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jono_sparkie

Removing condition 8503 from my partners tourist visa

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Desperately need some info very urgently guys. My girlfriend is in Australia on a tourist visa and she has to leave by 2 October (just over two weeks). We have just found out that she is 7 weeks pregnant. I called the immigration department yesterday, but they wouldn't speak to me on the phone about her visa. They told my girlfriend that her visa has 8503 on it so this means she cant apply for any other visa in Australia unless we can have it taken off.  We have been in a relationship for over a year now and registered our de facto relationship. Given all of these circumstances, will we have a good case in having this done. Has anyone been through the process? Please where do we start?  

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Sorry but from what you have posted you wouldn't meet any of the exceptional criteria, it's very common situation. Best of luck

https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/52b-nfc

Requesting a waiver of a 'No Further Stay' condition
The circumstances in which the Minister might waive a 'No Further Stay' condition are:

since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
over which the person had no control
that resulted in a major change to the person's circumstances
if the Minister has previously refused to waive the condition, the Minister is satisfied the circumstances mentioned in paragraph (a) are substantially different from those considered previously
if the person asks the minister to waive the condition, the request is in writing.
If you do request a waiver of a 'No Further Stay' condition, the departmental officer who considers your request must be satisfied all the above requirements apply in your case, namely:

the circumstances that have developed since you were granted the visa are both compassionate and compelling
you had no control over these circumstances
these circumstances have resulted in a major change to your personal circumstances.
A waiver is not automatic. Each request is decided by assessing your particular circumstances against the above legal requirements.

Circumstances not considered beyond the applicant's control
The following circumstances are not considered 'beyond the control' of the visa holder for the purposes of the waiver provisions:

marriage to (or commencing a de facto partner relationship with) an Australian citizen or permanent resident
 pregnancy (women who become pregnant while in Australia would generally need to have evidence they are unable to leave Australia).
 failure to complete a course due to failing a subject.

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Aussie_83 is correct.

To get a Condition 8503 waiver, the criteria is:

  • the circumstances that have developed since you were granted the visa are both compassionate and compelling
  • you had no control over these circumstances
  • these circumstances have resulted in a major change to your personal circumstances.

It has been held many times that being pregnant is not ground for a Condition 8503 waiver. However if complications around the pregnancy existed which mean that your partner couldn't travel, those circumstances may be grounds for a Condition 8503 waiver. See also: Waiving Condition 8503 No Further Stay


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Thank you for the fast responses Aussie83 and AFV,

I would still like to roll the dice and apply to have the Condition 8503, thus enabling my girlfriend to apply for the de facto visa in Australia. I guess it is just a case of nothing ventured, nothing gained. Is there a certain form that we need to use. Thanks again for all the advice here. 

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6 minutes ago, jono_sparkie said:

Thank you for the fast responses Aussie83 and AFV,

I would still like to roll the dice and apply to have the Condition 8503, thus enabling my girlfriend to apply for the de facto visa in Australia. I guess it is just a case of nothing ventured, nothing gained. Is there a certain form that we need to use. Thanks again for all the advice here. 

I really do not like your chances, but if you want to submit a waiver request, these are the details below.

Note: waiver requests are processed in the order that they are received. Generally it takes up to 28 days from when the request is received. I note that your girlfriends visitor visa expires in a little over two weeks. If the waiver request is not granted by then, she will become an unlawful non-citizen. 

How to request a waiver on ‘No Further Stay’ conditions

A request for waiver of condition 8503, 8534 or 8535 can be made by completing Form 1447 ‘No Further Stay’ waiver request or by request in writing by the visa holder.

To ensure your request is processed in a timely manner, you should email your completed form 1447 or your written request with all supporting documentation to the following email address: NoFurtherStayWaiverRequest@homeaffairs.gov.au.

If you are unable to email your request, you can post your completed 1447 form or written request with all supporting documentation to the relevant office below:

Department of Home Affairs
Brisbane No Further Stay Waiver Request Processing Centre
GPO Box 9984
Brisbane Qld 4001.

Processing times

Generally, it takes up to 28 days to receive an outcome on a waiver request. It might take longer if you are invited to provide further information or undergo a medical examination.

Decision cannot be reviewed

The decision not to waive condition 8503, 8534 or 8535 cannot be reviewed by the Administrative Appeals Tribunal or by another Department office. The Minister does not have any power to intervene if condition 8503, 8534 or 8535 is not waived.

If your circumstances change significantly after you have had a waiver request refused, you can lodge a second request. You must explain how the new circumstances are substantially different from those considered in your previous waiver request.

Also refer to the link I posted my previous post: Waiving visa condition ‘No Further Stay


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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I agree with what has been posted here. Pregnancy on its own is not grounds for a condition 8503 waiver.

I am reminded of a article that appeared in the media a few years ago on this very issue. Note the article refers to the TR 676 visa, which was previous visitor visa which then became the subclass 600 visitor visa. However the Condition 8503 is still the same of course 

 

Adelaide man fights to keep pregnant Russian girlfriend here

AN Adelaide man is fighting to keep his pregnant Russian girlfriend in Australia but immigration officials have rejected her pregnancy as a reason for a visa extension.

Single father-of-two Robert Pitt, 38, from Paradise, and Russian national Natasha Zaydenberg, 36, plan to marry after a whirlwind romance that started in March but have been told that "pregnancy is no grounds for a waiver'' on her three-month tourist visa.

Ms Zaydenberg arrived in Adelaide on March 10 with a visa to study English at UniSA to improve her skills as a manager of a Moscow restaurant chain.

The TR 676 visa stipulated "no further stay" as a condition, as well as "no work" and "limited study".

Robert Pitt met her through an online dating site soon after her arrival and the couple hit it off, to the point where Ms Zaydenberg moved in with Mr Pitt and is now five weeks pregnant with her first child.

However, their application to waive the "no further stay" condition on her visa was rejected and Ms Zaydenberg must leave Australia by June 10 or face deportation.

She is booked to fly out to Moscow on Tuesday, leaving Mr Pitt heartbroken.

"She will go back with the prospect of being a pregnant single mother unable to support herself, when I want her to stay so we can get married and have our Australian child," Mr Pitt said.

"My lawyer has told me it won't make any difference if we get married as she still has to leave under this visa.

"My own two little girls Mia and Rori adore her and she loves them. I am now looking at the prospect of financial ruin so I can travel to Moscow and support both of us while trying to get a visa to bring her to Australia.

"It may seem a quick romance but we are absolutely legitimate. Natasha did not want to move in at first but I convinced her and now with a baby on the way we want to get married."

Ms Zaydenberg is a widow from a previous marriage that broke down years ago, and her parents are divorced. She chose Adelaide to study because a friend lives here, and stayed with the friend in a city apartment before moving in with Mr Pitt, a form worker, whose own marriage broke down five years ago.

The application to change the visa was sought under legislation which allows conditions to be waived if "compelling and compassionate circumstances have developed over which the person has no control and that resulted in a major change to the person's circumstances".

In rejecting the application, Immigration officials noted "compelling circumstances are generally taken to refer to circumstances that are involuntary and are characterised by necessity such that the visa holder is faced with a situation in which there is little or no alternative but to seek to extend their stay in Australia".

The letter of rejection also noted "Pregnancy in itself would not be grounds for a waiver."

Immigration officials acknowledged a doctor's letter stating "given her age and that she has had no prior children, it is advisable for her not to undertake any unnecessary air travel'' but went on to say it had been determined Ms Zaydenberg did not face a situation where there was no alternative but to remain in Australia.

There is no right of review of the decision by the Migration Review Tribunal and under the Act, Immigration Minister Brendan O'Connor has no discretion to intervene.

A department spokeswoman said: "Australian courts have found falling pregnant does not meet legislative grounds for waiving condition 8503 (no further stay). It is up to a client who is onshore and subject to condition 8503 to depart Australia and apply offshore for a visa which is appropriate for their circumstances.''

The Source of this original article is: Adelaide man fights to keep pregnant Russian girlfriend here


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We posted on example several years ago where the circumstances led to a successful waiver of Condition 8503.

In a nutshell the visa holder was in Australia and unable to return to her home in Thailand due to the floods at the time. It is important to note that ALL of the grounds for the waiver were able to be met. The original post is here: Successful Condition 8503 'no further stay' Waiver

 


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There are now more complicated procedures in place within Immi for a 8503 Removal Application to be considered.  A positive removal decision can no longer be made by an individual case worker or Immi Officer. They must refer it to a formal internal review process.  However, they can make a refusal without consultation.  This is adding significant time for the removal application to be processed, and, is discouraging Immi officers from even considering a removal.

Chances of the removal of an 8503 are becoming EXTREMELY RARE.


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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2 hours ago, AussieDude said:

There are now more complicated procedures in place within Immi for a 8503 Removal Application to be considered.  A positive removal decision can no longer be made by an individual case worker or Immi Officer. They must refer it to a formal internal review process.  However, they can make a refusal without consultation.  This is adding significant time for the removal application to be processed, and, is discouraging Immi officers from even considering a removal.

Chances of the removal of an 8503 are becoming EXTREMELY RARE.

This is very interesting, I was unaware of this. However, I am well aware that it is a high threshold to get a waiver.


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10 hours ago, Bridge said:

This is very interesting, I was unaware of this. However, I am well aware that it is a high threshold to get a waiver.

Ive probably seen maybe 5 waivers in 10 years, that I know for sure were granted. People need to work with the system not constantly seek exemptions and special treatment.


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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@jono_sparkie I just read your post. Can you tell me whether you had any success with the condition 8503 waiver. I am wanting to try and get the condition removed from my wife's tourist visa. The circumstances are this. My wife was given a 3 month single entry tourist visa and has been in Oz since early September, and has to depart Oz by early December. We have been together for 5 years and married for 3. I have been reading that if she applies back in her country it can take up to 2 years for her to be given the visa. To me this is just way too long for us to be apart. I am unable to fly due to a chronic back condition and therefore unable to visit her. I receive the DSP and have a treating specialists report that I cant sit for extended periods of time. I would like to know how you went and whether you got the 8503 removed from the visa. Anything help here would be great.   

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15 minutes ago, Dan1965 said:

@jono_sparkie I just read your post. Can you tell me whether you had any success with the condition 8503 waiver. I am wanting to try and get the condition removed from my wife's tourist visa. The circumstances are this. My wife was given a 3 month single entry tourist visa and has been in Oz since early September, and has to depart Oz by early December. We have been together for 5 years and married for 3. I have been reading that if she applies back in her country it can take up to 2 years for her to be given the visa. To me this is just way too long for us to be apart. I am unable to fly due to a chronic back condition and therefore unable to visit her. I receive the DSP and have a treating specialists report that I cant sit for extended periods of time. I would like to know how you went and whether you got the 8503 removed from the visa. Anything help here would be great.   

Welcome to the Australian Visa Forum,

Condition 8503 is a frequently discussed topic on the forum. There are many threads and posts on this topic, and with regards to waivers too.

To be successful in having the condition removed, the visa holder must satisfy the following criteria:

  • That circumstances that have developed since they were granted the visa which are both compassionate and compelling
  • The visa holder had no control over these circumstances
  • The circumstances have resulted in a major change to the visa holders personal circumstances.

Based on what you have posted, unfortunately I do not think she would have any chances of success on having Condition 8503 removed from her visa. 


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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53 minutes ago, Dan1965 said:

@jono_sparkie I just read your post. Can you tell me whether you had any success with the condition 8503 waiver. I am wanting to try and get the condition removed from my wife's tourist visa. The circumstances are this. My wife was given a 3 month single entry tourist visa and has been in Oz since early September, and has to depart Oz by early December. We have been together for 5 years and married for 3. I have been reading that if she applies back in her country it can take up to 2 years for her to be given the visa. To me this is just way too long for us to be apart. I am unable to fly due to a chronic back condition and therefore unable to visit her. I receive the DSP and have a treating specialists report that I cant sit for extended periods of time. I would like to know how you went and whether you got the 8503 removed from the visa. Anything help here would be great.   

My girlfriend sent off her request on the 15 September. She has to depart Australia by the 2 October which is next Tuesday. We have an onshore partner visa ready to be submitted, but unless a miracle happens between now and Monday, she will have to depart Australia on Tuesday. I have contacted immigration and they have said that waiver requests are dealt with in the order they are received and it can take up to 4 weeks. Given that we haven't heard anything yet, we have resigned ourselves to the fact that she will have to depart Australia next Tuesday. If she does, she will apply for the 309 partner visa and then try and get a 12 month multiple entry tourist visa. 

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15 hours ago, Aussie_83 said:

One thing when you go for the tourist visa, treat it like a normal tv, the fact you have lodged a partner visa is just a helpful factor but you still need to address all the criteria.

Very good point indeed Aussie_83. 

Some people think that the fact that they have lodged a permanent visa application, will somehow guarantee the success of their tourist visa application. This is absolutely not the case. The tourist visa application must be treated as a stand alone application with ALL of the criteria for the grant of the visa satisfied. The fact that an applicant has applied for a permanent visa is indeed just a 'helpful factor'.

We recently had a member post about their application for a sponsored family visitor visa being refused. This application was made after they had applied for the subclass 309 & 100 partner visas. You can view that post here: Subclass 600 visitor visa for my wife rejectedWhat is interesting is the relevant part from the visitor visa refusal notice: You have indicated that you are married to an Australian resident and wish to travel to Australia for this reason. I understand that you have also lodged a subclass 309 Spouse Visa application. The processing of a spouse visa requires that the spousal relationship be assessed and tested against relevant criteria in order to determine that it is genuine and ongoing. In the absence of such an assessment having been made, I am unable to make a finding that your relationship, and thus the purpose of your visit, is genuine.

 


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Agree completely with AFV and Aussie_83. 

I would just add though. The fact that an applicant has applied for a permanent visa, say an offshore partner (subclass 309). Processing for that visa is currently up to 24 months. If applying for a tourist visa to visit their partner during this lengthy processing period, you could seek a 12 month multiple entry visa. However any period of stay granted is entirely at the discretion of the decision maker. 


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Thanks for all the responses. After looking into this much further, I think the only thing she can do is leave Australia and then apply for the partner visa from outside of Australia. Is there any way we can get special consideration to have the partner visa dealt with quickly given our circumstances? 

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4 hours ago, Dan1965 said:

Thanks for all the responses. After looking into this much further, I think the only thing she can do is leave Australia and then apply for the partner visa from outside of Australia. Is there any way we can get special consideration to have the partner visa dealt with quickly given our circumstances? 

Indeed the threshold for a successful Condition 8503 waiver is very high. Added to this, the Condition 8503 waiver needs to be decided before a persons current visa expires. 

A partner visa application might be prioritised where the applicant can demonstrate compelling and compassionate circumstances. You will need to make a request for priority processing with the visa office where your partner visa application is being processed and provide evidence to support your claim for priority processing. 

Note: By the very nature of partner migration, it could be said that every partner visa application has compelling and compassionate circumstances for priority processing. There is no  guarantee that an application will be given a higher priority as other partner visa applicants might have equally or more compelling and compassionate circumstances. IMHO compelling and compassionate circumstances may be where a person is terminally ill for example, but not just the fact that the applicant and sponsor will be separated for a lengthy period of time during the processing of their partner visa application. 

For more information see: Processing priorities for family stream migration


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