In 2019, Kah Lawyers assisted a Chinese couple with an application for a Visitor Visa (Frequent Traveller Stream). The couple have a daughter in Australia who has a young family. They wanted the flexibility of being able to travel as when they could for the next 10 years so that they could see their daughter, their son-in-law and spend time with their grandchildren. The couple’s visas were granted and they were able to visit Australia as and when it suited them. They were allowed to stay for up to 3 months upon each entry.
In January 2020, the couple travelled to Australia while on this visa so that they could spend Chinese New Year with their daughter and her family. In early February 2020, they booked a flight to depart Australia on 31 March 2020 (i.e. well before the expiry of their stay period). Unfortunately for this couple, on 26 March 2020, the Civil Aviation Administration of China (CAAC) published a notice stating that the number of inbound international flights would be limited. The next day, their flights were cancelled.
2020年1月，这对夫妇赴澳与女儿一家欢度春节，并于2月上旬预订了3月31日回中国的航班。但由于中国民航总局（CAAC）于2020年3月26日发布的一份通告 – 为控制疫情，往返中国的国际航班数量将大幅减少。随后，这对中国夫妇回国的航班于27号被取消。
The couple tried booking for alternative flights to depart Australia but there were no flights available prior to their visas expiring. The couple were well aware that their visas were subject to visa condition 8503, i.e. the No Further Stay Condition. As such, they contacted our office to seek legal advice and assistance on their migration options.
What is “No Further Stay Condition”?
The “No Further Stay Condition” (otherwise known as Visa Condition 8503) is a mandatory condition that appears on Visitor visas (Family sponsored stream) and Visitor Visa (Frequent traveller stream). The condition is a discretionary one for those who hold a visitor visa (tourist stream). Basically, this condition mandates that a visa holder cannot apply for another substantive visa while in Australia unless it is a protection visa.
根据澳洲移民法，十年旅行常客签(Frequent traveller stream)和探亲访客签(Family sponsored stream)一定会附加不得延期逗留条款 （也叫8503条款）。 而对于持有普通游客签证(tourist stream)的旅客，该条款则由移民官根据个案酌情决定。简单来说，8503条款意味着，签证持有人在进入澳洲后的逗留期间，将不允许申请除庇护签证（Protection Visa）外的任何实质性签证。该签证持有人必须在离开澳洲后，才能进行其他实质签证的申请。
Visa holders can apply to the Department to request for this condition to be waived. They have to demonstrate to the Department that circumstances must have developed since they were granted the visa which are compelling and compassionate, and are beyond their control. Requests must be in writing and they will be assessed on a case by case basis.
How did Kah Lawyers assist the couple?
Kah Lawyers 为这对夫妇提供了怎样的法律帮助？
Kah Lawyers argued that at the time the couple entered Australia, the COVID-19 epidemic was restricted to Wuhan. We also pointed out that at the time the couple booked their flights to depart Australia (i.e. in February 2020), the WHO had not declared this epidemic to be a pandemic. As such, the couple had no way of knowing that the Chinese government would take steps to impose travel restrictions to prevent a second wave of infection from affecting China.
We pointed out that the couple’s flight to depart Australia on 31 March 2020 had been cancelled, and that their visas were due to expire in early April 2020. Further, the notice from the CAAC pointed out that a further policy may be implemented to further reduce inbound international flights. This meant that even if the couple could secure another flight to depart Australia prior to their visas expiring, there was no guarantee that the airline would honour the flight booking.
Our submission was lodged with the Department six days before the couple’s visas were due to expire. The Department’s website states that waiver requests can take up to 28 days to process. Fortunately, a day before the couple’s visas were due to expire, the Department agreed with our submission and granted the couple’s request to waive the No Further Stay Condition, allowing them to lodge a visitor visa onshore so that they could make preparations to depart Australia.
If your visa is subject to a “No Further Stay Condition” and your departure flight has been cancelled, please contact our office for a telephone or Skype conference on (02) 9689 3173.
If your request to waive the “No Further Stay Condition” has been refused and you need advice on lodging an application for a Bridging Visa E, as well as the implications on your migration history of departing on a Bridging Visa E, please contact our office for a telephone or Skype conference on (02) 9689 3173.
Disclaimer: This information is current at the time of publication and subject to change. The contents of this blog post is provided for general information only and Kah Lawyers does not accept any liability for any damages suffered by persons who relied on this information. This information does not constitute as legal advice and is not intended as a substitute for legal advice.