Governed By The Migration Act 1958, The Essay Explores Immigration Policies.

Dsicuss about the Governed By The Migration Act 1958.

The primary issue in the scenario is to decide whether Barsha can be brought to Australia through a parent visa. 

The second issue in relation to this section of the paper is that whether Barsha has any other permanent visa option available along with the determination of required evidence for such application

The provisions of Migration law in Australia is governed by the Migration Act 1958 (Cth)[1], The Migration Regulations 1994[2] (Cth) and the Migration Regulations 1998 (Cth)[3] . The primary rule which needs to be applied to analyze the first issue in the situation is that of regulation 1.05 of the MR 1994. Through this regulation the Balance of family test is provided. The rules of this test has to be met for the purpose of making a visa application. There are two rules which have been set out by the regulation. firstly it is analyzed that the children of the person making the visa application living outside Australia is equal to or more than those eligible children living in Australia. Secondly it is analyzed that the ineligible children of the person making the visa application living outside Australia is equal to or more than those eligible children living in Australia[4]

The test under the regulation is objective in nature which is deployed to identify family a connection of an applicant oversees and the connection in Australia. Even in situation where there has been compelling and compassionate circumstances are present no waiver of the test can be done as it is most important to get a parent visa.  

In relation to options for a permanent visa the contemporary parent visa are categorized into two types namely the Contributory Parent category (subclasses 173,143, 884 and 864 and Parent category (subclass 103 and 804). There are a few requirements which an applicant must meet for the purpose of making an application with respect to Regulation 143.32 of the Migration Regulation 1994 for a Contributory Parent Visa (subclass 143). Firstly there has to be an assurance of support and a sponsor and secondly the balance of family test along with character needs have to be satisfied. Application with respect to Contributory Parent Visa (Temporary subclass 173) can be made under Regulation 143.111 of MR 1994. In relation to this visa also the applicant has to satisfy the BOF along with heath and character requirements, in addition the applicant has to have a sponsor. For the purpose of making an application for an Aged Parent (subclass 804) visa which is an onshore visa provision of Regulation 1.03 of MR 1994 has to be followed[5]. Under the regulations the applicant is subjected to the above discussed requirements.    Contributory Aged Parent (subclass 864) visa can be applied under regulation 1130A of the MR 1994 having the same requirements as the other visas discussed above[6].

Applicable Law

Barsha has to satisfy the rules laid out under the balance of family test to get the parent visa. Under this test she needs to show that she has more or equal eligible children in Australia than oversees. It has been provided via the facts of the situation that Barsha has one eligible child in Australia who is Soheb and two eligible children oversees  (Pakistan) who are Lina and Salma. This signifies that she will not be able to satisfy the requirements under the test. On the other and the rules stipulate that when the children have been taken out of custody due to operation of law it operates as an exception to the test. In the given situation two daughters of Barsha are married lawfully and thus are out of her custody. Therefore she may be able to satisfy the requirements. 

As discussed above there the permanent visa options which are available for Barsha in the situations is that of Contributory Parent category (subclasses 173,143, 884 and 864) and Parent category (subclass 103 and 804). The three evidence which is needed to attain the visa are discussed below

Age-  A person who is regarded as aged parent can make an application while being in Australia and those who are not regarded as aged have to make the application outside Australia. In this situation Barsha being in her late sixties can make an application for the onshore visa as she is aged.

Sponsor- the person who is applying for the visa must have a sponsor. Although Soheb being an Australian citizen can sponsor Barhsa it is provided that he is not very well off and struggle to maintain himself. Thus on these grounds there would be problems for getting the visa.

It has already been discussed above that the BOF has been satisfied by Barsha so she will fulfill this element as well.

Conclusion

The BoF has been satisfied by Barsha as her daughters have been taken out of her custody by operation of marriage law and she can make an on shore permanent visa application but the chances of getting it are law because of soheb’s financial position.

• The primary issue which has been indentified in this case is that whether Soheb’s mother can apply for a visa from Pakistan
• The provisions which require to be satisfied before the visa application is made are also at issue
• In the light of difficulties related to finance faced by Soheb which onshore Parent visa would it be appropriate for Barsha to apply.

The visa condition 8101 as laid down by the MR 1994 is in place to impose restrictions upon a person who has been imposed with such conditions form working in Australia. Where such conditions have been not complied with the visa can be cancelled by the minister.  The visa condition 8201 prohibits a person on whom the condition has been imposed for studying or indulging in training. The primary condition which is at issue is that of condition 8403 or the no further stay condition. The person on whom the condition has been imposed is not allowed to stay in Australia any further than what have been stipulated by the held visa. This means that such person does not have the right to apply for a visa while on condition 8503 as per schedule 8 of the MR 1994[7].

Application

However under the provisions of Section 41(2A) of the MA 1958 the minister has the right to waive the condition when a written request has been made by the applicant to do so[8]. Whether or not the condition should be waived is upon the discretion of the minister. While consideration an application to waive the condition the minister has to take into account  any compassionate and compelling situation  which arises after the visa was provided, any considerable change of position which the applicant had been subjected to and whether the situation was within the control of the applicant or not. These provisions have been laid down by Migration Regulations 1994 regulation 2.05 (4)[9] .  When the minister has waived the condition applicant would be able to apply for a visa while being in Australia.

In relation to the third issue it needs to be identified that what options are available in relation to visa application for a parent visa from within Australia. These visa options are as follows

Contributory Parent Visa (subclass 143)- can be applied both within and outside Australia

The requirements for applying the visa include having a sponsor, meeting character and heath test, having assurance of support and satisfying the BoF. The application fee in this visa is high because of fast processing time. 

Aged Parent Visa (subclass 804)- can be applied from Australia

This visa application requires meeting agree requirements, BoF, health and character test and a sponsor as provided by Reg 804.2 of the MR 1994[10]

Contributory Aged Parent Visa (subclass 864)

This visa application requires meeting agree requirements, BoF, health and character test and a sponsor. The application fee in this visa is high because of fast processing time  as provided by Reg 864.111 of the MR 1994[11]. The visa can further be applied when there has been no rejection of a previous visa under section 501 of the MA and at the time of applying for a visa the person has to have a substantial visa.

Contributory Aged Parent (Temporary) Visa (subclass 884)

This visa application requires meeting agree requirements, BoF, health and character test and a sponsor.

In the given situation it has been provided that Barsha holds a Visitor (subclass 600) visa.  As a holder of this visa she has been imposed with conditions 8101, 8201, and 8503. While condition 8503 is applicable Barsha cannot apply for a visa while she is in Australia. She needs to the condition waived. If the condition is waived she will be able to meet the other requirements such as age, BoF (As one of her daughter has died), health and character tests and sponsorship. She can make application for any of the onshore parent visa which had been discussed above.

Before making the visa application Barsha needs to make an application to the Minister under Section 41(2A) of the MA 1958  to get the 8503 condition waived form her visa. This application has to be in written form. While making the application the minister will take into consideration the provisions set out on Migration Regulations 1994 regulation 2.05 (4) which are any compassionate and compelling situation  which arises after the visa was provided, any considerable change of position which the applicant had been subjected to and whether the situation was within the control of the applicant or not. In the given situation it can be stated that there are compassionate and compelling situation which arises after the visa was provided as Barsha’s husband has died and she has no one to go back to and take care for her in Pakistan.  The situation has led to a considerable change of position for Barsha and the situation was further not in control of Barsha. Thus under these circumstances the minister may waive the condition 8503 imposed on Barsha.

It has been further provided that subclass 1443 and 864 subclass visa require high application cost as well as assurance of support. Thus given the financial difficulties faced by Soheb these options are not suitable. Therefore Barsha can make an application for Contributory Aged Parent Visa (subclass 864) as she will be able to meet all the requirements needed for the application.

Conclusion

It can be concluded that Barsah can apply for a visa only of condition 8503 is waived. For waiving the condition she needs to make an application under Section 41(2A) of the MA 1958 to the minister in writing. Given Soheb’s financial difficulties Barsha can apply for Contributory Aged Parent Visa (subclass 864).

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

[1] Migration Act 1958 (Cth)

[2] Migration Regulations 1994 (Cth)

[3] Migration Regulations 1998 (Cth)

[4] Migration Regulations 1994 (Cth) reg 864.11

[5] Migration Regulations 1994 (Cth) reg 1.03

[6] Migration Regulations 1994 (Cth) reg 1130A

[7] Migration Regulations 1994(Cth) Schedule 8

[8] Migration Act 1958 (Cth) s 41(2A)

[9] Migration Regulations 1994 (Cth) reg 2.05 (4)

[10] Ibid Schedule 2 reg 804.2

[11] Ibid Schedule 2 reg 864.11