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Attempt to Get Waiver of No Further Stay Condition Falls Flat!

What evidence is required in order to get a waiver of Condition 8503?

As readers will be aware, Condition 8503 is commonly imposed on Visitor Visas (Subclass 600).

The Condition provides that: “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the subject remains in Australia”.

Regulation 2.05(4) specifies the circumstances under which a waiver may be granted:

1.  Compelling and compassionate circumstances have developed since the person was granted the visa that is subject to Condition 8503;

2. The person had no control over the circumstances; and

3. The compelling and compassionate circumstances resulted in a major change to the person’s circumstances.

A recent decision of Judge Driver of the Federal Circuit Court, in the case of Ramos v Minister for Immigration (2017) FCCA 2412 (3 October 2017) sheds some light on the kinds of evidence that will be considered insufficient to get a visa holder “across the line”, and to secure a waiver of Condition 8503 in order that the person may pursue a further substantive visa while remaining onshore in Australia.

The fact pattern in the Ramos case was similar to the facts that are seen in other cases where a waiver of Condition 8503 is sought:

The applicant had originally entered Australia some time ago, in December 2004, as the holder of a Visitor Visa. After apparently overstaying the Visitor Visa and remaining in Australia as an unlawful non-citizen, she applied for a Protection visa.  That application was refused. The applicant then sought Ministerial Intervention (apparently without first seeking merits review before the Administrative Appeals Tribunal, an approach that would obviously have been unworkable!), and then subsequently withdrew the request for “MI”.

She then applied for a waiver of Condition 8503 in order that she could apply for a Partner visa, with the man with who she was living serving as the sponsor for the Partner visa application.

The grounds put forward by the applicant for seeking the waiver were:

  • Her partner suffered from depression and was in general poor health;
  • Her partner had to attend a hospital and the applicant was fearful that he would suffer a heart attack;
  • The applicant feared for her life if she were to return to her home country because of her abusive ex-husband.

Unfortunately for the applicant, this collection of “circumstances” was not sufficient to persuade the delegate who reviewed the request to grant a waiver of Condition 8503.

While the delegate found that the applicant’s wish to remain in Australia with her partner was a “compassionate” circumstance, the delegate found that this was not a circumstance outside of her control. 

Judge Driver found that there was no jurisdictional error in this conclusion, and that the delegate was entitled to find that voluntarily entering into a personal relationship is not something that can be considered to be outside of an individual’s control.

Judge Driver also ruled that there was no error to be found in the delegate’s conclusion that since there was no evidence that the sponsor would suffer any mental or physical harm in the applicant’s absence (i.e. if she were required to pursue the Partner visa application from offshore), that the situation did not rise to the level of a “compelling or compassionate circumstance”.   Equally, Judge Driver ruled that the delegate’s determination that the fact that a period of separation between the applicant and her partner might cause financial and emotional stress, it was not sufficiently compelling to warrant the grant of a waiver of Condition 8503.

And, fatally to this part of the applicant’s case, the Court held that there was no error in the delegate’s finding that the applicant’s fear of harm from her ex-husband was not a circumstance that could justify the grant of a waiver, because the applicant’s fear had not developed since the grant of the visa.

So, what evidence is needed to secure a waiver of Condition 8503?

Clearly, a stronger case than was present in Ramos!

We can see from this decision that a simple wish to remain onshore with a partner pending the processing of a Partner visa application just won’t do the trick, especially in view of the Court’s (uncontroversial) holding that forming a relationship is not something that will be regarded as involuntary or beyond the control of the applicant.

It should again be noted that merits review of a decision by a delegate not to grant a waiver of Condition 8503 is not available before the Tribunal, and that persons seeking to challenge a decision of a delegate not to grant a waiver will need to go to the Federal Circuit Court. There, they will need to establish that the delegate’s decision was affected by jurisdictional error, for example, failure to consider a relevant matter and taking account of irrelevant matters.

The moral, again: it simply ain’t easy to get a waiver of Condition 8503!

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Guest Sunday, 25 February 2018
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