No further stay: waiver, compelling & compassionate circumstances a must?

Common mistake: "a no further stay condition must be waived for most visa applications and can only be waived if compelling or compassionate circumstances have developed". Actually: a waiver is not always required; in cases where it is required, compelling or compassionate circumstances are sometimes unnecessary; a waiver is even given by default by ImmiAccount in many cases where compelling or compassionate circumstances are unnecessary.

Before we discuss the common mistake, let us discuss how "no further stay conditions" work.

How no further stay conditions work

A "no further stay" condition is not a prohibition that extends to any future visa applications while the holder of a visa is in Australia. For instance, under condition 8534, a person is not prohibited from being granted any of the following visas while in Australia:

  • protection visa
  • subclass 485 visa
  • subclass 590 visa

In contrast, condition 8534 would prevent the grant of any other visa while the applicant is in Australia, unless that condition is waived.

But a condition, as it is imposed on a particular visa, in and of itself only concerns that visa. How is it, then, that a condition imposed on visa X prevents the grant of visa Y? The below the legislative provisions give the answer:

Section 46 of the Migration Act 1958 (Cth) provides as follows:

(1A)  Subject to subsection (2), an application for a visa is invalid if:

(a)  the applicant is in the migration zone; and

(b)  since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

...

Paragraph 41(2)(a) provides as follows:

(2)  Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

(a)  a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind) while he or she remains in Australia; or

...

In our example, is condition 8534 a "a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind) while he or she remains in Australia" .

Yes, it is, as it reads as follows:

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.

As a result, condition 8534 satisfies s 46(1A)(b). But subsection 46(1A) continues:

(c)  the Minister has not waived that condition under subsection 41(2A); and

...

Subsection 41(2A) provides as follows:

(2A)  The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

Then, what are the circumstances prescribed under s 41(2A) for the waiver of condition 8534?

The common mistake

One of those circumstances is found in the following provision of the Migration Regulations 1994 (Cth) (emphasis added):

Reg 2.05    Conditions applicable to visas 

...

(4)  For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:   

(a)  since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i)  over which the person had no control; and 

(ii)  that resulted in a major change to the person’s circumstances; and 

(b)  if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

(c)  if the person asks the Minister to waive the condition, the request is in writing.

It is true that compassionate and compassionate circumstances must "have developed" in order for Reg 2.05(4) to be satisfied. However, that is not the only provision containing circumstances in which the Minister may waive a condition of a kind described in s 41(2)(a), as we explain below.

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