“No Further Stay” conditions on Australian visas: can they be removed (“waived”)?

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Many Australian temporary visas have one or more conditions, such as work restrictions or study restrictions imposed on them. These conditions are signified by the presence of one or more 4 digit numbers on your visa information, each starting with the numeral “8”.

Some of these restrictive visa conditions prevent people from lodging applications for further visas while still in Australia in certain circumstances, but the “No further stay” condition that the greatest number of people will probably have problems with is visa condition “8503”.

  1. since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
    1. over which the person had no control
    2. that resulted in a major change to the person’s circumstances
  2. if the minister has previously refused to waive the condition, the minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously
  3. if the person asks the minister to waive the condition, the request is in writing’.

If you have condition 8503 imposed on your Australian visa then unless you obtain a waiver of the “No Further Stay” condition, you will usually not be able to make any further visa application while you are still in Australia. There may be some exceptions to this, including if an applicant needs to apply for a “Protection” visa to seek asylum in Australia. But for most people, it will be impossible to apply for another visa while still in Australia, unless you can have the “No Further Stay” condition removed (“waived”).

Generally, you will be most likely to succeed in receiving the waiver in cases of serious illness or accident, pregnancy complications (but not ordinary pregnancy) and similar compelling and compassionate circumstances that are outside your control and that have occurred only since you were granted the visa that has the “No Further Stay” condition 8503 on it. It is important to remember that circumstances that occurred before you were granted the visa, or that were within your control, will not be considered, no matter how sad or difficult these circumstances are. And the change in your circumstances must be major.

Requests to waive the 8503 condition must be made in writing and should be very carefully worded to address each of the requirements. A form for making the request is now available http://www.border.gov.au/Forms/Documents/1447.pdf  However, it is also possible to make the request without using this form and generally far more detail than can fit onto the form is required to be provided. It is usually advisable to either write a request addressing all the requirements without using the form, or if the form is used, ensure that sufficient extra explanation is added on clearly identified separate sheets of paper.  It is also imperative to include sufficient evidence of the claims being made in the request because the department will not usually contact you to ask for further information or evidence.

Poorly written requests or requests that are not sufficiently backed up by evidence, may throw away your chances of receiving the waiver even where your circumstances qualify, because if the requirements are not adequately addressed in the request and the request is refused, you cannot succeed with a 2nd request unless it is based on substantially different circumstances. This means that you have “one throw of the dice” when making the request based on your current circumstance and a new major change to your circumstances would have to occur before you could make another request with any hope of success. Usually, it is unlikely that this will happen.

If you are wholly confident in your own capacity to write an effective request based on your circumstances, then just take care that the waiver requirements have been covered. If you are not so confident about being able to explain your circumstances in a way that meets the requirements or if you are unsure about whether you seem likely to qualify, you probably should seek some professional assistance from a registered migration agent who is experienced in making waiver requests. It may be well worth paying a professional fee in these circumstances to ensure that the request is well written and also to help clarify just which circumstances may qualify and which may not. Sometimes some parts of your circumstances will not qualify, but one aspect of your situation may take you over the line of securing the waiver.

As discussed, serious illness or accident that occur after the visa’s grant may be counted, as may events that have affected your circumstances in your home country, such as natural disaster, war, the death, incarceration, mental illness or other circumstances of someone you are dependent on such as a partner or parent; again these things must have arisen after you were granted the visa, not before.  Conversely, things that have occurred but were by your own choice will usually not qualify, although they may be related to things that will qualify. For example, if you instigated a divorce from your spouse this will not usually qualify, but factors that have arisen since the grant of your visa and which were outside your control, such as your spouse committing a serious crime or threatening you with violence, may qualify.

8503 waiver requests are not simple matters and it is not possible to provide a list in an article such as this of all the types of circumstances that could qualify. If you want professional assistance with your case, please contact us on 1300176793 if you are inside Australia or mail@primmi.com.au from wherever you are inside or outside Australia and we can advise you if it seems worthwhile to seek a waiver of condition 8503 in your particular circumstances, or whether you will instead need to instead leave Australia and apply for a new visa from your home country. We will give you an honest appraisal of this. If required, we can provide appointments to you in person or by Skype, to discuss these things.

Michele Clayton MARN 0957773, Legal Practitioner New South Wales 55486

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