Here’s a quiz to get your brains working at the start of the week, and to get ready to face the mysteries of the Migration Act that you will have to cope with.
And the good news is that however you answer, no one else will know! You can keep your thoughts entirely to yourself, and your answer won’t be marked or broadcast to the rest of the world, no matter what it is!
So here is the question:
Suppose you have a client who has last entered Australia on a Sponsored Family Visa that includes the infamous “no further stay condition”, Condition 8503, which provides 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”.
Suppose further that the client has gotten married since arriving in Australia, has a wife who is pregnant, and whose wife suffers from a variety of medical conditions, including having had her gallbladder removed, suffers from depression, has had gallstones, and has had “sleeve gastrectomy” (otherwise known as “lap-band surgery”) as treatment for obesity.
With this background, how would you assess the client’s prospects of getting a waiver of the “no further stay” condition?
No peeking or cheating is allowed, but the answer to the quiz can be found on Austlii, in a case that was decided late last week called Tlais v Minister for Immigration and Border Protection (2017) FCCA 1576 (11 July 2017).
Recall that the legal standard for the grant of a waiver of Condition 8503 is set out in regulation 2.05(4)of the Migration Regulations 1994, which requires that an applicant must demonstrate that since she/he was granted the visa that was subject to the Condition, “compelling and compassionate” circumstances have developed over which the person had no control and that resulted in a major change to the person’s circumstances.
So, first of all, what makes a circumstance “compelling”?
Guidance about what the term “compelling” means can be found in the High Court case of Plaintiff M64/2015 v Minister for Immigration and Border Protection, where Justice Gageler observed that:
“A statutory requirement that a decision-maker be satisfied that there are “compelling reasons” for taking a particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking the action which, when weighed within the context of the particular statutory scheme are irresistible.”
Or, as put by the Full Court in the case of Babicci v Minister for Immigration and Multicultural and Indigenous Affairs, “circumstances must be so powerful that they lead the decision-maker to make a positive finding” in favour of granting a waiver.
And is getting married, and then being in a situation where one’s wife is expecting a child a circumstance that could be considered one over which a visa holder “had no control”, and thus a circumstance which could be relied on as grounds for getting a waiver of Condition 8503?
In Tlais, it was not considered by the delegate who decided the request for the waiver to be a circumstance outside the visa holder’s control. In the delegate’s opinion, making a mutual decision with one’s partner to get married and to start a family is simply not something that is outside a person’s control.
And the Court (Judge Dowdy) took the view that it was not “irrational, illogical or legally unreasonable” for the delegate to follow that approach.
So the decision in this case reminds us, once again, that it is no easy task to get a waiver of Condition 8503. And that a person who enters Australia on a Visitor visa that is subject to the no further stay condition will not be able to get around the condition, simply by finding an Australian partner, getting married, and starting a family.
And that a person who holds a visa subject to Condition 8503 is likely to face significant obstacles in pursuing an “onshore” Partner visa application, and in attempting to remain in Australia with their partner pending processing of their visa application.
The “circumstances” relied on for a waiver will have to go beyond the mere formation of a spousal relationship in order to be accepted to be “compelling” and outside of the visa holder’s control.
One other aspect of this case should again be noted: It is not possible to challenge a decision of a delegate not to grant a waiver of Condition 8503 before the Administrative Appeals Tribunal; such a decision is not a “Part 5” reviewable decision under section 338 of the Migration Act.
Any such challenge must be brought directly before the Federal Circuit Court. And it must be shown that the delegate’s decision was infected with jurisdictional error, for example by ignoring relevant material or identifying a wrong issue or asking a wrong question.
One more thing to be aware of: when a delegate refuses to grant a waiver of Condition 8503, there is no obligation that the delegate must provide reasons for the decision! See Kaur v Minister for Immigration and Citizenship, (2011) FCA 969.
Here's another moral of the case: circumstances that might be sufficient to support the grant of a waiver of Schedule 3 criteria in the context of a Partner visa application might not "be enough" to secure the waiver of Condition 8503!
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