QUESTION
You have been offered a work placement at a migration agency. You just received your registration as a migration agent yesterday. Your supervisor has sought the permission from a client for you to review their file and provide your opinion and meet with the client later next week. You are very excited by this opportunity and want to do a good job. You review the file and note down the following key facts:
(subclass 482) visa.
186) visa. He has been living in Taiwan for the last two years after being transferred there by his Australian employer to work on a large-scale project. He is due to return to Australia at the end of the year.
temporary options.
QUESTIONS
You are asked to prepare a memorandum of advice for your supervisor, which clearly answers the following questions:
Your answers should be supported by reference to the relevant legislative provisions of the Migration Act 1958 and Migration Regulations 1994 including relevant policy.
SOLUTION
[On Letterhead of Company]
Memorandum of Advice
To: [Supervisor’s Name]
I have reviewed Mary's file and have provided below my advice on her permanent visa options, the risks or difficulties associated with these visa options, the fees payable, and the best pathway for her.
Introduction:
This Memorandum of Advice is concerning the case file of Ms. Mary, a 77-year-old Chinese citizen. She wishes to stay permanently in Australia.
Mary arrived in Australia two weeks ago on a Visitor Class FA (subclass 600) visa in the Tourist stream, which has the following restrictions: 8101, 8201, and 8501. This visa has a three-month validity period.
Mary has two adult children and her spouse passed away from COVID last year. One of her sons has an Employer Nomination Class EN (subclass 186) visa and is currently residing in Taiwan for work. Her eldest son, who is financially supporting her, is in Australia on a Temporary Skills Shortage Class GK (subclass 482) visa.
Through this memorandum, I have provided a detailed analysis and recommendations for Mary's eligibility for permanent residence under various subclasses of visas.
Possible visa options
There are several alternatives available for a parent who wishes to apply for permanent residency in Australia. These include Visa Subclass 103, 173, 884, 143, 804 and 864.
[1]Migration Regulations 1994 (Cth) r 103.
[2]Migration Regulations 1994 (Cth) r 103.
[3]Migration Regulations 1994 (Cth) r 173.211.
[4]Migration Regulations 1994 (Cth) r 884.211.
[5]Migration Regulations 1994 (Cth) r 143.
[6]Migration Regulations 1994 (Cth) r 143.211.
Considering Mary’s circumstances, the two most viable options for her would be the Aged Parent Visa (Subclass 804)[7] and Contributory Aged Parent (Subclass 864). [8]
To be eligible for the 804 visa, the applicant must not have any visa subject to the "No Further Stay" condition (8503) or be restricted by section 48 of the Migration Act.[11] In Mary’s case the balance of family test will not apply since she has already been accorded a Substituted 600 visa.[12]
Additionally, mandatory guarantees of support must be provided by sponsors for Parent 804 visas, and an assurer must both pass an income test and pay a bond.[13] The Social Security (Assurance of Support) Determination 2018 prescribes the income requirement and amount of bond for assurors.
Associated risk and challenge:
However, the substantial backlog of applications and the protracted processing period are the main risk and challenge connected with the Parent Visa Subclass 804 in general. Many candidates may find it difficult to wait for so long, especially those who are older and may have health difficulties. The standard of continual health and character criteria to be maintained during the waiting period might make the application process more challenging and stressful for the applicants.
[7]Migration Regulations 1994 (Cth) r 804.211.
[8]Migration Regulations 1994 (Cth) r 864.211.
[9]Migration Regulations 1994 (Cth) r 804.211.
[10]Migration Regulations 1994 (Cth) reg 1.05A(2), 2.02(2)(b).
[11]Migration Regulations 1994 (Cth) reg 804.212, Migration Act 1958 (Cth) s 48, 8503.
[12]Migration Regulations 1994 (Cth) reg 1.03, 1.04AA.
[13]Migration Regulations 1994 (Cth) reg 1.20N, 1.20S
Social Security (Assurance of Support) Determination 2018
Application to the Mary’s case:
Apart from the protracted and difficult waiting period, in this case, there is a question mark over whether the son to sponsor Mary can be considered as a “settled” permanent resident. According to the information given, Mary's second son, who is in possession of an Employer Nomination Class EN (subclass 186) visa, has been residing in Taiwan for the past two years and is scheduled to return to Australia at the end of the year. According to the Migration Regulations, being "settled" means having lived legally in Australia for a sufficient amount of time.
Although the law doesn't define what a "reasonable" duration is, policy states that "2 years is considered to be a reasonable period." Officers, however, are adaptable in determining the established need. A person's connections to Australia through employment, family, money, etc. are taken into account when determining whether they can be considered "settled."
Fees and other costs:
For subclass 804 the visa costs are from AUD 4,560.00.[14] When paying with a Visa card, there can also be credit card surcharges involved of 1.40%.[15] The applicant will also have to pay for health checks, police certificates and biometrics.[16] The estimated total cost of the visa including the second installment fee, credit card surcharges, and other associated costs can vary depending on individual circumstances.
According to the Department of Home Affairs website, as of May 9, 2023, the processing time for Subclass 804 visas is around30 years.[17]
[14]Department of Home Affairs, Subclass 804 Aged Parent visa (May 2023) <http://surl.li/gyfxb>
[15] Department of Home Affairs, Fees and charges for visas (August2020)< https://immi.homeaffairs.gov.au/Visa-subsite/Pages/Fees-and-charges/surcharges-for-visa-payments.aspx>
[16]Department of Home Affairs, Subclass 804 Aged Parent visa (May 2023) <http://surl.li/gyfxb >
[17]Department of Home Affairs, Global visa and citizenship processing times
2. Contributory Aged Parent (Subclass 864): Subclass 864 visa, also known as the Contributory Aged Parent (Residence) visa, is a permanent visa for aged parents of Australian citizens, permanent residents, or eligible New Zealand citizens.[18]
The subclass 864 visa allows the parent to stay in Australia permanently and provides them with work and study rights. To be eligible for the subclass 864 visa, the applicant must meet the criteria regarding age, relationships, sponsorships, balance of family test, health and character requirements, meet the definition of an ‘aged person’, and pay the requisite fee.
Application to Mary’s case:
The applicant must be old enough to receive the age pension in Australia. Mary clearly satisfies this criterion as she is 77 years old. The candidate must be the parent of an Australian citizen, permanent resident, or eligible New Zealand citizen. The applicant would need to have a sponsor willing to financially support the person during the first two years.[19] In Mary’s case, she needs a legal agreement called an assurance of support (AoS) to be provided by her sponsor. Since her son is not a citizen himself and is only a permanent resident, he must meet certain income and assets requirement to provide the AoS.[20] Therefore, we would require more information regarding the son to determine eligibility.
The applicant must meet the balance of family test; he/she should have more children residing in Australia than any other country, or at least half of the applicant’s children must be citizens or permanent residents of Australia.[21] However, in Mary’s case the balance of family test will not apply since she has already been accorded a Substituted 600 visa. Additionally, she is also not subjected to the 8503 No Further Stay visa condition or to section 48 of the Migration Act.
[18] Department of Home Affairs, Contributory Aged Parent Visa (Subclass 864)(April 2023)
[19]Migration Act 1958(Cth) s 864.221(1).
[20]Migration Regulations 1994 (Cth) reg 2.42AA(2)(d).
[21]Migration Act 1958(Cth) s 23(4).
In addition to the above, she must also meet the health and character requirement as set out by the Government.[22]
Associated risk and challenge:
Some of the challenges in applying for this visa includes its high cost as well the problem of needing a “settled” permanent resident as a sponsor.[23] Mary's second son, who is in possession of an Employer Nomination Class EN (subclass 186) visa, has been residing in Taiwan for the past two years and is scheduled to return to Australia only at the end of the year.
Accordingly, there is a question mark over whether the said son can be considered as a “settled” permanent resident. Given the situation with Mary’s son, who possesses an Employer Nomination Class EN (subclass 186) visa and has been working in Taiwan for the last two years, coupled with the ambiguity in the usage of the word “settled”, more information is needed on the son, including his previous residence history, to determine if he is an eligible sponsor.[24]
Permanent Contributory Parent visa sponsors are required to provide assurances of assistance, and an assurer must pass both an income test and pay a bond. This may again prove to be a financial burden on the children, and we will need more information on the prospective sponsor to see if he clears this requirement.[25]
Fees and other costs:
For subclass 864 the visa costs are from AUD 47,955.[26] When paying with a Visa card, there can also be credit card surcharges involved of 1.40%.[27] The applicant will also have to pay for health checks, police certificates and biometrics.[28] The estimated total cost of the visa including the second installment fee, credit card surcharges, and other associated costs can vary depending on individual circumstances.[29]
[22]Migration Act 1958(Cth) s 501(1).
[23]Migration Regulations 1994 (Cth) reg 1.15H(1).
[24]Migration Act 1958(Cth) s54(1).
[25]Migration Regulations 1994(Cth) reg 2.25(1).
[26]Migration Regulations 1994 (Cth) reg 5.36(1).
[27] Department of Home Affairs, Fees and charges for visas (August2020)< https://immi.homeaffairs.gov.au/Visa-subsite/Pages/Fees-and-charges/surcharges-for-visa-payments.aspx>
[28]Migration Regulations 1994 (Cth) reg 5.37(1)(a).
[30] Department of Home Affairs, Contributory Aged Parent (Residence) (Subclass 864) visa (accessed 9 May 2023)
According to the Department of Home Affairs, processing times for the Contributory Aged Parent Visa (Subclass 864) can vary depending on individual circumstances, but the current global processing time for this visa is around 18 to 30 months.[30]
Conclusion:
While there are multiple visa options for a parent, the two that seems best suited given the particular circumstances of the client are Aged Parent Visa (Subclass 804) and the Contributory Aged Parent (Subclass 864).
An older parent may be sponsored for permanent residency in Australia under the Aged Parent Visa (Subclass 804) by a child who has already established residency there. For Mary, who is currently in Australia on a Visitor Class FA (subclass 600) visa and is being supported financially by her son, this visa option can be a viable one. While their visa application is being processed, the applicant is permitted to stay in Australia with the help of the visa.
However, the considerable backlog of applications and the lengthy processing period, which can be difficult for elderly candidates like Mary, are two major negatives of this visa choice. Additionally, sponsors are required to furnish the required guarantees of support, and an assurer is also required to pass an income test and post a bond.
[31]Department of Home Affairs, Global visa and citizenship processing times (2021)
On the other hand, the Contributory Aged Parent (Subclass 864) visa is a permanent visa that gives the parent the ability to live and work permanently in Australia. It is also important to note that the Contributory Aged Parent (Subclass 864) visa also allows the holder to travel in and out of Australia for a period of five years from the date the visa is granted, which may be desirable for Mary.[31]
A disadvantage of the Contributory Aged Parent (Subclass 864) visa is that though the processing time for this option is often quicker, there is a substantially greater visa application fee than there is for the Aged Parent Visa (Subclass 804).
It is vital to remember that Mary's health status may also affect her eligibility for the available visa alternatives in addition to the previously mentioned considerations. There are health requirements for both the Contributory Aged Parent (Subclass 864) and the Aged Parent Visa (Subclass 804). To prove that she satisfies these conditions, Mary might be required to submit to health examinations and present medical reports.
Furthermore, Mary needs to think about the long-term effects of each visa option. For instance, if she chooses the Aged Parent Visa (Subclass 804), she might miss out on some government-funded welfare and health benefits for a while. On the other hand, she may have to plan for Australia's higher cost of living if she chooses the Contributory Aged Parent (Subclass 864) visa.
In conclusion, both visa alternatives have benefits and drawbacks, and Mary's unique circumstances, preferences, and financial status will determine which option is best for her.
For a more determined choice between the options, we will need additional information on the second son regarding his income, assets and past residency history in Australia to determine if he can be considered as a “settled” permanent resident and whether he can provide the sponsorship that Mary needs.
[31]Australian Government Department of Home Affairs. Contributory Aged Parent (Subclass 864) Visa(Last modified October 25, 2021).< https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/contributory-aged-parent-864.>
BIBLIOGRAPHY
A. Article/Books/Reports
Fernandez, Rodger G et al, Australian Migration Legislation Collection (LexisNexis Butterworths), January 2020
B. Legislation
The Migration Act 1958 (Cth)
The Migration Regulations 1994 (Cth)
C. Others
Department of Home Affairs and Immigration (Feb 2020)
https://immi.homeaffairs.gov.au/