Conditions 8503 and 8534
Condition 8503 is a mandatory no further stay condition on the following visas:
- Visitor visa (subclass 600) (sponsored family stream)
- Visitor visa (subclass 600) (approved destination stream)
- Visitor visa (subclass 600) (tourist stream; if sponsorship has been imposed on it)
- Training and research visa (subclass 402) (for the professional development stream)
- Work and holiday visa (subclass 462) (if you have previously held two subclass 462 visas)
“The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.”
The application forms for these visitor and temporary residence visas include information about this condition however it is usually put on peoples visas without their knowledge and they find out later when reading the grant letter.
Condition 8534 is a “discretionary condition on Student visa (subclass 500) and applied to the student visa holder and the student’s family members. This will be decided by the case officer assessing your application.”
“The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b) a Subclass 485 (Temporary Graduate) visa; or
(c) a Subclass 590 (Student Guardian) visa; while the holder remains in Australia.”
Holding a student visa does not immediately make you subject to the no further stay condition. You will need to have a look at your visa grant letter, which will provide you all the details of any conditions imposed on your visa.
But I want to stay!
There are automatic (no application necessary) waivers for you if you have genuine intention to apply for:
- a General Skilled Migration (GSM) visa
- a Business Talent (subclass 132) visa
- an Employer Nomination Scheme (subclass 186) visa
- a Regional Sponsored Migration Scheme (subclass 187) visa or
- a Business Innovation and Investment (Provisional) (subclass 188) visa
You must have been invited to apply for GSM visas to be waived from the no further stay condition, and not have only submitted your Expression of Interest (EOI). Merely having submitted your EOI does not hold enough weight as it remains to be seen if you will be selected.
Your lodgement of an application for any of the above visas will automatically render your no further stay condition waived.
Compelling and compassionate reasons
This rule isn’t airtight. You may be able to request for a waiver of the no further stay condition on your visa if you have compassionate and compelling reasons that were unforeseen and have greatly altered your circumstances such that it is now imperative (as it was not before) that you stay. Remember that the condition upon which you were granted a student visa was that you were a genuine temporary entrant. As such, your evidence must show:
- Compassionate and compelling reasons, AND
- that you had no control over your circumstances, AND
- that the turn of events has greatly changed your situation.
Compassionate and compelling reasons that may be considered for a waiver include:
- Unfitness to travel: If you sustain serious injury, fall very ill or are pregnant at a stage where it is medically unsafe for you to fly * , you may be eligible for a waiver. It is worth noting is that pre-existing medical conditions can still be considered for a waiver, so long as there has been a significant change in circumstances (condition has deteriorated greatly)
- Death or serious illness within close family: 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. Similarly, pre-existing medical conditions of loved ones 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
- Closure or inability of education provider: If your education provider closes down and you need to apply for another student visa to undertake your course, you may be considered for a waiver.
- Government support : 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 on a Training and Research visa (subclass 402) as part of their scholarship program), or the sponsoring government has provided written support for the waiver of your condition.
Reasons such as marriage to (or a de facto partner relationship with) an Australian citizen or permanent resident, pregnancy * and failure to complete a course due to failing a subject or subjects are generally not considered compassionate and compelling reasons.
* Pregnancy is not considered sufficient to waive your no further stay condition unless you are at a stage in your pregnancy where it is medically unsafe to fly. For example, you are on a student visa and your course is only complete at a point in time when it is unsafe for you to fly.
If you have genuine reasons for needing to further your stay in Australia through another visa other than a protection, student guardian or temporary graduate visa, then you will need to apply for a waiver through filling in a Form 1447 . Most importantly, evidence will need to be submitted that fulfil the above requirements for a waiver. Documents that are dated, invoice and receipts, medical documents and personal and official statements, so long as relevant, are all materials that may be used as evidence.
Applications should be sent in via email to the Department of Immigration and Border Protection (DIBP) and take typically 28 days to process so it would be best to apply as soon as possible before the expiry of your visa. If your application is refused, no appeal can be made unless wholly new and substantially different circumstances arise. If you are unsure if you would be eligible for a waiver or how to evidence your application properly (remember you only have one try!) do speak to a migration agent as soon as you are aware that you will need to extend your time in Australia.
Senior Migration Agent, Australian Immigration Law Services