The ‘No Further Stay’ condition, also known as the 8503 condition, is an immigration condition that can be imposed on certain Australian visas. This condition prevents the visa holder from applying for another visa while they are in Australia, with a few exceptions.
When the “No Further Stay” condition is attached to a visa, it means that the visa holder cannot lodge a new visa application while they are in Australia, except in limited circumstances. This condition is typically imposed to restrict visa holders from extending their stay in Australia or changing to another visa category.
The purpose of this condition is to ensure that visa holders comply with the original intentions and conditions of their visa, and to prevent abuse of the immigration system. It is important to note that the “No Further Stay” condition is specific to each visa subclass, and its application can vary depending on the circumstances and visa type.
What are the “No Further Stay” visa conditions?
Condition 8503: This is the most common “No Further Stay” condition and is imposed on many temporary visas. It prohibits the visa holder from applying for another visa while they are in Australia, except in exceptional circumstances.
Condition 8534: This condition is often applied to student and student guardian visas. It prohibits the visa holder from applying for another visa while they are in Australia, except for a protection visa, temporary graduate (subclass 485) visa or a student guardian visa (subclass 590).
- Condition 8535: This condition is applied to some student visas. It prohibits the visa holder from applying for another visa while they are in Australia, except for a protection visa or a further student visa granted to the holder on the basis of support from the Commonwealth government or a foreign government.
What are the options?
If a visa holder wishes to apply for another visa while the “No Further Stay” condition is in effect, they would generally need to leave Australia and apply from outside the country. However, there may be some limited exceptions to this rule, such as obtaining a waiver to this condition.
“No Further Stay” and visitor visa
If the visitor visa is in the Sponsored Family stream, the imposition of a “No Further Stay” condition (8503) becomes mandatory. This prevents the visa holder from applying for another substantive visa other than a protection visa while in Australia.
S 41(2) of the Migration Act 1958 explicitly states that the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa) while he or she remains in Australia. If the visa holder is not eligible for a protection visa, the next issue would be to consider waiving the no further stay condition. According to r 2.05(4) of the Migration Regulations 1994, the Minister has discretion to waive a condition if:
- since the person was granted the visa, compelling and compassionate circumstances have developed:
- over which the person had no control; and
- that resulted in a major change to the person’s circumstances.
These words of compassionate and compelling are not defined within the legislation. Thus, the interpretation may be alluded to their common meaning. The online Cambridge Dictionary defines Compelling as; “If a reason, argument, etc. is compelling, it makes you believe it or accept it because it is so strong”, “to urge irresistibly” and “to bring about moral necessity”. Compassionate is defined as: “circumstances that invoke sympathy or pity”.
The term compelling and compassionate are used throughout the Migration Act, and notably, in rare instances, the Act allows that the fulfillment of just one of these criteria “compelling or compassionate” will suffice. However, the explicit definitions are not defined in the Migration Act itself and remains entirely at the discretion of the Minister in waiving these grounds.
What is considered a reason for waiving the no further stay condition?
Examples of major changes that are reasons for waiver include but are not limited to;
- death or serious illness of close family
- sudden medical condition resulting in inability to depart Australia
- natural disaster in home country
- war or civil unrest in home country
The Department has explicitly stated that reasons such as marriage, pregnancy or failing a course as unacceptable reasons.
Whether a circumstance or reason is compelling and/or compassionate ground is a question of fact and degree requiring a subjective assessment. Case law seeks to provide further clarity in defining and elucidating the terms of “compelling” and “compassionate”. In Plaintiff M64/2015 v MIBP , subject to waiving this condition, whether a particular reason or reasons is compelling involves an evaluative judgment based on the circumstances of the case. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end. It must therefore be satisfied that a major change happened while the visa holder was in Australia, the change in circumstances must have happened after the visitor visa had been granted and the change must have been beyond the visa holder’s control.
In Thongpraphai v MIMA  FCA 1590, the court found that what is required is an event or events that are far-reaching and most heavily persuasive.
Therefore, the ability to waive 8503 is of an exceptionally high threshold and incidental matters are not to be taken into account. The circumstances must be far-reaching so that they result in a major change to the applicant’s situation.
Waiving the 8503 condition sets an exceptionally high threshold, demanding robust justifications and compelling evidence that would need to be met in order to successfully obtain such a waiver. We would strongly recommend engaging experienced migration lawyers or agents to assist in compiling and drafting persuasive arguments to the Department to increase the chances of success.
If you wish to obtain professional advice, you should book a consultation with a lawyer who specializes in immigration law to find out more.
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