Legal Analysis of Contributory Aged Parent Visa and Bridging Visa Status in Australia

In the given scenario Marchin and Georgie who are citizens of Serbia, arrived in Australia on visitor Visa class FA (subclass 600), that was 4 years ago. Georgie is the mother of Mikhael, who is an Australian permanent resident as he holds partner (subclass 801) visa. Marchin, was friends with Mikhael who later ended up marrying with his mother and became Mikhael stepfather. At the time when Georgie and Marchin got married, Georgie was 68 and Marchin was 39 years old. The visitor visa subclass 600 is a temporary visa, that if it is granted to an applicant outside of Australia, allows the holder to travel to and enter Australia on one or more occasions, and can stay in Australia after each entry for a period or a date is specified.[1]

The Visitor visa usually comes with condition on it, depending on which stream is it. Georgie and Marchin got a condition of 8101 and 8201 on their visa. The condition of 8101 states that the holder must not engage in any work.[2] Whereas the condition of 8201 states that the holder in Australia must not engage for more than 3 months in any studies or training.[3] So both Marchin and Georgie should and must not engage in any sort of work or studies of more than 3 months. They both don’t have the condition of 8503, that would restrict them to apply for any other substantive visa application on shore, other than protection visa.[4] This clearly mean that they can apply for another visa while being in Australia as they don’t have a restriction on applying for another substantive visa.

Onshore Permanent Contributory Aged Parent Visa

Marchin and Georgie, applied for an onshore Permanent Contributory Aged Parent Visa, while being in Australia. However, their last substantive visa which was subclass 600 visa was ceased two weeks ago. To apply for Contributory Aged Parent Visa, the application needs to be submitted using form 47PA, and need to be posted to Parent Visa Centre Department of home Affairs Locked Bag 7, Northbridge WA 6865.[5]

To apply for the visa, the applicant must be in Australia and not in immigration clearance.[6] For the applicant seeking to satisfy the primary criteria, must be an aged parent.[7] A parent is an aged parent who is old enough to be granted an age pension under the social security Act 1991.[8]

For the applicants to satisfy the criteria at the time of application, the applicant should be the holder of substantive visa. However, in the case of Georgie and her partner, their Visito visa was ceased two weeks ago. But they can still apply for contributory aged parent visa, as in case if the applicant is not the holder of substantive visa, and before having their visa ceased was not the holder of subclass 771, also they must satisfy the criteria of 3002.[9] As per the criteria of 3002, the application has to be validly made within 12 months after the relevant day, so in case if they submit their application after 2 weeks of their visa being ceased, the applicants are meeting the 3002 criteria.[10] The applicant has to be the aged parent of a Australian permanent resident, which in the case of Georgie, she is aged parent of Mikhael, as he is on partner visa (subclass 801).[11] As it is a permanent visa, permitting the holder to travel to and enter Australia for 5 years from date of grant.[12] The applicant must be sponsored by a child who has turned 18 years of age.[13] In the case of Georgie, she would be meeting the criteria of an aged parent visa, as she is not only over the age of 68 but also a parent of Mikhael. In the case of Marchin, who is a stepfather of Mikhael and not aged he can also be included in the application of aged parent visa as he would be meeting the criteria of member of the family unit. As a person is a member of the family unit of another person, if the person is a spouse or de facto partner of the family head.[14] Since Georgie and Marchin got married, hence he will be considered as a member of the family unit. One of the important requirement for the applicant to meet is in case if at the time of application the applicant is not the holder of subclass 884 or is the holder of substituted Subclass 600 Visa, the applicant must satisfy the balance of family test.[15] To meet the balance of family test, A parent satisfy the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.[16] In the case of Georgie, since Mikhael is her only child who is settled in Australia, she would then be meeting the balance of family test.

For Marchin to be included in the application, the applicant has to be a member of the family unit and should be in the combined application with a person who is satisfying the primary criteria.[17] The primary applicant has applied for the Contributory Aged Parent (Residence) and also satisfying the primary criteria.[18] The Minster has not decided to grant of refuse to grant the visa to the other applicant.[19]

Though the application is made, however the applicant need to make sure that the criteria that is required to be met at the time of application should also be met at the time of grant.[20] Also if the applicant was sponsored by a settled Australian permanent resident than that kind of sponsorship has to be approved by the Minister and has to be in force.[21]

Current visa status and what conditions apply

Since the application for Contributory Aged Parent (residence) visa was submitted two weeks after their valid visa was ceased. Both Georgie and Marchin would then be on Bridging visa C. As they both are not the holder of a substantive Visa, and the application has made in Australia a valid application for a substantive visa of a kind that can be granted if the Applicant is in Australia.[22] Bridging visa C can be granted in respect of that application if the minister is satisfied that the applicant meet the criteria at the time of application and would meet the criteria at the time of grant as well.[23] To satisfy the criteria for the grant, the applicant has to be in Australia but not in immigration clearance.[24] Both Georgie and Marchin would be on a bridging visa C, and they both will have a condition of 8101 imposed on their bridging visa.[25]

Advise to Marchin

In the case of Marchin who become a victim of family violence, can still continue with his application of contributory aged parent visa as he applied for it as a secondary applicant. As he would be able to meet the requirements as the time of application the applicant was the spouse of a primary applicant (Georgie), who was seeking to satisfy the primary criteria for the grant of subclass 864 Visa.[26] The relationship between Georgie and Marchi is ceased now, as he was a victim of family violence and as the secondary applicant he has experienced family violence that was committed by the primary applicant.[27]

A person is taken to have experience family violence, when an application for a visa is taken to include a non-judicially determined claim of family violence if the applicant seeks to satisfy that he is been a victim of family violence, and the alleged victim is a spouse of the alleged perpetrator.[28] To prove that a person is a victim of family violence, the alleged victim has to present evidence that the alleged victim has experience relevant family violence and the alleged perpetrator has committed relevant family violence.[29] Relevant family violence means conduct, whether actual or threatened towards the alleged victim.[30] Marchin would require to provide evidence, that has to be in the form of a statutory declaration along with the item of evidence.[31] The statutory declaration has to be made by the spouse of the alleged perpetrator, which in this case would be Marchin himself.[32] In the statutory declaration the victim must set out the allegation, the name of the person to have committed the relevant family violence.[33] As for the evidence, Marchin would be required to provide and submit evidence that can be considered as admissible.

As per the regulation 1.24(b) all the evidence that a victim provide has to be in detail and should provide the details of the person, officer who is giving that evidence, such as his name, occupation, signature, date and address.[34] Since Police was called when Marchin was in a fight with family members, and then later he got admitted into hospital. So Marchin would be able to provide evidence in the form of a medical report from a medical practitioner or a nurse. Which should have the details of alleged victim and details of injuries or treatment of the victim.[35] The other evidence that Marchin should be able to provide would be a report by a police officer and this evidence must identify the alleged victim, and alleged perpetrator and detail of the incident.[36] Minimum two evidence would be required from Marchin end that he has to provide and each of the evidence has to be a different type of evidence.[37]

1.  If Marchin was to follow your advice in question 3, what would his visa status be during the process?

If Marchin was to follow the recommendation suggested and the visa options suggested than in that case Marchin would still be on bridging visa C. As Marchin was not the holder of a substantive visa when he was added as a secondary applicant for the partner visa, and he it was a valid application that was made in Australia for a substantive visa that can be granted if the applicant is in Australia.[38] The application is not finally determined and he was already granted a bridging C visa in respect to that application.[39]

Bibliography:

1. Migration Regulations 1994 (Cth).
2. Migration Act 1958 (Cth).
3. Department of Home Affairs (Cth), Migration LIN (23/026 Specification of Evidentiary Requirements – Family Violence)
4. Department of Home Affairs (Cth), Migration (LIN 18/079, Arrangement for Parent Visa Applications)

[1] Migration Regulations 1994 (Cth) Sch2 600.512(1)

[2] Migration Regulations 1994 (Cth) Sch8 8101

[3] Migration Regulations 1994 (Cth) Sch8 8201

[4] Migration Regulations 1994 (Cth) Sch8 8503

[5] Department of Home Affairs (Cth), Migration (LIN 18/079, Arrangement for Parent Visa Applications)

[6] Migration Regulations 1994 (Cth) 1130A(3)(b)

[7] Migration Regulations 1994 (Cth) 1130A(3)(cb)(i)

[8] Migration Regulations 1994 (Cth) Reg 1.03

[9] Migration Regulations 1994 (Cth) Sch2 864.211(1)(b)(i)(ii)(iii)

[10] Migration Regulations 1994 (Cth) Sch3 3002

[11] Migration Regulations 1994 (Cth) Sch2 864.212(a)(ii)

[12] Migration Regulations 1994 (Cth) Sch2 801.511

[13] Migration Regulations 1994 (Cth) Sch2 864.213(2)(a)

[14] Migration Regulations 1994 reg 1.12 (2)(a)

[15] Migration Regulations 1994 (Cth) Sch2 864.214(a)(b)

[16] Migration Regulations 1994 (Cth) Reg 1.05 (2C)

[17] Migration Regulations 1994 (Cth) Sch2 864.311(1)(a)

[18] Migration Regulations 1994 (Cth) Sch2 864.311(b)(i)(A)(B)

[19] Migration Regulations 1994 (Cth) Sch2 864.311(b)(ii)

[20] Migration Regulations 1994 (Cth) Sch2 864.221(3)

[21] Migration Regulations 1994 (Cth) Sch2 864.222(a)

[22] Migration Regulations 1994 (Cth) Sch2 030.212(2)(a)(b)

[23] Migration Regulations 1994 (Cth) Sch2 030.212(ba)(i)

[24] Migration Regulations 1994 (Cth) Sch2 030.411

[25] Migration Regulations 1994 (Cth) Sch2 030.614

[26] Migration Regulations 1994 (Cth) Sch2 864.321(4)(a)

[27] Migration Regulations 1994 (Cth) Sch2 864.321(4)(b)(c)(i)

[28] Migration Regulations 1994 (Cth) Reg 1.23(9)(a)(b)(i)

[29] Migration Regulations 1994 (Cth) Reg 1.23(9)(c)(i)(ii)

[30] Migration Regulations 1994 (Cth) Reg 1.21

[31] Migration Regulations 1994 (Cth) Reg 1.24(a)(b)

[32] Migration Regulations 1994 (Cth) Reg 1.25(1)

[33] Migration Regulations 1994 (Cth) Reg 1.25(2)(a)(b)

[34] Department of Home Affairs (Cth), Migration LIN (23/026 Specification of Evidentiary Requirements – Family Violence) s4(2)(3)(a)(b)(c)(d)(e)

[35] Department of Home Affairs (Cth), Migration LIN (23/026 Specification of Evidentiary Requirements – Family Violence) Sch1 (1)

[36] Department of Home Affairs (Cth), Migration LIN (23/026 Specification of Evidentiary Requirements – Family Violence)

[37] Department of Home Affairs (Cth), Migration LIN (23/026 Specification of Evidentiary Requirements – Family Violence) s5(a)(b)

[38] Migration Regulations 1994 (Cth), Sch2 030.212(2A)(a)(b)(c)

[39] Migration Regulations 1994 (Cth), Sch2 030.212(2A)(d)