The issue in the given scenario is whether Aysel is entitled to get married and apply for a permanent residence visa under her Student guardian Visa ( subclass 590).
According to the subclass 590 visa, the holder is allowed to stay in Australia as a guardian of an international student below the age of 18 years for studying in the country on a student visa and needs support and care due to exceptional circumstances. The holder of this visa is not allowed to work and the person is allowed to reside in Australia for the same span of time as the student visa holder is allowed to stay or until the student attains 18 years of age.
The visa condition 8101 states that the holder is not allowed engaging in any form of work within the country. The visa condition 5201 prohibits the holder from engaging into any studies or training for more than 3 months. As per the visa condition 8501, every student is required to maintain adequate arrangements for health insurance while they reside in the country. According to the visa condition 8516 the holder must satisfy the requirements for the grant of student visa.
According to the conditions of visa 8537, while the nominating student within the scope of part 580 of Schedule 2 of the Migration Regulations 1994, in relation to the holder of the visa resides in Australia, the holder shall reside within the country. According to visa condition 8538, if the holder in relation to the nominating student leaves the country, the holder must adduce evidence to the minister that there were compelling circumstances for leaving the country.
The condition of the 8534 visa places a ‘no further stay’ condition, which states that the holder cannot apply for another visa while residing in Australia. in order to waive this visa, the applicant shall establish before the Minister that since this visa was granted compassionate and compelling circumstances have developed which is beyond the control of the holder and have led to significant change in the circumstances. However, the Department of Immigration does not consider the following conditions as compelling circumstances:
In the given scenario, Aysel gets involved in a relationship with an Australian resident and wishes to marry him. However, she is a holder of the 590 subclass visa and her visa includes the via conditions of the 8101, 8201, 8501,8516,8534,8537 and 8538 visas. According to the subclass 590 visa, she is permitted to stay in Australia until the period Melek has permission to stay under her student visa. Since the visa conditions of 8534 is provided along with her subclass visa 590, which places the ‘no further stay’ condition. The conditions provided along with the subclass 590 visa do not permit Aysel to apply for permanent residence.
The conditions of the 8534 visa prevent Aysel to apply for another visa application while residing in the country. She cannot waive the conditions under the 8534 visa on the ground that she is commencing to be in a de facto relationship with Dennis and wishes to marry him as this ground shall not be considered as a compelling circumstances. The Minister shall not waive the condition and permit her to apply for permanent residence under the subclass 590.
The orphan relative visa subclass 117 allows a child who is not a resident of Australia to live in the country with his or her relatives who has to be the sponsor. For the purpose of this visa the child has to be below the age of 18 years . In addition for the purpose of this visa the child has to be not married and must also not be in a de factor relationship. For the purpose of this visa both the child parents have to be dead or of unknown whereabouts or permanently incapacitated. The visa allows the holder to stay in Australia permanently. The cost of application for this visa is AUD 1480. The child has to be sponsored by a relative living in Australia. The relative has to be sister, brother, uncle, aunt, grandparents or step equivalent of a child.
The sponsor has to be an Australian citizen, eligible New Zealand citizen or an Australian permanent resident. The child must be in a situation where his or her parents are not capable of caring. The child must also meet character and health requirements. The application has to be made from outside Australia. The visa is not granted if it is not in accordance to the best interest of the child who is below the age of 18. The visa also requires an assurance of support with respect to the child so that the welfare cost is not incurred by the Australian government. However this has to be only provided when asked. A child who is older than 16 years has to meet character requirements. This needs the police certificates of every country dwelled by them for more than a year for the last ten years. The child must not have any debt which is outstanding in relation to the Australia government or must have arranged to pay such debts. The child has to be outside Australian also when the application in decided. However of a 837 visa is applied an application can be made by a child who is in Australia but must hold a substantive visa, have not applied to get an orphan relative visa in twelve months since their substantive visa ceased.
In the circumstances Mehek is holding a substantive student visa and while she is in Australia she can apply for visa 837.she is also below the age of 18 so she can apply for this visa. She has to pass a character test as she is over the age of 16 years. She is also presently not married or in a de factor relationship with any person in Australia. Her father was already dead and her mother passed away recently so she has no one to care for. The visa if granted would not hamper her best interest. The potential sponsor is also a Australian citizen so he is eligible to sponsor for a orphan relative visa. Melek would also be required to pass the health requirements. Melek also does not have any outstanding debt in relation to the Australian government.
In the given circumstances Hasan is not the real uncle of Melek. He is the first cousin off his mother. Although Aysel considered him as a brother and Melek as her uncle, he cannot be considered for this application as only real sister, brother, uncle, aunt, grandparents or step equivalent of a child are allowed to sponsor for a orphan relative visa either subclass 117 or 837. A first cousin is only eligible for a sponsorship under Regional Nominated or Sponsored Visas and as Hasan is a first cousin he cannot apply for a Orphan relative Visa on behalf of Melek.
According to the case study, due to a major accident Aysel has died. Now Melek has no other relatives who can able to take care of her. However, Aysel has a first cousin Hasan who is an Australian citizen living in Cabramatta and he want to take care of Melek when her mother has died. Though Hasan want to obtain the Orphan Relative visa for Melek but if it not works in this situation then he need to find another way for the residency of her in Australia.
Therefore, it is important for Hasan that he can apply for the Child visa (subclass 802) where a child can able to obtain that visa. For the adopting of the child there are several requirements which need to fulfill for application under this visa. Those are:
According to the case study, if the facts has been proved that due the death of both parents of Melek is need to care and where her uncle (her mother’s brother) is staying in Australia with a permanent residency then she can get the permanent residency under Australian Government. Through the Child Visa she can get the permanent visa services along with it allows to work, studying and having permanent residency for Melek. With the application of the visa the child also allows to enroll in Medicare according to the Australia’s scheme for health-related care and expenses and travel to places.
The customary visa process depends on the relative where they will sponsor the child and should fulfill the requirement of being the valid relationship of being the relative of the child. Therefore they are also meeting the criteria where they carefully maintain the relationship with whom the child will stay permanently in Australia. Therefore a strong and bonding also required between the child and the new parents. When the child visa process will be final that child must be dependent to the new parents who is the sponsor and carried out the every circumstance according to the Australian Immigration Policy under the Migration Act 1958 through the Migration Agents Registration Authority (MARA) authority.
The child must be single and can be adopted child. The sponsor could be the biological parents or adopted parents or someone who is close to the parents of the child and can able to take care of the child. The child can be 18 or older and not able to work due to the disability he or she depends on the sponsor for the permanent residency in Australia under Child visa (subclass 802).
The medical checking, police checking for due to the character certificate is required to have the permanent visa of Child visa (subclass 802). It also provides the citizenship under New Zealand government to stay along with the permanent residence in Australia.
Reference
Child visa (subclass 802)
Migration Act 1958 (Cth)
Migration Agents Registration Authority (MARA)
Migration Regulation 1994 (schedule 8)
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