Visa Granted Whilst Outside Australia? Beware This Entry Related Condition: Condition 8502
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 8502. Stay tuned for further editions where we talk about Conditions 8504 “First entry date”, 8514 “no material change in the circumstances” and 8515 “must not marry”.
Condition 8502 “must not enter Australia before specified person” is a discretionary condition, so please, if you have been granted your visa whilst outside of Australia, check to see if your visa grant notice holds this condition. Breaching this condition may result in the cancellation of your visa.
Before you disregard the importance of understanding Condition 8502, know this. If there are exceptional circumstances for the visa holder to first enter Australia without the main visa holder or Partner sponsor, these circumstances will need to be made evident prior to the visa grant as there is no option for Condition 8502 to be removed. If the exceptional circumstances are applicable and evident, the Department of Home Affairs (DOHA) would not attach Condition 8502 to the visa holder.
This condition relates to visa holders whose visas are based upon their relationship to another person. Such visa holders must enter Australia at the same time as, or later than the ‘specified person’. The term specified person is used because relationship based visas include dependent visa holders and partner visa holders.
In the case of dependents, Conditions 8502 prevents visa holders who obtained their visas through the main visa holder (spouse, de facto partner or dependent children) from entering Australia if the main visa holder does not enter Australia.
In the case of partner visas, the visa holder is not a dependent, but as their visa is based upon the relationship to another person (their sponsor), they are not able to enter Australia on their Partner visa if their sponsor is outside of Australia.
If the specified person no longer wishes to travel or has died
If the visa holder with the attached 8502 condition is able to satisfy the main criteria of the visa for which they are secondary visa holders, their visa may not be cancelled. For example, the spouse of a Skilled Independent 189 visa holder where the main visa holder no longer wishes to travel or has died, but is able to satisfy the criteria for a Skilled Independent 189 visa themselves may not have their visas cancelled.
If the visa holder wants to travel ahead of specified person
Like above, if the visa holder with the attached 8502 condition is able to satisfy the main criteria of the visa for which they are secondary visa holders, they may be able to travel ahead of the specified person.
If exceptional and compelling circumstances exist and the specified person is to definitely arrive in Australia before their visa’s “first entry date”, the visa holder with condition 8502 attached may be allowed to travel before the specified person. An example of this is where a Partner visa holder with condition 8502 attached is pregnant and cannot travel in later stages of the pregnancy, but the specified person, which in this scenario is their sponsor, needs to settle affairs in their home country and cannot travel at the same time as or earlier. Of course the DOHA needs to be convinced, in such circumstances, that the relationship is still ongoing.
In both the above situations, travel must be ‘facilitated’.
Facilitated travel where an entry related condition is (to be) breached
If the DOHA has decided not to cancel the visa and the visa holder is to breach Condition 8502 (remember that this condition cannot be removed), the visa holder’s initial travel and entry will need to be facilitated; the DOHA will provide the visa holder a letter advising that based on the information provided to them concerning reasons for breaching the visa conditions, travel on the proposed dates will not result in their visa being cancelled.
The visa holder should carry this letter with them when flying to avoid delays. It is advised to fax a copy of the letter to the airport in advance of the visa holder’s arrival in Australia.
Do you think that you might be affected by this condition and may need facilitated travel but are unsure if you qualify or how to provide evidence? Consult with an experienced agent to not get caught up breaching visa conditions.