COVID-19: No Further Stay waivers during pandemic approval rate at least 96 per cent

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Australia’s immigration laws have a few ways to prevent repeated vexatious and frivolous onshore visa applications.

One of the most common ways is collectively known as no further stay conditions. This is enabled by the sections 41 and 46 of the Migration Act 1958 (Cth). Essentially, if an applicant for a substantive visa other than a protection visa or a prescribed temporary visa, since last entering Australia, has a specific visa condition made under the Migration Regulations 1994 (Cth), and this condition has not been waived, the application will be invalid.

The wording prevents those from simply overstaying their visa to avoid this condition and before making a visa application as even if they wait for their visa with the no further stay condition attached to expire, the visa condition will still apply. “Since last entering Australia” are the operative words.

There are other mechanisms that prevent further visa applications as well. Most common is section 48 of the Act, which limits the type of visa applications that can be made if the person, since last entering Australia, has had a visa refused or cancelled under various grounds and who does not hold a substantive visa. On most occasions, affected people are holding a bridging visa. The Department of Home Affairs’ information sheet explains this well. Similarly, section 48A of the Act applies to protection visa applicants making further protection visa applications.

The most common no further stay conditions are visa condition 8503 and 8534.

Visa condition 8503

Visa condition 8503 provides that 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. This is a condition that may be imposed on Subclass 600 – Visitor visas under the Tourist stream if the visa holder was not sponsored. If they were sponsored under this stream or were approved a 600 visa under the Family Sponsored stream, visa condition 8503 must be imposed.

There are other visas where visa condition 8503 can be applied, including:

  • Subclass 407 – Training visas,

  • Subclass 408 – Temporary Activities visas,

  • Subclass 400 – Temporary Work (Short Stay Specialist) visas;

  • Subclass 417 – Working Holiday visas; and

  • Subclass 462 – Work and Holiday visas.

Visa condition 8534 and visa condition 8535

Visa conditions 8534 and 8535 are the exclusive domain of the Subclass 500 – Student visas and Subclass 590 – Student Guardian visas.

Visa holders with condition 8534 imposed will not be entitled to be granted a substantive visa, other than: a protection visa, or a Subclass 485 – Temporary Graduate visa, or a Subclass 590 – Student Guardian visa while the holder remains in Australia.

Under policy, this is attached if the applicant has an immigration history that raises concerns about de facto residence in Australia and is generally not imposed on applicants outside Australia with no previous Australian travel history.

For visa condition 8535, the holder will not be entitled to be granted a substantive visa, other than a protection visa; or another student visa on the basis of support from the Commonwealth government or a foreign government while they remain in Australia. This condition can be imposed at the request of a foreign government on its citizen students.

No further stay waiver requests

The Regulations allow no further stay conditions to be waived under certain circumstances. One is if the visa holder has a genuine intention to apply for certain temporary or permanent skilled or business visas. This may be dependent on what visa they currently hold and what no further stay condition is imposed on their visa.

The other major waiver provision is if since the visa was granted with a no further stay condition, compelling and compassionate circumstances have developed that was outside of the visa person’s control, and which resulted in a major change to their circumstances. If a previous waiver request has been refused, the person’s circumstances must have been substantially different from when they lodged their previous waiver application. This request must be in writing.

In normal times it may be hard-pressed to argue circumstances were outside a person’s control that were compelling and compassionate enough to warrant a waiver. The COVID-19 pandemic, however, is an event that is certainly outside of a person’s control. Border closures, the inability to return home, and personal and public health consequences are likely to be compelling and compassionate.

Statistics obtained through a Freedom of Information (FOI) request, show an extremely high approval rate since the pandemic. Over the months of March 2020 to December 2020, 37,830 no further stay requests were made with 36,613 of these granted and only 12 refused. There is an unknown number of 1205 that are likely to be either under consideration or were potentially withdrawn. This means that the approval rate is anywhere between 96.78 per cent to as high as 99.97 per cent.

While there are no comparison statistics to compare to nor details as to what grounds these approvals were sought and made, it is difficult to not come to the conclusion that decision-makers have been very accommodating with these waiver requests during the pandemic.