A No Further Stay condition prevents visa holders from applying for most temporary and permanent visas while they are in Australia unless the condition is waived.
Conditions include 8503, 8534 and 8535.
All regulation 2.05(4) requirements, as applicable, must be satisfied to waive the condition. Failure to satisfy any part of regulation 2.05(4) requirements will result in the waiver request being refused.
A detailed submission must be provided with the request addressing all regulation 2.05(4) requirements.
You must book an appointment with us via the online calendar for advice before we start the process and prepare submissions. It is exceedingly difficult to obtain a waiver in you do not meet regulation 2.05(4) requirements.
Book an appointment now (under category 03. Migration Law – basic PR assessment and general advice – 1 hr) – https://www.victorylaw.com.au/victory-law-appointment-booking/
Requesting a waiver
Requirements
Legislative and policy requirements that must be met when making a waiver request.
The only legislative requirement is that visa holders seeking a waiver of a “no further application” condition should put their request (and explanation of their circumstances) in writing
The waiver request form is not prescribed (or required) by the Regulations. Consequently, it is not mandatory that a form be used for 8503 waiver requests but, for administrative reasons, it is best to use.
Regulation 2.05(4) prescribes the circumstance in which a “no further application” condition may be waived, namely:
- circumstances have developed since the visa was granted that resulted in a major change in the visa holder’s circumstances. In addition, the change in circumstances must have been beyond their control and be compelling and compassionate in nature (refer to Requirements to be met – reg. 2.05(4)(a))
Assessing waiver requests
All regulation 2.05(4) requirements, as applicable, must be satisfied to waive the condition. Failure to satisfy any part of regulation 2.05(4) requirements will result in the waiver request being refused.
Department assessing waiver requests must afford procedural fairness.
Each waiver request must be assessed on its merits. It is an error to apply policy inflexibly.
Supporting documentation such as a medical certificate, death certificate or letter, should be attached to the waiver request.
It is open for a delegate to find that circumstances for wavier exist and to waive the condition.
All waiver requests for a “no further application” condition (whether on the waiver request form or not) should include:
- visa holder’s full name and date of birth
- visa holder’s passport number and visa evidence number
- visa class on which the condition was imposed and
- reason why a waiver is sought.
The visa holder should present information as to why they consider their circumstances warrant the waiving of the condition.
Visa application form should not be accepted
If an applicant is seeking a waiver of a “no further application” condition under regulation 2.05(4), under no circumstances should an application for a further visa (with the exception of a protection visa application) be accepted or the visa application charge receipted at this stage.
Any visa application (other than an application for a protection visa or, in certain circumstances, a BV), even if accompanied by the relevant visa application charge for that visa, is invalid while the “no further application” condition is in effect.
Limitations on requesting a waiver
There is no limit on the number of waiver requests a visa holder can lodge. Rather, a restriction on further requests is in regulation 2.05(4)(b) – if a visa holder has had a request refused they must present substantially different circumstances to those previously presented. If the delegate is not satisfied that the circumstances are substantially different from those considered previously, the further waiver request must be refused.
Requirements to be met – regulation 2.05(4)(a)
Change in circumstances
Under regulation 2.05(4)(a), for a waiver to be granted, the relevant circumstances must have developed since the person was granted the visa.
Department assessing the waiver request should consider:
- the visa holder’s circumstances when the visa was granted and
- the reasons why the “no further application” condition was imposed (if it was imposed on a discretionary basis) to assist in establishing whether there has been a change in the person’s circumstances since the visa was granted.
- If the circumstances that are the basis for the waiver request existed before the visa was granted, the visa holder cannot meet the “change in circumstances” requirement and the request should be refused. However, Department should consider whether the existing circumstances have deteriorated or escalated to such an extent that it can be said that the circumstances have developed since the person was granted the visa.
Compelling and compassionate circumstances
Under regulation 2.05(4)(a), for a waiver to be granted, the circumstances that have developed since the visa was granted must be both compelling and compassionate.
“Compelling and compassionate” circumstances can be understood as circumstances that:
- are sufficiently forceful and convincing for the condition to be waived
- are not unreasonable (in that no reasonable decision-maker could conclude that the circumstances are not compelling) and
- give rise to feelings of sympathy for the suffering or misfortune of others.
Compelling and compassionate circumstances may involve only one factor, or a number of factors in combination – refer to Types of circumstances envisaged. Department must assess each waiver request on its merits.
Types of circumstances envisaged
The types of circumstances that policy envisages might involve compelling and compassionate circumstances to waive condition 8503, 8534 or 8535 – subject to all other regulation 2.05(4) requirements being satisfied – are discussed in:
- Unfitness to travel
- Death or serious illness within close family
- Natural disaster in home country
- War or severe civil unrest in home country
- Closure or inability of education provider
- Government support.
These circumstances are not exhaustive but merely examples of how regulation 2.05(4) might be satisfied. Departments will consider each waiver request on its merits, regardless of whether the circumstances fall within or outside of the examples cited in policy.
Major change in the person’s circumstances
Under regulation 2.05(4)(a)(ii), for a waiver to be granted, the circumstances must have resulted in a major change in the person’s circumstances. In assessing this, Departments will compare the person’s position before the grant of the visa against the person’s position as a result of the circumstances put forward in the waiver request.
Previous waiver request
Under regulation 2.05(4)(b), persons who have previously been refused a waiver are ineligible for a waiver unless the new circumstances presented are substantially different from those assessed in the previous request for a waiver. Consequently, Departments must request details of any earlier requests before they can decide whether this requirement has been met – refer to Checking for previous waiver requests.
Within the Visitor visa regime
The 8503 “no further application” condition was introduced to give s65 delegates the mechanism to approve those cases where the applicant satisfied the criteria for visa grant, yet the s65 delegate had some residual concerns about the visa applicant’s true intentions.
Its use has broadened in recent years to be used as a tool to reduce the non-return rates for a number of high risk countries as well as give queued parents the opportunity to visit their children in Australia for extended periods.
Within the Student visa regime
Under student provisions, the mandatory imposition of condition 8534 has been used as an integrity tool for high risk applicants undertaking short courses, and to ensure that applicants disclose their full study intentions.
Condition 8535 has been introduced to ensure that, where appropriate, government-sponsored applicants will return home at the end of their studies.
Mandatory use
For the various visas to which a “no further application” condition applies by law, there is no discretion not to impose the condition.
Discretionary use
If the imposition of the condition is discretionary, generally it will be imposed if there are reasons to grant the visa yet the s65 delegate has some residual concerns regarding the visa holder’s true intentions.
Although 8534 can be imposed on a discretionary basis on all student visa holders (except a foreign government sponsored or AusAID/Defence student), department will refrain from using this condition on a discretionary basis unless exceptional circumstances exist
Effect of the reg. 2.05(4) waiver
If a “no further application” condition is waived in accordance with regulation 2.05(4), the visa holder is no longer subject to that condition (unless the condition is specifically attached again to a subsequent visa grant). The visa holder can lawfully apply for and be granted a further substantive visa.
In waiving condition 8503, 8534 or 8535 under regulation 2.05(4), Departments cannot restrict which class of visa the visa holder applies for once the condition is waived.