Migration Law: Analysis of Parent Visa Eligibility and Application

This report provides a comprehensive analysis of Australian migration law concerning parent visas, addressing two key scenarios. The first scenario examines the eligibility of a parent to obtain a parent visa, focusing on the Balance of Family (BoF) test and the availability of other permanent visa options. The report details the requirements of the BoF test, which assesses the number of eligible versus ineligible children, and discusses exceptions. It outlines the different parent visa categories, including Parent (subclass 103 and 804) and Contributory Parent (subclasses 173, 143, 884, and 864) visas, and specifies the necessary evidence for applications, such as sponsorship and age criteria. The second scenario evaluates the eligibility of a parent to apply for a visa while in Australia on a Visitor subclass 600 visa, and explores requirements for onshore applications. The report analyzes the conditions associated with the subclass 600 visa, including restrictions on work and study, and the ‘no further stay’ condition. It examines the possibility of waiving the 8503 condition and applying for other visas, considering factors such as changed circumstances. The report concludes with recommendations for visa applications based on the specific circumstances of each case, emphasizing the importance of fulfilling legal requirements and considering the financial implications of visa options.

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

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Table of Contents
Answer 1..........................................................................................................................................2
Issue.............................................................................................................................................2
Rules............................................................................................................................................2
Application..................................................................................................................................5
Conclusion...................................................................................................................................6
Answer 2..........................................................................................................................................6
Issue.............................................................................................................................................6
Rules............................................................................................................................................7
Application................................................................................................................................10
Conclusion.................................................................................................................................11
Bibliography..................................................................................................................................12

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Answer 1
Issue
1. Whether Soheb can bring his mother on a Parent visa to Australia
2. Is there other Permanent visa options available to bring Soheb’s mother and what are the
evidences required to apply for the visas?
Rules
Under the regulation 1.05 of the Migration Regulations 19941, it is important that the parent
visa applicants satisfy the Balance of Family test. The Balance of Family test (BoF) determines
the following two factors:
i. whether the number of children of the parent applicant are eligible and is equal to or
greater than the number of ineligible children of the applicant are residing in overseas
nations;
ii. whether the number of the eligible children of the parent applicant is greater than the
number of the ineligible children of the applicant residing within any single particular
foreign country;
The BoF is an objective test that determines the family links of the parent applicant in
Australia compared to the family links of the parent applicant in other nations. This requirement
cannot be waived even under compassionate and compelling circumstances, as this condition is
fundamental to obtain the parent visa.
1 Migration Regulations 1994 at regulation [1.05]

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However, the exception to this counting of children for ‘balance of family test’ is
circumstances where the child has been removed from the custody of the parent through
operation of law2.
The other permanent visa options include the present parent visas that are in effect in
Australia are divided into two visa categories:
 Parent category (subclass 103 and 804); and Contributory Parent category (subclasses 173,143, 884 and 864)
Under the Migration Legislation, only one parent is allowed to apply for both onshore and
offshore parent visas. The offshore visas comprise the Parent [Subclass 103] visa and the
Contributory Parent (subclass 143).
Offshore visas
Contributory Parent Visa (subclass 143)
In order to apply for the Contributory Parent Visa (subclass 143) under [Schedule 2]
and Regulation [143.32] of the Migration Regulation 19943, the applicant must satisfy the
following requirements:
a) have sponsor and an assurance of support;
b) fulfill the balance of family test and character requirements;
Contributory Parent Visa (Temporary subclass 173)
2 'Parent Category Visas' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/brin/pare#> accessed 6
May 2018
3 Migration Regulations 1994 at regulation [143.32]

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In order to apply for this visa, it is important that the applicant /parent must satisfy the following
requirements set out under Regulation [143.111] of Migration Regulation 19944;
a) the parent must satisfy the balance of family test and character and health requirements;
b) the parent must have a sponsor,
Onshore Visas
Aged Parent (subclass 804) visa
In order to apply for this visa under Regulation [1.03] of Migration Act 19945, the
applicant/parent must:
a) have a sponsor;
b) meet the age, character and health requirements;
c) fulfill the balance of family test;
Contributory Aged Parent (subclass 864) visa
This visa requires the applicant to establish under [schedule 2] [subclass 1130A] of the
Regulation 19946 that he/she has:
a) fulfilled the age, health and character requirements;
b) satisfied the balance of family test;
c) a sponsor along with an assurance of support;
Contributory Aged parent (Temporary subclass 884) visa
4 Migration Regulations 1994 at regulation [143.111]
5 Migration Regulations 1994 at regulation [1.03]
6 Migration Regulations 1994 at [schedule 2], regulation [1130A]

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The visa applicant must satisfy the following requirements under [schedule 3] and Regulation
[1130A] of the Migration regulations 19947:
a) must have a sponsor;
b) must satisfy the balance of family test and age requirements;
Application
In regards to the first issue, Soheb’s mother must meet the BoF test, which requires that
her eligible children in Australia must be more or equal to the number of her ineligible children
in the overseas. However, since her two children are residing in Pakistan and only her son, being
an eligible child, is residing within Australia.
Thus, her two ineligible children, Lina and Salma, reside in overseas country which
amounts to more number of children residing in overseas than her eligible child, Soheb, who
alone resides in Australia. However, she may be excluded from the conducting of Balance of test
as her two daughters are married and live with their husbands and is not under her custody as per
the operation of law.
In regards to the second issue, other permanent visa options that are available for
enabling Soheb to bring her mother to Australia includes Parent category (subclass 103 and
804); and Contributory Parent category (subclasses 173,143, 884 and 864). Amongst the
requirements, three essential evidences that must be established to apply or obtain all these visas
include:
7 Migration Regulations 1994 [schedule 3], regulation [1130A]

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Sponsor- the parent applying for this visa requires a sponsor who must be his or her child who is
permanently settled in Australia and is above 18 years. Other provisions exist for child who is
below 18 years.
Age criteria- The parent visas are divided into working age parent and aged parent. The primary
difference between aged parent and working age parent is that aged parent may apply for either
the offshore or the onshore visas whereas the working age parent may only apply for the
offshore parent visa.
Balance of Family Test- the parent applicant must establish that at least half of his/her, children
live permanently in Australia or that majority of the children of the applicant permanently reside
in Australia other than in any other nation.
Conclusion
Soheb can bring her mother to Australia on parent visa as she may be excluded from the
‘balance of test’ requirement as her daughters are removed from her custody as they are married
and under the custody of their respective husbands as per operation of law.
To apply for the other visa options, Bashra must establish she has a sponsor and she has
met the age as well the Balance of family test criteria.
Answer 2
Issue
1. Whether Bashra is eligible to apply for parent visa without going back to Pakistan
2. What requirements must be fulfilled prior to the application of the visa in Australia?

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3. Which one of the onshore Parent visas is suitable for Bashra, given unstable financial
position of Soheb?
Rules
The visitor subclass 600 visa is a temporary visa that is granted to people who wishes to visit
Australia for:
a) a family visit;
b) business purpose;
c) family visiting;
The visitor visa is permitted to reside in Australia for three months. In order to obtain a
temporary visitor visa, the applicant must:
a) have a sponsor;
b) be a permanent resident of the country;
c) the sponsor must be a family member of the applicant who is above 18 years;
There are certain visa conditions that are imposed on the visas, which must be complied with to
prevent cancellation of the visas.
Visa Condition 8101
This visa condition prohibits the visa holder from engaging in work while staying in
Australia. The visa holder must not contravene the provision unless such work involves
volunteer work. However, violation of the visa condition would result in cancellation of the visa

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by the Immigration Department of Australia8. Further, the visa holder may be required to leave
the country and shall be prohibited from returning in the country.
Visa condition 8201
The Australian visa holder must not engage in any training or studies for more than 3 months.
Visa Condition 8503
This is the ‘no further stay’ condition is imposed to prevent the visa holder from
applying for any other permanent and temporary visas while the visa holder is staying in
Australia9. This visa condition requires the applicant to leave Australia after the visa expires.
The visa-holder must make a written request to the Minister regarding the waiver of the
condition. The Minister may waive the 8501 condition under the following circumstances:
a) compelling and compassionate circumstances have arisen in respect of the visa holder
since the visa was granted;
b) it has resulted in significant change in the circumstances of the visa-holder;
c) the change was beyond the control of the visa-holder;
If the Minister waives the condition, the visa holder may apply for another visa without
departing from the nation. The new visa may be applied provided the visa applicant complies
with the legal requirements of the visa.
The visa holder who is provided with a ‘substituted 600 visa’ becomes eligible for applying
other appropriate substantive visas. The visa holder of ‘substituted 600 visa’ whose children are
8'Visa Conditions' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
accessed 6 May 2018
9Visa Conditions' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
accessed 6 May 2018

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settled in Australia, may apply for an onshore Aged Parent [subclass 804] visa or Contributory
Aged Parent [permanent or temporary] [subclass 864 or 884] visa despite not satisfying the
BoF or age requirements.
However, ‘substituted 600 visa holders’ with 8503 ‘no further stay’ condition under
[section 48] of the Migration Act10 cannot apply for subclass 884 and 864 visa11. The aged
parents from offshore may apply for 173 and 143-subclass visa12. The Contributory Parent visa
(subclass 143) visa will permit the aged parent to reside in Australia permanently whereas the
Contributory Parent (temporary) visa (subclass 173) visa will permit the aged parents to live
temporarily in Australia. .
In order to apply for the above visas, the parent applicant must establish the following criteria set
out under schedule 2 of Migration Regulations 1994:
a) the sponsor is a settled Australian citizen and is 18 years old ;
b) the applicant has an assurance of support;
c) the health and character requirement is met;
d) no previous cancellation of visas;
e) met the BoF test;
This visa is will entitle the visa applicant to reside in Australia permanently and is entitled to
be enrolled under Australia’s Medicare scheme related to health-related care and expenses.
10 Migration Act 1958 (Cth) at section [48]
11'Visa Conditions' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
accessed 6 May 2018
12'Contributory Parent (Temporary) Visa (Subclass 173)' (Homeaffairs.gov.au, 2018)
<https://www.homeaffairs.gov.au/trav/visa-1/173-> accessed 6 May 2018

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Application
In regards to the first issue, Soheb’s mother has obtained a Visitor subclass 600 visa
which has three conditions imposed according to which she is not entitled to work and cannot be
engaged in any training or studies for more than three months. Further, the 8503 visa condition,
which is a ‘No Further Condition’, shall require her to leave the country with the expiry of the
visa. However, she may apply before the Minister to waive the condition on the ground that since
she was granted the subclass 600 visa, her daughter was killed.
Further, the death of her husband made her financial dependent on her son who is settled
in Australia. This leads to a significant change in her circumstances, which was beyond her
control, which amounts to one of the conditions that is considered by the Minister to waive the
8501 condition13. She may apply for another visa without departing from the nation after the
waiver of the condition.
In regards to the second issue, to apply for another visa, she must establish that her son
Soheb shall be her sponsor who is above 18 years old and shall provide her assurance of support.
She has also met the BoF test, as after the death of one daughter, the number of eligible child
legally residing in Australia, that is Soheb is equal to the number of ineligible child residing in
overseas that is, Salma. Lastly, there was no cancellation of her previous visas.
Further, given the financial condition of Soheb, it is appropriate that Bashra applies for
Contributory Parent visa (subclass 143) visa under [Schedule 2] and Regulation [143.32] of
the Migration Regulation 1994 as it will not only permit her to reside in Australia permanently
13 'Visa Conditions' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions>
accessed 6 May 2018

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but will also cover her medical expenses because she will be enrolled under the Medicare
scheme. This will relieve Soheb from paying her health care related expenses significantly14.
Conclusion
Bashra may apply for another visa after waiver of 8503 visa condition and Contributory
Parent visa (subclass 143) visa is the most appropriate visa for her to apply after she fulfills all
its legal requirements set out under the Migration Act 1958 (Cth).
14 Contributory Parent Visa (Subclass 143)' (Homeaffairs.gov.au, 2018) <https://www.homeaffairs.gov.au/trav/visa-
1/143-> accessed 6 May 2018

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Bibliography
'Contributory Parent (Temporary) Visa (Subclass 173)' (Homeaffairs.gov.au, 2018)
<https://www.homeaffairs.gov.au/trav/visa-1/173-> accessed 6 May 2018
'Contributory Parent Visa (Subclass 143)' (Homeaffairs.gov.au, 2018)
<https://www.homeaffairs.gov.au/trav/visa-1/143-> accessed 6 May 2018
Migration Act 1958 (Cth) at section 48
Migration Regulations 1994
'Parent Category Visas' (Homeaffairs.gov.au, 2018)
<https://www.homeaffairs.gov.au/trav/brin/pare#> accessed 6 May 2018
'Visa Conditions' (Homeaffairs.gov.au, 2018)
<https://www.homeaffairs.gov.au/trav/stud/more/visa-conditions> accessed 6 May 2018