Condition 8503 can (discretionary) be imposed on many visitor and temporary residence visas. However, there are certain visas where condition 8503 must (mandatory) be imposed. Some examples of where it is mandatory for condition 8503 to be imposed are:
Condition 8503 wording
“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”.
For the researchers out there – a few extracts from the PAMS
The Procedures Advice Manual (PAM3) extract below describes the effect:
WHEN TO IMPOSE 8503
When to impose – Residual concerns
Condition 8503 should be used only in exceptional circumstances. Condition 8503 should not be applied as a default setting and it is not envisaged that condition 8503 will be widely or generally applied to visitor visas.
Imposition of the condition is seen as a desirable safeguard in circumstances where an applicant appears to satisfy the criteria for the grant of a visa but residual concerns exist.
It is important that delegates distinguish between “residual concerns” and concerns that mean an applicant cannot meet the genuine intention to visit criteria.
Section 65 of the Migration Act requires the delegate, in deciding whether to grant or refuse a visa, to be ‘satisfied’ as to whether requirements for visa grant are met or not met. For visa grant, this means a delegate should be reasonably satisfied that the applicant meets the requirements. Being reasonably satisfied means being just satisfied of a fact; it does not mean that an absolute truth has been established. This may mean that a delegate has some residual concerns – for example, concerns as to the applicant’s employment, incentives to return to their home country, access to funds or migration intentions (including a current or previous application for a permanent visa).
Note: The presence of major concerns suggests that the delegate may not be reasonably satisfied that the applicant has met the requirements and, if the imposition of visa conditions or other options available do not address these concerns, the visa should be refused.
There may be cases where the delegate has some residual concerns but is minded to grant a visa because, for example:
hardship/detriment would be suffered by Australia or an Australian if the visa was not granted (for example, an applicant who has booked a 3 week holiday at an Australian resort and has been assessed as a genuine visitor but they have a limited health clearance) or
the applicant’s circumstances are compelling. Consideration of the likely consequences of not granting the visa may assist in considering whether particular circumstances are compelling (for example, an applicant wishing to attend the funeral of a family member in Australia).
As decision on whether to grant a visa in these cases will not necessarily be clear cut or beyond dispute, the delegate will need to exercise their judgment.
The circumstances described above are in themselves not reason to grant a visa, the applicant must still meet the Schedule 2 “genuine visitor” criterion.
Examples of when it would be appropriate to impose 8503
Officers may consider imposing 8503 in circumstances such as the following:
A child is travelling with one parent and the other parent has only provided consent for a specific limited period. (In these circumstances officers may consider imposing 8503 on the visas of both the parent and the child, because case management problems arise in Australia if the parent can apply for a further visa but the child is prevented by 8503 from doing this, but is also unable to leave Australia on their own.)
The applicant satisfies criteria for a limited period of stay but the delegate is not satisfied that the applicant would satisfy criteria for a longer stay.
The applicant is subject to a health clearance for a specific limited period.
There is a residual concern that the applicant may intend applying in Australia for a permanent visa to circumvent migration requirements (as opposed to the possibility of applying at some stage in the future) – for example, applying for a Parent category visa to allow them to remain in Australia for a long period while their permanent application is capped/queued
A domestic helper is accompanying their employer on their holiday to Australia. In these cases 8503 would generally be applied; however, the individual circumstances must be taken into account.
Examples of when it would not be appropriate to impose 8503
Condition 8503 would generally not be appropriate in the following circumstances:
The visa should have been refused because the applicant did not satisfy Schedule 2 criteria.
There are concerns the applicant might work contrary to visa conditions, overstay their visa, apply for a protection visa or apply for a waiver of the condition once in Australia – 8503 does not prevent any of these.
Although there are no bona fides concerns for a person in a partner relationship with an Australian citizen or permanent resident, the person must still meet the FA -600 Schedule 2 “genuine visitor” criterion to be granted an FA-600 visa.
• The application is for a TQ -410 Retirement visa. In all cases officers must consult the TQ-410 policy owner if considering imposing 8503.
• A medical professional is applying for an FA-600 visa to undertake a medical course or to meet registration requirements (less than 3 months) as a medical professional.
• The applicants is seeking an FA-600 Tourist Stream visa that would result in a cumulative period of stay of 12 months in Australia (or if a person applies for successive FA-600 visas). As the applicant will need to satisfy Schedule 2 criteria for any subsequent FA-600 visa application made in Australia, imposing 8503 in such cases may be unnecessary (although it may be warranted for a different reason).
• The applicant is seeking a short-term FA-600 visa to return to Australia for the processing of an visa application in Australia because the applicant has been advised that that application will be approved.
• The applicant is in Australia due to a family members ongoing serious medical condition.
Condition 8503 – Appropriate period of stay
If condition 8503 is imposed on a visa in circumstances where the applicant is travelling due to compelling circumstances, it would be appropriate to provide some flexibility in the length of stay, to allow for the fact that the timing of such events is often outside the visa holder’s control and cannot always be precisely predicted.
This is to avoid distress (and case management problems) should the visa holder be unable to apply in Australia for a further FA -600 visa, particularly in circumstances where a family member may be dying or an expected birth does not occur within the visa period. For the same reason officers should consider not imposing 8503 on a visa in cases involving an ongoing medical condition.
Examples of circumstances where a longer stay period with condition 8503 imposed on the visa may be warranted include, but are not limited to:
• Particular family events such as weddings, important religious functions, funerals, family reunions or significant birthdays.
• Urgent legal matters in circumstances where the matter cannot be settled by their legal representative without the applicant being in Australia.
• Settling affairs after a previously lengthy stay in Australia in circumstances where, for reasons beyond the applicant’s control, these affairs were unable to be settled during the previous stay and these matters cannot be settled without the applicant being in Australia.
Condition 8503 and queued parent cases
Specific visitor policy applies to parents who are affected by the cap/queuing of their migration application.
Considering the circumstances of the entire family
In deciding whether or not to impose condition 8503 on visas granted to family members travelling together, officers should consider the circumstances of the entire family unit travelling. This is because significant case management problems arise in Australia if one or more family unit members are able to apply for another FA -600 visa and others are barred by 8503 from doing so.
Imposing condition 8503 on a visa granted to a minor
Imposing condition 8503
There is no legal impediment to imposing condition 8503 on a visa granted to a minor.
Nor, for discretionary “no further stay” cases, is there any requirement for written acknowledgment by the child’s parent and/or legal guardian in order for the “no further stay” condition to be imposed on the minor’s visa. A very young minor – for example a 3 year old child – is unlikely to understand the effect of imposing condition 8503 and no steps could realistically be taken to explain to a minor the effect of imposing the condition.
Case notes should be made to detail the counselling/advice that the officer provided to the child’s parent or legal guardian prior to imposing the condition.
Imposing condition 8503 may be appropriate if a non-accompanying parent has given agreement for their child to travel for a time limited period only.
Officers should also keep in mind that minors might successfully seek waiver of condition 8503 merely on the basis that entry to Australia was a circumstance outside their control.
If a minor is travelling with only one parent
• a minor is travelling with only one parent and
• the delegate is proposing to impose condition 8503 on the child’s visa
condition 8503 should also be imposed on the accompanying parent’s visa. This is because case management problems arise if the parent can apply in Australia for a further visa but the child is prevented by 8503 from doing so but is unable to leave Australia on their own.
Business Visitor stream
Condition 8503 should generally not be imposed on FA -600 Business Visitor Stream visas if the business purpose is to undertake a medical course or meet registration requirements as a medical professional.