It is clear from the present perspective of the case that Aysel was a Turkish resident who came to Australia to see her daughter by holding subclass 590 visas. It has also been mentioned in the case that the visa has carried certain conditions that mentioned under the Para of 8101, 8201, 8501, 8516, 8534, 8537 and 8538. Under the Australian Migration Act, a guardian can apply for a parent visa if his or her child is studying in the provinces of Australia. The child should not attain the age of 18 years. It has been mentioned under the visa that a student guardian visa holder can stay at Australia for a period of five years.
It has been observed from the case that Aysel has decided to marry Dennis who was the Australian citizen and decided to stay in Australia on permanent basis. Before give her the advice regarding her stay at Australia, it is important to understand the provision of her visa clauses. It has been stated that the subclass 590 visa are applicable for the purpose of student visa. It has also been stated that there are a number of conditions mentioned under the visa. It is mentioned under 8101 that the holders of that kind of visa are not allowed to involve themselves in any kinds of work. The students are required to arrange their own health insurance under the condition of 8501 and it is the primary duty of the visa holder to satisfy the essential requirements under the visa that are mentioned by Department of Immigration and Border Protection. There are several more requirements have been mentioned under the various conditions under the visa norms.
The conditions of the clause 8537 is inter connected to schedule 2 of the Migration Regulation 1994 and it is stated that the student should, after getting the visa, have to live within the territory of Australia. If there is any necessity accrues so that the student has to leave the country, he is obliged to submit necessary documents before the ministry who are responsible for the immigration matter. The students are required to express the appropriate reason for their urgent leave.
The most important clause that related to this matter is the 8534 that is headed with “no further stay”. It is stated under the provision of the clause that a student is not allowed to stay at Australia once his visa become out dated. No further application for visa can be addressed by the student. However, there is certain exception to the rule. It has been stated that under the clause that if the student get marriage to any permanent resident in Australia or the women get pregnant or failed any subject during the academic session, he or she can waive their rights.
It should be bored in mind that all the conditions along with the waiver principles are applicable for the students only. The parents have no right regarding the same. Therefore, the common rule in this case is that the parents can stay at Australia as long as their children stay there. The condition under the clause 8534 is that it is a no further stay. Melek is therefore advised to understand the fact that the conditions regarding the waive is not applicable for her. The concerned ministry regarding the immigration act will not allow her to marry Dennis or stay in the provinces of Australia permanently. Therefore, she has no option to waive the “no further stay” principle and the statement regarding permanent residency will be applicable here in her case.
In this present case, it has been mentioned that after the death of Aysel, her daughter Melek has become orphan and there is a rule regarding the staying at Australia mentioned under the subclass visa 117. According to the principle laid down here, an orphan has the right to stay with his or her relative if the relative is a permanent resident of Australia. The age limit in this case is below 18 years. Certain other rules are also mentioned in this case. The orphan must not be married or in a stable relationship in this case and there must be sufficient proof that the said orphan has no parents alive. It is also mentioned in this case that the orphan should not be permanently incapacitated. If all the conditions are followed in this case, an orphan can stay in the provinces of Australia.
There are certain costs applicable and mentioned regarding the same and it has been mentioned in AUD 1480. It has been mentioned that any of the relative of the child is living in Australia. There are certain list has been mentioned in this case that who are the relatives. The listed relatives are sister, brother, uncle, grandparents or aunt. It is also stated that the relative is the permanent resident of Australia. It has been mentioned that both the parents of the child should be dead at the time of applying for the visa and necessary documents are to be submitted before the ministry regarding the death confirmation of the parents. There is another clause regarding the valid visa that if the purpose of obtaining the visa is not intended to the best interest of the child or the orphan, the visa will not be granted in this respect. It is important to understand the fact that the Australian Government will not take any responsibility regarding the welfare cost of the child and therefore, the child should have certain assurance relating to the matter.
There is a requirement regarding the character of the orphan in case he or she is above 16 years. If it has been seen that the child or the orphan has taken certain loan, the visa will be allowed to her at the will of the concerned ministry. However, the subclass visa regarding the same will be applicable in this case only when the orphan has a right to hold substantive visa regarding the same and there is an option that until and unless the validity of the subclass visa are applicable, the orphan should not have apply for any other visa.
From the above mentioned statement it is necessary to state that almost each of the conditions are fulfilled in the case of Melek. First of all, she is a substantive visa holder. She has not attained the age of majority. According to the statement regarding the case law, it is clear that she is not married and is not under any relationship. In this case law, it is clearly stated that the parents of Melek are not alive and she has no other blood relative who can takes care of him. It has been stated by her uncle that he is a permanent Australian citizen and it is also not mentioned under this case that she had taken any kind of loan during her staying in Australia.
However, it is to be understood that the person named Hasan is not her blood-related uncle and under the rule stated under subclass visa 117 or visa 837, it has been mentioned that uncle can be the guardian of an orphan. There is a provision stated under the rules that the uncle must be a blood-relation uncle and Hasan is not the blood-related uncle and therefore, Hasan is not eligible to become the guardian of Melek. Under the rules of the Australian Migration Act, it is stated that Hasan is not allowed to allow for orphan relative visa for Melek.
It is clear from the statement of the case that the mother of Melek had met with an severe accident and passed away and therefore, there is no other blood-related relatives who can take care of her. It is mentioned under the case that Melek has an uncle stayed in Australia who wanted to take her responsibility and is a permanent relative in Australia. However, he is unable to apply for the appropriate visa for her as he is not in any way related to Melek by blood. Therefore, he had to look at other options regarding the staying facilities of Melek.
In the Australian Migration Act, there is a provision regarding the adoption visa engraved under subclass 102. The purpose of the visa is to gain the ability to adopt the child. There are certain requirements mentioned under the chapter of the subclass visa regarding the same which are as follows:
The adopted child must be a resident outside the provinces of Australia and must not attained the age of 18 years. It is mandatory that the sponsor or the adopted parents of the child is a permanent resident of Australia. The children should hold certain health certificates that are the part of the adoption visa.
Melek can be adopted on the ground that she has no living parent and there is no one who can take care of her and also it is important that she has not attained the age of puberty. The adoption visa will allow her to stay at the provinces of Australia and she can continued her work or study there. It is common that the Australian government will not take any responsibility regarding the same and therefore, Melek cannot get any privileges from the Australian government regarding the issue.
It is also the rule that her uncle a should have to decide whether he can carry on all the expenses of Melek and whether can fulfil the requirements of the adoption process. The relationship criteria are also an important thing in case of adoption as every person is not allowed to be a guardian of the child. A strong bonding should have to present in this case between the child and the adopting parents. It is important to carry out all the requirements stated under the provision of Australian Immigration Policy or the Migration Agent Registration Authority.
Lastly, the applicant must meet all the criteria regarding the provision of Migration Act 1958 and should maintain the complementary protection criteria regarding the adoption. Therefore, Hasan is advised to choose any of the option stated herein and can claim for the subclass 102 visa.
Reference:
Akbari, Ather H., and Martha MacDonald. “Immigration policy in Australia, Canada, New Zealand, and the United States: An overview of recent trends.” International Migration Review 48.3 (2014): 801-822.
Dauvergne, Catherine, and Sarah Marsden. “The ideology of temporary labour migration in the post-global era.” Citizenship Studies 18.2 (2014): 224-242.
Gopal, Anita. “Visa and Immigration Trends: A Comparative Examination of International Student Mobility in Canada, Australia, the United Kingdom, and the United States.” Strategic Enrollment Management Quarterly 4.3 (2016): 130-141.
Hugo, Graeme. “From permanent settlement to transnationalism–contemporary population movement between Italy and Australia: trends and implications.” International Migration 52.4 (2014): 92-111.
Koslowski, Rey. “Selective migration policy models and changing realities of implementation.” International Migration 52.3 (2014): 26-39.
Marginson, Simon. “International education in Australia: The roller coaster.” International Higher Education 68 (2015): 11-13.
Migration Agents Registration Authority (MARA)
Migration Regulation 1994 (schedule 8)
Oliver, Damian, and Chris F. Wright. “Australia’s shifting skills ecosystem: Contemporary challenges in education, training and immigration’.” Industrial Relations Reform: Looking to the Future, Federation Press: Sydney (2016): 163-186.
Petoumenos, Kathy. “The Australian Hiv Observational Database Temporary Residents Access Study (ATRAS) One year follow-up.” (2013).
Phillips, Janet, and Joanne Simon-Davies. Migration to Australia: a quick guide to the statistics. Parliamentary Library, 2016.
Robertson, Shanthi. “Time and temporary migration: The case of temporary graduate workers and working holiday makers in Australia.” Journal of Ethnic and Migration Studies 40.12 (2014): 1915-1933.
Smith, David, et al. “Developments in Australian migration.” Canadian Studies in Population 43.1-2 (2016): 117-145.
Watson, Robert. “Student visa system fraud exposed in BBC investigation.” (2014).
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