Guest apobateman Posted April 24, 2009 Share Posted April 24, 2009 Hello all....first post and its actually on behalf of my mother in law who has recently initiated an application for a contributory parent visa. I'd be grateful for any advice please. She has engaged the services of a migration lawyer in Sydney, who have informed her that they need to investigate the implications of her step children on her application. She has 2 natural daughters - one is a permanent resident in sydney and the other - my wife - is in the UK. Her husband died three years ago and he has 3 children (grown up and in UK) from a previous marriage. Are the three step children still classed as step children now that her spouse has died. She has not remarried. if they are, then presumably this means she is ineligible for a CP visa? Thanks in advance for any information - the migration lawyer is investigating but it would be useful to get other perspectives on this. It is particularly significant as I am currently applying for a 176 visa and hopefully plan to be in Australia with my wife (her other daughter) in a couple of years time. If she cannot go, it may affect what we decide to do. Thanks and apologies for a long first post! Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted April 24, 2009 Share Posted April 24, 2009 Hello all....first post and its actually on behalf of my mother in law who has recently initiated an application for a contributory parent visa. I'd be grateful for any advice please. She has engaged the services of a migration lawyer in Sydney, who have informed her that they need to investigate the implications of her step children on her application. She has 2 natural daughters - one is a permanent resident in sydney and the other - my wife - is in the UK. Her husband died three years ago and he has 3 children (grown up and in UK) from a previous marriage. Are the three step children still classed as step children now that her spouse has died. She has not remarried. if they are, then presumably this means she is ineligible for a CP visa? Thanks in advance for any information - the migration lawyer is investigating but it would be useful to get other perspectives on this. It is particularly significant as I am currently applying for a 176 visa and hopefully plan to be in Australia with my wife (her other daughter) in a couple of years time. If she cannot go, it may affect what we decide to do. Thanks and apologies for a long first post! Hello apobateman Welcome to Poms in Oz. What exactly is the migration lawyer "investigating," please? The answer s/he seeks is on Page 23 of Booklet 3 (Parent Migration.) http://www.immi.gov.au/allforms/booklets/1129.pdf Which states: Note : Step-children are only counted if they are: • a natural or adopted child of the applicant’s current spouse; or • under 18 years of age and a natural or adopted child of a former spouse of the applicant, or a former spouse of the applicant’s current spouse, and the applicant or the applicant’s spouse has a legal responsibility to look after the child. Why is a so-called "expert" struggling with this? Are any of the step-children under 18 currently? Did M-i-L formally adopt any of them? If "no" and "no" then they will not be counted for the purposes of the BoF Test. Booklet 3, in the section above, is describing the outcome of a Migration Review Tribunal case in 2003. The case is here: Xu, Sheng Lau [2003] MRTA 5061 (14 July 2003) The reason why agents make such heavy weather of this question is because they do not read the Migration Regulations 1994 properly: ComLaw Legislative Instrument Compilations - Migration Regulations 1994 (SR 1994 No. 268) Please download whichever version of Volume 1 you prefer. The authoritative version is the PDF one. Section 1.05 sets out the Balance of Family Test. The original intention was that step-children would count in the Test unless the step-child was 18 or over on the date of the marriage between the step-child's natural parent and the visa applicant. However in 1999 a new definition of "step-child" was inserted inso S1.03 (Definitions.) The S1.03 definition prevails because it is newer than the original provision in S1.05. This was confirmed in the case of Mrs Xu in the MRT, as above. Peter Bollard acted for Mrs Xu and he is very illustrious. He won the argument, DIAC's Policy section then caved in about it and so the ratio decidendi of Xu is now set out on Page 23 of Booklet 3. My mother was in exactly the same position as your M-i-L in 2005. Mum only has one step-child but that is the only difference between her, Mrs Xu (who has 2 step-children) and your M-i-L who has 3. Don't pay the migration lawyer for "investigating" that which s/he ought to know. Instead, e-mail parents@immi.gov.au setting out the facts and ask them to confirm that the step-children will not be counted. The e-mail address I have given you is the one for the Perth Offshore Parents Centre (POPC) which now deals with all the Parent visas both onshore and offshore. 3 different migration agents gave me inaccurate "legal advice" about Mum in 2005. I read the legislation myself, spotted the conflict between S1.03 and S1.05 but was not sure which test was supposed to apply so I wrote to the POPC and asked them what they thought. Those two sections are capable of producing two different outcomes for each of the 3 Mums depending on which section prevails. S1.03 is frightened of its own shadow according to the mealy mouthed rubric at the start of the section, and S1.03 hasn't a clue whether or not it prevails despite being the "Definitions" in a legislative instrument! S1.05 is robustly worded and I am an English-qualified solicitor without an Aussie law qualification to my name. God knows how the Roos interpret their legislation so I thought I had better ask the POPC! The POPC confirmed that they "use the interpretation which does not disadvantage the visa applicant." Their Policy section instructed them to adopt this stance, so the POPC told me. I only came across the Xu case later when it dawned on me to see if there were any cases on the point. However since then DIAC have re-written Booklet 3 so that the situation is now simple and clear. Best wishes Gill Link to comment Share on other sites More sharing options...
Guest apobateman Posted April 24, 2009 Share Posted April 24, 2009 Hi Gill - thank you so much for such a detailed response, and so quickly! I think the questionmark relates to the marital status of my MIL - as her spouse is deceased, is he still regarded as her Current Spouse, or is he a Former Spouse. If still a "current spouse", despite being deceased, then presumably the step-children are counted? If he is a Former Spouse, because he is deceased, then the children are not counted? I believe the lawyers are trying to determine what her marital status is, which would determine whether or not the children are counted? I am reading through all the information and links you kindly provided and I will certainly email the POPC. Thank you again Gill- I certainly didn't anticipate such an informative response to my first post and appreciate the time you have taken to reply. Link to comment Share on other sites More sharing options...
Alan Collett Posted April 24, 2009 Share Posted April 24, 2009 I suggest it is likely the lawyer in Sydney is not as familiar with the Migration Regs in this area as you, Gill. That does not necessarily make the lawyer a poor advisor. Indeed, it would be prudent for a professional to be relatively sure before giving an opinion. We can't be specialists in all areas of the law. The key is knowing when one is out of one's depth, and where to turn for peace of mind before committing to writing. Best regards. Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted April 24, 2009 Share Posted April 24, 2009 Hi apobateman How can a deceased spouse be a "current spouse"? M-i-L is free to remarry and will not commit bigamy if she does so. The contract of marriage is automatically severed by the death of one of the parties and it takes any step-child/step-parent relationships with it because the step-child thing is a derivative relationship in the first place. It cannot come into being without the over-arching contract of marriage and in England & Wales a step-child inherits nothing automatically in the event that the step-parent dies intestate. (Personally I am not convinced that a legal relationship ever comes into being. I think "step-child" is a social nicety of a term with no real legal meaning.) A deceased spouse is a "former spouse" in exactly the same way as a divorced ex-spouse is a "former spouse." There is absolutely no issue with that. Is the "migration lawyer" actually a lawyer or merely a Registered Migration Agent without any legal qualifications? One of the weaknessses of the RMA idea is that an RMA is not required to know any general law such as the law of Contract or anything about Matrimonial law or anything about the law of Succession. Without a proper legal grounding it is no wonder that they get into muddles. Best wishes Gill Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted April 25, 2009 Share Posted April 25, 2009 I suggest it is likely the lawyer in Sydney is not as familiar with the Migration Regs in this area as you, Gill. That does not necessarily make the lawyer a poor advisor. Indeed, it would be prudent for a professional to be relatively sure before giving an opinion. We can't be specialists in all areas of the law. The key is knowing when one is out of one's depth, and where to turn for peace of mind before committing to writing. Best regards. Hi Alan I hear you but I disagree. Booklet 3 now spells it out very clearly. No genuine lawyer has a flicker of an excuse for not starting with the most obvious, simplest sources of information because there is no excuse for not knowing that they exist. Also the OP is telling us that the lawyer seemingly imagines that a deceased spouse could be a "current spouse"??? How can the contract of marriage survive the death of one of the parties to it? Of course it does so emotionally but personal, private emotion is not law. Cheers Gill Link to comment Share on other sites More sharing options...
Alan Collett Posted April 25, 2009 Share Posted April 25, 2009 True, but the OP is giving one perspective, and might not be conveying an accurate picture. One has to be careful not to draw conclusions or give opinions as to advisor competencies in such circumstances. Best regards. Link to comment Share on other sites More sharing options...
Guest apobateman Posted April 27, 2009 Share Posted April 27, 2009 Thank you for all the responses. I checked with MIL about what the lawyer had said and it turns out that they are "reflecting" on the implications of her having three step children to a deceased spouse. They have said that the important aspect is how old the step children were when she got married, though I gather from the responses above that this isn't a factor any more. I think what may have complicated things is that my MIL married her husband when he had three young children and she had one of her own from a previous marriage, she then divorced him, and they remarried again when the kids were all grown up! Link to comment Share on other sites More sharing options...
Rudi Posted April 27, 2009 Share Posted April 27, 2009 WOW, that's actually really interesting for me. I had wondered that as it impacts our family. Changes things a lot for the future potentially. Rudi Link to comment Share on other sites More sharing options...
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