Australian Immigration Daily News

It is incredibly (incredibly!) rare for a decision of a Department officer not to “waive” the infamous “no further stay” condition (Condition 8503) that it is Big News (even when the decision of the Court is a couple of months old, as it is in the case described in this article – Nguyen v Minister for Immigration (2019) FCCA 572 (8 March 2019).

The reason that this decision is Big News is that it provides guidance as to when a decision of a Department officer not to grant the waiver can be successfully challenged.

Recall importantly that such decisions are not “AAT-reviewable”: in order to challenge such a decision, it is necessary to seek judicial review in the Federal Circuit Court and to demonstrate that the delegate’s decision to refuse the waiver was affected by jurisdictional error – for example that the Department officer has “misconstrued” Regulation 2.05(4), which provides that a waiver may be granted if since the grant of the visa containing the 8503 condition, compelling and compassionate circumstances have developed  over which the visa holder had no control.

The background of this case was that the applicant had originally entered Australia in 2010 as the holder of a sponsored family visitor visa. After that visa expired, the applicant remained in Australia for about 6 years as an unlawful non-citizen.

In support of her application for the waiver, the applicant advanced a number of circumstances, which included that:

• She had married a man in Australia since the original visitor visa had been granted;
• She had become the step-mother of a girl whose mother had abandoned her at a young age;
• That she had developed a strong parental relationship with the step-daughter, who had become dependent on her for her well-being;
• That her husband, who had  pre-existing medical conditions relating to a back injury and back surgery, had developed physical and emotional dependence on her;
• That her husband’s back injury had developed and he had been increasingly suffering pain;
• That her husband’s medical conditions meant that she had been increasingly providing essential care for him.

The delegate had decided that since the applicant’s husband’s back injury had “occurred” in 2001, many years prior to the grant of her visitor’s visa, that the applicant could not rely on his medical condition for the purposes of a waiver of the no further stay condition, and that because the applicant’s marriage and her relationship with her step-daughter were matters that were within her control, she could not rely on these factors either.

So the question before the Court was whether the delegate’s interpretation and application of Regulation 2.05(4) was “incorrect”, or affected by jurisdictional error.

And the Court (Judge Wilson) found that it was.

It was Judge Wilson’s view that the proper analysis of Regulation 2.05 (4) is not to look to when circumstances have “occurred” since the date of visa grant, but rather to look to whether the circumstances have “developed” since that time.

And it was Judge Wilson’s view that there had been circumstances that had “developed” since the visa grant, such as the increasing pain and dependence of the applicant’s husband, and the strong parental relationship between the applicant and her step-daughter.

Further, Judge Wilson concluded that the delegate had committed error by limiting his analysis to whether the applicant had chosen to marry her husband and to form a relationship with her step-daughter, and disregarding other matters that were beyond the applicant’s control (for example, the age and gender of the applicant’s step-mother, that her step-daughter had been abandoned by her biological mother at a young age; and that her step-daughter and husband had become dependent upon her.

What these decision tells us is that when considering a court challenge of a refusal of an 8503 waiver, careful attention needs to be paid to whether the Department officer (improperly) confined consideration to whether a particular circumstance first “occurred” prior to the grant of the visa, rather than whether the circumstance “developed” (for example, a physical malady of someone dependent on the applicant became worse) after the visa.

And also: if the Department’s decision is limited to whether an applicant has married someone, and does not take into account other “consequential matters” – such as the development of strong emotional bonds between an applicant and step-children, or the development of strong dependency on an applicant for physical and emotional support – then again, the decision may be one that is affected by error, and may be able to be overturned.

If you found this article to be interesting and valuable, then stay tuned: the Migration Messenger (now available for free) is coming next week. Remember: there will also be free articles on the MA site as well!