A Successful Waiver Of Condition 8503 Reunites A Family

June 5, 2020

The Applicant and Sponsor came to Immigration Solutions Lawyers seeking assistance for the Applicant to remain in Australia permanently. The major concerns of the couple were that they had a complicated relationship history and the Applicant’s existing visitor visa had a “No Further Stay” 8503 Condition attached to it.

The Sponsor first arrived in Australia several years ago on a Visitor visa. He was a student studying in New Zealand at the time. The Sponsor arrived in Australia for the second time a few months later, on the same Visitor visa. While in Australia, the sponsor applied for a Protection visa which was refused by the Department. The Sponsor then lodged an appeal with the Refugee Review Tribunal (RRT) against the refusal. The RRT affirmed the Department’s decision to refuse the Protection visa. The Sponsor subsequently sought judicial review of the refused Protection visa. Around this time, the Sponsor met his previous partner who was an Australian citizen.  A few months later, the Sponsor’s mother became seriously ill and as such he had to withdraw his Federal Court proceeding and return back to his home country. While he was home, the Sponsor was married to the Applicant. This marriage was arranged by their families. Soon after, their daughter was born. Several months after their child’s birth, the relationship between the parties broke down and they both separated. Eventually, the Applicant and the Sponsor ended up getting a divorce. Following their divorce, Sponsor’s previous partner visited the Sponsor in his home country where they remained together for a month. The Sponsor and his previous partner were married during this time. The Sponsor then applied for a Partner visa with the previous partner being the Sponsor. The Sponsor included his daughter as a dependent on this visa application.

The Sponsor’s Partner visa application was approved, and the Sponsor and his daughter, were granted Australian Permanent Residency. The Sponsor and his daughter, then arrived in Australia to commence living together with Sponsor’s previous partner, until they separated few years later. Following their separation, Sponsor and his previous partner finalised their divorce. During all these years, the Applicant made several visits to Australia every few months/years to spend time with their daughter. In or about 2017, the Applicant informed the Sponsor that she also has a son with him. As soon as the Sponsor became aware of this news, he carried out a DNA test to confirm paternity. Immediately after, the Sponsor notified the Department about the existence of his son and about the incorrect information which was previously provided to the Department. The Sponsor applied for Australian citizenship for their daughter and himself and a Child (subclass 101) visa  for their son, which was granted in December 2019. The Applicant then arrived in Australia on a Visitor visa with their son being on the Child visa. The Applicant and Sponsor entered into a committed relationship shortly after and commenced cohabitation with their two children.

The couple wanted to Apply for an onshore Partner visa so that the family unit would not be separated. However, the existence of a “No Further Stay” 8503 condition meant that the Applicant could not apply for any further visas onshore apart from a Protection visa. Immigration Solutions Lawyers suggested that a request for waiver of the condition 8503 be made to the Department, which would in turn allow the Applicant to lodge a Partner visa Application whilst in Australia. In order to successfully waive a “No Further Stay” 8503 condition, the Applicant must demonstrate that compelling and compassionate circumstances have developed which were beyond the Applicant’s control since the grant of the visa that has the condition 8503 imposed on it. Accordingly, the Applicant and the Sponsor lodged a request to waive this “No Further Stay” 8503 condition though Immigration Solutions Lawyers on 28 February 2020 which was successfully approved on 28 February 2020.

In our “No Further Stay” 8503 condition waiver request, we submitted that the existence of an Australian citizen daughter and a Australian permanent resident child constitutes as both compelling and compassionate circumstances warranting the waiver of the condition 8503. We argued that their daughter has been suffering from severe depression and anxiety as a result of being separated from her mother at a very young age. Along with our submission, we provided a detailed assessment report from a Clinical Psychologist and medical documents from the treating Doctors to this effect. We also stressed about the importance of having both parents in a child’s life and how detrimental it could be for a child to be separated from a parent for a significant period of time. We noted that their Australian permanent resident child had been in the Applicant’s sole care all his life and thus a potential separation from the only parental figure in his life could have a negative impact on his psychological development.  We further submitted that at the time of the Applicant’s visa grant, the Applicant had not reformed a relationship with the Sponsor, nor had their son been granted a Child (subclass 101) visa. We noted that these events have resulted in a major change to the Applicant’s personal circumstances which were beyond the Applicant’s control. Additionally, we argued that the Australian citizen Sponsor would suffer significant financial, psychological, and emotional hardships should the Applicant be forced to leave the country to lodge an offshore Partner visa application. We also discussed that the couple could not consider a potential relocation to the Applicant’s home country for various reasons including the fact that the family would be subjected to less advantageous living conditions and the Sponsor could not bear the costs associated with the entire family relocating with the Applicant.

Our legal submission and arguments proved to be successful as the Department approved the Applicant’s waiver request prior to her visitor visa expiry. The Applicant and the Sponsor were extremely pleased at the outcome they received within a short time frame and how Immigration Solutions Lawyers handled their matter promptly and professionally, taking all the necessary steps and guiding them throughout the process. Following the waiver approval, the parties lodged an onshore partner visa application on 2 April 2020.

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