Do you have a condition 8534 attached to your student visa and you are unsure about what it means?
Condition 8534 is a discretionary condition that may be imposed on a student visa holder. What that means is that unlike the condition 8105 (must not work for more than 40 hours a fortnight) which must be imposed on any student visa holders, the condition 8534 is usually placed on the student visa when the Department of Home Affairs (Department) has concerns about the applicant’s immigration history.
What is condition 8534?
Condition 8534 does not allow the visa holder to be granted another substantive visa while onshore other than:
- A protection visa or
- A subclass 485 – Temporary Graduate Visa
- A subclass 590 – Student Guardian Visa
Essentially, suppose you have this condition on your visa. In that case, it generally means that whilst in Australia, you cannot apply for another visa such as a student visa, partner visa or work visa. To apply for a substantive visa (other than the three mentioned above), you will have to leave Australia.
However, in some situation, the 8534 condition can be waived.
Waiving the condition
If the condition is waived, you can apply for any class of substantive visa. You are not limited to the protection visa, the temporary graduate visa or the student guardian visa.
To be eligible for the waiver, the applicant must show that since the applicant was granted the visa, new compelling and compassionate circumstances have developed. Compelling and compassionate circumstances are situation that:
- are sufficiently forceful and convincing for the condition to be waived
- are not unreasonable (in that no reasonable decision-maker could conclude that the circumstances are not compelling) and
- give rise to feelings of sympathy for the suffering or misfortune of others.
The circumstances must be beyond the control of the applicant, and it must have resulted in a significant change in the applicant’s circumstances.
Some examples of compelling and compassionate circumstances include:
- Unfitness to travel due to serious medical condition
- Death or serious illness of a family member in Australia
- Natural disaster/ war or civil unrest in the applicant’s home country
Some examples that would not meet the compelling and compassionate circumstances are:
- Marriage to an Australian citizen or permanent resident
- Pregnancy
- Failure to complete a course
The above lists are not exhaustive. All cases are considered by its merit.
Skills Select related waivers
The regulation provides additional circumstances in which condition 8534 may be waived. The condition may be waived if the applicant as a genuine intention to apply for:
- a General Skilled Migration (GSM) visa
- a Business Talent visa
- an Employer Nomination Scheme visa
- a Regional Sponsored Migration Scheme visa or
- a Business Innovation and Investment visa
To be eligible for this waiver, the applicant must have received an invitation to apply for the visa. Merely submitting an expression of interest (EOI) is not sufficient to meet this requirement. The policy behind this waiver is to allow skilled workers to enter the Australia labour market.
What happens after the condition is waived?
Whilst waiting for the request application, you cannot validly apply for another visa. The Department will notify you in writing once they have approved your request. Once it has been waived, you are eligible to make another visa application. The period of the waiver remains in effect indefinitely unless another 8534 is imposed on the visa.
Waiving a condition can complicate and convoluted. It is better to talk to an expert to assist you in identifying the relevant laws and policy that are relevant to your personal circumstances.
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