Partner of Main Applicant visa 864

[Little Dragon]

Hi everyone,

My sister and her husband are Australian citizens. She would like to sponsor our parents to live permanently in Australia. Our parents are currently in Australia, so we are planning to go with visa 864. We are aware that this forum is not a legal consulting firm, but we would really appreciate if you could provide us with some insights . Here are some of our concerns: 

1/ My dad is of pension age (he was born before 1953), but my mom is not (she was born after 1957). We read that the main applicant can bring his/her partner. If my dad is the main applicant and my mom is his partner, does she need to satisfy the age condition?

2/ Do we need to lodge two separate application forms (one for each parent?) Or we can just lodge one application with my dad being the main applicant and my mom being his partner?

3/ Application fee: For our dad (first/main applicant), we will have to pay $3,770 (1st instalment) + $43,600 (2nd instalment). For our mom (additional applicant/partner), we will have to pay $1,880 (1st instalment) + $43,600 (2nd instalment). Is this correct?

4/ It is written that "You (the sponsor) must agree to provide support, housing and financial help for the first 2 years the applicant lives in Australia. You (the sponsor) must also support any members of the applicant's family who apply with them." My sister and her husband have already paid half for their house here in Australia, so they can definitely provide housing for our parents. My sister does not have a job at the moment, but her husband is currently employed with a salary of over $90k/year. They have no other debts except for the house they are living in, so I'm not sure if my sister is deemed fit to provide financial support for my parents. Will this increase the chance of my parents' visa being refused? It should also be noted that our parents have their own money as well (savings + income from leasing one of their houses), and they can pay both the application fee and living expense. They've been paying their own living expense using their savings for the past two years while they are stuck in Australia because of COVID.

5/ Can my brother-in-law (my sister's husband) be the assurer?

Additional information: My family (dad, mom, sis, and me) have never been refused a visa before. My parents have always been travelling back and forth to Australia to visit my sister and her three kids.

Once again, thank you for your amazing insights/recommendations/suggestions/advice. Hope everyone is having a great weekend. 

[wrussell]

1. 2. No

3. Near enough

4. Looks OK

5. Yes

[Marisawright]

On 09/07/2022 at 19:31, Little Dragon said:

My sister and her husband are Australian citizens. She would like to sponsor our parents to live permanently in Australia. Our parents are currently in Australia, so we are planning to go with visa 864. We are aware that this forum is not a legal consulting firm, but we would really appreciate if you could provide us with some insights .

You've been lucky enough to have a professional agent answer your questions, so I won't address those. However, I wonder if you are fully aware of the limitations of living on a bridging visa (which they will be doing for at least 15 years?).    

For instance, depending where they are currently resident, there will be issues with accessing medical care.  They will pay a huge surcharge if they wish to buy a home (check FIRB for details).  They will have to apply for permission (a BVB) every time they wish to leave Australia, even for a holiday. 

[wrussell]

My answer to whether two applications are needed (No) could have been clearer. Near enough? There are credit card surchages imposed by immigration and they increase visa application charges.

[wrussell]

They will pay a huge surcharge if they wish to buy a home 

 Let the child buy it and take a lifetime lease. A clever accountant (and aren't they all) could set this up to maximise deductions minimise taxes.  This is not financial advice,  just a suggestion to take some.

[Marisawright]

31 minutes ago, wrussell said:

They will pay a huge surcharge if they wish to buy a home 

 Let the child buy it and take a lifetime lease. A clever accountant (and aren't they all) could set this up to maximise deductions minimise taxes. 

Surely you're not suggesting tax fraud.  You can't claim a tax deduction if you lease your investment property to a member of your family.  

[Jon the Hat]

1 hour ago, Marisawright said:

Surely you're not suggesting tax fraud.  You can't claim a tax deduction if you lease your investment property to a member of your family.  

Of course he isn't suggesting tax fraud.  He is suggesting getting some tax advice to ensure they don't pay unnecessary tax. There is a huge difference.

[Marisawright]

29 minutes ago, Jon the Hat said:

Of course he isn't suggesting tax fraud.  He is suggesting getting some tax advice to ensure they don't pay unnecessary tax. There is a huge difference.

Nothing wrong with getting advice.  I was just anxious to correct any incorrect impression some people might get (i.e. that one could avoid paying tax on a lease to one's relatives).

[wrussell]

It can be done and I know people who have done it. With the right advice paying the taxation commissar optional.

I recall the late, great K. Packer allegedly declaring a taxable income circa $22k. He would have spent that amount on his lunch.

[Marisawright]

18 minutes ago, wrussell said:

It can be done and I know people who have done it. With the right advice paying the taxation commissar optional.

I recall the late, great K. Packer allegedly declaring a taxable income circa $22k. He would have spent that amount on his lunch.

Great?  Matter of opinion. 

[wrussell]

I would not call him petite.

[Little Dragon]

On 21/07/2022 at 06:45, wrussell said:

1. 2. No

3. Near enough

4. Looks OK

5. Yes

Hi wrussle,

Thank you so much for your timely answer. 

Cheers,
Long.

[Little Dragon]

On 21/07/2022 at 07:19, Marisawright said:

You've been lucky enough to have a professional agent answer your questions, so I won't address those. However, I wonder if you are fully aware of the limitations of living on a bridging visa (which they will be doing for at least 15 years?).    

 For instance, depending where they are currently resident, there will be issues with accessing medical care.  They will pay a huge surcharge if they wish to buy a home (check FIRB for details).  They will have to apply for permission (a BVB) every time they wish to leave Australia, even for a holiday. 

Hi Marisawright,

I appreciate your concern and advice.  I'm grateful that everyone's replies have been really useful, including Russel's.

I'm currently on my own BVA (waiting for post-graduate visa), so I'm fully aware of its limitations. I've heard from my acquaintances (and also read threads on different forums) that the processing time for visa 864 is usually 3.5 to 4 years, as opposed to visa 143 (which is allegedly 15 to even 30 years?), so hopefully my parents won't have to wait that long. 

We have a track record of being granted visas in a short amount of time. Most of my parents' tourist visas, as well as my student visa, were granted in less than a week, except for the ones that require medical examinations. Those are usually granted within 2 weeks. In my brother-in-law's case (PR), it was the day after we lodged his application. As for me, this is the first time that I have a long bridging visa. However, due to COVID impact, my uni friends are also experiencing the same wait time for post-graduate visa.

My parents are on their extended tourist visa, which is somewhat similar to living on a bridging one (except for the travelling part). They have had Bupa insurance since 2020, and we live near the city centre, so I think there won't be much issues with accessing health care. I don't think they will be buying a house now. However, if they want to, my sister can buy it, and my parents & I can totally pay for the mortgage. Thank you so much for the heads-up about the surcharge & FIRB.

We don't mind applying and paying for their BVB. Plus, they don't like travelling too much, so it's fine. For us, the PR is quite urgent since the final grant decision will depend on their health, which will deteriorate over time. The sooner we apply, the better it is.

Warm Regards,
Long.

Edited July 23, 2022 by Little Dragon

[Marisawright]

23 minutes ago, Little Dragon said:

Hi Marisawright,

I appreciate your concern and advice.  I'm grateful that everyone's replies have been really useful, including Russel's.

I'm currently on my own BVA (waiting for post-graduate visa), so I'm fully aware of its limitations. I've heard from my acquaintances (and also read threads on different forums) that the processing time for visa 864 is usually 3.5 to 4 years, as opposed to visa 143 (which is allegedly 15 to even 30 years?), so hopefully my parents won't have to wait that long. 

It's important not to be misled by the figures on the Immigration website.   The figure there is for visas they are CURRENTLY finalising, i.e. people who applied 4, 5 or 6 years ago.   Since then, there has been a massive blowout in the number of applications, so anyone applying today will have a much longer wait time.

Another thing to be aware of:  there was a period where 864 visas were getting processed faster than 143 visas, which was never intended. 864 visa applications from 2017 onwards are on hold until the 143 applications catch up. 

Here is a calculator which you can use:

https://www.gm-parent-visas.com/visa-processing-time-calculator

Here's a long thread where parent visas are being discussed:

https://www.pomsinoz.com/topic/50481-the-brand-new-pio-parents-visa-thread/?page=948

Edited July 23, 2022 by Marisawright

[ramot]

1 hour ago, Marisawright said:

It's important not to be misled by the figures on the Immigration website.   The figure there is for visas they are CURRENTLY finalising, i.e. people who applied 4, 5 or 6 years ago.   Since then, there has been a massive blowout in the number of applications, so anyone applying today will have a much longer wait time.

Another thing to be aware of:  there was a period where 864 visas were getting processed faster than 143 visas, which was never intended. 864 visa applications from 2017 onwards are on hold until the 143 applications catch up. 

Here is a calculator which you can use:

https://www.gm-parent-visas.com/visa-processing-time-calculator

Here's a long thread where parent visas are being discussed:

https://www.pomsinoz.com/topic/50481-the-brand-new-pio-parents-visa-thread/?page=948

When we applied for the 864 visa in February 2017, the apparent time to visa  being issued was 1 year according to the government website . Had our circumstances not changed, we would still be in for a long wait for the visa. 

[Little Dragon]

Oh I see. Thank you for the tool! I've seen the figures on Immi website, but I've never trusted them as well . That's why I also checked on forums and people who I know that applied for the same visa recently for more reference. I'll check out the calculator that you've sent me. 

[Little Dragon]

Btw, I forgot to ask these following points. I'm sorry, but I have to trouble everyone again :

QUESTION 1:

In Form 40 'Sponsorship for migration to Australia,' Part C, Question 13 (page 9), they required us to "list here all members of the family unit of the applicant who are included in this sponsorship." Also, in the same Form 40, under the About This Form section (page 1), they define "members of family unit" based on the definition listed in Form 1496i (as shown below):

Quote

A member of your family unit can be your:

• partner – married or de facto (same or opposite sex); or
• dependent child, up to 23 years of age (there are some exceptions, see below under ‘Eligible child’).

Eligible child

To include a child as migrating with you in your visa application, the child must:

• be your child or a stepchild from a current or a previous relationship (in certain circumstances);
• not be married, engaged to be married, or have a de facto partner; and must be:
  • 1. under 18 years of age; or
  • 2. over 18 years of age but not yet turned 23, and be dependent on you or your partner; or
  • 3. over 23 years of age and be unable to earn a living to support themselves due to physical or cognitive limitations and be dependent on you or your partner (Note: The child will still need to meet Australia’s health requirement); or
  • 4. a dependent child of a child who is eligible under 1, 2 or 3 above.

Your child or stepchild is considered to be dependent if they continue to be wholly or substantially reliant on you for their basic needs (food, clothing and shelter).

My sister is the sponsor, so she will have to fill this form. My sister and I are my parents' children. However, NEITHER of us are dependent according to their definition, so does this mean that my sister can leave Part C blank, or must she include both of our details in?

Similarly, my mom's detail has been filled in Part B – About the applicant's partner or former partner. Does this mean that my sister can still leave Part C blank, or she has to fill my mom's detail in?

To summarise, which is the right thing to do for Part C?

• (1) Leave Part C completely blank
• (2) Fill only children's details (my sister and me) in
• (3) Fill only our mom's detail in
• (4) Fill our mom's, my sister's, and my detail in

-----

QUESTION 2:

As mentioned earlier, my sister and I are NOT dependent children, so my parents DON'T have to fill in Form 47A 'Details of child or other dependent family member aged 18 years or over,' right? Please correct me if I'm wrong. 

-----

QUESTION 3:

To lodge the application, we have to:

• Gather all the necessary documents
• Pay online via my dad's ImmiAccount --> Write the receipt number into the form and print out a copy of the receipt.
• Send the documents to the Parent Visa Centre.

--> How will we know if our application has been received and if my parents are granted BVA? Will they informed us by mail or through my dad's ImmiAccount, where the payment is made? My mom also has her own ImmiAccount. Will she get notified too?

-----

Thank you in advance for your replies. If this visa works out well then I'll definitely treat you guys to street food tours in my country as a gratitude to your assistance. 

Edited July 25, 2022 by Little Dragon

[LindaH27]

On 23/07/2022 at 05:20, Marisawright said:

It's important not to be misled by the figures on the Immigration website.   The figure there is for visas they are CURRENTLY finalising, i.e. people who applied 4, 5 or 6 years ago.   Since then, there has been a massive blowout in the number of applications, so anyone applying today will have a much longer wait time.

Another thing to be aware of:  there was a period where 864 visas were getting processed faster than 143 visas, which was never intended. 864 visa applications from 2017 onwards are on hold until the 143 applications catch up. 

Here is a calculator which you can use:

https://www.gm-parent-visas.com/visa-processing-time-calculator

Here's a long thread where parent visas are being discussed:

https://www.pomsinoz.com/topic/50481-the-brand-new-pio-parents-visa-thread/?page=948

@Little Dragon I trust you have now seen that there’s an estimated wait in excess of 18 years for grant of new applications so it’s possible your parents may never become permanent residents and spend all their life on temporary bridging visas with no Medicare. . Private health insurance will be needed which is expensive as people age /make claims etc. they will always need to apply for BVB in order to leave and return to the country every time even for a holiday or to go back to sort out their affairs.  Just something else to consider 

Edited July 25, 2022 by LindaH27

[wrussell]

It would be a sound idea for the OP to take advice about possible strategies in case there is a health issue at some stage.

[Ken]

On 21/07/2022 at 11:13, Marisawright said:

Surely you're not suggesting tax fraud.  You can't claim a tax deduction if you lease your investment property to a member of your family.  

Actually the issue isn't whether or not the lease is to a member of your family but whether or not the rental income is at an arms length price. Usually that means paying an independent valuer to assess the rent if it's let to a family member.

[LindaH27]

1 hour ago, Ken said:

Actually the issue isn't whether or not the lease is to a member of your family but whether or not the rental income is at an arms length price. Usually that means paying an independent valuer to assess the rent if it's let to a family member.

Wouldn’t that give rise to a capital gains tax problem when they come to sell further down the line eg parents die, owner needs money, divorces  etc?

Edited July 28, 2022 by LindaH27

[Marisawright]

2 hours ago, Ken said:

Actually the issue isn't whether or not the lease is to a member of your family but whether or not the rental income is at an arms length price. Usually that means paying an independent valuer to assess the rent if it's let to a family member.

Aha, I stand corrected.  I knew a couple who got caught out, leasing their property to their in-laws.  However, thinking back, they may not have fully understood why their tax claim got disallowed.

[Marisawright]

1 hour ago, LindaH27 said:

Wouldn’t that give rise to a capital gains tax problem when they come to sell further down the line eg parents die, owner needs money, divorces  etc?

It's far more complex than that, IMO.   I'd say any parent contemplating it, would have to consider it very carefully.

As you know, it's the children who are supposed to pay the bond for the parent visa, but many parents give their children the money to do so.  Then the bond is sitting with the government in the child's name.  When the time comes to claim the bond, we've seen more than a few children claim it back and keep it.

You'd think a child would never do such a thing, but elder abuse is, sadly, a widespread problem.  One could see the same thing happening with parents letting their kids buy a house for them.  The house will have to be in the children's name.  What will stop them, down the track, selling the house and leaving their parents on the street?  

One of my husband's relatives had just such a thing happen.   She built a granny flat in her garden, moved in and transferred the house to her daughter and son-in-law.  A few years later, they decided to sell the house because the husband had got a new job in another state.  The new house they bought had no room for her. 

Edited July 28, 2022 by Marisawright

[Alan Collett]

On 28/07/2022 at 17:28, LindaH27 said:

Wouldn’t that give rise to a capital gains tax problem when they come to sell further down the line eg parents die, owner needs money, divorces  etc?

Yes, that's what I say to those who ask about the strategy, but the immediate concern is the additional Duty and FIRB fee.

The CGT liability is a future cost, which will only arise when the property is sold.

Best regards.

[Alan Collett]

The other issue to be managed is the risk of the property being sold to meet the claims of creditors in the unwelcome event of the child getting into difficulty financially ...

Legal advice is best taken if this is being contemplated.

Best regards.