University Migration Law Assignment: Parent Visa Eligibility Analysis

This report analyzes a case study concerning Australian migration law, specifically focusing on parent visa applications. The first part of the analysis addresses whether Soheb's mother is eligible to apply for a parent visa, considering the balance of family test and relevant regulations (Regulation 1.05 of Migration Regulation 1994). The report explores various visa options, including subclasses 103, 143, 804, 173, and 864, and assesses Soheb's mother's eligibility based on her family situation. The second part of the report examines whether Bashra is eligible for a parent visa, considering her visitor visa (subclass 600) and its conditions, including conditions 8101, 8201, and 8503. It evaluates the possibility of waiving the 'no further stay' condition (8503) and explores the onshore parent visa options, such as the aged parent visa (subclass 804) and contributory aged parent visa (subclass 864 or 884), in light of the limitations imposed by section 48 of the Migration Act. The report concludes with recommendations based on the analysis of the case, referencing relevant legal provisions and case precedents.

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

1MIGRATION LAW
Table of Contents
Answer to question 1.......................................................................................................................2
Issue:............................................................................................................................................2
Rule:.............................................................................................................................................2
Application:.................................................................................................................................4
Conclusion:..................................................................................................................................5
Answer to question 2.......................................................................................................................5
Issue:............................................................................................................................................5
Rules:...........................................................................................................................................5
Application:.................................................................................................................................7
Conclusion:..................................................................................................................................8
Reference:........................................................................................................................................9

2MIGRATION LAW
Answer to question 1
Issue:
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.
Rule:
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 19941. 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
1 Migration Regulations 1994

3MIGRATION LAW
make an application for parent visa2. 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
custody3. 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 8044. 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
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.

4MIGRATION LAW
properly. Further, there are certain requirements mentioned in the subclass 804 that are also
required to be fulfilled5. 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 Act6.
Application:
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.
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.

5MIGRATION LAW
Conclusion:
Soheb can bring his mother in Australia and can make application under 103 and 143 of
the Act.
Answer to question 2
Issue:
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.
Rules:
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 months7. 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,
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.

6MIGRATION LAW
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 rule8. 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 Australia9.
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 Act10. According to this provision, if the present
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.

7MIGRATION LAW
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 visa11. 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.
Application:
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
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).

8MIGRATION LAW
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.
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.

9MIGRATION LAW
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).

10MIGRATION LAW
'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

11MIGRATION LAW