Visa Circumstances and Conditions

Please note that the information we provide in this article about visa circumstances and conditions is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

If you’re a non-citizen planning to get an Australian visa, you must do diligent research as to the specific visa circumstances and conditions. In this article, we will tackle sections 39 to 42 of the Migration Act. 

These sections discuss the following topics in relation to visa for non-citizens:

• Criterion limiting number of visas
• Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas
• Circumstances for granting visas
• Conditions on visas
• Visa essential for travel
• Visa holders must usually enter at a port.

Knowing about these provisions under the Act is important because its main concern pertains to the conditions in entering Australia. 

Visa Circumstances and Conditions: Criterion Limiting Number of Visas

Section 39 of the Act states that there’s a limit as to the number of visas that the Department of Home Affairs (DHA) can grant. The rule says that the grant of a specific type of visa must not exceed the number that the Minister will fix in a particular financial year.

To expound on this, the rule states that if a specific type of visa has exceeded the limit, it will prevent the grant of any more visas of a particular class. This means that the DHA will no longer consider any outstanding applications for the grant in that year of visas of that class.

Visa Circumstances and Conditions: Protection and Humanitarian Visas

Section 39A outlines the minimum annual numbers of protection visas (class XA) and humanitarian visas (class XB). 

Despite the limitation under Section 39, the Minister shall ensure that they can grant at least the minimum number of protection and humanitarian visas within the financial year. To determine such number, the Minister will state so in a legislative instrument.

Moreover, in that legislative instrument, the Minister shall specify the minimum total number of such visas and the financial year that it is applicable. However, note that the rule on the disallowance of legislative instruments (section 42) of the Legislation Act 2003 applies here.

Visa Circumstances and Conditions: Granting Visas

Section 40 of the Act states that the law may provide certain circumstances that will allow the granting of visas. The circumstances include that when the DHA grants the visa, the person:

• is outside Australia; or
• is in immigration clearance; or
• has been refused immigration clearance and has not subsequently been immigration cleared; or
• is in the migration zone and, on last entering Australia:
  • was immigration cleared; or
  • bypassed immigration clearance and had not subsequently been immigration cleared.

Visa Circumstances and Conditions: Conditions on Visas

Section 41 of the Act provides for the conditions on visas. Here are the general rules about these conditions. A condition that:

1. The DHA cannot grant the holder of the visa a substantive visa after entering Australia, while he or she is in Australia. 
2. Restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:any work; or
3. work other than specified work; or
4. work of a specified kind.

Moreover, the Minister may waive visa conditions. However, this may only be done in prescribed circumstances and it must be in writing.

Furthermore, if the purpose of the visa for offshore resources activity, here are the conditions:

1. The general rules under Section 41 apply.
2. A work visa does not allow the holder to participate in or support an offshore resources activity in relation to any area. But there are exceptions. The holder may participate to such activity if the visa is:
3. a permanent visa; or

To avoid doubt, a person may participate in, or support, an offshore resources activity in relation to an area if the person is:

1. On an Australian resources installation in the area; or
2. Under section 9A (Migration zone etc.–offshore resources activities), otherwise in the area to participate in, or support, the activity.

Visa Circumstances and Conditions: Visa essential for travel

The general rule is that a non-citizen cannot travel to Australia without a valid visa (s42). However, there are exceptions. The rule does not apply to the following:

1. An allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.
2. A non-citizen in relation to travel to Australia:
   • if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
   • if the non-citizen is:
     • Brought to the migration zone by the power of an officer to board and search an aircraft (s245F); or
     • A person who would be an unlawful non-citizen if he or she is in the migration zone.; or
     • Brought to Australia by the power of an officer to bring transitory persons in Australia; or
     • Travels to Australia as a direct result of the removal not being completed; or
     • Travels to Australia as a direct result of not entering the other country;
     • Removed under s198 (removal from Australia of unlawful non-citizens) and there was an order that requires him or her to travel to Australia.

Visa Circumstances and Conditions: Visa Holders Must Enter at a Port

Section 43 of the Act states that visa holders must usually enter at a port. To specify, the rule allows visa holders to enter Australia at a port on a pre-cleared flight. However, the holder can also enter Australia if he or she:

• travels to Australia on a vessel and 
• the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way, and
• in a way authorised in writing by an authorised officer. 

For maritime crew visa holders, they can enter Australia at a proclaimed port and their health or safety or other justifiable reasons make it necessary to enter in another way. Moreover, this mode of entering must have authorisation from an authorised officer.

Note that this section will not be applicable to the following persons:

1. The holder of an enforcement visa; or
2. An Australian resident entering Australia on a foreign vessel. (see s69 of the Maritime Powers Act 2013) 
3. An Australian resident entering Australia on a vessel (environment matters).

Ask Migration Lawyers About Visa Conditions

JB Solicitors’ migration attorneys are skilled and competent migration law experts that can guide you in the visa application process. Australian migration law can include terms and rules that may be ambiguous or complicated. Thus, having a lawyer explain these rules can make your application process easier.

If you have special circumstances or you want to clarify matters regarding visa circumstances and conditions or Australian citizenship application, contact us at JB Solicitors.