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Suppose you have a client who has entered Australia on a visa that is subject to a “no further stay”  condition (Condition 8503) but the client has managed to persuade the Department to “waive” that condition on the basis that “compelling and compassionate” circumstances have developed.

Will the fact that the client has been able to get Condition 8503 waived also enable the client to get a waiver of Schedule 3  criteria on the basis that there are compelling reasons not to apply those criteria?

In other words, if someone succeeds in getting Condition 8503 waived, does it mean that they are “automatically” entitled to a waiver of Schedule 3?

This seemingly “arcane” legal question was at the heart of a case that was decided by Judge Markovic of the Federal Circuit Court last December: Liu v Minister for Immigration and Border Protection,  (2015) FCA 1368 (7 December 2015).

The factual background of this case was as follows: The visa applicant (Mr Liu) had originally entered Australia from China in December 2003 on a “Business (Short Stay)” visa that was subject to Condition 8503. That visa expired in January 2004. Thereafter, the applicant remained in Australia as an unlawful non-citizen.  He made a number of visa applications which were refused by the Department.

In December 2009, Mr Liu met a woman who was apparently either an Australian citizen or permanent resident. He commenced a relationship, and ultimately married her in February 2012. Then, in July 2012, he applied to the Department for a waiver of the 8503 condition.  The application for this waiver was based on his wife’s health condition at the time (which was not described in Judge Markovic’s judgment).

The Department saw fit to approve the application for a waiver of Condition 8503. However, in its letter granting the waiver, the Department stated:

“The waiver of the 8503 condition should not be seen as an indication of the outcome of any further substantive visa application you make or that a further substantive visa will be granted to you.”

As a result of having obtained the waiver of the no further stay condition, Mr Liu was able to lodge an application for a further visa.  He therefore applied for a partner visa on the basis of his marriage. This application was lodged on 14 September 2012.

The difficulty for the applicant was that, by the time he applied for the partner visa, he could not comply with the requirements of Schedule 3: he had not applied for the partner visa within 28 days of the date that his initial Business (Short Stay) visa had ceased to be in force.  Therefore, his prospects for getting the partner visa hinged on his being able to obtain a waiver of the Schedule 3 requirements on the basis of there being “compelling reasons” for the criteria not to be applied.

In the first instance, the Department refused the partner visa on the basis of Mr Liu’s failure to satisfy the Schedule 3 criteria. When the case came before the Tribunal, it concluded that the applicant had failed to demonstrate that there were compelling reasons to grant a waiver ofSchedule 3 (among other things, the evidence before the Tribunal established that the applicant’s wife had completed chemotherapy treatment before she met the applicant and that there was no evidence about on-going medical treatment for the wife’s alleged “bi-polar” condition.

The applicant then took his case to the Federal court.

In essence, it was his argument, both before the Federal Circuit Court, and later before the Federal Court, that the fact that he had been able to show that there were compelling circumstances for a waiver of the 8503 condition meant that there were also compelling reasons for Schedule 3criteria not to be applied in his case.

However, this argument “flopped” at both levels of the Federal courts.  Both the Federal Circuit Court and the Federal Court held that the issue of whether Condition 8503 should be waived, and whether Schedule 3 criteria should be waived, were entirely separate questions.  (Although it is not expressly discussed in the decision of the Federal Court, it is apparent that the compelling circumstances that were in existence at the time the Department saw fit to grant the waiver of the 8503 condition (the medical condition of the applicant’s wife) were not “extant” at the time that the applicant had failed to comply with Schedule 3 (inasmuch as he had not even met his future wife within the 28 day period after expiration of his original visa).

So the moral of this particular story is that, just because there may be “compelling circumstances” at one point in time which may justify the waiver of a no further stay condition, it does not necessarily mean that Schedule 3 criteria will be waived.  The question of whether a waiver of Condition 8503 should be granted is entirely separate from the question of whether Schedule 3 criteria should not be applied. Each issue needs to be considered separately and on its own merits.

For assistance on Schedule 3 and Waiver 8503 contact a registered Migration Agent

 

Courtesy of Migration Alliance