Substantial Compliance, What Does It Mean?

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Substantial Compliance, What Does It Mean?

Most temporary visas like the 500 Student, the 482 Working and the 600 Tourist visas, (and some permanent like the 887 visa) that are made in Australia have a Schedule 2 primary and secondary criterion that requires the applicant have complied substantially with the conditions of the substantive visa held, or last held, by the applicant, and any intervening bridging visa held by the applicant.

This “Substantial Compliance” applies only to visa applications by persons in Australia and refers to the conditions attached to the last substantive visa held by the visa applicant. If the applicant has since been granted a bridging visa, it refers to the conditions attached to that bridging visa as well as the conditions attached to the last substantive visa held.

Generally, case officers may- without further enquiry – consider this criterion satisfied unless there is evidence to the contrary. If there is some reason which indicates a breach of a visa condition may have occurred then further information will generally be sought from the applicant.

In most cases your application will not be refused without giving you the invitation to comment on any information obtained that may have adverse consequences for your application. If you receive an invitation to comment it would be best to seek professional help before you make a response. Quite often applicants tend to make matters worse by saying too much.

What does “substantial compliance” mean?

The requirement is that the compliance must have been ‘substantial’. As ‘substantial’ is not defined in the Migration Regulations, its ordinary (dictionary) meaning is therefore consulted. Policy states:

“Generally, the term ‘has complied substantially’ implies that there be some compliance with a condition and the criterion would not be considered satisfied if there has been no compliance by the applicant with an imposed condition.”

The criterion is unlikely to be satisfied if there has been partial compliance only – for example, if a visitor complied with the “no work” condition for 1 month, but worked for the remaining 5 months of their visa stay period. In the case of a 489 visa holder, if for 1 year the visa holder lived in Sydney, then for 2 years to meet the 887 requirement they live in the appropriate areas, this would not be considered as “Substantial Compliance”.

It is important to note however that for some visas there are some conditions (or parts of conditions) for which there is no scope for operation of the distinction between strict compliance and substantial compliance.

Has the person complied substantially?

According to the current DOHA policy;

“In assessing whether a person has ‘complied substantially’ with a visa conditions, officers must consider:
  • whether the applicant complied with conditions such as work restrictions, study conditions or any other conditions, imposed on their last held substantive visa; and
  • if the applicant has since been granted an intervening bridging visa, whether the applicant has complied with the conditions of the intervening bridging visa as well as with the conditions of their last held substantive visa.”

 In summary, when assessing whether the criteria of “substantial compliance” is satisfied or not, case officers are meant to take account of all circumstances of the applicant(s) and consider each case on its own merits. There is no black and white rule.

Why did the applicant not comply?

 In some cases, the reasons why the applicant has not complied with a visa condition/s might be relevant in determining whether their compliance was ‘substantial’.

An applicant may be considered to have ‘complied substantially’, for example, if they would have complied with the condition but for some circumstances beyond their control which lead to their non-compliance.

 Assessing compliance with each condition

Assessments are to be made individually against each condition attached to the visa and the applicant’s compliance with each condition assessed individually.

For example, if a visa applicant holds a visa that has 5 conditions attached to it, the requirement of substantial compliance is not satisfied merely as a result of the applicant adhering to 3 of those conditions while failing to comply at all with the remaining 2 conditions.

Have you “Substantially Complied” with your conditions? Have you received a letter from DOHA claiming you have not? We are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. You can book appointments for telephone or Skype consultations too!

Zoe He