Waiving a No Further Stay Condition

Your visa grant letter will include information as to whether your visa is subject to a No Further Stay Condition.

A No Further Stay condition is a discretionary condition that can be imposed on a variety of temporary visas, though is a mandatory condition for the following visas:

1. Visitor Visa (Subclass 600) (Sponsored Family Stream)
2. Visitor Visa (Subclass 600) (Approved Destination Stream)
3. Visitor Visa (Subclass 600) (Tourist Stream) – if sponsorship has been imposed on the visa
4. Work and Holiday Visa (Subclass 462) – if you have previously held two subclass 462 visas

A No Further Stay Condition can be waived if since you were granted your visa:

1. Circumstances have developed that are both compassionate and compelling
2. You had no control over these circumstances
3. These circumstances have resulted in a major change to your personal circumstances

A waiver request must be in writing (there is a specified form) and more importantly, must be accompanied with adequate supporting documentation. Strong arguments with little or no supporting documentary evidence will fail – the documentation you supply is critical.

Obtaining a waiver is difficult and only practically possible in limited circumstances. Some significant examples are where:

1. The visa holder has become medically unfit for travel after arrival in Australia or has suffered an injury that needs urgent treatment (e.g. through an accident). In this case, the visa holder needs to go through a medical examination to establish that they are unable to leave Australia and needs to remain in Australia to obtain medical treatment, and as such, needs to apply for a Medical Treatment Visa.
2. A serious natural disaster (e.g. a major flood or earthquake) or armed conflict has occurred in the person’s home country, and to require the person to return to their home country would be unreasonable. Again, a detailed submission and supporting documentation (e.g. proof of residence in an area that has been hit by an earthquake or has become a war zone) is necessary.
3. The visa applicant has had a child in Australia to an Australian Citizen or Permanent Resident, as a child needs joint care from their mother and father and for both parents to be actively involved in their upbringing as separation from a parent can lead to a child developing Separation Anxiety Disorder which can have long term negative effects on a child. Proof of parenthood and a support letter from a medical professional should be provided.

The following circumstances are not considered by the Department of Immigration and Border Protection as “beyond the control” of a visa holder or “compassionate and compelling”.

1. Marriage to (or commencing a de facto partner relationship with) an Australian citizen or permanent resident.
2. Pregnancy (unless the applicant can produce documentary evidence that they are unable to leave Australia).
3. For students, failure to complete a course due to failing a subject.

If you believe you are eligible to apply for a waiver of a No Further Stay Condition, you should contact us so we can assess your circumstances and advise you accordingly of the best course of action moving forward.

We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding this area to you and inform you of the process moving forward.

To organise an initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.