Issue
Rules
1).
Under the regulation 1.05 of the Migration Regulations 1994, it is important that the parent visa applicants satisfy the Balance of Family test. The Balance of Family test (BoF) determines the following two factors:
The BoF is an objective test that determines the family links of the parent applicant in Australia compared to the family links of the parent applicant in other nations. This requirement cannot be waived even under compassionate and compelling circumstances, as this condition is fundamental to obtain the parent visa.
However, the exception to this counting of children for ‘balance of family test’ is circumstances where the child has been removed from the custody of the parent through operation of law.
The other permanent visa options include the present parent visas that are in effect in Australia are divided into two visa categories:
Under the Migration Legislation, only one parent is allowed to apply for both onshore and offshore parent visas. The offshore visas comprise the Parent [Subclass 103] visa and the Contributory Parent (subclass 143).
Offshore visas
Contributory Parent Visa (subclass 143)
In order to apply for the Contributory Parent Visa (subclass 143) under [Schedule 2] and Regulation [143.32] of the Migration Regulation 1994, the applicant must satisfy the following requirements:
Contributory Parent Visa (Temporary subclass 173)
In order to apply for this visa, it is important that the applicant /parent must satisfy the following requirements set out under Regulation [143.111] of Migration Regulation 1994;
Onshore Visas
Aged Parent (subclass 804) visa
In order to apply for this visa under Regulation [1.03] of Migration Act 1994, the applicant/parent must:
Contributory Aged Parent (subclass 864) visa
This visa requires the applicant to establish under [schedule 2] [subclass 1130A] of the Regulation 1994 that he/she has:
Contributory Aged parent (Temporary subclass 884) visa
The visa applicant must satisfy the following requirements under [schedule 3] and Regulation [1130A] of the Migration regulations 1994:
Application:
In regards to the first issue, Soheb’s mother must meet the BoF test, which requires that her eligible children in Australia must be more or equal to the number of her ineligible children in the overseas. However, since her two children are residing in Pakistan and only her son, being an eligible child, is residing within Australia.
Thus, her two ineligible children, Lina and Salma, reside in overseas country which amounts to more number of children residing in overseas than her eligible child, Soheb, who alone resides in Australia. However, she may be excluded from the conducting of Balance of test as her two daughters are married and live with their husbands and is not under her custody as per the operation of law.
In regards to the second issue, other permanent visa options that are available for enabling Soheb to bring her mother to Australia includes Parent category (subclass 103 and 804); and Contributory Parent category (subclasses 173,143, 884 and 864). Amongst the requirements, three essential evidences that must be established to apply or obtain all these visas include:
Sponsor- the parent applying for this visa requires a sponsor who must be his or her child who is permanently settled in Australia and is above 18 years. Other provisions exist for child who is below 18 years.
Age criteria- The parent visas are divided into working age parent and aged parent. The primary difference between aged parent and working age parent is that aged parent may apply for either the offshore or the onshore visas whereas the working age parent may only apply for the offshore parent visa.
Balance of Family Test- the parent applicant must establish that at least half of his/her, children live permanently in Australia or that majority of the children of the applicant permanently reside in Australia other than in any other nation.
Conclusion:
Soheb can bring her mother to Australia on parent visa as she may be excluded from the ‘balance of test’ requirement as her daughters are removed from her custody as they are married and under the custody of their respective husbands as per operation of law.
To apply for the other visa options, Bashra must establish she has a sponsor and she has met the age as well the Balance of family test criteria
2).
Issue
Rules
The visitor subclass 600 visa is a temporary visa that is granted to people who wishes to visit Australia for:
The visitor visa is permitted to reside in Australia for three months. In order to obtain a temporary visitor visa, the applicant must:
There are certain visa conditions that are imposed on the visas, which must be complied with to prevent cancellation of the visas.
Visa Condition 8101
This visa condition prohibits the visa holder from engaging in work while staying in Australia. The visa holder must not contravene the provision unless such work involves volunteer work. However, violation of the visa condition would result in cancellation of the visa by the Immigration Department of Australia. Further, the visa holder may be required to leave the country and shall be prohibited from returning in the country.
Visa condition 8201
The Australian visa holder must not engage in any training or studies for more than 3 months.
Visa Condition 8503
This is the ‘no further stay’ condition is imposed to prevent the visa holder from applying for any other permanent and temporary visas while the visa holder is staying in Australia. This visa condition requires the applicant to leave Australia after the visa expires.
The visa-holder must make a written request to the Minister regarding the waiver of the condition. The Minister may waive the 8501 condition under the following circumstances:
If the Minister waives the condition, the visa holder may apply for another visa without departing from the nation. The new visa may be applied provided the visa applicant complies with the legal requirements of the visa.
The visa holder who is provided with a ‘substituted 600 visa’ becomes eligible for applying other appropriate substantive visas. The visa holder of ‘substituted 600 visa’ whose children are settled in Australia, may apply for an onshore Aged Parent [subclass 804] visa or Contributory Aged Parent [permanent or temporary] [subclass 864 or 884] visa despite not satisfying the BoF or age requirements.
However, ‘substituted 600 visa holders’ with 8503 ‘no further stay’ condition under [section 48] of the Migration Act cannot apply for subclass 884 and 864 visa. The aged parents from offshore may apply for 173 and 143-subclass visa. The Contributory Parent visa (subclass 143) visa will permit the aged parent to reside in Australia permanently whereas the Contributory Parent (temporary) visa (subclass 173) visa will permit the aged parents to live temporarily in Australia. .
In order to apply for the above visas, the parent applicant must establish the following criteria set out under schedule 2 of Migration Regulations 1994:
This visa is will entitle the visa applicant to reside in Australia permanently and is entitled to be enrolled under Australia’s Medicare scheme related to health-related care and expenses.
Application
In regards to the first issue, Soheb’s mother has obtained a Visitor subclass 600 visa which has three conditions imposed according to which she is not entitled to work and cannot be engaged in any training or studies for more than three months. Further, the 8503 visa condition, which is a ‘No Further Condition’, shall require her to leave the country with the expiry of the visa. However, she may apply before the Minister to waive the condition on the ground that since she was granted the subclass 600 visa, her daughter was killed.
Further, the death of her husband made her financial dependent on her son who is settled in Australia. This leads to a significant change in her circumstances, which was beyond her control, which amounts to one of the conditions that is considered by the Minister to waive the 8501 condition. She may apply for another visa without departing from the nation after the waiver of the condition.
In regards to the second issue, to apply for another visa, she must establish that her son Soheb shall be her sponsor who is above 18 years old and shall provide her assurance of support. She has also met the BoF test, as after the death of one daughter, the number of eligible child legally residing in Australia, that is Soheb is equal to the number of ineligible child residing in overseas that is, Salma. Lastly, there was no cancellation of her previous visas.
Further, given the financial condition of Soheb, it is appropriate that Bashra applies for Contributory Parent visa (subclass 143) visa under [Schedule 2] and Regulation [143.32] of the Migration Regulation 1994 as it will not only permit her to reside in Australia permanently but will also cover her medical expenses because she will be enrolled under the Medicare scheme. This will relieve Soheb from paying her health care related expenses significantly.
Conclusion:
Bashra may apply for another visa after waiver of 8503 visa condition and Contributory Parent visa (subclass 143) visa is the most appropriate visa for her to apply after she fulfills all its legal requirements set out under the Migration Act 1958 (Cth).
‘Contributory Parent (Temporary) Visa (Subclass 173)’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/visa-1/173-> accessed 6 May 2018
‘Contributory Parent Visa (Subclass 143)’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/visa-1/143-> accessed 6 May 2018
Migration Act 1958 (Cth) at section 48
Migration Regulations 1994
‘Parent Category Visas’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/brin/pare#> accessed 6 May 2018
‘Visa Conditions’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions> accessed 6 May 2018
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