Legal Analysis: Visa Condition 8503 & Carer Visa (Subclass 116) Case

This case study examines the application of Visa Condition 8503 to Patrick Sheehan, an Irish citizen who entered Australia on a Visitor visa (subclass 600). The analysis focuses on Patrick's subsequent application for a Carer visa (subclass 116) to care for his sick brother, Tom, an Australian citizen, after his initial Protection visa application was rejected and his visitor visa expired. The study considers the implications of condition 8503, which restricts visa holders from applying for other substantive visas while in Australia, and the relevant sections of the Migration Act 1958. It explores the possibility of waiving this condition under specific compelling and compassionate circumstances, referencing Regulation 2.05 of the Migration Regulations 1994. The case study further discusses the eligibility criteria for the Carer visa (subclass 116) and the potential for visa cancellation under Section 116(1)(b) of the Migration Act if visa conditions are not met, ultimately concluding on Patrick's options and the legal framework surrounding his visa applications.

Running Head: law 1
Law

Law 2
Answer 1
Part a
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
visa1.
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 consequences2.
1 ISA group, Visa Conditions, < https://isa.com.au/visa-conditions/>, accessed on 15th February 2018.
2 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

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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 Australia3.
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 expires4. 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.
15th February 2018.
3 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.
4 Hobart Community, Unlawful Non-Citizens, Removal and Deportation, <
http://www.hobartlegal.org.au/tasmanian-law-handbook/community-and-environment/immigration-and-
citizenship/unlawful-non-citizens>, accessed on 15th February 2018.

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Part b
Carer visa (Subclass 116) is the visa which allowed the person to move in Australia for the
purpose of:
 Taking care of any relative who stays in Australia and suffer from permanent and long
term medical condition.
 For assisting the relative by providing care to a member of their family unit.
Following is the eligibility criteria for applying the carer visa:
 Person must provide care and help to the relative.
 Application for this visa must be made outside Australia at the time when visa is granted,
and this condition also applies on the family members included as applicant in the visa
application5.
It is the obligation of the person to fulfill with all the conditions imposed on their visa and other
necesary laws of the Australia6.
Section 116 (1) (b) of the Migration Act 1958 7states, 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.
5 Department of Home Affiars, Carer visa (subclass 116), < https://www.homeaffairs.gov.au/trav/visa-1/116->,
accessed on 15th February 2018.
6 Turner Coulsion, Carer Visas (Subclasses 116 and 836), < http://www.tcilawyers.com.au/carer-visas.html>,
accessed on 15th February 2018.
7 Migration Act 1958- Section 116

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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.
Part c
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.

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Clause 1 of section 41 of the Migration Act 19588 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 19949 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:
 Another visa is granted to the person who holds the visa that was subject to the condition,
if any such situations developed which are stated below:
 Situations on which person does not exercise any control.
 Situations which result in the major changes in the circumstances in which such visa is
granted.
8 Migration Act 1958- Section 41.
9 Migration Regulations 1994- Regulation 2.05.

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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:
 Situations in which person is requesting to waive of the condition are both compelling
and compassionate from the time visa is granted to the person.
 Person does not have any control on the situations.
 Situations cause major changes in the personal situations of the person10.
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:
 Person married to a citizen of the Australia or the permanent resident.
 In case women holds the visa become pregnant while their stay in Australia, but such
woman must have an evidence that she is not able to leave the Australia.
 Student is not able to complete the course because of the failing a subject11.
10 Visa Solutions LLC, No Further Stay conditions, <
https://www.australia-migration.com/page/No_Further_Stay_conditions/1161>, accessed on 15th February 2018.
11 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.

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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 person1213.
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:
 Situations in which person is requesting to waive of the condition are both compelling
and compassionate from the time visa is granted to the person.
 Person does not have any control on the situations.
 Situations cause major changes in the personal situations of the person.
In these situations of the Patrick changes, therefore he can apply for waiver of condition.
Part d
12 Seek Visa, No Further Stay’ (8503) Waiver, < https://www.seekvisa.com.au/no-further-stay-8503/>, Accessed on
15th February 2018.
13 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.

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Section 210 of the Migration Act 195814 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 15states 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
14 Migration Act 1958- Section 210.
15 Migration act 1958- Section 251.

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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.
Answer 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.

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NCCC gave their decision to cancel the visa on ground of Section 501(2) of the Migration Act
1958. As per section 501(2) 16of 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. 5517. 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 below18:
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.
16 Migration Act 1958- Section 501.
17 Nowak, Direction no 65, https://nowakmigration.com.au/direction-no-65-visa-refusal-and-cancellation-under-
s501/, accessed on 15th February 2018.
18 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.

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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 factors19:
 Decision maker consider the range of offences committed by the person and whether
such offenses can be considered as serious, violent and/or sexual crimes.
 Decision maker consider the crimes committed by non-citizen against the vulnerable
members of the community such as minors, elders, and disabled. They also consider
representatives of government or officers because of the position they hold.
 Situation of the non-citizen when this crime was committed which means whether the
person is in immigration detention or he commits the crime during the escape of
immigration detention20.
 Decision maker consider the conduct that forms the basis for conducting that person fails
to pass the character test which determine whether person is or not of good character, and
this character test is stated under the section 501(6) of the Act21.
 Sentenced imposed by Court for the crime committed by the person.
 Frequency of the person of offending the act and engaged in such conduct, and whether
there is any increase in the seriousness of the Act.
 Effect on community of repeated offences.
 Whether any false or misleading information is provided by the non-citizen to the
department, which also includes the non-disclosure of prior criminal offending.
19 Home Affairs. Direction No. 65, https://www.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf,
Accessed on 15th February 2018.
20 Ombudsman, The Department of Immigration and Border Protection,
http://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.
21 Migration Act 1958- Section 499.

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 Whether non-citizen commit the repeat the offense even after receiving the formal
warning or after get aware about the results of the act committed by them on the
migration status of the non-citizen.
 Whether, non-citizen commits any such offense in any other country also, and whether
such offense is also falling under the category of offence committed in Australia.
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.

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 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).

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Thank You
BIBLIOGRAPHY
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, <
http://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), < http://www.tcilawyers.com.au/carer-
visas.html>, accessed on 15th February 2018.

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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.
Home 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,
http://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.
Statute
Migration Act 1958
Migration Regulations 1994.

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