How the “No Further Stay” condition can be waived for onshore visa lodgements
Most temporary visas to Australia need to be lodged offshore while many permanent visas can be lodged onshore while the applicant is holding some other form of temporary visa.
However, some people trying to lodge a permanent visa application while they are in the country are faced with a “No Further Stay” condition on their temporary visa. This is Condition 8503, 8534 or 8535.
The “No Further Stay” condition has two effects:
It prevents the temporary visa holder from extending their current visa and bars them from applying for another similar visa to stay longer.
It also prohibits a person from applying for most other substantive visas of a more permanent nature while they are in Australia.
From a practical point of view, such a prohibition can cause serious inconvenience and even unforeseen hardships because most permanent visas have quite a long processing time. For example, a couple who are committed to a permanent relationship but are separated by time and distance will suffer unnecessary strain to their relationship. An employer wanting to continue employing a temporary worker may lose interest if the worker has to go home first and wait 2 years before coming back.
Ways to waive Condition 8503
A waiver can be done in circumstances where exceptional hardship will be caused to the visa applicant or other people connected to them if they were not permitted to apply for a permanent visa or extend their temporary visa while still onshore.
The definition of what constitutes exceptional hardship has been defined by the courts and by the immigration departments own internal rules and policies:
It must be a situation which only arose after the visa containing the condition was granted. Therefore, if it was a situation that had already existed before the temporary visa was granted, then that is not a ground for seeking the waiver.
The situation or circumstances relied on must be above and beyond the normal expected inconvenience of having to wait offshore in the queue like every other offshore application. What is exceptional will generally depend on the facts of each case and there has been many court precedents about what kind or situations may qualify.
Where to apply for a waiver
A registered migration agent or lawyer will be able to help assess an applicant’s claimed circumstances for waiver by comparing it to those previous court decisions that are similar, and help them with the waiver request using the most favorable information.
Alternately visa holders may choose to represent themselves which would mean writing their own request letters to the Department of Home Affairs, and ensure all required documentation and a completed Form 1447 is submitted.
Because a waiver is discretionary and is not a visa decision, there is no merits review in the AAT if it is refused and there is no bridging visa granted pending such an application. However, it can be the subject of a Judicial Review in the Federal Courts. It can also be referred to the Minister personally for intervention.