It is very rare for a Department officer to not waive the “no further stay” condition (Condition 8503). It is even more rare when the condition is challenged in Court and succeeds. The case of Nguyen v Minister for Immigration did just that.
What is Condition 8503?
A “no further stay” condition doesn’t allow visa holders to apply for another visa while residing in Australia. The visa holder cannot remain in Australia once their visa has expired.
Challenging the Decision of a Department Officer
Decisions made by a Department officer cannot be heard in the Administrative Appeals Tribunal, they are reviewed in the Federal Circuit Court.
In order to have a matter heard in the Court, it must be proved that the decision to refuse to wave the condition was due to a jurisdiction error, for example, the officer misinterpreted Regulation 2.05(4). This regulation states that a waiver can be granted if there have been compelling and compassionate circumstances that have developed over time which the visa holder could not control.
The Facts of Nguyen v Minister for Immigration
The applicant came to Australia in 2010 with a sponsored family visitor visa; after her visa expired she continued to reside in Australia for roughly six years as an unlawful non-citizen.
The applicant made reference to a number of circumstances to support her application for the waiver. The circumstances outlined included:
· She married in Australia;
· She is the step-mother to a girl whose mother had abandoned her at a young age;
· She developed a strong relationship with her step-daughter, who has now become dependent on the step-mother;
· Her husband had pre-existing medical conditions and has now developed a physical and emotional reliance on her;
· The husband’s back injury has deteriorated over time and his pain is worsening;
· Due to her husband’s medical condition, it meant that the she has been essential to providing the care that he needs to manage his condition.
The Department Officer’s Decision
The Department officer decided that because the applicant’s injury occurred nine years prior to the applicant’s arrival in Australia, she was unable to rely on the medical condition to have the no further stay condition waived.
The officer also decided that the applicant’s marriage and relationship with her step-daughter were within her control and therefore could not rely on those points in her application for the waiver.
The officer denied her application to waive the no further stay condition.
The Judge had to analyse whether the circumstances that were submitted developed over time. Regulation that governs the waiver states that the circumstances have to develop over time and the applicant did not have control over those circumstances.
The Judge believed that the husband’s increasing pain and dependence on the applicant and the parental relationship with her step-daughter were circumstances that have developed over time since she was granted the visa.
It was the Judge’s opinion that the Department officer was incorrect in the idea that the choice to marry and the relationship with her step-daughter were issues within her control. The officer chose to disregard matters that were out of the applicant’s control, such as:
· The age of the step-daughter;
· The fact that the step-daughter was abandoned by her biological mother; and
· The reliance that both the husband and the step-daughter have on the applicant.
When considering challenging an officer’s decision of a refusal of waiver, it must be proved that the officer improperly interpreted the regulation and the circumstances that occurred. The Department officer’s decision needs to look at the circumstances that have developed over time and the relationships that may have formed.
If you need advice in relation to a waiver application or challenging a decision, Results Migration is here to help! Call us on 1800 808 717 or email us on firstname.lastname@example.org to book your free consultation today!