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Ms Eva Salauca is a citizen of Fiji who came to Australia on a Visitor (Class FA, subclass 600) visa to visit family members. She arrived two months and 20 days ago, and has ten days left on her current Visitor (Class FA, subclass 600) visa, which is valid for three months and is subject, amongst other conditions, to condition 8503. She is currently approximately eight and a half months pregnant, and is unfit to travel. Ms Salauca wishes to apply for a medical treatment visa, to enable her to remain in Australia for the birth of her child and the immediate post-natal care. She has no intention of staying in Australia permanently.
Although several months pregnant at the time of arrival in Australia, Ms Salauca did not envisage that there would be any difficulty in her travelling prior to the birth of her child. She has already booked two flights due to depart within the three months as prescribed by her visa.
However, now heavily pregnant with an expected delivery date just after the expiry of her visa, Ms Salauca has been assessed as unfit for travel by her treating physician. Her treating doctor from the Royal Women's Hospital in Ballarat, Victoria, has assessed her as unfit for travel.
Air Fiji's current policy also only permits pregnant women more than 32 weeks pregnant to fly if cleared in writing by their doctor as fit for travel.
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Before preparing the submission for the Department of Immigration and Border Protection, it is imperative to understand the needs of the couple i.e. Fred and Betty with regard to the stay of Fred in Australia and the current status of Fred's application. Therefore, it is important to explore the past of Fred in order to find out whether there is a reasonable chance of success of his visa application to remain in Australia permanently. In this regard, the previous grants and denials of visa to Fred are relevant to determine whether he is eligible for the desired kind of visa. These are some of the factors that can weigh heavily on the couple's desire to stay together.
Sub: Request to waive Condition 8503
NAME OF APPLICANT: Mr. Fred Charms
DETAILS OF THE APPLICANT:
It is upon the advice of this registered Migration Agent that the Applicant has filed this application to seek a waiver of the condition 8503
The applicant has made this request to the Department in light of his spouse's serious mental condition. Mr. Fred pleads before the Department to waive the condition 8503 in order to continue to be able to stay with his wife whose medical condition is deteriorating day by day. It is extremely important for Mr. Fred to continue to stay with his wife Betty, an Australian citizen so that he can take care of her while she is undergoing the treatment for a serious medical condition. Now, another major reason is that Ms. Betty is not working anymore due to her psychiatric condition. Moreover, she also does not have anyone else who can take care of her in such difficult times.
In light of the above-mentioned reasons (which are elaborated later), it is requested that the Minister may be pleased to waive the condition 8503 due to the emergence of compelling and compassionate circumstances.
Background of Fred's Visa Status
In the past, Fred has been a recipient of Working Holiday (Class TZ) (Subclass 417) visa. Now, this visa allowed Fred to stay in Australia for 12 months. During the validity of this visa, Fred travelled around Australia and worked for a number of employers. Thereafter, he applied for a second Subclass 417 visa to continue to work in Australia. However, since he was not working in the specified occupation, his request was denied. As a result, Fred appealed this decision to the MRT where again he was unsuccessful. Therefore, Fred was compelled to leave for the United Kingdom due to the expiry of the validity of the visa.
After moving back to the United Kingdom, Fred got into a relationship with Betty who was visiting the UK on a holiday. Upon the expiry of Betty's UK visa, Fred decided to move to Australia to continue his relationship with Betty. In this regard, he obtained the Visitor (Class FA) (Subclass 600) visa which allowed to stay together with Betty and take care of her during the ongoing treatment and medication. Now, considering Betty's continuing mental ailment and the inability of her parents due to their old age, Fred would be well advised to obtain a Partner visa. However, it would be imperative to get the condition 8503 waived from his visa. The specific requirements of a valid visa application have been clearly explained in the Migration Act 1958. The Migration Act clearly states that a visa application is invalid if the conditions contained in the visa are not waived by the Minister under subsection 41(2) (a). Therefore, it is essential that a waiver must be obtained with regard to condition 8503 and the document containing the waiver must be attached to the visa application.
Therefore, it is imperative that a waiver must be obtained regarding the condition 8503 and the document stipulating the waiver must be attached to the visa application.
Waiver of the Condition 8503
As mentioned earlier, it is clearly very important that the visa condition 8503 is removed from the Visitor (Class FA) (Subclass 600) visa. It may be recalled that the Condition 8503 as per Migration Rules 1994 made under Migration Act 1958 essentially says that a person who is currently staying on the basis of a temporary visa is not entitled to be granted a substantive visa, apart from a protection visa. It needs to see here that Fred is later going to request for a Partner visa which is a substantive visa. Therefore, this condition effectively states he is not entitled to be given a substantive visa other than a protection visa. Among the ways in which this condition can be waived, the most suitable reason for the waiver of this condition could be using the ground of compelling and compassionate reasons. The current condition of Betty could easily make out a case for granting Partner visa to Fred on the ground of compassion.
A serious medical condition of a member of the close family which requires a person to remain in Australia can certainly be considered a legitimate ground giving rise to compelling and compassionate circumstances for the waiver of the condition 8503. The relevant provision as per which the condition 8503 is Regulation 2.05(4) of the Migration Regulations 1994 which reads as under:
'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.'
To establish the case for the compassion being requested from them by the Minister under subsection 41(2) (a), it may be helpful to lay out the particulars of the medical condition of Betty. As stated in the facts, Betty has a long-standing psychiatric condition for which she has been treated for many years now. Moreover, Betty's condition has deteriorated owing to the fact that is Fred cannot get the visa; he would have to leave her in Australia. Another compelling reason that might warrant the compassion of the Minister is that Betty's parents are also old and hence, unable to take care of Betty. Therefore, it can be clearly seen that there is no one other than Fred who could take care of Betty while she is going through this serious medical condition.
Apart from the above-stated reasons, there is another important fact which might help the application could be that the doctors and psychologists treating Betty are concerned that her condition might deteriorate if Fred does not continue to stay with her.
Moreover, it also needs to be seen that in no way possible that the applicant could have expected such major change in the circumstances so as to compel him to continue his stay. Therefore, it needs to be seen here that the concerns raised by the doctors and psychologist who are currently treating Betty are also given due consideration. They have gone on to say that even the uncertainty around Fred's visa condition may exacerbate the mental condition of Betty. Considering the above concerns, it can be reasonably assumed that Betty's mental is more likely to deteriorate upon the departure of Fred.
Now, in light of the facts and circumstances presented in the application for waiver of condition 8503, it can be clearly seen that there are reasonably compelling and compassionate circumstances for waiving the condition.
Keeping in view, the medical condition of Mr. Fred's wife and the possible deterioration of the mental condition, it is a fit case under the regulations to waive the visa condition 8503 on the ground of compassionate and compelling circumstances.
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