There are a few ‘entry related’ visa conditions that you should be aware of if you have obtained your visa whilst outside Australia. In this article we will discuss Condition 8504. Stay tuned for further editions where we talk about Condition 8515 “must not marry”.
Read: Condition 8502 “must not enter Australia before specified person”
Condition 8504
Condition 8504 “initial entry date” is condition if your visa will be affected by is it was granted whilst you were outside of Australia. A visa holder with Condition 8504 attached must enter Australia before the date that is specified on their visa grant notice. This is found on visa grant notice under the “Must not arrive after” date. This gives the visa holder time to sort out personal affairs before travelling to Australia. For permanent migrant visas, this is usually five years from the visa grant date. The reasoning behind this is to reduce the possibility of the visa holder failing the core health and character requirements.
Condition 8504 does not however, require the visa holder to settle in Australia before the date. It merely requires that the visa holder sets foot on Australian soil before the date. It is not possible for the initial entry date to be amended. Breaching this condition may result in the cancellation of your visa.
What happens if the visa holder cannot enter by the initial entry date but still wishes to migrate? Let’s go through a few scenarios.
If the visa has not yet been granted
If the visa applicant requests for a later initial entry date before the visa is granted, the Department of Home Affairs (DOHA) will consider an ‘extension’ of up to 3 months (this period differs if the visa is one that has a capped migration number) if the applicant is facing circumstances that were reasonably beyond the applicant’s control. Difficulty in obtaining flights for example is not an acceptable reason.
If the visa has been granted and the initial entry date has not passed
In the visa holder has compelling reasons for not being able to meet Condition 8504 but has not yet breached the condition, the DOHA would be unable to provide advice on if their visa will or not be cancelled based on their circumstances. An assessment can only be made at the point the condition is breached. The visa holder should make their best efforts to fulfil Condition 8504 even if compelling circumstances have arisen.
If the visa has been granted and the initial entry date has passed
Of course the visa holder may meet some unforeseeable and unavoidable circumstances. Exceptional and compelling circumstances will need to be presented. Examples of which are:
- Sudden and serious illness of their sponsoring Australian partner
- Being unable to travel because of a natural disaster
- Being in the late stages of pregnancy and unable to travel
If the visa holder’s proposed entry is to be soon after the initial entry date, the breach may not be considered to be significant. For example, 3 weeks after may be considered to be a ‘mild’ breach as opposed to a proposed entry date of 10 months. This is of course in relation to the unexpected and severe difficulties that the visa holder may be experiencing in travelling to Australia.
For example, a visa holder seeks to enter Australia 10 months after the initial entry date and contacts the DOHA. The reason given is difficulties in travelling due to a natural disaster just before the visa holder’s initial entry date. If however travel out of their visa holder’s country resumed 3 weeks after the initial entry date, it would not seem that the visa holder had genuine intention to comply with Condition 8504.
Members of the Family Unit (MoFU)
In the case of a migrating family, where some members of the family unit have satisfied Condition 8504 and some have not, consideration will be given to Australia’s international obligations in the Convention on the Rights of the Child and the family unity principles in the International Covenant on Civil and Political Rights when assessing if the visa holder who has breached Condition 8504 should have their visa cancelled.
Entering Australia after the initial entry date
If the visa holder breaches Condition 8504 but is assessed by the DOHA not to have their visa cancelled, their entry into Australia must be facilitated as the initial entry date cannot be changed.
Read: Facilitated travel where an entry related condition is (to be) breached
The proposed date of of travel will need to take into account when the health and character clearances are to expire. If the proposed date of travel is after the expiry of the visa holder’s health and character clearances, the DOHA will be unable to provide a letter facilitating their travel. The DOHA will not ask for new health or character clearance certification. The visa applicant may, on their own accord, produce new clearances which will allow the for the proposed travel date to extend past the expiry date of their original health and character clearances.
For example a visa holder’s proposed travel date is in 6 months time. The visa holder’s current health and character clearances end of the month. The DOHA will advise the visa holder they are only able to provide a letter to facilitate travel for a proposed travel date within the validity of their health and character clearances. The visa holder can decide if they want to provide new health and character clearances. If they do, their proposed date of entry can be considered. If they do not, the DOHA will consider cancelling their visa based on breaching Condition 8504. If new health or character assessments show that the visa holder no longer meets health or character requirements, their visa is liable to be cancelled.
It is advisable to make your best efforts in meeting this condition as breaching it and maintaining your visa can be tricky business. If you have breached Condition 8504 or you need advice on if your circumstances are considered exceptional and compelling, speak to qualified agents to best present your case to the DOHA.
