Sponsorship for Child Visa (Subclass 802)

The application for an orphan relative visa (subclass 837) has been made on behalf of Melek, a minor who is the niece of Hasan. However, since Hasan is not her real uncle but rather her mother's first cousin, he cannot be considered as a sponsor for this visa. Instead, Hasan can consider applying for a Child visa (subclass 802), which allows him to adopt Melek and provide care for her in Australia.

Running head: MIGRATION LAW
Migration law
Name of the Student
Name of the University
Author Note

1MIGRATION LAW
a)
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 age1.
The visa condition 8101 states that the holder is not allowed engaging in any form of
work within the country2. 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 country3. 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
country4.
1 Migration Act 1958 (Cth).
2 Migration regulation 1994 9.3.1.10 visa Condition 8101.
3 Migration Regulation 1994 9.3.5.360 Visa Condition 8537.
4 Migration Regulation 1994 (schedule 8).

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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 circumstances5. However, the Department of Immigration does not
consider the following conditions as compelling circumstances:
 Marriage to or beginning a de facto partner relationship with a permanent resident or an
Australian Citizen;
 Women who becomes pregnant in Australia and establish that she cannot leave the
country;
 Failure to complete a course due to failing in subject
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 visas6. 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
5 Migration Regulation 1994 (schedule 8).
6 Migration Regulation 1994 9.3.5.370 Visa Condition 8538.

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ground shall not be considered as a compelling circumstances7. The Minister shall not waive the
condition and permit her to apply for permanent residence under the subclass 590.
b)
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 years8 9. 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 child10.
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
7 Migration Act 1958 (Cth).
8 Migration Act 1958 (Cth) at Section 5CA.
9 Migration Regulations 1995 at Regulation 1.14A.
10 Migration Regulations 1995 at Regulation 1.03.

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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 ceased11.
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 government12.
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.
c)
11 Migration Regulations 1995 at Regulation 1.03.
12 Migration Regulations 1995 at Regulation 1.14A.

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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 Australia13.
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 visa14. Those are:
 Therefore the child must be citizen of the Australia.
 The child must be under the 18 years of age.
 The sponsor or the adopted parents must be citizen of Australia.
 The requirements of the visa process and reasons should be prove under then Australian
Government.
 The proper health and character certificates are also required for the Adoption visa.
 The child must not have any debt under the Australian government.
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
13 Adoption Visa (Subclass 102).
14 Adoption Visa (Subclass 102).

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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 places15.
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) authority16.
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)17.
The medical checking, police checking for due to the character certificate is required to
have the permanent visa of Child visa (subclass 802)18. It also provides the citizenship under
New Zealand government to stay along with the permanent residence in Australia.
15 Protection Visa (subclass 866).
16 Migration Agents Registration Authority (MARA).
17 Protection Visa (subclass 866).
18 Migration Act 1958 (Cth)

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Reference
Child visa (subclass 802)
Migration Act 1958 (Cth)
Migration Agents Registration Authority (MARA)
Migration Regulation 1994 (schedule 8)