Balance of family test and parent visa application
Dsicuss about the Health Care Justice For Temporary Migrant Workers.
There are two issues present in the case. First, it is to be determined whether Soheb can apply for parent visa to bring his mother in Australia or not. The second issue is to determine whether any other options for permanent visa present their and what evidences are required in these cases.
The subject matter of the case is based on balance of family test and related provision has been mentioned under Regulation 1.05 of Migration Regulation 1994[1]. The provision will apply on the following ground:
- It depends on the number of the children of any parent or the applicant residing in the abroad nation;
- Further it depends on the number of eligible children if they are greater to ineligible children of the applicant who arte residing in a specific foreign country.
The balance of family test is objective in nature and determines the differences between the parent who have children in Australia and parent who have children outside Australia. Further, under this provision of the Regulation, a child will be treated as eligible if he is an Australian citizen or is an Australian permanent citizen. In case of any other situation, the child will be treated as ineligible child. The provisions of the balance of family test are fundamental and could not be changed in case of any circumstances. Further, these provisions are mandatory in order to make an application for parent visa[2]. However, if the child of the parent has been get away from the custody of parent with the intervention by the operation of law, the provision of balance of family test will not be applied.
Apart from this balance of family test, there are certain other permanent visa options available and they are categorized as parent category that has been engraved under subclass 103 and 804 and contributory parent category that has been specifically mentioned under Subclass 143, 173, 864 and 804 of the Migration Act. However, there is a restriction mentioned under the Migration Act. It has been stated that only one visa application could be made under this category. The nature of the visa can be offshore or onshore. Offshore visa application can be made when the applicant is outside the territorial jurisdiction of Australia. Onshore visa application can be made when the applicant is stayed in Australia and his visa has been granted at that time. Subclass 103 and subclass 143 could be treated as offshore visa in this regard.
Application for parent visa under subclass 143 can be made if the applicant has certain sponsors in Australia and there are certain assurances that the applicant will be safe under his custody[3]. Further, it is to be determined that the provisions of the balance of family test have been met properly. On the other hand, permanent parent visa can be obtained under subclass 103 if any child of the applicant is a permanent residence in Australia. This visa application can be made in case of aged parents. Another option for obtained permanent visa for aged parents is subclass 804[4]. Under this subclass, the parent-applicant has to show that he has a sponsor in the contents of Australia and all the requirements of the balance of family tests have been met properly. Further, there are certain requirements mentioned in the subclass 804 that are also required to be fulfilled[5]. The nature of this visa is onshore that means the applicant should have to present at the time of making the application for permanent visa. Further, there are certain visa options present under subclass 173 and 864 of the Migration Act[6].
Permanent visa options under parent category
In the present case, it has been observed that Soheb’s mother has three children and except Soheb, no one lives in Australia. According to the rules mentioned in Regulation 1.05 of the Migration Regulation that in case of having two or more child, the parent must have to show that major numbers of children are living in Australia. However, in case of Soheb’s mother, most of her children are living in Pakistan and therefore, it has been observed that this provision has not been met properly. However, according to the exceptional provision of the visa, it can be stated if the children of the parent living outside the custody of the applicant, afore mentioned provision would not be applied. In this case, it has been observed that the children who are living in Pakistan had gone outside the custody of his mother and in that case, Soheb will be treated as the only child of his mother and considering the case study, it can be stated that he is a permanent resident of Australia. Therefore, his mother can make an application under the provision of the same.
Conclusion:
Soheb can bring his mother in Australia and can make application under 103 and 143 of the Act.
The main issue of the case is to determine whether Bashra be eligible to apply for parent visa or not. In this case, it should also to be mentioned about the requirements need in this case. Further, there are certain instances for onshore parent visa application. Considering the base of each, it is also required to choose the appropriate one.
Considering the subject matter of the case study, it has been observed that Soheb’s mother holds one visitor’s visa under subclass 600. The nature of the visa is temporary and it provides to them who come to Australia for family visit or business purpose. According to the provision of the subclass, any visitor can stay in Australia for three months[7]. However, in order to make an application under the subclass, the applicant should have to show that he has a sponsor who is a permanent resident in Australia and the sponsor is a family member of the applicant. It has been observed in the case that Soheb’s mother’s visa has certain condition under 8101, 8201 and 8503. It is important to understand the nature of these conditions to understand the scope and limitations of the visa. According to condition 8101, the visa holder could not engage in any work while in Australia except volunteer work. In case of any adverse situation, the visa of the holder can be cancelled and case might be filed before the Department of Border and Immigration Department. Further, the visa holder is also restricted to get involved in any training program under condition 8201. In addition, there is another condition namely 8501 that restricts the visa holder with the term “no further stay”. However, this condition can be applied both on the temporary and permanent visa. According to the provision, the visa holder will not be allowed to stay in Australia after the specific period or when the validity of the visa will be expired. There are certain exceptions to this rule[8]. One of the exceptions is waiver principle where the visa holders are allowed to make a written application to the immigration department. If the plea of the visa holder attracts the grounds of the waiving principle, the department can waive the restrictive provisions of the visa holder and may permit him to stay in Australia even after his visa period expired. Further, the application of the visa holder can be accepted if any adverse situation has been cropped up and he is not personally liable for the condition. It should further be stated that in case the Immigration department has accepted the waiving application of the holder, the holder could apply for another visa while staying in Australia[9].
Requirements for applying for parent visa
According to the Migration act, a subclass 600 visa holder can make an application for parent visa (onshore) while staying in Australia. According to the Migration Act, an applicant can make plea for aged parent visa (subclass 804) or contributory aged parent visa (subclass 864 or 884) if all the requirements have been fulfilled. However, there are certain exceptions mentioned under section 48 of the Migration Act[10]. According to this provision, if the present visa of the applicant has a proviso regarding no further stay, then the applicant could not make an application under subclass 884 and 864. However, the applicant can make an application under contributory parent visa ground. Under this option, the applicant can make his plea if the same has attracted the age criteria of the applicant and in this case, option for aged parent visa is available to him. However, the applicant could not make permanent visa application under contributory visa ground. Certain essentials are required in order to make an application for parent visa[11]. The applicant should have to show that he has a sponsor in Australia who is living in Australia on permanent basis and the applicant has met all the health and character requirements. The visa application of the applicant can be cancelled if he has a previous record of cancellation of visa. The balance of family test should also require to be fulfilled.
In the present situation, it has been observed that Soheb’s mother has occupied one visitor’s visa and the same has certain conditions including no further stay condition. It means his mother has to leave Australia once the validity of her visa get terminated. However, considering the situation faced by his mother, it can be stated that there are valid reasons to her to make an application before the immigration department to waive the no further stay condition. First, it has been observed that her husband also demised and she is in dire need of money. She is fully depended on her son and Pakistan is not a safe place for her as one of her daughter has been killed there and the situation is quite adverse there for her. Therefore, she is not personally liable for all the situations. It can be regarded as a valid ground for waiving the grounds of 8501 condition. Further, all the required grounds for the valid waiving condition have been made and therefore, she can make a valid application for parent visa. Further, it can be stated that none of her visa has been subjected to cancellation.
Onshore parent visa application
Conclusion:
It can therefore be stated that his mother can validly apply for parent visa in spite of 8501 condition. However, in such cases, she has to fulfill all the conditions stated under the Migration Act.
Reference:
Adamson, Elizabeth, et al. “Social care and migration policy in Australia: Emerging intersections?.” Australian Journal of Social Issues 52.1 (2017): 78-94.
Askola, Heli. “Who Will Care for Grandma? Older Women, Parent Visas, and Australia’s Migration Program.” Australian Feminist Law Journal 42.2 (2016): 297-319.
Hoang, Khanh. “Aiding innovation and entrepreneurship through migration policy: A view from Australia.” Proceedings of International Academic Conferences. No. 1003539. International Institute of Social and Economic Sciences, 2015.
Jenkinson, Rebecca, et al. “Building a new life in Australia: Settlement experiences of recently arrived humanitarian migrants.” Journal of the Home Economics Institute of Australia 22.3 (2015): 22.
Klein, Maren. “Mobility Patterns Between Germany and Australia in the Twenty-First Century.” German-Australian Encounters and Cultural Transfers. Springer, Singapore, 2018. 55-69.
Migration Act 1958 (Cth) at section 48
Migration Regulations 1994
O’Brien, Paula, and Melissa Phillips. “Health care justice for temporary migrant workers on 457 visas in Australia: A case study of internationally qualified nurses.” Journal of law and medicine 22.3 (2015).
‘Parent Category Visas’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/brin/pare#> accessed 6 May 2018
Singh, Supriya. “Introducing a temporary visa for parents: Submission.” (2016).
Tazreiter, Claudia, et al. “Indonesian Temporary Migrants: Australia as First Preference or Last Resort?.” Fluid Security in the Asia Pacific. Palgrave Macmillan, London, 2016. 53-75.
‘Visa Conditions’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions> accessed 6 May 2018
[1] Migration Regulations 1994
[2] ‘Parent Category Visas’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/brin/pare#> accessed 6 May 2018
[3] Singh, Supriya. “Introducing a temporary visa for parents: Submission.” (2016)
[4] Adamson, Elizabeth, et al. “Social care and migration policy in Australia: Emerging intersections?.” Australian Journal of Social Issues 52.1 (2017): 78-94.
[5] ‘Visa Conditions’ (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions> accessed 6 May 2018
[6] Hoang, Khanh. “Aiding innovation and entrepreneurship through migration policy: A view from Australia.” Proceedings of International Academic Conferences. No. 1003539. International Institute of Social and Economic Sciences, 2015.
[7] Askola, Heli. “Who Will Care for Grandma? Older Women, Parent Visas, and Australia’s Migration Program.” Australian Feminist Law Journal 42.2 (2016): 297-319.
[8] Tazreiter, Claudia, et al. “Indonesian Temporary Migrants: Australia as First Preference or Last Resort?.” Fluid Security in the Asia Pacific. Palgrave Macmillan, London, 2016. 53-75.
[9] Jenkinson, Rebecca, et al. “Building a new life in Australia: Settlement experiences of recently arrived humanitarian migrants.” Journal of the Home Economics Institute of Australia 22.3 (2015): 22.
[10] Klein, Maren. “Mobility Patterns Between Germany and Australia in the Twenty-First Century.” German-Australian Encounters and Cultural Transfers. Springer, Singapore, 2018. 55-69.
[11] O’Brien, Paula, and Melissa Phillips. “Health care justice for temporary migrant workers on 457 visas in Australia: A case study of internationally qualified nurses.” Journal of law and medicine 22.3 (2015).
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