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Another Opportunity for an Open Forum: 8503 Waivers
OK everyone here’s your opportunity to share your experience and wisdom through another open forum!
Today’s topic: Have you had any success in getting the “notorious” Condition 8503 “no further stay” “waived”?
Earlier this month I posted an article about a case that was decided by the Federal Circuit Court called Farhat, in which I described the challenge of getting 8503 waived as being harder than pushing a boulder uphill. And just before Christmas of last year, I discussed another case in which an 8503 waiver was unsuccessfully sought, called Karan. My tart and seasonal reference to that case was that it was “another lump of coal from the Department”, in other words a circumstance where in my view regulatory inflexibility prevailed over compassion.
And after all, compassion is supposed to play at least some role in the grant of 8503 waivers.
That is, of course, because Regulation 2.05(4) gives the Minister (Department) authority to waive 8503 when “compelling and compassionate circumstances” have developed since the visa carrying the 8503 condition was granted over which the visa holder had no control and that resulted in a major change to the person’s circumstances.
Well, since Farhat was decided on 9 March, there has been another decision out of the Federal Circuit Court that emphasizes just how hard it is to get an 8503 waiver. The case was Dannawi & Anor v Minister for Immigration (2017) FCCA 286 (14 March 2017).
It would be hard to argue that the circumstances in Dannawi would not be considered, by any standard, to be “compassionate”.
This was the story:
The applicant originally arrived in Australia in May of 2013 on a visitor visa.
Then, in June 2015 (about 2 years later) she lodged an application with the Department to have Condition 8503 waived (the Federal Circuit Court’s decision does not tell us what the applicant’s status was at the time that she sought the waiver).
The circumstances that were relied on by the applicant in support of her request for a waiver were that her father had died (apparently since the time the visitor visa had been granted); that the applicant was the sole carer for her 88 year old mother, who was suffering from a range of medical conditions including abnormal heart rhythm, kidney disease and arthritis; that her mother required assistance on a day to day basis; and that she was the only person available to provide the required care as her siblings were unable to do so.
Indeed, the delegate who reviewed the waiver request did accept that the circumstances surrounding the health of the applicant’s mother were “compassionate”. It’s hard to believe that anyone would not see them as such.
However, the delegate declined to characterize the circumstances as being “compelling” and therefore refused to grant the waiver of the no further stay condition.
It was the delegate’s view, apparently following the policy in PAM3, that in order to be taken to be “compelling”, the circumstances must be “involuntary and characterized by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia”.
Wouldn’t you think that this applicant’s situation was “compelling” in the sense described in PAM?
Her father had died (again apparently since her original visa had been granted), her mother was clearly in need of care, and there was no one else from the family available or able to provide that care.
However, it was the delegate’s view that since the health conditions of the visa holder’s mother had existed for a period of 6 years (in other words, they dated from a time before the visa holder originally obtained her visitor visa) and that there had therefore not been a change to the health of the applicant’s mother that would be considered a major change to the visa holder’s circumstances. But what about the fact that the visa holder’s father had died and no other family member was around who could take up the father’s role in caring for the mother?
The delegate also was not satisfied that the visa holder’s mother required constant care (!) or that the visa holder was needed to provide care to her mother.
As readers will be aware, the refusal to grant a waiver to Condition 8503 is not “merits reviewable” before the AAT. So the visa holder’s only avenue for challenging the decision was to take a direct judicial review application to the Federal Circuit Court. In that forum, the only grounds for challenging the refusal were to somehow show that the delegate’s refusal was infected by jurisdictional error.
And unfortunately for the visa holder, the Federal Circuit Court decided that the delegate had not misinterpreted the regulation (2.05(4)) that defines the circumstances in which a waiver of 8503 may be granted by adopting the interpretation used in PAM that a compelling circumstance is one that is narrowly defined as one that is involuntary and leaves the visa holder with no alternative but to seek to extend her/his stay in Australia, and that it was “open” on the facts of this particular case for the delegate to decide that the visa holder did have alternatives to remaining in Australia.
In essence, then, what apparently occurred here was that as long as there was evidence available to the delegate to support a conclusion that the visa holder did have an alternative to remaining in Australia (even if reasonable minds could differ on that issue) then the Court was not prepared to intervene, to substitute its own judgment on the merits of the matter, and to overturn the delegate’s decision.
Such are the limits of judicial review. The merits of the delegate’s decision simply aren’t subject to being successfully challenged.
So the case shows once again that getting 8503 waived is like scaling an ice-covered mountain peak: very very difficult!
What has your experience been with 8503 waivers?
Tell us about it in the comments section!
Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Friday, 29 June 2018Good pm well my partner come to Australia bk in 2013 tourist visa which attached was 8503 due to my extreme medical condition and was not able to fly and had heart failure my partner was due to fly bk to her home town with out me I decided I need to try and get it waived so I applyed and every one including the local member Parliament said no chance but I proved them all wrong and got it removed its was great feeling I done it by my self it can be done with a lot of good knowledge I have yes it's hard but if anyone needs advice you are more than welcome to ask me any questions on anything I wait your replys
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Saturday, 25 August 2018
How you did it like what course of action you took. Did you hired a lawyer or put the application yourself
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Sunday, 26 August 2018
Hi I did it our self's why do u have a 8503 attached to your visa plet me know and what type visa you got and what country
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Thursday, 28 June 2018
Thanks Dorota...Can you please give the citation of your judicial review case.
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Thursday, 28 June 2018
Good pm well my partner come to Australia bk in 2013 tourist visa which attached was 8503 due to my extreme medical condition and was not able to fly and had heart failure my partner was due to fly bk to her home town with out me I decided I need to try and get it waived so I applyed and every one including the local member Parliament said no chance but I proved them all wrong and got it removed its was great feeling I done it by my self it can be done with a lot of good knowledge I have yes it's hard but if anyone needs advice you are more than welcome to ask me any questions on anything I wait your replys
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Sunday, 07 April 2019
I need help in removing no further stay condition. How can I contact you
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Monday, 08 April 2019
Hi there u can email me on georgecalvert20145@gmail.com and pls explain what visa you on and from where I look forward to hearing from you regards george
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Friday, 14 June 2019
I have never been in a state where I’ve cried so much.
My husband has a bridging visa A and is awaiting a protection visa he has an interview next month and I’m trying to do the waiver so we can apply for a partner visa but it’s so hard and I want everything to end.
I need help trying to waive of the 8503 -
Saturday, 15 June 2019
Afrah, you will not only have to have the 8503 waived but also meet Schedule 3 criteria for his partner visa. Without any specific information I advise to use the same grounds as he is using for his protection visa. Anyway, maybe he will get his protection visa, it is cheap and there are no exclusion periods for benefits.
Immigration blog
Hey guys,
I had one quite a while ago but interesting. A client from Fiji had three children, a daughter living in Fiji, a son in New Zealand and a son in Australia. For some years after the death of his wife he was spending alternating time with his sons in NZ and Australia. Apparently, it was inappropriate in that culture for the applicant to live with his daughter in Fiji. After his arrival in Australia on a visitor visa with 8503 condition his New Zealander son relocated to Australia with the effect that the applicant had nowhere to go to be looked after (so we argued). Refused by the delegate, judicial review application settled (wrong test used) and then another delegate waived the condition. I suppose nowadays the delegates are more inclined to refuse, it seems that nothing moves them any more.