Graduate Diploma in Migration Law: Parent Visa Advice Report

This report provides legal advice regarding parent visa options in Australia, specifically addressing the cases of Sonya and David, parents of Ruth Gandhi, a skilled migrant. It analyzes the eligibility criteria, requirements, and conditions associated with Parent Visa subclass 103 and Aged Parent Visa subclass 804. The report details the health and character requirements, application processes, and costs involved. It highlights that Sonya, currently in Australia on a medical treatment visa, may be eligible for the Aged Parent Visa 804, but needs to apply for a Bridging Visa A to maintain legal status. David, residing outside Australia, could apply for Parent Visa 103. The report also mentions the option of a contributory parent visa (subclass 143) for David. The advice is based on the Migration Act 1958 and Migration Regulations 1994.

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

1MIGRATION LAW
To Ruth Gandhi
From Migration Agent
Subject: letter of advice
In reference to the query as whether Miss Ruth Gandhi's parents, mother Sonya aged
62 and father David aged 61 could qualify for any parent visa options in Australia, the
following letter of advice is addressed.
Ruth Gandhi migrated to Tasmania, Australia about 10 years ago on a skilled
migration visa as a medical practitioner. It is presumed that her skilled migration visa is under
subclass 189 or 190 which lets a skilled worker live and work in Australia as a permanent
resident. The occupation of Ruth comes under the skilled occupation list held by the
Department of Home Affairs which gives her the status of a permanent resident in Australia,
however the approval of this visa depends on an invitation that was made to her by the
organisation where she works or a government institution as held by part 1.15I of the
Migration Regulations 19941. The skilled visa does not restrict her to sponsor eligible
relatives for permanent residence. In this regard, Ruth shall be eligible to sponsor her parents
to come over to Australia and stay as dependent residents with her. For this reason, two of the
following dependent parent visas are as discussed below:
 Parent Visa subclass 103
 Aged parent Visa subclass 804
Parent Visa subclass 103
As defined under Section 5(1) of the Migration Act 1958, someone is a parent of a
person if such person is his child2. In this regard the applicant can file for a parent visa
1 Migration Regulations 1994, part 1.15I
2 Migration Act 1958, s 5(1)

2MIGRATION LAW
subclass 103 for a parent who is living inside or outside Australia while applying for this visa
however must be living outside Australia while the department Home Affairs process his
subclass 103 visa. A parent subclass 103 visa lets an applicant stay in Australia indefinitely
along with the privilege to enrol in Australia as Public Health Care scheme. The applicant
may apply for Australian citizenship if eligible3.
Travelling
The applicant shall be able to travel to and from Australia as many times as he or she
wants for the first five years from the date on which the visa is granted. However the
applicant shall require resident return visa (RRV) after the initial 5 years in order to re-enter
Australia as a permanent resident. The applicant shall be required to apply for an Australian
passport in order to leave and re-enter the country without requiring a visa.
Parent visa as a retiree
The applicant applying for the subclass 103 visa as a retiree shall not be required to
meet the balance of the family test along with no necessity to have a sponsor who would a
sure his presence in the country.
Apply from
The applicant can be present in Australia or maybe outside the country however must
not be in immigration clearance when applying for the visa. The application it must be
outside Australia when the department process the visa application4.
Cost of the visa
The parent Visa subclass 103 costs around AUD 6,415 along with certain additional
charges if any family member applies along with it. The payment is required to be made into
3 'Subclass 103 Parent Visa' (Immi.homeaffairs.gov.au, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/parent-103> accessed 9 September 2019.
4 Migration Regulations 1994, reg 1124(3).

3MIGRATION LAW
parts, the first one need to be paid while applying for the Visa and the second part is to be
paid when the department asks the applicant to do so5. Certain additional charges maybe
attached to this application in terms of health checks, biometric and police certificates.
Health Requirement
As per the health check requirement under this visa the applicant must meet the health
requirements which strive to protect the Australian community in terms of public health and
safety risks. The applicant must be free from any disease that might add significant cost to the
health care and community service of the Australian community. The medical officer of the
Commonwealth (MOC) advisors the department as per the medical reports of the applicant,
as to whether the medical condition of the applicant threaten Australian public health,
significantly ad cost to the health care in community service and demands on the healthcare
services of the country which are in short supply6.
Character Requirement
The applicant shall meet the character requirements as held under section 501 of the
Migration Act 19587. The applicant shall fail to meet the character requirement if he or she:
a) has a substantial record of criminal activity, b) convicted related to immigration issues, c)
associated with a group that is involved in criminal conduct, d) past record that shows that the
applicant is not of good moral character, e) involves a risk of harming the Australian
community in some way8.
Conditions
5 Migration Regulations 1994, reg 1124(2)
6 'Subclass 103 Parent Visa' (Immi.homeaffairs.gov.au, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/parent-103> accessed 9 September 2019.
7 Migration Act 1958, s 501.
8 'Subclass 103 Parent Visa' (Immi.homeaffairs.gov.au, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/parent-103> accessed 9 September 2019.

4MIGRATION LAW
Parent visa subclass 103 comes with two conditions. Condition 8502 restricts the
applicants to arrive in Australia before his or her child arrives, while condition 8515 restricts
the applicant to marry or enter into a de facto relationship before entering into Australia9.
The Department of Home Affairs does not provide a processing time for this visa
however it is recommended that the applicant must fill the form correctly and must include
all the required documents containing the necessary information essential for the visa. Lastly
in terms of obligation the applicant and his family members must obey Australian laws as any
other law abiding Australian resident.
Aged parent visa subclass 804
Travelling
The applicant shall be able to travel to and from Australia as many times as he or she
wants for the first five years from the date on which the visa is granted. However the
applicant shall require resident return visa (RRV) after the initial 5 years in order to re-enter
Australia as a permanent resident10. The applicant shall be required to apply for an Australian
passport in order to leave and re-enter the country without requiring a visa.
Apply from
The applicant is required to be present in Australia while applying for this visa
however the applicant must not be in immigration clearance when the department decides on
the application11.
Conditions
Unlike Parent visa subclass 103, Aged Parent visa 804 is not restricted with
conditions.
9 Ibid.
10'Subclass 804 Aged Parent Visa' (Immi.homeaffairs.gov.au, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/aged-parent-804> accessed 9 September 2019.
11 Migration Regulations 1994, part 1124A(3)

5MIGRATION LAW
Health Requirement
As per the health check requirement under this visa the applicant must meet the health
requirements which strive to protect the Australian community in terms of public health and
safety risks. The applicant must be free from any disease that might add significant cost to the
health care and community service of the Australian community. The medical officer of the
Commonwealth (MOC) advisors the department as per the medical reports of the applicant,
as to whether the medical condition of the applicant threaten Australian public health,
significantly ad cost to the health care in community service and demands on the healthcare
services of the country which are in short supply12.
Character Assessment
The applicant shall meet the character requirements as held under section 501 of the
Migration Act 195813. The applicant shall fail to meet the character requirement if he or she:
a) has a substantial record of criminal activity, b) convicted related to immigration issues, c)
associated with a group that is involved in criminal conduct, d) past record that shows that the
applicant is not of good moral character, e) involves a risk of harming the Australian
community in some way. The department of Home Affairs considers the following factors
while allowing a character requirement: a) protection of Australian community, b) the
international legal responsibility of Australia c) best interest of a child in Australia, d)
consequences of refusal of the visa on the applicant’s family in Australia, and e)
Consequences on the Australian community14.
Cost of the visa
12'Subclass 804 Aged Parent Visa' (Immi.homeaffairs.gov.au, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/aged-parent-804> accessed 9 September 2019.
13 Migration Act 1958, s 501.
14'Subclass 804 Aged Parent Visa' (Immi.homeaffairs.gov.au, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/aged-parent-804> accessed 9 September 2019.

6MIGRATION LAW
The parent Visa subclass 804 costs around AUD 6,415 along with certain additional
charges if any family member applies along with it. The payment is required to be made into
parts, the first one need to be paid while applying for the Visa and the second part is to be
paid when the department asks the applicant to do so15. Certain additional charges maybe
attached to this application in terms of health checks, biometric and police certificates.
Sonya's case
In this regard Ruth Gandhi's mother Sonya could apply for an aged parents visa 804
as she is already living in Australia and would not be required to leave the country for
applying this visa. However it is to be noted that as Sonya is holding a medical treatment visa
subclass 602, which has a condition of no further stay (condition 8503) therefore in this
regard she needs to apply for a bridging visa A (BVA) subclass 010 which would keep the
applicant’s presence lawful in Australia when her current visa expires and the department has
not made a decision regarding her new visa application. As Sonya is staying in Australia at
the moment with Ruth, she would not be required to leave Australia due to the Bridging Visa
A (subclass 010). The Bridging visa A does not require an applicant to leave the country
while applying it in order to buy some time while the department process the substantive visa
application made by the applicant.
Therefore Sonya shall be liable to apply for a bridging visa as her Medical Treatment
Visa subclass 602 would be expiring soon and it would be unlawful for her to stay a in
Australia without a valid visa. For applying for an aged parent 804 visa, which is to be
sponsored by her daughter Ruth who is an Australian resident, it is important that she stays in
Australia while making the application. She could only extend her stay in Australia on the
basis of the Bridging visa A even after her Medical Treatment Visa expires.
David's case
15 Migration Regulations 1994, reg 1124A(1).

7MIGRATION LAW
David, Ruth's father had visited Tasmania on an occasion and had expressed his
willingness to stay in the country with his daughter and wife. David may apply for the parent
Visa 103, which would let him stay in Australia indefinitely along with the permission to
work and study in the country and avail the Australian Public Health Care Scheme. David,
not holding any Australian Visa at the moment, shall be required to file for a fresh substantial
visa while being outside Australia. The processing time of this visa is undisclosed as it is
subject to capping and queuing. Therefore David could also opt for a contributory parent visa
subclass 143, as he is still earning in his home country as a yacht Squadron and will not be
dependent on his daughter completely16. However it is not recommended as although it is
processed faster yet it costs more than the parent visa subclass 103, unless it is an emergency.
On the contrary, David may opt for the additional family member visa that Sonya
shall be eligible to apply along with her Aged Parent Visa 804. However, such application for
including family member along with the aged parent visa should be made along with the
main visa application. The informational details of both Sonya and David shall be necessary
for the Department to process the application expeditiously. David shall be required to meet
the health and character requirements as prescribed by the Department of Home Affairs.
Therefore, to sum up the letter of advice for Ruth, she has a couple of options to bring
her old parents in Australia as residents, and ensure their safety under her medical
observation. For her Sonya, Ruth’s mother, the Aged Parent visa subclass 804 would be apt
as it does not require her to leave Australia in order to apply the visa. While her Medical
Treatment Visa is on the verge of expiry, she could apply for the bridging visa A while her
Aged parent visa 804 is being process by the Department of Home Affairs. In case of David’s
visa, he could either apply for a Parent Visa subclass 103 while being outside Australia or
may apply along with his wife’s Aged Parent visa, which is to be processed together. Both
16 Migration Regulations 1994, part 1130.

8MIGRATION LAW
the applicants are required to meet the basic health and character requirements as prescribed
by the Department. Thus, it is affirmative that Ruth’s parents, both Sonya and David qualify
for holding a parent visa for being Australian residents, sponsored by Ruth.

9MIGRATION LAW
Bibliography
Legislation & Regulation
Migration Act 1958
Migration Regulations 1994
Government Websites
'Subclass 103 Parent Visa' (Immi.homeaffairs.gov.au, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/parent-103> accessed 9
September 2019
'Subclass 804 Aged Parent Visa' (Immi.homeaffairs.gov.au, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/aged-parent-804> accessed
9 September 2019