No Further Stay Waiver
As a result of the Coronavirus, many Temporary Visa holders are stuck in Australia and unable to leave the country. This can be for a variety of reasons from flights being unavailable to countries imposing strict travel bans. Some of the Temporary Visa holders may have a visa that is expiring in the next few weeks. In this situation, they would usually be encouraged to apply for a new visa, however, this is not possible if they have a “no further stay” condition on their current visa. If you are affected by this situation, read on to discover how you can waive this condition and apply for a subsequent visa.
The No Further Stay Condition
The “no further stay” condition can be imposed on a number of Temporary Visas including Visitor (Subclass 600) Visas or Student (Subclass 500) Visas. There are several different kinds of “no further stay” conditions such as –
- Condition 8503 – which prevents a visa holder from being granted any substantive visa, while in Australia, other than a Protection Visa.
- Condition 8534 – which prevents a visa holder from being granted any substantive visa, while in Australia, other than a Protection, Temporary Graduate (Subclass 485) or Student Guardian (Subclass 590) Visa.
- Condition 8535 – which prevents a visa holder from being granted a substantive visa, while in Australia, other than a Protection Visa or a Student (Subclass 500) or Student Guardian (Subclass 590) Visa granted on the basis of support form the Commonwealth or a foreign government.
How the Condition Works
These conditions will continue to function, even if the visa which held the condition has ceased to be in effect. For example, if you apply for a Visitor Visa and a Work Visa at the same time, you may get the Visitor Visa granted first. The Visitor Visa is granted with the 8503 condition attached. The Work Visa may still be granted, because you applied before you held the Visitor Visa with the 8503 condition. However, you cannot now apply for a new visa while in Australia, unless the condition is waived. This is because, even though the Work Visa does not have a “no further stay” condition, you last entered Australia with a Visitor Visa containing the 8503 condition. The 8503 continues to function, even though the Visitor Visa ceases with the grant of the Work Visa.
No Further Stay Waiver During Coronavirus
If your visa has a “no further stay” condition and will become invalid in the next two months – you should apply for a waiver. If the request is approved, you can lodge a new visa application. You can find out what conditions you have on your visa by checking your visa grant notice, or by following these steps.
A waiver is requested by filling out Form 1447 and providing certified identity and documentary evidence to support your claims. The Department advises that requests generally take 28 days to process. No Bridging Visa is granted in association with a waiver request, so you should ensure you have sufficient time left on your current visa for a decision to be made. Keep in mind, processing can take longer where more information is requested (and perhaps in the current circumstances where staff are strained with Coronavirus related work). With this in mind, you should apply as early as possible (within two months of your visa expiring). Note waiver decisions cannot be reviewed however, you can make subsequent waiver requests with new information.
Waiver Eligibility
To be eligible for a waiver, you must demonstrate:
- A major change in circumstances (which may involve one or several factors);
- Since the grant of the visa;
- That are beyond your control;
- That are compelling and compassionate in nature; and
- (if a waiver request has previously been refused) the circumstances are substantially different from those previously considered.
In assessing the application, Department policy states that officers will consider:
- Whether the compelling and compassionate claims are “sufficiently forceful and convincing” to wave the condition;
- That no reasonable decision-maker could conclude the circumstances are not compelling;
- If the claims create feelings of “sympathy for the suffering or misfortune of others”; and
- They will consider your circumstances prior to grant of the visa versus the situation presented in the waiver request.
Under policy, the Department suggests some circumstances in which a waiver may be appropriate. These include –
- “Unfitness to travel” – where a visa holder is unfit to travel due to serious injury or a serious medical contracted in Australia.
- “Serious illness within close family” – a visa holder is required to remain temporarily to provide assistance or support due to the death or serious illness of close family in Australia.
- “Natural disaster in home country” or “War or severe civil unrest in home country” – where it would be unreasonable to expect the visa holder to return at this time.
- “Closure or inability of education provider” – closure of an education provider or their inability to the student’s course may be sufficient.
Case officers will consider each waiver request on their own merits – whether they fall within the above examples or not.
How We Can Help
If you are considering applying for a waiver, you may use the above information to do so. You may, however, which to obtain professional advice or assistance from one of our Registered Migration Agent. They can assist in a number of ways, including:
- Drafting submissions to meet the above requirements, advising on suitable evidence to attach and submitting the application on your behalf.
- Communicating with the Department while an application is being considered.
- Helping you plan what visa to apply after the condition is waived. This may actually lead to a Permanent Residency pathway (such as in the case of an Onshore Partner Visa).
- Advising whether you meet the eligibility criteria for the next planned visa.
- Advising whether your next visa may be subject to another “no further stay” condition.
Our Registered Migration Agents can analyse your circumstances, identify any areas of risk and discuss the most appropriate strategy to meet your goals. If you would like to discuss this with us further, please contact us using the below form or by emailing us at info@fairgovisa.com.au.