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

[Alan Collett]

Go Matilda - Your Gateway to Australia - News

 

Some (particularly subclass 495 - ie SIR - visaholders) might be interested ...

 

Best regards.

[Guest Gollywobbler]

Hi Alan

 

Thank you for your new article. I have a query though, please.

 

What is the difference between Child 1 and Child 2 in your example? Let us say as follows:

 

Parents have 2 children only. Child A resides in Oz on a temporary Spouse visa. Child B does not live in Australia.

 

Child A's Permanent Spouse visa will not be granted unless the delegate is satisfied that Child A lives in Australia and intends to do so permanently, it would seem. Please see Post 3 on this thread, quoting someone from the Spouse visa section in Perth:

 

Permanent visa refusal - what are my options? : British Expat Discussion Forum

 

(I don't know what the DIAC person imagines the word "intends" to mean? Everybody else considers that it is a description of someone's plans for the future but apparently not, according to DIAC!)

 

Yet in April 2007 the POPC refused a CPV 143 application on the ground that the only child in Australia was on a temporary Spouse visa at the time when her Parents' CPV application was made. By the time the POPC refused the CPV application, 10 months after it was submitted, the daughter's Permanent Spouse visa had been granted in the meanwhile. Nevertheless, the CPV application was refused.

 

I actually don't think there is any legal difference between Child 1 and Child 2 in your article, or between your Child 2 and my Child A, is there, particularly in view of DIAC's own recent advice to the OP on the BE thread?

 

Also DIAC's assertion that your Child 2 "drops out of the equation" is woolly-minded, muddled nonsense. What they mean is that because they accept that your Child 2 is lawfully and permanently resident in Australia, they also accept that the Parents meet the Balance of Family Test.

 

I'd be interested to know what you think about this. If anything, I'd contend that the holder of a temporary Spouse visa is in a stronger position than the SIR visa holder because the original Spouse visa application was an application for a PR visa. It is not two separate applications as far as I know?

 

It seems to me that if DIAC's assertion in your article works at all then it works for your Child 1 as readily as it works for Child 2. If it does then it also works for my Child A?

 

I suspect that you asked DIAC a very narrow question and that they answered it equally narrowly (and evidently in a muddle about how the Balance of Family Test actually works) but I doubt that they can sustain such a narrow answer in fact.

 

Best wishes

 

Gill

[Alan Collett]

Hello again Gill.

 

In my opinion (and I believe this to be the accepted position) in the circumstances you have described the balance of family test would not be satisfied, as Child A is not the holder of a permanent residency visa, is not an Australian citizen, and is not an eligible New Zealand citizen, and as such cannot be considered to be "permanently resident in Australia."

 

Best regards.

[Guest Gollywobbler]

Hello again Gill.

 

In my opinion (and I believe this to be the accepted position) in the circumstances you have described the balance of family test would not be satisfied, as Child A is not the holder of a permanent residency visa, is not an Australian citizen, and is not an eligible New Zealand citizen, and as such cannot be considered to be "permanently resident in Australia."

 

Best regards.

 

Hi Alan

 

I hear you (and you are undoubtedly right about DIAC's stance because of what happened last year.)

 

Nevertheless, if their stance is right then they are trying to say that "lawfully and permanently resident in Australia" means one thing in terms of defining whether someone is a Parent at all, but that the same words mean something different in determining whether this same Parent also meets the Balance of Family Test.

 

It is illogical. The dictionary does not offer many and varied definitions/interpretations of what these words mean and neither does the legsislation, it seems to me.

 

Best wishes

 

Gill

[Alan Collett]

I will ask the question of Central Office, Gill, and will be interested to see what I get back ...

 

Best regards.

[Welshtone]

Hi Alan

 

I thrashed this out with the policy area a few months ago and posted on the MIA site ( The Duke of York Theory) and got DIAC to concede that some children in Australia on temporary visas may be excluded from either side of the Balance of Family test. They were not excluded by being found to be usually resident in Australia, although this may be the case. They were excluded on the basis that they were not "resident overseas" as required by the definition of the Balance of family.

 

DIAC were always having problems with arguments that such children were "lawfully and permanently resident in Australia" as the temporary visa holder would then count on the Australian side of the test.

 

There is an argument that such children are indeed usually resident in Australia and thus Lawfully and Permanently resident in Australia and, if accepted by DIAC, Gill's scenario of two children one in Australia on a rtemporary visa and one outside could then meet the Balance of Family. Unfortunately, any visa application based on this would fail anyway if no children held a permanent visa as there would not be an eligible child to be the sponsor.

 

Regards

 

 

Tony

[Guest Gollywobbler]

Hi Tony

 

If the child in Oz is on a temporary Spouse visa, the Australian daughter or son in law could sponsor his/her parents in law.

 

I reckon that one of the worst problems with this legislation is that providing and then using definitions appears to have been something of an optional extra as far as the parliamentary draftsman was concerned! Right now, I've got S103 up on my screen. The "Interpretation" preamble warns me not to expect a definition of "permanent resident"!

 

According to S103.211(b) a parent is not a Parent for the putrposes of this legislation unless there is at least one child who is "A settled Australian permanent resident."

 

S1.05 uses the term "lawfully and permanently resident."

 

So - permanent is an adjective. Permanentiy is an adverb. Permanence is the relevant noun.

 

I don't think that somebody who is a "permanent resident" is any different from somebody who is "permanently resident." Neither term is defined, after all.

 

I have a hunch that DIAC would backtrack from their assurance to Alan if they think about the logical conclusion to be drawn from what they are apparently saying..... They are potentially laying themselves wide open to a challenge, it seems to me.

 

Best wishes

 

Gill

[Guest Gollywobbler]

I would add that I'm particularly aggravated about this because some dear friends of mine are in the following situation:

 

Daughter lives in Sydney on a sc309 visa that was granted in Feb 2006. In Jan 2008, DIAC in Sydney sent her the forms for her upgrade to the sc 100 visa. She promptly completed and returned those before the end of January 2008.

 

In February 2008 DIAC acknowledged receipt of the completed paperwork. And announced that due to a backlog in their office, the upgrades are taking about 8 months at present. They have deafed every effort to get them to understand that some very elderly Parents need to get the ball rolling on a CPV application as soon as they can.

 

As it is, the chances of them managing to beat the fees-increase seem increasingly remote. They really can't risk a CPV application right now, I reckon, in view of the way that Greenfingers' first CPV143 application was refused in 2007, as explained in my first reply to Alan above.

 

It seems monstrous to me that the Parents face having to pay extra and tolerate unwelcome delay simply because of a backlog at DIAC in Sydney. The more so when Canberra seem to be trying to say that "a permanent resident" and somebody who is "permanently resident" are somehow two different creatures.

 

Best wishes

 

Gill

[Welshtone]

Hi Gill

 

There is a definition of "Australian Permanent Resident" at 1.03 of the regulations and it applies to all visa subclasses except resident return visas:

 

Australian permanent resident

 

means:

(a) in relation to an applicant for a Return (Residence) (Class BB) visa or a Resident Return (Temporary) (Class TP) visa — a non-citizen who is the holder of a permanent visa; or

(b) in any other case (other than in the case of an applicant for registration as a migration agent under Part 3 of the Act) — a non-citizen who, being usually resident in Australia, is the holder of a permanent visa.

 

So the terms "Australian Permanent Resident" and "Lawfully and permanently resident in Australia" could have different meanings. You can not meet the definition of "Australian Permannet Resident" without also being lawful so the second term, it could be argued, was intended to be interpretted differently e.g. Lawfully and usually resident in Australia. As I said, DIAC do not

accept this extra step in the argument so the best we can do is get such children excluded from the test - which sometimes helps. It will need the Courts to rule that somebody who is not the holder of a permannet visa may still be considered to be lawfully and permanently resident in Australia.

 

Although an Australian spouse can sponsor on behalf of a child, that child must still be a SETTLED Australian permanent resident i.e. the holder of a permanent visa.

 

Regards

[Guest OldiesRUs]

Gollywobbler, Welshtone & Alan

 

Just read through all your posts below. My head hurts!!!

 

Complete mystery to me how you guys keep on top of all this - but so pleased that you do.

 

Just wanted to say thank you from all the CPV applicants in waiting. Without you to keep watch and explain all the complications, we would all be at a total loss.

 

Keep up the good work!

 

Jean:wubclub:

[Guest Gollywobbler]

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]

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]

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

[Guest 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

[Alan Collett]

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.

[Guest Gollywobbler]

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]

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]

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