When you are issued with an Australian visa, it carries with certain conditions that must be met. Regulation 2.05 of the Migration Regulations 1994 specifies that conditions can be either ‘mandatory’ – that is, they must apply to all holders of that visa – or ‘discretionary’ – they might apply in particular circumstances if determined by a decision maker.
It is critically important that visa holders know and abide by all conditions placed on their visa, as a breach will mean their visa is liable for cancellation if a decision maker so decides.
Some, like the requirement that the visa holder not work (8101), are quite straightforward. Others are a little more complicated.
Condition 8503 falls into the latter category. Principally, it prevents the visa holder from applying for other substantive visas:
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.
The definition of a substantive visa includes all visas other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
What this means for the visa holder is that any application made for a partner visa, for example, will be unsuccessful as long as condition 8503 remains on their visa.
Condition 8503 is a mandatory condition for a range of Australian visas, including visitor visas (subclass 600).
If you hold one of these visas and wish to apply for another substantive visa (other than a refugee visa, subclass 866), you have only two options:
– Leave Australia and apply from offshore, or
– Petition the Minister to have the condition 8503 waived, which would allow you to make the application.
It is not possible to request the condition be waived before you are granted a visa.
Requesting a waiver
The Department is very clear that merely failing to understand that you are subject to condition 8503 is not a valid argument in getting it waived.
Therefore, a visa holder must have a valid excuse or reason why their circumstances now (as opposed to at the time of application) warrant the condition being waived to allow them to apply for another visa.
The Department has issued broad guidance about when the Minister might waive a ‘No Further Stay’ condition:
1. Since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
a. over which the person had no control
b. 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.
In order for a waiver to be granted, the visa holder must convince the decision maker that all of the above requirements are met in their case.
The Department also provides example circumstances that are not considered ‘beyond the control’ of the visa holder for the purposes of the waiver provisions. These include:
– Marriage to (or commencing a de facto partner relationship with) an Australian citizen or permanent resident
– Pregnancy (women who become pregnant while in Australia would generally need to have evidence they are unable to leave Australia).
– Failure to complete a course due to failing a subject.
Effect of Waiver:
If a visa holder is successful in obtaining a waiver of Condition 8503, they will be free to apply for any visa for which they are eligible.
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