Did you know that certain visas to Australia may be subject to a “no further stay condition.” This means that the visa holder is unable to be granted a substantive visa (other than a protection visa or a specified temporary visa) whilst they remain in Australia. In such a case, the visa holder would be required to travel overseas and apply for the visa from offshore.
A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa.
In certain cases, the no further stay condition must be applied, as prescribed in the migration provisions. In such instances, the Department of Home Affairs (the Department) has no discretion as to whether or not to impose it. In other cases, the no further stay condition may be applied. In such instances, it is generally only imposed where Immigration has concerns regarding the visa holder’s true intentions.
Note that the no further stay condition continues to apply, even if the visa on which the condition was imposed has ceased to be in effect.
Instances of where the no further stay conditon on a visa may be applied include the 8534 visa condition or the 8535 visa condition, which may (or in some cases, must) be applied to student visas, or the 8503 visa condition, which may be applied to other non-student visas such as the subclass 408 visa no further stay condition (note this is not an exhaustive list).
In this article, we explore the no further stay condition and how it applies to student visas and to other visas, as well as the waiver provisions and how to apply for a no further stay condition to be waived.
All student visas may be subject to a no further stay condition student visa. Primarily this is the 8534 visa condition, which states the following:
The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa;
(b) a Subclass 485 (Temporary Graduate) visa; or
(c) a Subclass 590 (Student Guardian) visa;
while the holder remains in Australia.
If a no further stay condition student visa is imposed on a student visa, this means that the student cannot apply for another visa whilst in Australia. ie. the student must travel offshore and apply again from overseas.
The no further stay condition student visa is primarily an integrity tool for high risk applicants who are seeking to undertake short courses, and to ensure that applicants disclose their full study intentions.
Be aware that the no further stay condition student visa is generally imposed at the discretion of the case officer deciding the visa application, although there are instances where it must be applied (these are discussed below in this article).
In all other circumstances (i.e. for non-student visas), the no further stay condition will prevent the visa holder from making a valid visa application in Australia unless the condition has been waived.
When Is The No Further Stay Condition Applied To Student Visas?
The 8534 visa condition is applied to applications processed in Australia in cases where the Department has concerns as to the applicant’s immigration history, which may suggest that the applicant is seeking to maintain residence in Australia (for example, by applying for a series of temporary visas).
The no further stay condition is generally not imposed on applicants outside Australia who have not previously travelled to Australia.
Under immigration policy, the widespread discretionary use of the 8534 visa condition would undermine the student visa program with the effect that it would limit the ability of genuine students to undertake further studies or training at the end of their course. As such, it should only be applied in limited circumstances.
Indeed policy makes the point that if there are concerns about an applicant and whether they are in fact a genuine student, this should be addressed by assessing the applicant against the genuine temporary entry requirement (which applies to student visa applications), rather than through the use of the no further stay condition.
Policy states that case officers should refrain from using this condition on a discretionary basis unless exceptional circumstances exist.
Policy also notes that the 8534 visa condition should be applied to visas of family members of student visa holders if requested by the Department of Foreign Affairs and Trade (DFAT)/Defence or a foreign government, or if the student is a government-funded student who is subject to the 8535 visa condition.
Foreign Affairs And Defence Students
The 8535 visa condition states the following:
The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b) a Student (Temporary) (Class TU) visa that is granted to the holder on the basis of support from the Commonwealth government or a foreign government;
while the holder remains in Australia.
The 8535 visa condition must be imposed on the primary student visa applicant if they are a Foreign Affairs student or a Defence Student.
The 8535 visa condition may also be applied to the primary visa applicant if they are provided with financial assistance by the Commonwealth or the government of a foreign country. According to policy, the 8535 visa condition should be imposed if the applicant is sponsored by a foreign government, and the agency or government indicates their preference for this condition to be imposed.
The 8535 visa condition may not be imposed on secondary visa applicants (that is, to accompanying family members of the primary applicant).
Also note that this condition enables foreign affairs and defence students to apply for a further student visa and to be eligible for its grant without requiring a waiver of the condition, provided:
- they were given financial support by the Commonwealth government or the government of a foreign country in relation to their student visa (or the student visa they last held, if they no longer hold one); and
- they provide evidence that the relevant government does not oppose the grant of the visa. This may be evidenced in a letter from the relevant government.
What about for visa holders, other than student visas, can they too be subject to a no further stay condition?
The answer is yes. The 8503 visa condition may be applied to certain other visas, as prescribed in the migration provisions. One example of when it may be applied is the Subclass 408 Temporary Activity visa. In this case, the subclass 408 visa no further stay condition may be imposed on the primary and secondary visa applicant.
The 8503 visa condition states the following:
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.
In the case of a visa holder who is subject to a subclass 408 visa no further stay condition on their visa (i.e. the 8503 visa condition), they would need to depart Australia to apply for a further visa, unless a waiver is applied.
The Subclass 600 Visitor visa is another example of where the no further stay condition may be imposed. In certain prescribed circumstances, the 8503 visa condition must be imposed.
How Long Does The No Further Stay Condition Remain?
The no further stay condition continues to apply even if the visa to which it was attached has ceased to be in effect. This means that the no further stay visa condition remains in effect whilst the visa holder remains in Australia, unless it has been waived or the visa holder leaves Australia.
Waiver Of The No Further Stay Condition
For visas to which the 8534 visa condition, the 8535 visa condition or the 8503 visa condition has been imposed, the condition may be waived in prescribed circumstances.
If the no further stay condition is waived, the visa holder is no longer subject to this condition (unless the condition is specifically attached again to a subsequent visa grant). The visa holder can lawfully apply for and be granted a further substantive visa in Australia (i.e. they are not required to leave Australia to apply for the visa).
After having a no further condition waived, the applicant is not subject to any restrictions on which visa they may apply for, provided all applicable visa requirements are met.
When Can The No Further Stay Condition Be Waived?
A no further stay conditon may be waived in the following circumstances:
- circumstances have developed since the visa was granted that resulted in a major change in the visa holder’s circumstances. In addition, the change in circumstances must have been beyond their control and be compelling and compassionate in nature;
- if the visa holder asks that the condition be waived, their request must be in writing; and
- if a case officer previously refused a waiver request by the visa holder, the circumstances presented in the current request must be substantially different from those considered previously.
Also be aware that there is no requirement for a person to request a waiver of the no further stay condition; a case officer can waive the condition of their own accord in appropriate circumstances.
How To Apply For A Waiver
All waiver requests for a no further stay condition must include the following:
- visa holder’s full name and date of birth;
- visa holder’s passport number and visa evidence number;
- visa class on which the condition was imposed; and
- reason why a waiver is sought.
Supporting documentation such as a medical certificate, death certificate or letter, should be attached to the waiver request.
Importantly, while the no further stay condition is in effect, an applicant cannot validly apply for a visa in Australia. Therefore, a visa application onshore will not be accepted in these circumstances.
Under policy, a waiver request must be considered on its merits.
Compelling And Compassionate Circumstances
The types of circumstances where compelling and compassionate circumstances may exist to waive a no further stay condition (whether that be a 8534 visa condition, 8535 visa condition or 8503 visa condition) include the following, according to immigration policy:
- Unfitness to travel;
- Death or serious illness within close family;
- Natural disaster in home country;
- War or severe civil unrest in home country;
- Closure or inability of education provider;
- Government support.
Note that these are only examples of where the waiver may be applied. The merits of each case will be considered when assessing whether a waiver of the no further stay condition should be applied.
Get More Information
To learn more about applying for a student visa in Australia, please refer to our articles below.
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Contact us to book a no-obligation consultation to find out more about applying for a visa to Australia, including a student visa or a subclass 408 Temporary Acticity visa, and for further information and advice on the no further stay condition (such as the subclass 408 visa no further stay condition, and the no further stay condition student visa).
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a visa to Australia, including a student visa, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. Also be aware that several terms are defined in the migration provisions, as illustrated by the discussion of the no further stay conditions in this article. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on applying for a visa, including a student visa, and the no further stay condition and how it applies to a range of visas, including the no further stay condition student visa and subclass 408 visa no further stay condition, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas including regional work visa Australia. Contact us for a no obligation discussion on how we may be able to assist you in achieving your migration goals in Australia.