You are contacted by Mr Soheb Akther from Brisbane. Soheb informs you that he is an Australian citizen and brought his mother, Bashra, to Australia three years ago from Pakistan on a three month tourist visa. His mother liked Australia a lot but left before her tourist visa expired when she received news that her husband in Pakistan had died suddenly in an accident at work.
Soheb’s mother is now aged 66 years old and lives in Karachi, Pakistan. Soheb informs you he is not too well off and is struggling to make ends meet himself. Nevertheless, since he is the only son, he has been fulfilling his familial duties by sending whatever money he could to support his mother for the last three years since the death of his father.
Soheb also informs you that he has two other siblings (sisters), Salma and Lina, but they are married and living in Pakistan with their families.
Bashra has told Soheb that she would like to come to Australia again since her husband has now passed away and her two daughters live so far away that she does not see them anyway.
1.Advise Soheb whether he can bring his mother on a Parent visa to Australia and why.
What other permanent visa options are available for his mother (if any) and what evidence does he need to provide with the visa application. You need only advise him in relation to three key pieces of evidence at this stage.
In the end, Soheb decides not to “rush into things” and his mother, Bashra, obtains a Visitor (subclass 600) visa instead and comes to Australia. Her visa authorises her to remain in Australia for 3 months and carries the conditions 8101, 8201, and 8503.
Nearly three months has passed and Bashra’s Visitor visa is expiring next week. As she was preparing to go back to Pakistan, Soheb receives news from his brother-in-law, Mustafa, in Kandahar, Pakistan, that his sister, Lina, was killed last week by the Taliban for not wearing a hijab when they came to their house.
2.1Advise Soheb whether his mother Bashra would now be eligible to apply for a Parent visa in Australia without having to go back to Pakistan? Support your answers with legislation
2.2What would Bashra need to do before she can apply for the visa in Australia? Support your answers with reference to the specific legislative provisions.
2.3f all the onshore Parent visas that are available, which one would you recommend that Bashra apply for and what are the visa requirements, bearing in mind that Soheb is not financially well off? Support your answers with reference to the specific legislative provisions.
1.For getting a sponsored parent visa in Australia, there are a few criteria that need to be met. Parent Visa subclass 103 talks about the permanent visa of a parent[1]. This clause of parent visa allows a parent of an Australian citizen to permanently settle in Australia. The condition that needs to be fulfilled while applying for a permanent visa in Australia in that the child is a permanent resident in Australia and is settled in Australia The criteria for applying for parent visa are that the sponsor for a Parent Visa must have lived in Australia as a lawful citizen. The person applying for the Visa must be staying outside Australia. Under subclass 103, the applicant has to also meet other requirements, like the balance of family test, health test. Therefore the subclass 103 applies to senior citizen who has their kids in the Australia residing permanently. In the present case, Soheb Akhter is from Brisbane who is a permanent citizen. Soheb wants to apply for the permanent visa for her mother so that she can stay with him. Bashra’s husband has passed away and her daughters do not stay with her making it difficult for Bashra to live on her own.The application for permanent parent Visa has to be made to the Board[2].
In the present case, the Soheb’s mother is 66 years old whose husband has passed away and who has no other source of income other than the money that Soheb sends. Soheb is a permanent resident of Australia and therefore he can sponsor his mother’s application. For applying for permanent visa, Soheb has a few options, like The Aged Parent Visa subclass 804, Contributory Aged Parent visa subclass 864, aged dependent relative visa subclass 114 are the other options available to Shoheb for bringing his mother to Australia permanently.
The Aged Parent Visa subclass 804- the eligibility criteria to apply under this subclass is that the applicant needs to have a child who is an Australian citizen and a permanent resident[3]. This visa lets parents of settled permanent residents of Australian citizens to stay in Australia permanently. To get the pension, the parents has to be aged 65 years and above[4].
Contributory Aged Parent Visa subclass 864- This subclass lets parents of settled Australian parents to settle in Australia permanently. Before applying for this visa, there is a provision to apply for subclass 884. The reason behind making an application for a temporary visa before the application for permanent visa is that even though the cost is a little on the higher side but the costs are evenly spread[5]. The eligibility criteria here are similar to The Aged Parent Visa subclass 804, that is, the parent has to be old enough to receive the pension under the Australian Aged Pension Rules[6].
Aged Dependent Relative Visa subclass 114- This visa applies to older people who are trying to settle in Australia and if they are relying on an eligible relative in Australia. This applicant is for older people who need financial support in Australia. The eligibility for this visa is a little different from the above mentioned visa application eligibilities. These criteria are that the applicant has to be dependent, single, old enough to receive the Australian aged pension and also there needs to be someone who can provide an assurance of support[7].
In this present case, Bashra meets the criteria for getting the aged dependent relative visa subclass 114, that is, she is single as she has lost her husband, she is financially dependent and she has assurance from her son Soheb who will finance her.
2.1The visitor subclass 600 visa is for temporary stay in Australia. By virtue of the Visitor Visa, Bashra is allowed to stay in Australia for a period of 3 months. The sponsored Family Stream of the visitor visa subclass 600 is used by members of a family with the purpose of staying for a short period and visiting family[8]. This visa needs a sponsorship from a family member who is an Australian citizen or resides in Australia permanently. The essential features of this visa are that penalties will apply in cases when the visa requirements are not met and there is a breach of conditions. The sponsor has to be above 18 years of age and a permanent citizen of Australia. Bashra has applied under 8101 which is no work, 8503 no further stay, 8201 that the holder ahs to engage in some activity while in Australia[9]. Though the visa period is given for a period of 3 months, but in certain cases, it can be extended upto 12 months. In this case, there is a condition of 8503 of no further stay that makes it imperative on the party to leave the country once period of stay is over. The no stay clause is mandatory in 600 subclass visa applications. There can be a waiver of the no further stay condition when the Minister waives conditions because of situations arising on which the holder has no control. Under considerate and compassionate grounds, a “no further stay” condition can be waived. The conditions that need to be met for a waiver in the no further stay condition is that the circumstances have changed and the conditions are compassionate and compelling, that the holder had no control over the situation and also that the circumstances were such so as cause a major change to the personal circumstances of the person. In the present case, Lina’s death is a compelling ground for waiver of the “no further stay” clause because the death was sudden and shocking and has also caused a drastic change to the current circumstance of the person[10].
2.2The no further stay clause is an important clause attached to a visa application that precludes a person to stay in Australia for more than the designated time, which is 3 months, In cases on no further stay, there are hardly any exceptions that allow a person to stay for more than the designated time. In a subclass 600 visa the no further stay clause is mandatorily imposed. In such cases, the no further clause can only be removed if there is an application of a protection visa. The protection visa is granted by the Australian Government who wants to apply for protection in Australia. The Refugee and Humanitarian programme helps the people seeking protection in Australia to get a protection visa in Australia. To avail the benefit of the protection visa, the person has to arrive legally in Australia and apply for a visa. This visa allows the person to work and live permanently in Australia. With the help of this visa, the person gets protection under the Australian laws. The eligibility criteria that the applicant has to meet are: he must engage in the obligations of protection mandated by the Australian law[11]. The other criteria are that the person has to have arrived with a proper and legal visa. The protection given under the Protection Visa is governed by the subclass 866. The person applying for this visa has to meet the health, character and security tests. The Protection visa is given to people because by virtue of the complimentary regulations of Australia, a person cannot be returned to a country as under the protection rule of Australia[12]. The person will also fall under the protection obligations if they can show that circumstances have changed since their arrival in Australia and hence the conditions are such that the person cannot be made to go back[13]. In this case, the loss of Lina is a big factor for which Soheb’s mother has a potential fear and also she needs a protection visa to waive the no further stay clause.
2.3This visa applies to older people who are trying to settle in Australia and if they are relying on an eligible relative in Australia. This applicant is for older people who need financial support in Australia[14]. These criteria are that the applicant has to be dependent, single, old enough to receive the Australian aged pension and also there needs to be someone who can provide an assurance of support.
In this present case, Bashra meets the criteria for getting the aged dependent relative visa subclass 114, that is, she is single as she has lost her husband, she is financially dependent and she has assurance from her son Soheb who will finance her. This visa application is done for people when the person sponsoring the visa is not financially well off and the aged person is depending on the sponsor financially.
References
Chen, Wen, et al. “Pre-migration and post-migration factors associated with mental health in humanitarian migrants in Australia and the moderation effect of post-migration stressors: findings from the first wave data of the BNLA cohort study.” The Lancet Psychiatry 4.3 (2017): 218-229.
Denny, Lisa, and Brendan Churchill. “Youth employment in Australia: A comparative analysis of labour force participation by age group.” Journal of Applied Youth Studies 1.2 (2016): 5.
Isin, Engin F., and Peter Nyers, eds. Routledge handbook of global citizenship studies. Routledge, 2014.
Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library, 2016.
Lenard, Patti Tamara. “Democracies and the power to revoke citizenship.” Ethics & International Affairs 30.1 (2016): 73-91.
Levey, Geoffrey Brahm. “Liberal nationalism and the Australian citizenship tests.” Citizenship Studies 18.2 (2014): 175-189.
Murphy, Kerry. “Breaking down the 457 visa changes.” Eureka Street 27.7 (2017): 8.
Rioseco, Pilar, John De Maio, and Cuc Hoang. “The Building a New Life in Australia (BNLA) Dataset: A Longitudinal Study of Humanitarian Migrants in Australia.” Australian Economic Review 50.3 (2017): 356-362.
Sullivan, Michael J. “Conditional residence for unauthorised immigrant parents.” The International Journal of Children’s Rights 22.4 (2014): 776-806.
Wilding, Raelene, and Loretta Baldassar. “Ageing, migration and new media: The significance of transnational care.” Journal of Sociology (2018): 1440783318766168.
Wright, Chris F., and Stephen Clibborn. “Back Door, Side Door, or Front Door: An Emerging De-Factor Low-Skilled Immigration Policy in Australia.” Comp. Lab. L. & Pol’y J. 39 (2017): 165.
Isin, Engin F., and Peter Nyers, eds. Routledge handbook of global citizenship studies. Routledge, 2014.
Lenard, Patti Tamara. “Democracies and the power to revoke citizenship.” Ethics & International Affairs 30.1 (2016): 73-91.
Wilding, Raelene, and Loretta Baldassar. “Ageing, migration and new media: The significance of transnational care.” Journal of Sociology (2018): 1440783318766168.
Levey, Geoffrey Brahm. “Liberal nationalism and the Australian citizenship tests.” Citizenship Studies 18.2 (2014): 175-189.
Sullivan, Michael J. “Conditional residence for unauthorised immigrant parents.” The International Journal of Children’s Rights 22.4 (2014): 776-806.
Isin, Engin F., and Peter Nyers, eds. Routledge handbook of global citizenship studies. Routledge, 2014.
Denny, Lisa, and Brendan Churchill. “Youth employment in Australia: A comparative analysis of labour force participation by age group.” Journal of Applied Youth Studies 1.2 (2016): 5.
Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library, 2016.
Murphy, Kerry. “Breaking down the 457 visa changes.” Eureka Street 27.7 (2017): 8.
Wright, Chris F., and Stephen Clibborn. “Back Door, Side Door, or Front Door: An Emerging De-Factor Low-Skilled Immigration Policy in Australia.” Comp. Lab. L. & Pol’y J. 39 (2017): 165.
Chen, Wen, et al. “Pre-migration and post-migration factors associated with mental health in humanitarian migrants in Australia and the moderation effect of post-migration stressors: findings from the first wave data of the BNLA cohort study.” The Lancet Psychiatry 4.3 (2017): 218-229.
Murphy, Kerry. “Breaking down the 457 visa changes.” Eureka Street 27.7 (2017): 8.
Wright, Chris F., and Stephen Clibborn. “Back Door, Side Door, or Front Door: An Emerging De-Factor Low-Skilled Immigration Policy in Australia.” Comp. Lab. L. & Pol’y J. 39 (2017): 165.
Rioseco, Pilar, John De Maio, and Cuc Hoang. “The Building a New Life in Australia (BNLA) Dataset: A Longitudinal Study of Humanitarian Migrants in Australia.” Australian Economic Review 50.3 (2017): 356-362.
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