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Successful court challenge of decision to refuse Condition 8503 waiver

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As many people are aware it is incredibly rare to have the condition 8503 waived (removed) from one's visa. However the recent Federal Circuit Court decision of Nguyen v Minister for Immigration gives a valuable insight as to when a decision to refuse a waiver may be successfully challenged in the courts.

A decision to refuse a condition 8503 waiver request cannot be reviewed by the Administrative Appeals Tribunal. Therefore in order to challenge any refusal to waive condition 8503 it is necessary to seek judicial review in the Federal Circuit Court and to demonstrate that the Department's decision maker misinterpreted the waiver provisions of the Migration Regulations, namely regulation 2.05(4), which provides that a waiver may be granted if since the grant of the visa containing the 8503 condition, compelling and compassionate circumstances have developed over which the visa holder had no control.

Background of the applicant's case

The applicant entered Australia from Vietnam in 2010 as the holder of a sponsored family visitor visa. Condition 8503 is a mandatory condition that must be imposed on sponsored family visitor visa.

After the applicant's visa expired she remained in Australia for about 6 years as an unlawful non-citizen.

In support of her application for a condition 8503 waiver, the applicant advanced a number of circumstances, which included that:

  • She had married a man in Australia since the original visitor visa had been granted;
  • She had become the step-mother of a girl whose mother had abandoned her at a young age;
  • That she had developed a strong parental relationship with the step-daughter, who had become dependent on her for her well-being;
  • That her husband, who had  pre-existing medical conditions relating to a back injury and back surgery, had developed physical and emotional dependence on her;
  • That her husband’s back injury had developed and he had been increasingly suffering pain;
  • That her husband’s medical conditions meant that she had been increasingly providing essential care for him.

Decision of the Department 

The Department held that since the applicant's husband's back injury had occurred many years prior to the grant of her sponsored family visitor visa, she could not rely on his medical condition for the purposes of a condition 8503 waiver. The Department also held that the applicant's marriage and her relationship with her step-daughter were matters that where within her control, and that she could therefore not rely on those factors either.   

The delegate had decided that since the applicant’s husband’s back injury had “occurred” in 2001, many years prior to the grant of her visitor’s visa, that the applicant could not rely on his medical condition for the purposes of a waiver of the no further stay condition, and that because the applicant’s marriage and her relationship with her step-daughter were matters that were within her control, she could not rely on these factors either.

Question for the Court to decide

Was the Department's interpretation of regulation 2.05(4) incorrect? The Federal Circuit Court held that it was.

The Court held that the proper interpretation of Regulation 2.05(4) is not to look to when circumstances have “occurred” since the date of visa grant, but rather to look to whether the circumstances have “developed” since that time.

It was the Court's view that there had been circumstances that had “developed” since the visa grant, such as the increasing pain and dependence of the applicant’s husband, and the strong parental relationship between the applicant and her step-daughter.

The Court concluded that the Department had committed an error by limiting their analysis to whether the applicant had chosen to marry her husband and to form a relationship with her step-daughter, and disregarding other matters that were beyond the applicant’s control (for example, the age and gender of the applicant’s step-mother, that her step-daughter had been abandoned by her biological mother at a young age; and that her step-daughter and husband had become dependent upon her.

What this Federal Circuit Court decision tells us is that when considering a court challenge of a refusal of a condition 8503 waiver, very careful attention needs to be paid to whether the Department (improperly) confined consideration to whether a particular circumstance first “occurred” prior to the grant of the visa, rather than whether the circumstance “developed”. 

And also: if the Department’s decision is limited to whether an applicant has married someone, and does not take into account other “consequential matters” – such as the development of strong emotional bonds between an applicant and step-children, or the development of strong dependency on an applicant for physical and emotional support – then again, the decision may be one that is affected by error, and may be able to be overturned.

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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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What this decision also tell us is that the longer you stay in Australia as an unlawful non-citizen the greater you chances become of satisfying a condition 8503 waiver. If the applicant had applied soon after arriving in Australia she would not have been successful, but her remaining 6 years in Australia as an unlawful non citizen changed that. 


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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2 hours ago, Bridge said:

What this decision also tell us is that the longer you stay in Australia as an unlawful non-citizen the greater you chances become of satisfying a condition 8503 waiver. If the applicant had applied soon after arriving in Australia she would not have been successful, but her remaining 6 years in Australia as an unlawful non citizen changed that. 

Exactly.

I have no problem with the courts interpretation of regulation 2.05(4). However it is interesting that her several years of residing in Australia as an unlawful non-citizen enabled her circumstances to change so that she met the criteria for a Condition 8503 waiver. Added to this the taxpayer had to pay her legal fees which amounted to $7467. The Government's own legal fees, represented by prestigious law firm Clayton Utz would have been substantial too.     


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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Just now, Nightcall said:

I have to agree with the court's interpretation of regulation 2.05(4), clearly the longer you stay in the country the more likely you meet the conditions of a waiver for 8503 as most matters that occur post this are outside your control and will continue to be. 

 

I agree withe courts interpretation too, just ironic thought that her lengthy period of stay in Australia as an unlawful non-citizen made her eligible for a condition 8503 waiver.


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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On 6/10/2019 at 8:55 PM, Nightcall said:

Wonder how long it takes to fix the hole?

I predict they will patch this within months by an administrative change to the 8503 conditions, citing precedence of being an illegal, negates all eligibility to apply for a waiver.  Then, and I would estimate within 6 months a regulation change to make it retrospective.

Whilst I agree that that the court's interpretation of 2.05(4) is valid, I expect that IMMI will launch an appeal based on the 'eligibility of the individual to apply for a waiver, as at the time they were illegal'. 

 


 

 

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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