8503: A Guide To Waiving Visa Condition ‘No Further Stay’

Get 8503 “No Further Stay” Condition Help Here.

Am I caught by 8503? Can I get another visa?

The three most important questions you must know the answers to are:

1. If none of the exceptions in terms of the next visa I need to apply for are applicable, then can I seek a waiver by meeting the waiver requirements?
2. Is the visa granted to me affected by any “no further stay” condition? This might not be too obvious.
3. If affected by the “no further stay condition”, then is the “next” visa I’m seeking to apply for, an exception to the general “no further stay” rule?

“No further stay” Intro

This post is about the legal requirements, policies, and procedures for visa conditions that prohibit further applications. It provides information on the “no further application” conditions, their effects, and the process for requesting a waiver of these conditions. It also covers the circumstances that may warrant a waiver and the criteria for granting a waiver. The post includes guidelines given to delegates handling waiver requests and provides examples of circumstances that may or may not meet the requirements for a waiver.

What are the specific circumstances that would warrant a waiver of the no further application condition?

The specific circumstances that would warrant a waiver of the “no further application” condition are those that have developed since the person was granted the visa and are both compelling and compassionate. The waiver request must demonstrate a change in the person’s circumstances since the visa was granted, and these circumstances should be compelling and evoke compassion. It is important to note that if the circumstances existed before the visa was granted, the “change in circumstances” requirement cannot be met, and the request for a waiver must be refused.

Examples of circumstances that would be considered compelling and compassionate for a waiver of the no further application condition could include:

1. Severe medical conditions: If the visa holder develops a serious medical condition after the visa was granted, which requires ongoing treatment or specialized care that is not available in their home country, it could be considered compelling and compassionate.

2. Family separation: If the visa holder’s immediate family members, such as spouse, children, or parents, are residing in Australia and they face significant hardship or suffering due to the visa holder’s inability to apply for a further visa, it could be considered compelling and compassionate.

3. Humanitarian reasons: If the visa holder is facing persecution, violence, or other forms of harm in their home country, and granting a waiver would provide them with protection and safety, it could be considered compelling and compassionate.

4. Unforeseen financial hardship: If the visa holder experiences a sudden and significant financial crisis, such as loss of employment or a natural disaster, which prevents them from meeting the financial requirements for a further visa application, it could be considered compelling and compassionate.

5. Personal or family tragedy: If the visa holder or their immediate family members experience a traumatic event, such as the death of a loved one or a serious accident, which has a profound impact on their emotional well-being and ability to comply with the “no further application” condition, it could be considered compelling and compassionate.

Each waiver request is assessed on its own merits, and the specific circumstances of the visa holder will be taken into consideration when determining whether they meet the compelling and compassionate criteria for a waiver.

How are waiver requests for the no further application condition assessed?

Delegates must consider procedural fairness when assessing these requests. Before assessing a waiver request, the delegate must examine any previous waiver requests made by the visa holder, whether they have been finalized or are still under consideration.

If a visa holder has previously been refused a waiver, they cannot have the condition waived unless the circumstances presented in the current request are substantially different from those considered in the previous request(s). Each waiver request must be considered and decided on its own merits, even if it appears to be a duplicate request.

The decision to waive the condition is taken based on the person’s circumstances and the legislation in effect at the time of the waiver request. If the waiver request is withdrawn, it is documented as withdrawn in departmental systems. If a person leaves Australia without withdrawing their waiver request, the request does not need to be considered. Waiving the “no further application” condition does not imply visa eligibility, and the condition can be re-imposed on a subsequent visa.

Waiving the condition also does not affect other application bars, such as Section 48 application bar. The waiver decision is generally not reviewable once made by a delegate.

The waiver request must be made in writing, and there is no requirement for a visa holder to request a waiver, as a delegate can find that circumstances for waiver exist and waive the condition.

These procedures apply to all cases where a prescribed condition has been imposed on a visa, regardless of the wording or location of the condition in the regulations. The only legislative requirement for making a waiver request is that it must be in writing.

Are there any circumstances in which a waiver request for the no further application condition can be reviewed or appealed after a decision has been made by a delegate?

No, a lawfully made waiver decision cannot be revisited or appealed once it has been made by a delegate. The decision is considered final and is not subject to merits review under section 338. However, if the visa holder may wish to challenge the decision based on a possible jurisdictional error.

What constitutes a jurisdictional error in the context of a waiver request?

A jurisdictional error refers to an error made by the delegate in applying the relevant laws or regulations governing the waiver decision. It occurs when the delegate exceeds their authority or fails to properly consider the relevant legal requirements. Examples of jurisdictional errors may include misinterpreting the law, ignoring relevant evidence, or failing to provide procedural fairness to the visa holder. If a visa holder believes that a jurisdictional error has occurred in their waiver request, they can raise this concern and request a reconsideration of the decision.

How does one demonstrate a change in circumstances since the visa was granted in order to request a waiver?

To demonstrate a change in circumstances since the visa was granted in order to request a waiver, one must provide evidence of the relevant circumstances at the time the visa was granted and compare them to the current circumstances. The reasons for imposing the “no further application” condition, if it was discretionary, should also be considered. If the circumstances that form the basis of the waiver request existed before the visa was granted, the requirement for a change in circumstances cannot be met, and the request will be refused. However, if the existing circumstances have deteriorated or escalated significantly since the visa was granted, it can be considered a change in circumstances.

How does the waiver process for the no further application condition work? Are there specific forms or documentation required?

The waiver process for the “no further application” condition requires visa holders to submit a written request explaining their circumstances. There is no prescribed form for making a waiver request, so any written request must be accepted. Additionally, supporting documents should be provided along with the waiver request. There is no charge or fee associated with a “no further application” waiver request.

Regarding specific forms or documentation required, visa holders can make the waiver request online through the Department’s website or by completing Form 1447 (No further stay waiver request). However, it is important to note that there is no prescribed form for making a waiver request, so any written request will be accepted.

In summary, the waiver process for the “no further application” condition involves visa holders submitting a written request, along with supporting documents, to explain their circumstances. There are no specific forms required, but visa holders can use Form 1447 or make the request online.

What supporting documents should be provided along with the waiver request for the no further application condition?

The supporting documents that should be provided along with the waiver request for the “no further application” condition are not specified, so it is advisable to include any relevant documents that can substantiate the applicant’s circumstances and claims. These documents could include personal statements, medical records, financial documents, employment records, or any other evidence that supports the applicant’s case for waiving the “no further application” condition.

What should be included in personal statements that could be included as supporting documents for the waiver request?

It is common practice to include a personal statement as part of the supporting documents for a waiver request. A personal statement typically explains the individual’s circumstances, reasons for requesting the waiver, and any relevant supporting information. The personal statement should be detailed, and honest, and provide a clear explanation of why the waiver should be granted.

What are some key elements that should be included in a personal statement for a waiver request?

Some key elements that should be included in a personal statement for a waiver request are:

1. Explanation of the circumstances: Clearly describe the circumstances that led to the failure to complete a course or the imposition of a condition on the visa.

2. Demonstration of extenuating circumstances: If the failure to complete a course was due to an accident, serious illness, or hospitalization, provide detailed information about the incident and how it was beyond your control.

3. Previous waiver requests: If there have been previous waiver requests, explain how the current circumstances are substantially different from those considered in the previous requests.

4. Procedural fairness: Emphasize that the waiver request should be assessed with procedural fairness, ensuring that all requirements of subregulation 2.05(4) are met.

5. Personal impact: Explain the personal impact of the condition or failure to complete the course, highlighting any negative consequences it may have on your academic or professional goals.

6. Future plans: Outline your future plans and how the waiver of the condition or successful completion of the course will contribute to your goals.

7. Request for waiver: Clearly state that you are requesting a waiver of the condition or a favorable decision on the completion of the course.

It is important to note that these elements may vary depending on the specific requirements of the waiver request.

How should previous waiver requests be addressed in the personal statement?

Previous waiver requests should be addressed in the personal statement by presenting substantially different circumstances from those considered in the previous request(s). The delegate assessing the waiver request must examine any previous waiver requests that have been finalized or are still under consideration. If the circumstances presented in the current request are not substantially different from those considered in the previous request(s), the further waiver request must be refused. Therefore, it is important to clearly outline the new and unique circumstances that justify the need for a waiver in the personal statement.

How should one approach addressing previous waiver requests that are still under consideration in the personal statement?

When addressing previous waiver requests that are still under consideration in a personal statement, it is important to demonstrate that the circumstances presented in the current request are substantially different from those considered in the previous requests. The delegate assessing the waiver request must examine any previous waiver requests that have been lodged by the visa holder and are still pending. The delegate cannot decide not to consider claims made in a waiver request on the basis that those claims have been considered in another context, such as a protection visa application that was refused. Each waiver request should be considered and decided on its own merits. Therefore, in the personal statement, one should clearly highlight the new and unique circumstances that have arisen since the previous requests, emphasizing how these circumstances differ significantly from the ones previously considered.

Are there some special waiver provisions that may apply to certain applications?

Some waiver provisions that may apply to certain applications include:

1. Subregulation 2.05(4AA) waivers: This provision allows for the waiver of condition 8503 without having to meet the provisions in regulation 2.05(4). It applies to cases where the visa holder genuinely intends to apply for a General Skilled Migration visa or certain Temporary or Provisional work visas.

2. Subregulation 2.05(4AB) waivers: This provision allows for the waiver of condition 8503 for visa holders who hold or have held a safe haven enterprise visa and meet the requirements of sub-regulation 2.06AAB(2).

3. Subregulation 2.05(5A) waivers: This provision allows for the waiver of condition 8534 without having to meet the provisions in sub-regulation 2.05(4). It applies to cases where the visa holder has completed their course of study and has a genuine intention to apply for a General Skilled Migration visa or certain Temporary or Provisional work visas.

These are some of the waiver provisions that may apply to certain applications.

Looking to lodge a skilled migration application?

Subregulation 2.05(4AA) provides additional circumstances in which condition 8503 may be waived without the visa holder having to meet the provisions in regulation 2.05(4). Specifically, this sub regulation allows for the waiver of condition 8503 if the visa holder genuinely intends to apply for a General Skilled Migration visa or certain Temporary or Provisional work visas. However, it’s important to note that Regulation 2.07AG operates to limit the visas for which a valid application can be made.

How Regulation 2.07AG limits the visas for which a valid application can be made under subregulation 2.05(4AA):

Regulation 2.07AG limits the visas for which a valid application can be made under Subregulation 2.05(4AA). This means that if a visa holder wants to apply for a General Skilled Migration visa or certain Temporary or Provisional work visas, they must meet the conditions specified in Subregulation 2.05(4AA) to have condition 8503 waived. However, Regulation 2.07AG further restricts the types of visas for which a valid application can be made, even if condition 8503 is waived. It specifies that only certain visas, such as a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, can be applied for after the waiver of condition 8503. Other substantive visas, such as a Partner visa, cannot be applied for in this case.

Everyone’s circumstances are different. Do you know the answers to these questions?

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