Subclass 600 Visitor Visa - Limit of 12 Months

 

That the Migration Regulations are a complex patchwork quilt are demonstrated by the amendment in applying from 21 November 2015 to limit the stay of a person in Australia in certain circumstances to 12 months unless ‘exceptional circumstances exist for the grant of the visa’

From 21 November 2015, paragraph 600.215  was amended to say this :

600.215

(1)  If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

(2)  This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

(a)  one or more visitor visas;

(b)  a Subclass 417 (Working Holiday) visa;

(c)  a Subclass 462 (Work and Holiday) visa;

(d)  a bridging visa.

 

This change has to be read with the PAM which states :

PAM :

When granting longer travel period in conjunction with longer stay periods (that is, 12 months), s65 delegates should counsel the visa holder, to ensure the visa holder understands that a Tourist stream visa is only for visits to Australia and cannot be used to stay in Australia on an ongoing basis. Visa holders who use their visitor visa in this way may encounter difficulties at the border and be liable to have their visa cancelled. Under policy, parents who are granted visas with travel period of more than 12 months, 12 month stay and multiple entries should have condition 8558 (“Not resident”), 8501 and 8503 imposed on their visa. Refer to Conditions 8558 – Not become resident.

The Explanatory Statement to the Migration Legislation Amendment (2015 Measures No.3) Regulation 2015 outlines the purpose as follows :

  • prevent an applicant for a Subclass 600 (Visitor) visa from being granted the visa if it would mean their stay in Australia would exceed twelve consecutive months as the holder of one or more visitor visas, working holiday visas or bridging visas unless exceptional circumstances exist. This amendment ensures that these visa holders are restricted to the intended twelve month stay. Without these changes, a new twelve month period would begin when an applicant moves to a bridging visa while awaiting a visa decision, therefore not requiring exceptional circumstances to exist for their extended stay in Australia;

 

The amendment just emphasises that visitor visas are not meant for more than 12 months stay in Australia at a time. This amendment envisages that a person will leave Australia before that 12 months period expires and then apply offshore for another visa if required.

These subclass 600 visas are sometimes handy visas to allow a person to re-calibrate their visa status onshore and allows a transition to student visa or whatever. But this limitation will place some brake on this approach.

The phrase ‘exceptional circumstances’ is a broad term, the Explanatory Statement to the amending regulation says this:

Exceptional circumstances may include:

  • the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support;
  • a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:
    • could not have been anticipated at the time their visitor visa was granted; and
    • is beyond the visa applicant’s control; and
    • where not granting a visa would cause significant hardship to an Australian resident or citizen.

But those circumstances are just examples and are not exhaustive.

In years gone by these visitor visas were used by people to remain in Australia for years by a strategic trip offshore to create a new time period.  In themselves these visas still have some flexibility in that they are multiple entry visas and the last entry can be made towards the end of the visa which then authorises further stay. It depends on the exact working a delegate uses to define when the visa is in effect.

Barbara Davidson