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?

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