A ‘no further stay’ condition actually restricts the holder of the visa from making any application in context of temporary and permanent business visas till the time they are staying in Australia. ‘No Further Stay’ conditions cover condition no. 8503, 8534, and 8535.
If any such conditions have been forced on the visa holds by the person, then it is not possible for the person to apply for any other visa. There is one exception also; as person can apply for the protection visa or a temporary visa of a specified kind during their stay in Australia. It must be noted, that if any person does not possess the right to stay in Australia because of the expiry of their visa then such person must depart from Australia. Once visa holder departs from the Australia, then this condition does not restrict the person and he or she can apply for any other visa.
Validity of the visa- request related to waiver of ‘No Further Stay’ conditions is not decided on immediate basis, because it requires evaluation of legal criteria and situations. Possibility is also there that department makes the decision related to the request of the individual after the expiration of visa.
Request for waving the condition does not automatically allowed the person to lawfully stay in Australia till the time request is decided. If visa hold by the person expires before the decision of the department related to the request then such person becomes unlawful citizen of Australia. This situation can result in serious consequences.
Any person must hold valid visa for the time he/she stays in Australia and must comply with the conditions of his visa. Holder must depart from Australia before or on the day on which visa expires. In case visa of the person expires during the time of their stay in Australia, then also person can depart.
If person stays in Australia after the expiry of his visa, then they become an ‘unlawful non-citizen’. It is the responsibility of the person to make sure that they hold valid visa during their complete stay in Australia.
In the present case, visitor visa granted to the Patrick is expired before he makes the application for the Carer visa (subclass 116), on the basis that his request to stay in Australia for the purpose of taking care of his sick brother, Tom Sheehan. Later, department stated that visa application made by Patrick is invalid because he is bound by the condition 8503.
After considering the facts, it can be said that visa application made by Patrick is invalid. If person wants to stays in Australia, then such person must hold valid visa for the time he/she stays in Australia and person must comply with the conditions of their visa. Person must depart from the Australia before or on the day on which visa expires. If person stay in Australia after their visa has expired, then they become an ‘unlawful non-citizen’. It is the responsibility of the person to make sure that they hold valid visa during their complete stay in Australia.
Therefore, it can be said that visa application made by Patrick is invalid because Condition 8503 is still applicable on Patrick.
Carer visa (Subclass 116) is the visa which allowed the person to move in Australia for the purpose of:
Following is the eligibility criteria for applying the carer visa:
It is the obligation of the person to fulfill with all the conditions imposed on their visa and other necesary laws of the Australia.
Section 116 (1) (b) of the Migration Act 1958 states, minister has power to cancel the visa of the person if such person fails to comply with the condition of the visa. In other words, if person fails to comply with any applicable condition related to the visa then minister holds the power to cancel the visa of the person.
In the present case, clause b of section 116(1) is applicable on carer visa because Patrick applied the visa while staying in the Australia. As per the eligibility criteria of this visa application, visa must be made outside Australia at the time when visa is granted.
Patrick failed to comply with the condition of this visa because of which section 116 provide power to the minister to cancel the visa on the basis of provision b of this section. Patrick can apply for Carer Visa (subclass 853) because this application can be made by the person while staying in Australia.
Condition 8503 is the condition which is common for different kinds of visa and prevents the holders of the visa to make applications for other types of visa during their stay in Australia. It must be noted, sometimes officer applied this condition on their discretion and in some cases it is mandatory in nature.
If this condition is attached with any visa application in Australia, then it is possible that department applied this condition in subsequent visas also, even though such condition is not mandatory for the new application of the visa.
This condition prevents the holder of the visa to apply for any other visa while staying in Australia, except for a protection visa. Applications forms related to the relevant visa include all the information in context of 8503, and it also defines the acknowledgement that person understands and accept the condition which is imposed on their visa. Person also acknowledges that he does not apply for further visas during his stay in Australia. In other words, person is not able to send an application from Australia to an Australian Embassy, High Commission.
Clause 1 of section 41 of the Migration Act 1958 states that regulations may provide that visas or any visa of the particular class may subject to particular conditions.
Clause 2 of this section states the general rules related to the particular conditions, and as per this without limiting subsection 1, rules stated that any visa or visa of particular class are subject to condition that, notwithstanding with any other provision of the Act, person who holds the visa after entering in the Australia will not be entitled to granted any substantive visa till the time he or she remains in Australia. There is an exception that is person can apply for the protection visa and temporary visa. Condition 8503 is also covered by section 41 of the Act.
Person can make the request of waiver of a ‘No Further Stay’ condition, but it must be noted that this request cannot be made at the time when person apply for visa which fall under this category. If person stays in Australia on the basis of any such visa on which condition 8503 is applied, and situations of that person suddenly changed, then such person can make the request of waiver. There is clear provision to waive the condition in particular situations.
Regulation 2.05 of Migration regulations 1994 defines the applicable conditions on the visas. Clause 4 of this regulation states that for the purpose of section 41(2) of Migration Act 1958, the situations in which minister may waive the condition are:
It must be noted that, in case minister previously refused the request to waive the condition, then for waiving the condition minister must be satisfied that situations stated in paragraph a are completely different from the situations which are considered previously by the minister. If person makes the request to the minister for waiving the condition then such request must be made in writing by the person.
If person made the request of waiver of a ‘No Further Stay’ condition, then he departmental officer who consider this request must be satisfied that all the requirements stated above are fulfilled in the case, which means:
It must be noted that waiver is not an automatic process, and decision in this regard is made after evaluating the situations on the basis of above stated laws and regulations.
However, some situations are also stated below which are not considered in the category that is beyond the control of the applicant:
Special situations that may apply to particular visa which have the 8503 condition, and information related to this is stated below:
Visitor visa (subclasss 600) is the family stream and tourist visa, and if person holds this visa applied for the waiver of a ‘No Further Stay’ condition and this results in extended stay of person in Australia even after the expiration of visa, then person also breached one more condition that is 8531 ‘Must leave before visa expiry’. In this context, penalties are imposed on the sponsor of the person and this penalty is imposed even though request of waiver is accepted and another visa is granted to the person.
In the present case, Patrick can apply for waiver of condition because as per the rule, if person made the request of waiver of a ‘No Further Stay’ condition, then the departmental officer who considers this request must be pleased that above stated requirements are fulfilled in the case, which means:
In these situations of the Patrick changes, therefore he can apply for waiver of condition.
Section 210 of the Migration Act 1958 states provisions related to the liability of non-citizen who is removed or deported for the removal or deportation. As per this section, any non-citizen who is removed or deported from Australia is liable to pay cost of removal or deportation to the department.
Section 251 of the Migration Act 1958 states provisions related to costs which are due to commonwealth. As per this section, without restricting any others section of Migration Act 1958, any cost payable by the person in this context is recuperated by the commonwealth in the form of debt which is due to the commonwealth in the Court of Competent jurisdiction.
A carer visa (Subclass 116) state is the permanent visa which allowed the person to permanent stay in Australia and provides care and help to their relative. For the purpose of applying this visa person must not have any outstanding debts to the government of Australia or if person have any outstanding debts then they must make necessary arrangements to repay all such debt due towards the government of Australia before the visa is granted to the person.
In the present case, Patrick cannot apply for this visa, because application of this visa is impacted by the non-payment of the cost order. Patrick is liable to pay cost to the FCCA under section 210 of the Act and section 251 states without restricting any others section of Migration Act 1958, any cost payable by the person under this division may be recovered by the commonwealth in the form of debt due to the commonwealth in the Court of Competent jurisdiction. Therefore, Patrick owns a debt towards the Australian government.
As per the requirements of Carer visa, person must not have any outstanding debts to the government of Australia or if person have any outstanding debts then they must make necessary arrangements to repay all such debt due towards the government of Australia before the visa is granted to the person.
It can be said that application made by Patrick is affected by the non-payment of cost.
2.To, Date: 15tth February 2018
National Character Consideration Centre
Subject: Submission to NCCC on behalf of Alex against order made under Section 501(2).
This paper address the grounds on the basis of which NCCC must revoke their decision to cancel the temporary subclass 820 visa granted to Alex.
NCCC gave their decision to cancel the visa on ground of Section 501(2) of the Migration Act 1958. As per section 501(2) of the Act, minister has power to cancel the visa of the person if any reasonable grounds are present which suspect the minister that person fails to clear the character test, and person actually fails the character test.
As stated above, if any person fails to fulfill this obligation of character test, then visa of that person is not automatically cancelled. Decision maker has power to decide whether they want to exercise their discretion under section 501 of the Act or not.
For the purpose of making the decision, minister considers different factor and these factors are stated in Direction No. 55. This direction is divided into two parts that are part A and part B.
Part A of this direction defines the primary consideration and some other important considerations also which must be taken into account while taking the decision. These considerations are stated below:
Protection of Australian community:
Minister considers the protection of the community of Australia from criminal or other serious conduct. While taking the decision, minister recognize the principle that government of Australia is committed to protect the community of Australia against any harm which cause from the criminal activity and any other serious conduct of the non-citizens.
Decision maker also consider the nature and seriousness of the conduct of the non-citizen till that date and also risk caused to the community because of the engagement of non-citizen in nay such conduct. For this purpose decision makers consider following factors:
After considering the above facts of this consideration, it can be said that Alex commit this offense for the first time and there is no offense committed by him during the immigration detention. Alex also not conducts any offense against the vulnerable members of the community such as minors, elders, and disabled. Therefore, it can be said he is not a serious threat for the Australian community and he does not put any barrier in the protection of the Australian community.
Interest of minor children:
Decision make must consider the fact whether their decision is in the best interest of minor children or not. It must be noted that this provision is applied if children is below the age of 18 years at the time when decision is made.In case there is more than one child, then interest of each and every child is considered individually. While deciding the best interest of the child, following factors must be considered:· Nature of the relationship between the minor child and non-citizen and also the time period of that relationship and the scope within which non-citizen can play the parental role of positive nature in the future till the time child turn 18 years of age. It also considers any other orders or arrangements made by the Court.· Influence of the non-citizen before occurring that conduct and any other future conduct of the person, and they also consider the negative impact of that conduct on the child.
Impacts on the child of the separation from the non-citizen.
Whether any other person is present who can fulfill the parental role related to the child.
Any evidence related to physical torture or neglect of the child by the non-citizen
After considering the factors, it can be said that, Alex has single daughter who born just few time before the commitment of this offense. Alex is responsible father and both Alex and his daughter share strong relationship with each other. Removal of Alex from Australia impacts the future of her daughter.
Expectations of society:
Community of Australia has expectations from the non-citizen that they comply with all the laws and regulations of the country during their stay in Australia. In case these expectations are breached by the non-citizen, when there is risk which not acceptable, when non-citizen breach the trust, and when non-citizen is convicted for an offense in Australia, then it is right to cancel the visa of the person.
However, Alex is not an unacceptable risk for the Australian community
Other considerations:
While taking this decision some other considerations are also there which must be taken into account:
· International non-refoulement obligations.
· Strength and nature of ties.
· Impact of refusal on the interest of Australian business
· Impact on the victims.
It is requested to the NCCC to consider all these facts while taking this decision, and revoke the decision of cancellation of visa under section 501(2).
Thank You
References
Website
ISA group, Visa Conditions, < https://isa.com.au/visa-conditions/>, accessed on 15th February 2018.
Department of Home Affiars, Waiving visa condition ‘No Further Stay’, < https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/fact-sheet-52b#waiver>, accessed on 15th February 2018.
Department of Home Affairs, Status Resolution Service, < https://www.homeaffairs.gov.au/trav/visa/visa-about-to-expire-or-expired/status-resolution-service>, accessed on 15th February 2018.
Hobart Community, Unlawful Non-Citizens, Removal and Deportation, < https://www.hobartlegal.org.au/tasmanian-law-handbook/community-and-environment/immigration-and-citizenship/unlawful-non-citizens>, accessed on 15th February 2018.
Department of Home Affiars, Carer visa (subclass 116), < https://www.homeaffairs.gov.au/trav/visa-1/116->, accessed on 15th February 2018.
Turner Coulsion, Carer Visas (Subclasses 116 and 836), < https://www.tcilawyers.com.au/carer-visas.html>, accessed on 15th February 2018.
Visa Solutions LLC, No Further Stay conditions, < https://www.australia-migration.com/page/No_Further_Stay_conditions/1161>, accessed on 15th February 2018.
Pearse, G. (2014), Visa Condition 8503 – No Further Stay condition, < https://careerup.com.au/visa/visa-condition-8503-stay-condition/>, accessed on 15th February 2018.
Seek Visa, No Further Stay’ (8503) Waiver, < https://www.seekvisa.com.au/no-further-stay-8503/>, Accessed on 15th February 2018.
Queensland Law Handbook, (2016), Visas for Visitors to Australia, < https://queenslandlawhandbook.org.au/the-queensland-law-handbook/your-rights-and-responsibilities/immigration/visas-for-visitors-to-australia/>, accessed on 15th February 2018.
Nowak, Direction no 65, https://nowakmigration.com.au/direction-no-65-visa-refusal-and-cancellation-under-s501/, accessed on 15th February 2018.
AHRC, Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act, https://www.humanrights.gov.au/publications/background-paper-human-rights-issues-raised-visa-refusal-or-cancellation-under-sectio-1, Accessed on 15th February 2018.
Hom Affairs. Direction No. 65, https://www.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf, Accessed on 15th February 2018.
Ombudsman, The Department of Immigration and Border Protection, https://www.ombudsman.gov.au/__data/assets/pdf_file/0027/42597/Own-motion-report-into-the-Administration-of-Section-of-the-Migration-Act-1958-final.pdf, Accessed on 15th February 2018.
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