Proving a major change in circumstances beyond your control to waive an 8503 condition

July 29, 2016 - Unreported Cases

If an 8503 condition is attached to a visa, the visa holder is precluded from applying for a temporary or permanent visa, other than a protection visa, while they are in Australia. The condition is attached to a Tourist Visitor visa (subclass 600) on a discretionary basis, where the decision maker has residual concerns as to the applicant’s intention to remain in Australia temporarily, but the applicant otherwise satisfies visa criteria. It is very difficult to waive the 8503 condition. Although each case is assessed on its own merits, on average only 20 per cent of applications to waive the condition are granted.

While offshore, the Applicant applied for a Visitor visa (subclass 600) which was granted in June 2015 and due to expire in late June 2016. She had last arrived in Australia under that visa in late March 2016 to visit her spouse, an Australian permanent resident. The Applicant came to Immigration Solutions Lawyers to seek assistance lodging an 8503 waiver request. At the time, she was 36 weeks pregnant. She sought the waiver so that she and her partner may apply for an onshore Partner visa (subclass 820).

Immigration Solutions Lawyers advised the client that in order to successfully waive the condition, the Applicant must show three things:

  • The Applicant’s circumstances at the time of visa grant;
  • The reason why the condition was imposed; and
  • Significant changes in the Applicant’s circumstances outside of her control since her arrival in Australia.

When the Applicant’s Visitor visa was granted she had only recently married her partner and was not yet pregnant. In a detailed submission Immigration Solutions Lawyers submitted that the condition was likely imposed because the Applicant’s country of citizenship is considered by the Department of Immigration and Border Protection (DIBP) to be a high-risk country.

While DIBP policy indicates that pregnancy is not considered to be a relevant change in circumstances for the purpose of a condition 8503 waiver, we argued that the Applicant’s inability to fly due to the advanced stage of her pregnancy should be assessed as a compelling and compassionate reason. Additionally, the child born would be an Australian citizen. The Applicant and her newborn child would not be able to fly for some time after the birth and it would cause the child hardship if the mother were to be declared illegal at the expiration of her visitor visa and forced to depart.

Evidence supporting the above arguments was submitted with the waiver request. This evidence included a statement issued by the Applicant’s managing doctor advising against travel, statutory declarations and proof of the Applicant’s marriage to an Australian permanent resident.

Shortly after the request was lodged, the Department of Immigration and Border Protection returned a notification of approval and waived the condition. The Applicant is now able to apply for another visa without first leaving Australia.

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