If your loved one is already in Australia on a temporary visa (i.e. visitor or tourist visa, student visa, working holiday visa) she or he may be eligible to apply for a provisional spousal or partner visa (subclass 820) from within Australia. However, when applying for a partner or spousal visa onshore, you should initially check if condition 8503 specifically refers to your partner. If your loved one is subject to this condition, it means they are not eligible to apply for another visa onshore other than a protection visa or another specified temporary visa. If your partner chooses to depart Australia before their temporary visa expires, the 8503 condition on their previous visa will not prevent them from applying for other visas from overseas.
The reason that condition 8503 is imposed on some visas is that it allows the Department of Immigration and Border Protection (DIBP) to grant more visas of a certain type. This tends to be in those cases where additional confirmation is required to ensure that the visa applicants will leave Australia at the end of their allowed visa stay. The condition has proven to be a positive influence in this issue, with a greater number of visas being granted while still seeing a reduction of those cases where people try to stay longer that they are allowed.
Although condition 8503 may be imposed on a number of visitor and temporary residence visas, it is a mandatory condition in Sponsored Family Visitor visa (subclass 679), Tourist visa (subclass 676) granted under the Approved Destination Status scheme operating out of the People’s Republic of China, Sponsored Business Visitor visa (subclass 459) whereby the application was made prior to 1 July 2006, Professional Development visa (subclass 470) and Work and Holiday visa (subclass 462) if the applicant has previously held two subclass 462 visas.
You can easily determine whether condition 8503 applies to your partner as the code will be on their Australian visa label or grant letter. Generally a foreign national cannot waive this condition when applying for a marriage or partner visa from inside Australia. The only exceptions are if they have a change in their circumstances beyond their control. Applicants must send a special request to the Department of Immigration and Border Protection (DIBP) in writing to clarify this. If the applicant’s waiver request is still being processed by the time their initial visa expires they must apply for a bridging visa or they will be ‘out of status’ (unlawfully) in Australia.
If the 8503 condition is waived, then your loved one can apply for another visa without having to depart Australia. If it is not waived then she or he cannot reapply and there is no appeal process. You can submit a request for a new waiver but there needs to be substantial evidence of why it is necessary. This is by no means easy to obtain, with very particular details and documentation required, so it is imperative that any applicant understands that these types of waivers are rarely granted.
Some visas have special circumstances and in some cases these special conditions are not negotiable. For example if your partner, husband or wife have a Sponsored Family Visitor visa then they must leave Australia before that expires (condition 8531) regardless of whether or not they receive a waiver of condition 8503. This can also mean that any lodged security bond will not be refunded.