Have you ‘substantially’ complied with your visa conditions?
When applying for most temporary visas, i.e. Temporary Skill Shortage (subclass 482) or New Zealand Citizen Family Relationship (subclass 461) and more, one of the criteria to grant the visa is that ‘If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa’.
The Regulations Schedule criteria 3003 and 3004 have a similarly worded criterion.
But what does ‘substantial compliance’ mean? If there are various conditions to the visa, is an applicant required substantial compliance with each and every separate condition of the visa, or required only that the applicant complies substantially with the conditions of the visa ‘taken as a whole, for example by complying with 4 out of 5 conditions?
The Full Court of the Federal Court of Australia (‘FCFCA’) has handed down a decision in Montero v Minister for Immigration and Border Protection (2014) FCAFC 170 (12 December 2014) that clause 3004(e) required “substantial compliance” with each of the conditions of the appellant’s student visa rather than merely required the appellant to substantially comply with “the conditions” taken as a whole.5 See also: Weerasinghe. 6
If there’s non-compliance, however, the reasons why the applicant has not complied with a visa condition(s) might be relevant in determining whether the compliance was ‘substantial’. An applicant may be considered to have ‘complied substantially’, for example, if he or she would have complied with the condition but for some circumstances beyond his or her control which leads to the non-compliance.
In these circumstances, a legal submission would be beneficial to invite the case processing officer to consider the ‘substantial compliance’ existing. If you are affected by the ‘substantial compliance’ problem, call AHC Lawyers at (02) 8310 5230 to discuss the solutions.
How can Agape Henry Crux Help You?
In addition to what the law does and doesn’t allow you to do, there are also practical considerations that may mean that travelling overseas jeopardises your visa application. If you want to find out more about the risks of travelling overseas, do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book a time at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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