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Formula for Challenging Refusal of 8503 Waiver

Is there any way to challenge successfully a decision of a delegate to refuse to grant a waiver of the infamous “no further stay” condition, Condition 8503, that is commonly attached to “visitor visas”?

That question was presented once again in a case that was decided last week by Judge Siopsis of the Federal Court, Karan v Minister for Immigration and Border Protection (2017) FCA 872 (2 August 2017).

As readers will be aware, a decision of a delegate to refuse a waiver of Condition 8503 is not subject to merits review in the Administrative Appeals Tribunal. 

So the only way to contest the refusal of a waiver request is to take the case to the Federal courts, and to persuade the courts that some form of “jurisdictional error” has affected the delegate’s decision-making process.

That is exactly what happened in Karan.  And the decision illustrates how it might be possible to prove that jurisdictional error has occurred.

The background of this case was that the applicant was a 41 year old citizen of Fiji, who had originally travelled to Australia in June 2000 on a visitor’s visa, with the purpose of visiting family members.  He had stayed in Australia for more than 15 years (apparently as an unlawful non-citizen) and ultimately married an Australian in August 2015. However, he was prevented by Condition 8503 from being granted a Partner visa (or any substantive visa other than a Protection visa) so long as he remained onshore in Australia. 

In February 2016, the applicant sought a waiver of the Condition 8503 of his visa, with the assistance of a registered migration agent.

The basis of the waiver application was that the applicant’s wife was pregnant and had suffered physical violence at the hands of her previous husband which had caused her to suffer serious mental health issues.  The waiver request was supported by a report prepared by a psychologist which stated that the mental health of the applicant’s wife could suffer if he were not present with her to support her through the process of giving birth and managing a new born baby.

A delegate refused the waiver request, providing a rather “formulaic” explanation for the refusal, saying:

“While I accept that temporary separation as a couple may cause you and your wife some emotional distress, as would be expected by the separation from a loved one, I have considered that hardship due to separation is a common occurrence due to migration choices.”

So, how was it possible for the applicant to get this decision set aside?

Judge Siopsis concluded that the delegate had not properly understood or appreciated the nature of the claim that was being made by the applicant.

The delegate had characterized the applicant’s case as being predicated only on a claim that his wife would suffer distress on the basis only of a separation.

In actuality, Judge Siopsis found, the case that had been advanced by the applicant was fundamentally different, namely that the applicant’s wife was a person who had suffered severe physical and mental health issues and that separation from the applicant in these circumstances could worsen her mental health issues.

So ultimately it was not the substantive merits of the applicant’s claim that led the Court to quash the refusal of the application to waive Condition 8503.

Instead, it was the jurisdictional error made by the delegate in failing accurately to characterize the nature of the claim being put by the applicant, and in failing to address the actual claim in the written reasons for refusal.

So, what won the case for the applicant was not persuading the court that, as a matter of “merit” of “substance”, the waiver should have been granted, but rather, that as a matter of “process”, the application for a waiver had not been decided “in accordance with law”, because the delegate had not correctly understood, or addressed, the claims advanced by the applicant.

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