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Condition 8503 Waiver: Harder Than Pushing a Boulder Uphill!

Has anyone out there had success in getting the Department to “waive” the infamous “Condition 8503”?

If you have, I invite you to share your story in the comments section.

As readers will be aware, Condition 8503 (derived from Schedule 8 of the Migration Regulations), provides that the holder of a visa which includes this condition will not be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.  

It is common for this condition to be imposed in Visitor Visas (Subclass 600) and is in fact a “mandatory” condition for Visitor Visas in the Sponsored Family stream (see Clause 600.612 of Schedule 2). The condition may also be imposed on a Subclass 676 “Tourist” visa.

My question is prompted by a decision that was handed down earlier this month by Judge Dowdy of the Federal Circuit Court, Farhat v Minister for Immigration (2017) FCCA 347 ( March 2017).

Before we look at this case, a short detour: Do you recall subregulation 2.05(4AA)?

To refresh: Generally, under subregulation 2.05(4), Condition 8503 can be waived only if it can be shown that compelling and compassionate circumstances have developed over which the visa holder had no control and that resulted in a major change to the person’s circumstances.

However, 2.05(4AA) does provide an exception in certain circumstances, namely, where the visa holder has a “genuine intention” to apply for certain kinds of visas, including: a General Skilled Migration visa; a Business Talent visa (132); an Employer Nomination Scheme visa (186) ; a Regional Sponsored Migration Scheme visa (187) or a Business Innovation and Investment (Provisional) visa (188).

Note that glaringly absent from this list are visas under the Family Stream, including Partner visas.

Should they be?

In any event, here’s what happened in the Farhat  case: the applicant, Mr Farhat, is a male citizen of Israel. He initially arrived in Australia in April 2003 on a Subclass 676 Tourist visa that was subject to Condition 8503. He unsuccessfully sought a Protection visa on religious grounds; his request for Ministerial Intervention was not considered; and his Bridging Visa E (apparently issued after the request for MI was made) then expired.

However, he remained in Australia. He formed a relationship with a woman who is an Australian in 2005, and they married in 2014.

He claimed that his wife was suffering from medical problems and that he was her carer. So he applied to the Department for a waiver of Condition 8503, so he would be able to apply for a partner visa.

Where do you think this story is leading?

The Department refused to waive Condition 8503.

And as a decision by the Department not to waive Condition 8503 is not subject to merits review before the Tribunal under section 338 of the Act,  his only recourse was to seek judicial review of the refusal in the Federal Circuit Court.

In that forum, it was necessary for Mr Farhat to be able to show that the delegate’s decision was infected by “jurisdictional error”.

His claim in the first instance was that the delegate had not considered whether his wife’s medical condition was a compelling and compassionate circumstance.

This ground did not gain any traction in the FCC because the documentary record revealed that the delegate had in fact considered all the medical information that had been submitted in support of the waiver request.

And he was also unable to get over the hurdle of showing that circumstances had developed over which he had no control.

The delegate had found that the circumstances in which Mr Farhat found himself were not outside his control, in the sense that there was nothing he could have done to prevent or avoid them. It was the delegate’s view that the decision by Mr Farhat to enter into a relationship with his wife in circumstances where his migration status was not resolved was not a circumstance that was outside his control.

Judge Dowdy agreed that this conclusion was one that the delegate could lawfully arrive at. It was His Honour’s view that it had been within Mr Farhat’s “control and volition” to enter into the relationship and to take up the responsibilities occasioned by his marriage. 

So the fact that his wife suffered from medical conditions which required his care and support did not enter into the equation, and did not amount to something that was a circumstance that was outside his control.

It does appear that if the 8503 condition did not present an obstacle, this conceivably could have been a situation where a waiver of Schedule 3 criteria might have been possible in the context of a Subclass 820 Partner visa application, doesn’t it?

What do you think of Condition 8503? Did it work an overly harsh result in this case?

Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.

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Comments

  • Amelia Louise-Kerridge
    Amelia Louise-Kerridge Thursday, 16 March 2017

    I've had the condition waived in the case where an applicant had never been unlawful and had suffered a miscarriage since entering Australia and spending time on a BVA.

  • Kris Joohyung Ahn
    Kris Joohyung Ahn Thursday, 16 March 2017

    I've had a few waived, most memorable one was for a Fijian client who came here on a Visitor visa with Condition 8503. Before she came to our office, she already had applied and failed with protection visa and appeal. She was unlawful, married with one child (Australian). She and her child had AVO against the Australian husband - hence couldn't consider partner visa, so advised on MI. We managed to waive Condition 8503 with the above facts, and she is now before the Minister's mercy.

  • Guest
    Jeff Harvie - Down Under Visa Wednesday, 22 March 2017

    I had a few waived years ago when they were almost "standard" out of Manila. Rare these days.

    1. Chap was flooded in the Brisbane floods of a few years ago. She was there. She was helping him. I sent him into the Brisbane office personally. Sympathy from fellow victims no doubt helped.

    2. Had a few when the lady was too pregnant to travel. Doctor's letter. Hardly going to lock the lady up, and can't force her onto a plane that won't take her.

    Never tried for any other reasons

  • Guest
    Johanna Barnard Wednesday, 22 March 2017

    Have had several successes, mostly death of a parent /spouse.
    One emotive case that did not satisfy the criteria was a couple who lost 2 of their 3 children. Days sfter the 2nd one's death they went to the High Commisioner in Pretoria, & applied for a visitor visa to spend time with their only remaining child in Australia. The 8503 was slapped on their visitor visas. They had nothing left and not the funds for a CPV. It looks like visitor visa case officers do a family balance test of sorts & if it looks like most of the kids are in Australia, the 8503 is attached to visitor visas. Unfortunately if only they applied for visitor visas when they knew their daughter's prognosis was bleak! I suggest that to those who has a close family member who may not survive their illness. Get sc600 in place!

  • Guest
    Donghui Tu Wednesday, 22 March 2017

    husband on subclass 600 with 8503
    Wife on subclass 143
    In the last year waiting for five year elapse to lodge partner visa 309

    Wife diagnosed with cancer, had operation and on going oncology treatments

    8503 waived on the ground the care for wife the husband provided was of significance to wife s life and being ongoing. Husband lodged 820 onshore.

    I think it depends on how worse the situation would be and whether it being ongoing.

  • Guest
    Danijela Stojanovic Thursday, 23 March 2017

    The onces that I have had approved are the some of the following:

    1. Child on subclass 571 and mother on 580. Mother married and have the 8534 removed on the grounds that if she were to go offshore to lodge 309 it would impact on childs schooling.

    2. Person on 600 waived on the grounds that she was heavily pregnant and could not travel.

    3. Person on subclass 600 and partner obtaining bupa report showing she needs care which then allowed onshore 820.

    4. Another one approved being in a relationship for 2 years and sponsor having medical conditions and was a full time father to her children (his step children) and bilogical father was not around and so he formeda close bond proven by psychologist report.

    Today 23.03.2017 i had a refusal for sch 3 waiver simply because being in a 2 year rship prior to application does not appear to be sufficient grounds anymore. they seem to be really harsh on those that have had several applications in australia even though was never unlawful and abided by all visa conditions.

    HAS ANYONE HAD ANY SUCCESS BASED ON BEING IN A 2 YEAR RSHIP?

  • Guest
    Letitia de Lima Tuesday, 28 March 2017

    Had a case where the family filed the wrong visitor visa application (family sponsored) following a cancer diagnosis of the applicant's mother. After the applicant arrived in Australia his mother was given 3 months to live. 8503 was waived but the medical practitioner practically had to say that the mother is dying and will not make it past 3 months. Ironically, a new treatment was introduced during that time and she is still alive as a result of that treatment - 6 months later!

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