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Condition 8503 and a Lump of Coal from the Department!
Season’s greetings everyone!
Here’s the story of a case, Karan v Minister for Immigration (2016) FCCA 3157 (13 December 2016) that is right in keeping with the spirit of the holidays – generosity of spirit and compassion for all.
Well, not exactly!
The case illustrates 2 concepts: 1) It ain’t easy to get Condition 8503 waived by the Department; and 2) It ain’t easy to successfully challenge a decision by the Department to refuse to waive Condition8503.
As we all know, Condition 8503 is the notorious, or infamous, “no further stay” condition that is often imposed on Visitor Visas. By its terms, Condition 8503 specifies that: “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.”
Under regulation 2.05(4), Condition 8503 may be waived if compelling and compassionate circumstances have developed since the visa that is subject to the Condition was issued, over which the visa holder had no control and which has resulted in a major change to the person’s circumstances.
So what was the story in the Karan case?
The visa holder was a citizen of Fiji who arrived in Australia on a visitor’s visa in June 2000.
In August 2015, of course many years after his visitor’s visa had expired, he married an Australian citizen.
In February 2016, he applied to the Department for a waiver of the Condition 8503 that had been imposed on his visitor’s visa.
The basis of his request for the waiver was that his Australian wife was 7 months pregnant, was suffering from gestational diabetes, and due to a history of having suffered domestic violence in a previous relationship, she had previously been on the verge of committing suicide and had undertaken counseling.
Reports were submitted to the Department in support of the waiver request from a victim services counselor and a psychologist which stated that the visa holder’s wife had expressed concerns about the possible consequences of her being separated from her husband, including the fear of not being able to cope by herself with the mental, emotional and financial demands of managing a newborn baby and paying the rent and other bills; the “emotional devastation” of losing her partner; the fear that her mental health might crumble; and the impossibility of her travelling to Fiji with her husband due to her gestational diabetes.
These all sound like possible grounds, in another context, for getting a waiver of Schedule 3 criteria, don’t they?
Well, what happened here was that a delegate of the Minister determined that the reasons that were put forward by the visa holder were not “compelling”. Accordingly, the Department (in its tender mercies!) refused to grant a waiver of the “no further stay” condition.
Inasmuch as a decision to refuse a waiver of Condition 8503 is not “merits reviewable” in the AAT, the visa holder’s only recourse was to seek to challenge the delegate’s decision in the Federal Circuit Court.
In that forum, of course, the “merits” of the Department’s decision could not be contested.
The challenge in the FCCA was limited to whether the delegate’s decision had been “infected” by jurisdictional error.
It was claimed in the FCCA that the delegate had failed to consider 3 aspects of his claim – his wife’s need for support in view of her abusive past marriage; the expected effect of his removal from Australia on his wife’s mental and physical health; and the wife’s need to have her husband present in Australia to assist with their child.
The Court found that, as a matter of fact, the Department’s officer had “considered” the visa holder’s claims; indeed, the reasons given by the delegate stated that he had “considered the (visa holder’s) full circumstances”.
The Court made no observations or analysis of the nature of the consideration that had been given by the Department to the visa holder’s claims (for example, the Court did not comment on whether the Department had given “genuine, proper and realistic” consideration to the claims.
In this case, it was enough that the Department had “considered” the relevant claims. The Court did not engage in any form of “merits review” to consider whether the claims were indeed “compelling”, or whether the Department had erroneously refused to waive the 8503 Condition.
Such is the nature of judicial review, and such is the difficulty of trying to challenge a refusal to grant a waiver of Condition 8503.
Not a happy outcome for the visa holder here, was it?
Do you think that the fact that this person had been an unlawful non-citizen for a period of 15 years might have factored into the department’s decision to refuse the waiver request?
Comments
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Wednesday, 21 December 2016Hi Michael:
Compelling to case officers is a much different meaning than that of the average person. They do take into account the period of overstay.
We had a client for Partner visa (No 8503) who was refused onshore and for many reasons would have difficulty with compelling reasons at the MRT Given the current attitude of Immigration. So we Sent the client offshore to resubmit the visa 309/100 and applied for a visitor visa to return to spend time with the husband providing compelling reasons for this that were financial, affected the husband, and his team of workers who relied on him, while he is away visiting his wife overseas they have no work because he must do preliminary work first as an electrician before they can continue with their work, the fact it was NBN related etc and still refused because of the overstay..
Main reason relied on for the refusal of the visitor visa was the period of overstay. This was emphasised in the decision to refuse the visitor visa.
SO by this decision Immigration has confirmed they dont like the overstay. -
Thursday, 22 December 2016Dear Michael,
Notwithstanding the refusal I presume that the child is now born.
May I suggest that the client apply for a PV and in the intervening period apply for a waiver of 8503 ( you cant get a BV whilst seeking a waiver).
In the request they should claim CROC because of the child then if waived proceed to an 820/801 and argue the schedule 3 waiver. -
Wednesday, 04 January 2017
And it follows relation to 8503, that you cant apply for a visa that cant be granted to you, according to some officers! That such an application is invalid.
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Friday, 06 January 2017
Chris: whether or not a visa can be granted is not a requirement for schedule 1 (Valid application). if it meets schedule 1 it has to be accepted as a valid application whether or not it will be granted. Grant criteria is schedule 2.
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Monday, 09 January 2017
You are correct Paul, which I knew. My comment was reporting what Immi officers have actually said to me over the years.
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Thursday, 05 January 2017
Dear Michael
I completely agree with Mr Levingston as to apply for PV and at the same time apply for a waiver of 8503 condition. During my experience as Migration agent we have lodged several requests to the Minister for a waiver of 8503 *No Further stay) condition and were successful on grounds of compelling and compassionate circumstances. That is why I suggest to follow Mr Levingston advice.
Immigration blog
Hi Michael,
That is a truly devastating outcome.
We have handled some as well. One case in particular recently had a successful 8503 Waiver from a rather pregnant client who had an 8503 No Further stay attached to her visitor visa. Amongst other factors, she was deemed too Pregnant to fly (38 weeks) and was granted the waiver of the 8503 (This was not the only factor used).
We were then able to successfully lodge an onshore Partner visa as well as her having the baby here in Australia with her husband.
Mark Ellis
Mark