Parent Visas: Balance of Family Test - Provisional and Temporary Visaholders

**Gollywobbler** · 04-06-2008, 12:29 PM

Good morning, Tony

Good mood is restored today!

Very many thanks for explaining this whole issue in terms that I can now understand fully and stop growling about because I can now see how the logic stacks up.)

I'm also mollified by the CPV fees for 2009/9. George Limbard put a thread on BE abut these last night. $30 is not worth worrying about so there is no significant loss to my friends.

Another query though, please?

I now accept how this thing works in relation to "Child 2" described in Alan's article. In Alan's example, Child 2 holds a subclass 475 SIR visa, which does seem to use the term "provisional" in its title (according to the DIAC website, though that could be descriptive only.) Plus I note that the website does say "provisional" rather than "temporary" in relation to the sc 475 visa.

But how far does the Duke of York argument extend, please? Would it also cover Child 2 if s/he:

Holds a subclsss 457 visa; or
Holds a temporary Spouse visa?

Presumably it iwould not extend to a situation where Child 1 is an Aussie Citizen but Child 2 is in Oz on a Student Visa?

Many thanks & best wishes

Gill

**Welshtone** · 04-06-2008, 03:10 PM

Hi Gill

To remove from the Balance of Family test, you must convince the case officer that that child is not resident overseas. Being on a provisional visa, which has a clear pathway to permanent residence is strong argument that the person is not resident overseas. Being on a temporary Spouse visa, where the permanent spouse application has already been made, is even stronger. Being on a student visa is arguable but, where there is a clear intention to apply for a permanent visa after completion of studies it may fly. The longer one has been in Australia on the student visa the stronger the argument. So it is for each case to argue its own circumstances as to whether the child is an overseas resident or not - many other factors come into play.

Regards

**ancient brits** · 04-06-2008, 08:26 PM

Hi Jean
Well said, I totally agree with you. My OH is always amazed when I give him updates and info on CPV, and it's all down to the above "3 musketeers," who put in so much of their own time for PIO. Fantastic
Rita

**Gollywobbler** · 18-06-2008, 12:47 AM

Hi Alan, Hi Tony

For some months I have been trying to help one of our members but despite them consulting various Agents at various stages, no idea has really leapt off the page as being completely do-able (or not within the family’s desired timeframe, anyway.)

H&W propose to get subclass 405 Investor Retirement visas. H&W would prefer to remain on the sc 405 visa regardless of whether or not they might become eligible for CPVs instead because H&W reckon that the tax-advantages of Temporary Residency would suit them better than PR. H&W currently reside in the UK as do all 4 of their children plus W’s mother, Granny.

H&W have four children. Two of their children plan to migrate to Oz and both will have PR on arrival in Oz. Their other two children have no plans to migrate but plainly H&W would both become eligible for CPVs if they want them, or they could split their visa strategy with only W obtaining a CPV if need be.

Then there is W’s mother, Granny. Granny has 3 children. Currently Granny’s Child 1 is an Australian Citizen. W is Child 2 and she intends to become a sc 405 visa holder. Granny’s remaining Child 3 does not live in the UK or in Oz and Child 3 has no plans for migration to Oz.

I think that the stuff you guys recently worked out with DIAC could work as follows:

H&W proceed with Plan A, get their sc 405 visas and move to Oz. Child 1 then Sponsors Granny for a CPV 143. Neither H or W can Assure Granny because neither of them would have PR. However, H&W’s 2 children in Oz will both have PR and therefore either of them (or the two grandchildren jointly) could Assure Granny in due course.

The idea appears to work precisely because W is Child 2 in Alan’s article, it seems to me, and therefore W can potentially be excluded from the Balance of Family Test in relation to Granny. If it would really cheer DIAC up, one of W’s children could sponsor W for a CPV once one of them is “settled” but that may not be a necessary step, I suspect.

The stumbling block hitherto has been the belief that W would have to have PR via her own CPV before it would be possible for Granny to meet the Balance of Family Test. But if W can be excluded from the BoF test on Granny once W is living in Oz on a 405 visa, it could truncate the waiting time for Granny (who is not young) very considerably and might get the whole thing moving.

It has only just occurred to me that there is no age limit on the Duke of York theory, and equally it has only just occurred to me that the sc 405 is a strange visa, in as much as people might choose it deliberately instead of a CPV because of the tax-perks, but the intention to remain in Oz permanently is nevertheless satisfied I suspect. The 405 visa isn’t some sort of long-stay tourist visa in substitution for the old sc 686 tourist visa, after all.

Is it worth suggesting that they contact one of you or have I missed a glaringly obvious banana skin somewhere in this, please? I am pretty sure that the family has been in touch with Alan at some point. I don’t know whether they have also contacted Tony or Ian Harrop.

Best wishes

Gill

**Alan Collett** · 18-06-2008, 01:03 AM

Originally Posted by Gollywobbler

Hi Alan, Hi Tony

For some months I have been trying to help one of our members but despite them consulting various Agents at various stages, no idea has really leapt off the page as being completely do-able (or not within the family’s desired timeframe, anyway.)

H&W propose to get subclass 405 Investor Retirement visas. H&W would prefer to remain on the sc 405 visa regardless of whether or not they might become eligible for CPVs instead because H&W reckon that the tax-advantages of Temporary Residency would suit them better than PR. H&W currently reside in the UK as do all 4 of their children plus W’s mother, Granny.

H&W have four children. Two of their children plan to migrate to Oz and both will have PR on arrival in Oz. Their other two children have no plans to migrate but plainly H&W would both become eligible for CPVs if they want them, or they could split their visa strategy with only W obtaining a CPV if need be.

Then there is W’s mother, Granny. Granny has 3 children. Currently Granny’s Child 1 is an Australian Citizen. W is Child 2 and she intends to become a sc 405 visa holder. Granny’s remaining Child 3 does not live in the UK or in Oz and Child 3 has no plans for migration to Oz.

I think that the stuff you guys recently worked out with DIAC could work as follows:

H&W proceed with Plan A, get their sc 405 visas and move to Oz. Child 1 then Sponsors Granny for a CPV 143. Neither H or W can Assure Granny because neither of them would have PR. However, H&W’s 2 children in Oz will both have PR and therefore either of them (or the two grandchildren jointly) could Assure Granny in due course.

The idea appears to work precisely because W is Child 2 in Alan’s article, it seems to me, and therefore W can potentially be excluded from the Balance of Family Test in relation to Granny. If it would really cheer DIAC up, one of W’s children could sponsor W for a CPV once one of them is “settled” but that may not be a necessary step, I suspect.

The stumbling block hitherto has been the belief that W would have to have PR via her own CPV before it would be possible for Granny to meet the Balance of Family Test. But if W can be excluded from the BoF test on Granny once W is living in Oz on a 405 visa, it could truncate the waiting time for Granny (who is not young) very considerably and might get the whole thing moving.

It has only just occurred to me that there is no age limit on the Duke of York theory, and equally it has only just occurred to me that the sc 405 is a strange visa, in as much as people might choose it deliberately instead of a CPV because of the tax-perks, but the intention to remain in Oz permanently is nevertheless satisfied I suspect. The 405 visa isn’t some sort of long-stay tourist visa in substitution for the old sc 686 tourist visa, after all.

Is it worth suggesting that they contact one of you or have I missed a glaringly obvious banana skin somewhere in this, please? I am pretty sure that the family has been in touch with Alan at some point. I don’t know whether they have also contacted Tony or Ian Harrop.

Best wishes

Gill

Where is Child 1 living, Gill?

Best regards.

**Gollywobbler** · 18-06-2008, 03:23 AM

Originally Posted by Alan Collett

Where is Child 1 living, Gill?

Best regards.

Hi Alan

Child 1 definitely lives in Oz and I am pretty sure that I have been told Sydney. He has lived there for at least 10 years or more, I believe.

Best wishes

Gill

**Alan Collett** · 18-06-2008, 04:30 AM

Then once the 405 visaholders have been living in Australia for a reasonable period and can demonstrate to the c/o's satisfaction they are usually resident in Australia (or more accurately they are not usually resident in the UK) I would say a CP application for Granny has reasonable prospects of success.

Best regards.

**Welshtone** · 18-06-2008, 08:27 AM

Hi Gill

I agree with Alan. All will hinge on presenting a case that the Investor Visa holders are not usually resident outside of Australia as Alan says. Some of the important factors would be how long they had been in Australia on the 405, what ties do they have in the UK, have they sold their UK property, their tax status in Australia even their tax status in the UK. I think they could apply to the UK tax to change their domicile to the UK (if they can convince UK Tax that that is where they intend to spend the rest of their lives and be buried) - this would be further strong evidence that they are not resident in any Country outside Australia.

I would recommend they engage Alan as Alan has UK and Australian tax expertise, as well as his vast Migration knowledge, so he could better handle all the issues as there may be conflicting tax/accounting issues e.g. something that is a benefit to them for tax purposes, ie one of the reasons for shosing the 405 over the cpv, may undermine an argument that they are not resident outside of Australia. Anyway, Alan will be able to go through these things much better than I.

Regards