How Does “No Further Stay” Condition Work?
A “no further stay” condition does not operate as a prohibition extending to any future visa applications while the holder of the visa is in Australia. For example, condition 8534 does not prevent a person from being granted of any of the following visas while in Australia:
For any other visas other than the above, grant of the visa while the Applicant is in Australia requires condition 8534 to be waived.
What Does the Law Say About No Further Stay Condition?
Section 46 of the Migration Act 1958 (Cth)
(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) of the Migration Act 1958 (Cth)
(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
For our example, condition 8534 is 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”.
The holder will not be entitled to be granted a substantive visa, other than:
Protection visa; or
while the holder remains in Australia.
Hence, condition 8534 satisfies s46(1A)(b). Let’s not stop there. We move to s46(1A)(c) which states:
(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).
Circumstances Prescribed Under S41(2A) for the Waiver of Condition 8534 No Further Stay
Subsection 41(2A) points to reg 2.05 as follows:
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. That being said, it will be a common mistake if the above is the only provision containing circumstances in which the Minister may waive a condition of a kind described in s 41(2)(a), as explained below.
Reg 2.05
(5A) For subsection 41(2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa:
(a) has completed the course for which the visa was granted; and
(b) has a genuine intention to apply for:
(i) a General Skilled Migration visa; or
(ii) a Subclass 132 (Business Talent) visa; or
(iii) a Subclass 186 (Employer Nomination Scheme) visa; or
(iv) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(v) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(vi) a Subclass 482 (Temporary Skill Shortage) visa.
Hence, the client subject to condition 8534 “no further stay” may apply the abovementioned visas under reg 2.05(5A) and it is not a requirement to show compassionate or compelling circumstances.
But buyer beware!!!!! That is not to say that the Minister will necessarily waive the condition. After all, that provisions says that the Minister “may” waive condition 8534.
Bonus tips
Under PAM3, a person who has been invited by SkillSelect to apply for any of the above visas need not apply for a waiver. A waiver is given under ImmiAccount by default due to the operation of reg 2.07AG:
Reg 2.07AG
…
(2) For section 46 of the Act, an application for a substantive visa by a person for whom condition 8534 has been waived under subregulation 2.05(5A) is a valid application only if the application is for:
(a) a General Skilled Migration visa; or
(b) a Subclass 132 (Business Talent) visa; or
(c) a Subclass 186 (Employer Nomination Scheme) visa; or
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa; or
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa; or
(f)a Subclass 482 (Temporary Skill Shortage) visa.
How can we help you?
If your visa is subject to a “no further stay” condition, please take a deep breath. It’s not the end of the world; just talk to one of our lawyers immediately. This is because help will always be given at Agape Henry Crux, to those who seek for it. You can contact us on +61272002700 or email our team at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.