Waiver of visa condition 8503 (Third Time is the Charm)
Persistence paid off once again with another win for the NB Sydney Team who helped a client become lawful and remain in Australia after almost two decades. The client pleaded for our help after failing their case with another migration agent. The agent that eventually took her case did little to advocate on her behalf to get the desired result she was looking for. Hopeless but determined, the client sought legal advice from the NB Sydney Migration team. As a result of the effective submissions by Sydney team 1, the client achieved a successful outcome and condition 8503 was, at last, waived. This made the client and her family ecstatic.
The client was a secondary applicant, a dependent child under the legal age when she arrived in Australia with her parents on a Tourist visa almost two decades ago. The parents decided not to return to their country and overstayed their visas. Subsequently, they applied for a protection visa which was refused which made the applicant and her parents’ unlawful residents in Australia. This was unbeknownst to the applicant due to her age and lack of understanding of the specifics of visa conditions or the immigration process for that matter. On the other hand, the applicant met the love of her life, got married and had a child. After many years, she is now able to secure her future with her child, but more importantly, her husband, who was severely impacted whilst seeking the waiver of condition 8503. The husband was diagnosed with mental health issues stemming from this legal hurdle and simultaneously, the applicant’s in-laws’ health was also deteriorating.
So, what was behind the waiver condition submissions that yielded a fruitful result?
8503 visa condition is no further stay once you enter Australia, it means that you cannot apply for a substantive visa other than, e.g. a protection visa. This applies even if the visa with the condition is no longer in effect. Before the condition is waived, one must demonstrate that since the time you were granted the visa that was subject to the condition, compelling and compassionate circumstances have developed: over which you had no control; and that resulted in a major change in your circumstances. If you have previously made a request for a waiver of condition 8503 which was unsuccessful, you must show that your circumstances for a new request are substantially different from those previously considered. Compelling and compassionate circumstances encompass one’s unfitness to travel, medical health conditions, death or serious illness of a close family member, civil unrest in the home country, and other personal circumstances the Department takes into consideration.
The Applicant’s home country is a prosperous one, so the Department emphasized this as an incentive for the applicant’s return. However, we contested this notion because of the following reasons: the husband and the child were Australian, and the applicant’s complete assimilation into the Australian culture was so deeply embedded that for her to go back without knowing the language and being raised in Australia for most of her adult life would be a detriment and a cultural shock, to say the least. We deemed the parents responsible for this decision that kept their daughter in this limbo for so many years that were beyond her control. In addition, the husband has a career and earns a decent livelihood; therefore, it would be unreasonable for him to return to a foreign country and start from scratch to support his family, albeit in an unknown territory without knowing how to even communicate. To add to the evidence, we also purported that the refusal decision is a violation of human rights. The applicant, being unlawful will eventually wind up in detention, and detainees are at high risk of developing mental health issues. We also applied the non-refoulment
obligation of the UN to present our case that her home country is on a low standard of living index. Despite being a global superpower, it is below the Australian level and would be a detriment to the Applicant and the applicant’s family. Albeit the latter claims of the husband’s mental health, the deteriorating health complications of the in-laws were supplemented with extensive medical reports. One of the in-laws was diagnosed with cancer, and we argued that the husband is unfit to travel, and finally, the in-laws are the ones the applicant is taking care of since they are in the later stages of their lives.
In these types of submissions, it is best to provide as much evidence as possible and to look at it from every angle possible. The previous two submissions which were refused focused on the applicant’s husband and the applicant’s in-laws’ circumstances and less on the consequences for the applicant should she return home. To prevent this, it would be useful to look at international legal instruments and country of origin information and delve deep into the crux of the issue to be able to get an approval grant for current clients and incoming future clients.
Talk to the migration team at No Borders Law Group today.
Tel: +61 7 3876 4000