Condition 8503 and its Implications

Describe about the Report for Australian Immigration Law of Visa Under Subclass.

To,

The Minister for Immigration and Border Protection

Re: Application for Waiver of Condition 8503

Dear Sir,

This is to bring to your kind notice that my client, Sukhon Chaiprasit, a citizen of Thailand aged 25 years, seeks waiver of condition 8503 from his visitor’s visa which is to be expired in the coming few days. The reason why my client is seeking waiver of this visa is because he wants to apply for Class UB Medical Treatment Visa under subclass 602.

It has been seen that Condition 8503 is a widely imposed condition on many Australian Visas. This condition is also referred to as “No Further Stay Condition[1].”  Existence of this condition on an applicant’s visa means that the person who is holding visa shall not be entitled to hold any other substantive visa except protection visa for the time he stays in Australia. Hence, this means that application of this condition on any visa prohibits an applicant from filing any other visa except protection visa until the time the person stays within the territory of Australia[2]. Ideally, condition 8503 is imposed on any of the following visas:

Visitor Visa (Sub class 600), either sponsored family stream or approved destination stream

Research or training visa (Subclass 402) for the development of the professional stream only

Holiday and work visa if a person held two subclass visas earlier[3].

If the “No Further Stay Condition” is attached to the visa of any applicant then he has to leave Australia the moment his visa has expired and will have to apply for a fresh visa from his national[4]. Thus, condition 8503 prohibits a person from applying a new visa while staying in Australia at the expiry of his present visa. The person who holds visa subject to condition 8503 will have to leave Australia and apply for a fresh visa whether temporary or permanent in nature[5]. However, as per the Migration Regulation, 1994 under Regulation 2.05 (4) and under subsection 41 (2) (a) of the Migration Act 1958 certain criterion have been stated based on which the waiver of the condition may be sort[6].

According to Regulation 2.05 (4) of the Migration Regulation 1994, a person on whose visa condition 8503 is imposed, cannot apply for any other visa while he is staying in Australia unless he satisfies the existence of any of the circumstances, which in the opinion of the Department is sufficient enough to waive condition 8503. Additionally, the applicant will also have to satisfy that the Minister for waiving condition 8503 denied no prior application[7]. Hence, according to section 41 (2) (a) of the Migration Act, 1958, the authority of the Minister to grant waiver of condition 8503 depends on the existence of some of the circumstances which in the opinion of the Department is compassionate or compelling in nature or beyond the control of the visa holder. The situation may be of such a nature that it led to major change in the present circumstance of the visa holder[8].

Criteria for Waiving Condition 8503

In the case of my client, Sukhon Chaiprasit is eligible to obtain waiver of condition 8503 attached to her visa and she is qualified under exception Regulation 2.05 (4) of the Migration Regulation 1994 and subsection 41 (2) (a) of the Migration Act 1958[9]. Based on the following reasons, one may say that Sukhon Chaiprasit is eligible for waiver:

Sukhon, while she stayed in Australia, was attacked by the CBD at the time she was returning from dinner. When this attack took place in Australia, she held visitor visa under sub class 600.

As a result of the attack that took place, the doctor advised her to stay in Australia without travelling for at least for a period of 6 months.

As per the requirement of her present health condition, she was told to visit the Australian hospital every 2 days for regular checkups.

Crimes Compensation Tribunal was paying the expenses of her treatment.

She was a prime witness of the incident that took place against her in Melbourne.

It is evident from the facts stated above that the situation, which my client faced, was beyond her control and that she needs immediate extension of her visa. It is beyond the control of an ordinary intelligence to know that she will be attacked in Melbourne because of which she will  go through unnecessary issues regarding her health and stay in Australia. Hence, in behalf of my client I would like to make a request to the Department to kindly waive the condition from her visa so that she is able to extend her stay in Australia.

My client, Sukhon Chaiprasit, successfully satisfies the criteria, which is laid in the law of immigration in Australia and is therefore qualified for being granted waiver of condition 8503. After successful waiver of condition, 8503 she will be able to apply for Class UB Medical Treatment visa under subclass 602 based on her existing health condition. In my opinion, there is existence of compassionate and compelling situation for which the condition should be waived from her visa. My client had no control over the situations, which she had to go through in Australia. Additionally, the doctor has advised her not to travel for at least 6 months as her health condition is not good and she will have to visit the Australian hospital for regular check up after an interval of every 2 days. The physical condition of my client does not permit her to travel outside Australia so it becomes important for the Department to waive condition 8503 from her present visa. The Criminal Compensation Tribunal was paying her for the injuries that she had to suffer in Melbourne. Hence, the Department cannot ignore the report of my client and rejection of his waiver may cause adverse effects on my client’s health.

Case study of Sukhon Chaiprasit

Thus, it is an earnest request to the Department to use their discretionary power as laid in section 41 of the Migration Act 1958 and grant waiver of condition 8503 from the visa of my client. Additionally, to continue her stay in Australia my client also requires grant of visa subclass 602 as my client has qualified all the conditions needed for waiver of condition 8503 from the visa. Her situation is compelling or compassionate in nature that led to change in her existing circumstances. She has also not applied for any other waiver application in the past, which was rejected by the department. Hence, the Department should consider my client’s present condition and accordingly waiver over condition 8503 should be removed from her visa. For the perusal of the Department, the report of the doctor is attached along with the given application.

Thanking you.

Yours Sincerely,

Registered Immigration Officer

As per the Migration Act, 1958, section 48 deals with the prohibition of visa holders to apply for new visas in Australia. This prohibition is applicable on people who hold criminal justice visa, bridging visa or enforcement visa. In the case of Sukhon Chaiprasit, her application of visitor visa is invalid as Class FA, subclass 600 (tourist stream) has condition 8503 imposed on it and this does not meet the requirements of section 48 of the Migration Act 1958 of waiver.  This means that that the no further stay condition, before applying for any other visa making her submission of visa under section 46 of the Migration Act 1958 is void[10].

According to Regulation 2.05 of the Migration Regulation 1994, the first step should be to write a submission to the Ministry for waiving the “no further stay condition” before applying for any other visa in Australia. In case, the waiver is denied then the application of bridging visa is permissible[11].

As per section 46 of the Migration Act, 1958, an application for visa is considered invalid when the visa applicant is in the migration zone since the time he or she has arrived in Australia. Additionally, the visa may also be deemed to be invalid if the applicant holds a visa having a condition imposed on it which the Minister denied waiver and a fresh application of visa cannot be held valid unless proper waiver is granted.

In the case of Sukhon Chaiprasit, fresh application of visa was not valid, as she did not receive waiver of condition 8503 in the first attempt. This condition was attached to her visa of Class FA, subclass 600 (tourist stream). This condition imposed restriction on any person from applying any other visa while the visa applicant continues his stay in Australia. Since in this case, the waiver was denied hence application of any fresh visa becomes invalid. Additionally, Sukhon is subject to section 48 of the Migration Act, 1958, as she has the eligibility of presenting her case on grounds of compelling or compassionate reasons and hence she has eligibility of applying for waiver of condition 8503.

Applying for a new visa in Australia

The code of conduct is mentioned as part of Schedule 2 of the Migration Act 1958[12].  According to this schedule, every migration officer in Australia has to comply with certain code of conduct that he or she needs to abide by. In the case of Sukhon, the breach of conduct that the former migration agent committed was that he failed to determine that the present visitor visa of Sukhon is subject to condition 8503, which should be waived first before application of a fresh visa in Australia. Thus, we may conclude that the migration agent violated section 2.1 of Code of Conduct for migration officer, which required to him to act in the best interest of the client that is to act in fairness and due diligence[13].

Hence, in the case of Sukhon it was implied that the migration agent would be aware of the rules as contained in section 46 of the Act as per which he was required to first write a submission to the Minister for waiving his condition 8503 before applying for fresh visa. According to section 2.5 of the Code of Conduct, a migration agent has the duty to take appropriate efforts to improvise knowledge about Migration Act in Australia. Since the migration agent of failed to keep himself updated about the migration rules he failed to comply with the duties of a migration agent[14].

Hence, it may be said that the migration agent of Sukhon failed to follow the standards as mentioned in the Code of Conduct of the Migration Rules. He failed to utilise his diligence and acted recklessly without bringing it to the knowledge of his client that the condition 8503 needs to be imposed from his visa first and then apply for a fresh visa.

References:

border.gov.au. last accessed. 6 Aug. 2016.

Crossin, Patricia. Administration And Operation Of The Migration Act 1958. Canberra: Legal and Constitutional References Committee, 2006. Print.

Humphrey, Michael. “Migration, security and insecurity.” Journal of Intercultural Studies 34.2 (2013): 178-195.

Migration Act 1958. 1st ed. 2005: 46-49  last accessed 6 Aug. 2016.

Migration Act 1958. 1st ed. Minister for Immigration and Border Protection, 2014: 64-103 Last accessed. 6 Aug. 2016.

Migration Act 1958. Canberra: Commonwealth of Australia, 2004. Print.

Migration Regulations 1994. 1st ed. Legislative Drafting and Publishing, Attorney-General’s Departmen, 2012. Last accessed: 6 Aug. 2016.

Murphy, Ken. Immigration. 13th ed. Sydney: Robert Wilson, 2014: 996-1000 last accessed 6 Aug. 2016.

Ruddock, Philip. “Refugee Claims and Australian Migration Law: A Ministerial Perspective.” UNSWLJ 23 (2000): 1.

Sackville, Ronald. “Judicial Review of Migration Decisions: An Institution in Peril.” UNSWLJ 23 (2000): 190.

Williams, Janet and Michael Klapdor. Migration To Australia Since Federation. 1st ed. Australia: N.p., 2010: 13-14  Last accessed: 6 Aug. 2016.