Australian Immigration legislation provides very limited number of situations when it possible to have a visa condition waived or have a permission of any particular type. For example, to stay longer in Australia or work longer in Australia.
NO FURTHER STAY CONDITION (INCLUDES 8503, 8534 AND 8535)
The burden of these conditions means you can’t apply for another substantive visa (unless it is a protection visa) until you leave Australia. If your visa has less than 2 months of validity remaining you can lodge a formal request to waive this condition.
If you applying for a waiver for “No further stay” condition, the circumstances that have arisen to justify a waiver must have occurred after the visa was granted and must not have been within the your control and must be compassionate and compelling.
Examples of what constitutes as compassionate and compelling circumstances to the DoHA include (not exhaustive):
Unfit to travel
If person sustains serious injury, fall very ill or are pregnant at a stage where it is medically unsafe to fly, such person is eligible for a waiver. Pre-existing medical conditions can also be considered for a waiver, so long as there has been a significant change in circumstances (condition has deteriorated greatly).
Death or serious illness or injury within close family in Australia
If a loved one in Australia has passed, is suffering serious illness, or is injured and you are required to stay for support, you may be eligible for a waiver to remain in Australia. This includes family members who are or were in Australia on a temporary visa. Similarly, pre-existing medical conditions of loved ones, even if close family member is in Australia on a temporary visa, can still be considered for a waiver, so long as there has been a significant change in circumstance (condition has deteriorated greatly).
Natural disaster in home country
You would not be expected to return home if your country has suffered a natural disaster and your safety would be a concern.
War or severe civil unrest in home country
You would not be expected to return to your home country if it is in an unstable condition and your safety would be a concern.
You may be eligible for a waiver if you are sponsored by the Commonwealth Government, an Australian State/Territory government or the government of a foreign country, but are applying for a temporary work visa to continue or commence their scholarship program (for example, a person undertaking studies on a Student visa followed by further training or work placements as part of their scholarship program), or the sponsoring government has provided written support for the waiver of your condition.
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).
There is no option to appeal a refused waiver application. If the visa holder still wishes to pursue a waiver, a following waiver request may be submitted but is likely to be refused unless their circumstances have significantly changed since the first request.
Being in breach of No further stay condition may result in the cancellation of the visa which will have a negative impact on ongoing or future visa applications.
CONDITION 8558 “NOT RESIDENT”
Parents may be sponsored by a child that is an Australian citizen of parent resident under the sponsored family stream visitor visa (Subclass 600). Depending on the circumstances, such as if the parent has already applied for a parent visa and are waiting for a decision from the DoHA, the visa validity and period of each length of stay may vary.
Condition 8558 applies to these visas and allow the visa holder to stay in Australia for no more than 12 months in an 18 month period.
Being in breach of this condition may result in the cancellation of the visa which will have a negative impact on ongoing or future visa applications.
CONDITION 8101 “NO WORK”
If your visa, for example a Bridging Visa, has a no work condition attached to it, it may be possible to apply for work rights if you can satisfy the Department of Home Affairs (DoHA) that you have a “compelling need to work” and you (and any dependant family members) will suffer “financial hardship” if you are not permitted to work.
The DoHA will take into account evidence of your current financial situation and your day to day expenses in assessing whether you have a compelling need to work. This is not just a matter of filling out an application form and giving the DoHA information about your financial situation. Your savings, income and expenses must be backed up by verifiable evidence.
HOW TO GET A “HEALTH TEST” WAIVER
There are a number of visas that require a health test. However, their are only certain visas where a person can apply for a waiver when they fail the health test.
SECTION 48 BAR AND SCHEDULE 3 CRITERIA WAIVER
Visa applicants affected by Section 48 who want to apply for a visa onshore, are severely restricted in the visa classes they can apply for.
If Section 48 Bar applies to you, then you as the applicant can only waive Section 48 and apply for a visa from within Australia if the visa you are applying for a very limited list of exceptions. You will require a Migration Agent professional help to waive Section 48 in order to apply for the relevant visa.
PUBLIC INTEREST CRITERION 4020 (PIC 4020) AND VISA REFUSAL BASED ON PIC 4020 WAIVER
PIC 4020 is a mandatory requirement for the grant of most Australian visas. Under PIC 4020, a visa might be refused if bogus documents or information that is false or misleading is given to the Department of Home Affairs (DoHA) or the Administrative Appeals Tribunal (AAT).
The requirements under PIC 4020:
- there is no evidence they have given, or caused to be given, a bogus document or information that is false or misleading in relation to a visa application or a visa held by them in the 12 months before the application was made
- they or a family member have not been refused a visa on the basis of (1) in the period starting 3 years immediately before the visa application was made and ending when the visa was granted or refused
- they satisfy the decision maker as to their identity
- they or a family member have not been refused a visa on the basis of (3) in the period starting 10 years before the visa application was made and ending when the visa was granted or refused.
CAN THE REQUIREMENTS RELATING TO BOGUS DOCUMENTS AND FALSE OR MISLEADING INFORMATION BE WAIVED?
If the DoHA or AAT is not satisfied that the visa applicant meets both (1) and (2), it will first decide whether there are:
- compelling circumstances that affect the interests of Australia, or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.
The DoHa or AAT will then decide whether to waive PIC 4020 in light of the above circumstances.
Compelling or compassionate circumstances only apply to (1) and (2) and the circumstances should already exist rather than be related to something that might happen in the future.
Examples of helpful information that might be provided in relation to bogus documents or misleading information might include:
- Statements that are signed by the visa applicant and involved third parties
- Evidence that the information or documents were not given by the visa applicant
- Evidence that any false or misleading information is not relevant to the visa criteria
- Evidence that a document has not been counterfeit or altered, and was not obtained because of a false or misleading statement
- Evidence that information was not false or misleading at the time it was given.
Examples of helpful information that might be provided in relation to compelling and compassionate circumstances might include:
- Statements that are signed by the visa applicant and involved third parties
- Evidence of serious family situations, such as the death of a family member
- Evidence family members in Australia would be left without financial or emotional support
- Evidence that a parent in Australia would be separated from their child
- Details of how Australia’s trade or business opportunities or relationship with a foreign government would be impacted if the visa was not granted
- Evidence that if the applicant were not granted a visa then Australia would be deprived of a significant business, economic, cultural, or other development
- Medical reports or welfare issues affecting an Australian citizen, permanent resident or eligible New Zealand citizen.
If you require any further information regarding Waivers of visa conditions ,or you need need help in obtaining a waiver, or need assistance with any other matters related to immigration to Australia, please book a free preliminary interview.
Australian Registered Migration Agent
Viktor Ovcharenko MARN 0964258