The pathway to challenge refusal of 8503 – Australia Visitor visa waiver

If an immigration delegate refuses to grant the 8503 – Australia Visitor visa waiver, is there a pathway for the applicant to challenge the refusal? This question was raised in the case DIBP Vs Karan (FCA 872 – 2017) and decided by the federal court Judge Siopsis.

The background to this case is that the applicant Karan is a Fiji national of 42 years of age who had initially arrived in Australia in 2000 on an Australia Visitor visa to visit his family members. He resided in Australia for 15 years and finally married an Australian national in 2015 August.

Karan was unable to obtain a Partner visa or any major visa apart from a Protective visa owing to the condition 8503 related to Australia Visitor visa waiver.

In 2016 February, he sought the exemption of the condition 8503 – Australia Visitor visa waiver through services of a Registered Migration Agent, as quoted by the Migration Alliance. An immigration delegate however refused the request for waiver offering a rather standard reason for refusing the waiver.

Karan then approached the Federal court wherein the Judge Siopsis set aside the decision by the delegate and granted the waiver to him. The Judge ruled in his verdict that the immigration delegate failed to appreciate the nature of the applicant’s claim. He had tagged the case of the applicant as being determined by only the claim that the applicant’s wife would suffer misery only based on separation.

In reality, it was found by Judge Siopsis that the application that was advanced as the applicant was essentially unusual. The applicant’s wife was an individual who suffered from acute mental and physical issues for health. The separation from the applicant in the given situation would aggravate her mental and physical health issues, observed the Judge.

Thus it was finally not the considerable merits of the application that resulted in the Federal Court to set aside the decision of the delegate to refuse the condition 8503 – Australia Visitor visa waiver. On the other hand, it was the lapse of the legal powers of the delegate in being unable to appropriately differentiate the nature of the application’s claim. The delegate had also failed in addressing the actual claim in his written reason for refusing the waiver, said the Judge.

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Anshul Singhal

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