Subclass 870 (parent): 90 days overseas before new application?

It is commonly said that a subclass 870 visa holder who is overseas must stay overseas for 90 days before they can make a further 870 visa application. With respect, that is wrong.

It is true that Schedule 2 for visa subclass 870 includes the following provisions:

870.223 

(1)  If:

(a)  the applicant is outside Australia at the time of application; and

(b)  the applicant previously held a Subclass 870 visa; and

(c)  there are no exceptional circumstances;

the applicant has been outside Australia for at least 90 consecutive days since the relevant departure day of the applicant.

(2)  The relevant departure day of an applicant is:

(a)  if the applicant was in Australia when the last Subclass 870 visa held by the applicant ceased to be in effect—the first day on which the applicant left Australia after that visa ceased to be in effect; or

(b)  if the applicant was not in Australia when the last Subclass 870 visa held by the applicant ceased to be in effect—the last day on which the applicant left Australia while that visa was in effect.

But that is not to say that a subclass 870 visa holder must be outside Australia for 90 days before they can make a further 870 visa application, for the following reasons.

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