Author: Jason ZHANG

• MARA-registered migration agent (MARN1805429), gold-medal study and migration consultant at the Melbourne branch; pen name “Mitu Weiyuan”.

• With extensive experience in migration and study matters, he enjoys using migration law to resolve all kinds of visa issues and excels at handling “tricky cases”. He has authored hundreds of in-depth study and migration articles for Newstarsec, helping applicants understand not just the what, but the why.

What is the XXX.411 clause?

For every category of visa, at the moment of grant, the law specifies the applicant’s location at the moment the visa is granted (in the legislation this is called “Circumstances applicable to grant”). This requirement appears in clause xxx.411 (or xxx.412 or 413) of each visa’s legislative provisions, where xxx is the visa code.

For example, the visa code for Bridging Visa B is 020, so whether Bridging Visa B can be granted offshore is clearly set out in clause 020.411 of the Migration Regulations. Whether a Subclass 485 visa can be granted offshore is set out in clause 485.411, while Subclass 189 is governed by clause 189.411.

Next, we’ll use the text of the Migration Regulations to explain whether common visa categories can be granted offshore (or onshore).

Bridging Visa B (code 020)

Xiao Ming lodged a Subclass 189 PR application and then wanted to leave Australia, so he lodged a Bridging Visa B. But because the matter was urgent, he wanted to depart immediately after lodging the Bridging Visa B and wait offshore for it to be granted — is this possible?Unfortunately, the answer is no.The text of clause 020.411 is as follows:

(Note: the “immigration clearance” referred to in the image above means clearing customs — you can disregard it and focus only on the earlier part.)

Visitor Visa (code 600)

Li Lei was in Australia and, unable to buy a flight ticket, lodged a Subclass 600 visitor visa before his visa expired. After lodging, he managed to buy a ticket and returned to China — can he wait in China for the grant?The answer is no; the text of the legislation is as follows:

As the image above shows, for a visitor visa lodged onshore, for a visitor visa lodged onshore the grant must also occur onshore; for a visitor visa lodged offshore, for a visitor visa lodged offshore the grant must also occur offshore (600.412).

Therefore, after departing Australia, Li Lei must withdraw the visitor visa application; otherwise the application will be refused for failing to meet clause 600.411 — a situation that occurred frequently during the pandemic.

Student Visa (code 500)

Han Meimei lodged a student visa onshore — can she return to China and wait for the grant? And if she lodged it offshore, can she enter Australia and wait for the grant (if she holds another visa that allows her to enter)?The answer is: yes.

A visitor visa requires lodgement and grant to be either both offshore or both onshore, but the legislation for the student visa is different. The student visa does not require lodgement and grant to occur at the same location.The text of clause 500.411 is as follows:

Skilled Migration: 189 / 190 / 491 and More

Just like the student visa, all three of these visas can be granted either onshore or offshore. Taking Subclass 190 as an example, clause 190.411 reads as follows:

What about the Subclass 887 visa?

After meeting the residence and work requirements, some applicants no longer wish to stay in a regional area — can they lodge the application, leave Australia, and wait offshore for the grant?The answer is: yes.In fact, before the pandemic this was not allowed; it only became possible after the law was later amended.The text of clause 887.411 is as follows:

Parent Migration: Subclass 143 visa

The Subclass 143 parent visa could previously only be granted offshore (except in the special case of transitioning from 173 to 143).

However, due to the pandemic, the Department amended the law on 24 March 2021. It provides that, for applications lodged before the amendment, if the applicant happened to be in Australia on 24 March 2021 and is, at the time of grant, still within the pandemic concession period (i.e. before it ends), then the visa can be granted onshore (in all other cases it must still be granted offshore).

Note: the Concession Period began on 1 February 2020, and its end date has not yet been legislated (as long as it is not legislated, we currently remain within the Concession Period). I expect the legislation may not be made until the WHO declares the COVID-19 pandemic over.

The text of clause 143.412 is as follows:

Graduate Work Visa (code 485)

Before the pandemic, the Subclass 485 visa could only be lodged onshore and granted onshore (except for subsequent 485 applications). After the pandemic arrived, the grant provisions for the 485 were also amended, providing that, before the concession period ends, it can be granted either onshore or offshore. the text of the legislation is as follows:

What about the offshore Partner Visa, Subclass 309?

Before the pandemic, the Subclass 309 visa could only be granted offshore. After the pandemic, the law was amended to provide that a Subclass 309 visa lodged before the concession period ends does not necessarily have to be granted offshore. The text of clause 309.412 is as follows:

What about the onshore Partner Visa, Subclass 820?

One point to note is that the Subclass 820 visa must still be granted onshore; unlike Subclass 309, the legislative provisions for the Subclass 820 visa were not changed by the pandemic. The text of clause 820.411 is as follows:

Sum

mary

After the analysis above, have you noticed that the Migration Regulations aren’t as difficult as you might have imagined? If the visa category you’re interested in isn’t listed above, you can simply open the text of the Migration Regulations yourself to find the answer — we’ve already located where to download the legislation for you:

https://www.legislation.gov.au/Series/F1996B03551

If you’re interested, you can download it and have a look.

If you still have questions, you’re welcome to add our consultant on WeChat, or visit our Melbourne office to discuss your case with me in person.

Jason’s Migration Law Column

More content

[Refused onshore? What now?]

Is there still hope after an onshore refusal? Can you still apply to migrate? A detailed look at Section 48, AAT appeals, and ways to rescue a refused application!

[When does a bridging visa take effect?]

Does a bridging visa take effect immediately after lodgement? A detailed look at bridging-visa priority!

[Is an onshore refusal the end of the road?]

Is there still hope after an onshore refusal? Can you still apply to migrate? A detailed look at Section 48, AAT appeals, and ways to rescue a refused application!

Migration Information Group

2023

Step 1: Press and hold to add our consultant

Step 2: After adding, please

Study · Migration · Visas — We Are the Professionals

Attention!Please verify a genuine Newstarsec consultant!

Study and Migration Enquiries — Consultants by Location

Sydney

Melbourne

Canberra

Brisbane

Adelaide

Hobart

Beijing

Guangzhou

Follow the Newstarsec Official Account

Reply in our official account with any of the numbers below or any keyword (not in the comments at the bottom of the article) to receive the most timely and professional migration news! Reply [A] to see the directory (covering all topics)!

Reply: 0000 → view the 16 Nov policy update (491 + skilled migration points)