clear. 489 visa holders can move freely around Australia in any postcode range their visa conditions specify. You do not need a release letter from anyone. You do not need to get permission from anyone. You do not need to inform the DOHA that you are moving or have moved. Your only obligation is to comply with the condition you have on your visa.
Substantially complied with visa conditions
Since it is required that a visa holder substantially complies with visa conditions imposed on their visa, when it comes to apply for the 887 visa, the DOHA expects that you have done just that. If you haven’t then they may use this as a reason to refuse your 887 application. However the legal term is “substantially comply” and this must be assessed on a case by case basis.
Of course if you fail to comply with your visa conditions on the 489 and the DOHA discover this while you still hold the 489 visa, your visa can be cancelled with the general cancellation powers available.
All applicants must substantially complied with visa conditions “One fail all fail”
Remember that it is also a requirement that the main applicant and all secondary applicants fulfil their visa conditions for the grant of the 887 visa. One applicant having not substantially complied with visa conditions will result in all applicants not being able to be granted the 887 visa. For example, if Jonathan and Jessie are on 489 visas and Jonathan lives in and works in a specified regional area for two years, he will have fulfilled the requirements for his 887 visa. However Jessie, his wife, as secondary applicant, has worked outside the specified regional area for 2 years. Because she is in breach of her visa conditions, neither Jonathan or Jessie can be granted their 887 visas.
Read: What does substantial Compliance mean?
Time spent outside Australia
The above conditions only apply when the visa holder in is Australia; a visa holder cannot be in breach of the above conditions whilst outside Australia
Time to settle
If the visa holder was living in Australia at the time of the 489 visa grant and were not already residing in a specified regional area, the Department will give allowance as to the visa holder taking some time to relocate. It is considered appropriate that the visa holder have 2 to 3 months from their visa grant to make the necessary arrangements, such as carry through current rental agreements.
If the visa holder was living outside of Australia at the time of the 489 visa grant, they are expected to have more free room in making arrangements to stay in a specified regional area. As such, they are expected to establish their doing so within a month from the date of their arrival in Australia.
Time in Australia spent outside a specified regional area
Although it is required that visa holders stay in a specified regional area, this is not to say that they are unable to leave that area. They may do so for a multitude of purposes, such as for business, for work training or a vacation.
Travel, whether recreational or for work, should not be very frequent or for long periods at a time. For example it would be within boundaries if the visa holder was living and working in a specified regional area, but visited Sydney city for the weekend and stayed with friends. It would be in breach of conditions if a visa holder held a residence in Sydney city and stayed in the city every weekend.
Work in specified regional area
It is important that the visa holder’s place of work is located within a specified regional area. It is not considered to be a breach of visa conditions for the visa holder’s employer to be based somewhere else in Australia that is not a specified regional area, or for that employer to be overseas.
Study in a specified regional area
A visa holder may undertake study within their time in Australia. Similarly, it is important that the visa holder’s place of study in located in the specified regional area.