An application related to the conditions for waiving condition 8503 in Schedule 8 as per the provisions of the Migration Regulations 1994. The case was related to a Pakistani origin applicant who had entered Australia as a holder of subclass 456 visa for short stay which was a condition subject to a waiver condition under 8503. As per the requirements of the subclass visa, it means that a visa holder after entering into Australia will not be entitled to be protected by a substantive visa except a protection visa till the time the holder of the visa is remaining in Australia. The applicant applied for a protection visa which was refused by the authorities. Post the refusal, the applicant applied for judicial review which was not a success and therefore the applicant remained in Australia as an unlawful resident. The applicant later made an application under section 41(2A) of the Migration Act, 1958 on the ground that he applicant wished to stay in Australia with his partner who is an Australian citizen. Citing the provisions of section 41(2A) of the Migration Act, the applicant claimed that he had suffered injuries and has hurt his wrist and also had to undergo surgery which has made him unable to travel for a period of three months. Such statements made by the applicant was not backed by any medical evidence and also the waiver was not backed by any professional medical certificate.

Waiver 8503

The delegate informed the applicant that there shall be no waiver of the 8503 further stay provision and the reasons were made in writing. The delegate stated that the waiver is not accepted as the applicant’s circumstances are not such that they are outside his control. The delegate also mentioned that the conditions which the applicant was facing is a situation that will constitute a grave condition and that applicant is also suffering from a suffering. The reasons cited by the delegate was that though the condition constituted a compassionate ground, the current waiver policy does not recognize marriage to a resident or citizen as a situation which is beyond the applicant’s control. The decision to enter into a marriage was within the control of the applicant. The accident happened after the immigration status was known to the applicant as he was working without a valid visa. The applicant had not notified the delegate that there was a particular condition that was beyond the control of the applicant. Under these conditions, it can be stated by the delegate that the circumstances were not such so as to meet the requirements to waive condition 8503. The delegate was also not convinced that the applicant could not return to Pakistan as the applicant had not mentioned that his property in Lahore was vacant and that his return was awaited. Therefore, the delegate gave his reasons in writing as to why the waiver condition 8503 conditions were not met.

As per the provisions of section 41(2A), a Minister has the power to waive a condition if a condition is fulfilled by the applicant as per the legislative provisions. The ground of compelling and compassionate ground falls under the provisions of section 41(2A) where if the person was granted a visa subject to the condition, subject to which compelling and compassionate circumstances had developed. The compelling and compassionate ground again has two conditions to be met:

• The circumstance that arose was beyond the control of the applicant
• The circumstance had an impact on the person’s situation and that change was major and serious in nature.

In this particular case, the ground that the applicant cited along with his wife was that the delegate had failed to see the severity in the situation and that the circumstances that developed were compassionate and compelling in nature. The contention raised by the applicant was that the delegates misinterpreted the meaning as well as faltered in finding the difference between compelling and compassionate grounds. The accident described by the parties was in the nature of an accident which had impaired the applicant to travel for 3 months and therefore it should be treated as an emergency. The accident that the applicant and his wife had faced was defined by them as “serious and terrible” and the applicant had no control over it. The Minister claimed that that the powers that have been granted to them by the legislation to waive any condition that falls under section 41(2A). The Ministers had relied upon the application to understand the compelling grounds. The ministers claimed that the same rules of Babicci v Minister for Immigration and Multicultural and Indigenous Affairs will not apply in this particular case as the conditions were not similar in the present case and the same rules cannot apply. The case held that the reason for compassionate and compelling ground is such that the circumstances have to be very powerful that will have the capacity to lead the decision-maker to take a positive approach and make a positive finding. In the case of Anani v Minister for Immigration, it was held by the Court that the two terms compassionate and compelling should be read separately as they are not the same. If it is seen that a circumstance arose because it was a direct result of the work that led to the accident. In the case of Terera v Minister for Immigration and Multicultural and Indigenous Affairs it has to be taken into consideration that it is important for the decision maker to keep into account why the compelling and compassionate ground arose and whether it happened while the visa was granted and the accident happened outside the control of the applicant. The entire question of taking into consideration compelling and compassionate ground as defense shall be decided on a case to case basis and also the discretion lies with the Minister. The court has further opined that to establish that the Department has erred in looking at compassionate and compelling grounds, it is important to prove the same. 

References

 [2003] FCA 1570; 135 FCR 335.

 [2005] FCAFC 77; 141 FCR 285.

 A and Another v Minister for Immigration and Ethnic Affairs and Another, [1997], Australia: High Court, 24 February 1997.

 Australian Migrtaion Act, 1958, S. 41(2A).

 FCCA 231 (9 February 2018).

 Gerkens, Murray, et al. Australian Immigration Companion. LexisNexis Butterworths, 2016.

 Ghafournia, Nafiseh, and Patricia Easteal. “Spouse Sponsorship Policies: Focus on Serial Sponsors.” Laws6.4 (2017): 24.

 Martinez, Omar, et al. “Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review.” Journal of Immigrant and Minority Health 17.3 (2015): 947-970.