Balance of family question

[Kazzarazza 691]

Hi all, I'm just after a bit of background info. on eligibility for Aged Parent Visa, please.

 

Scenario - a UK mother (retired) has 3 children - two living in Aus, 1 living in UK.

 

One child has had PR since 1990 and been Aus citizen since 1993.

Second child has NZ passport (for 4 yrs) and has been living, working and buying a house in Aus (for over 2 yrs) but doesn't have PR yet.

Third child is in UK.

 

Would the parent qualify for BOF or would second child have to obtain PR first?

If second child doesn't have to have PR, could he also be the sponsor?

 

Many thanks, Kazza

[Guest Gollywobbler]

Hi Kazza

 

I'm really sorry about the delay in replying to you but things have been manic lately.

 

One child has had PR since 1990 and been Aus citizen since 1993.

 

 

No problem, obviously.

 

Third child is in UK.

 

 

Again, no problem.

 

Second child has NZ passport (for 4 yrs) and has been living, working and buying a house in Aus (for over 2 yrs) but doesn't have PR yet.

 

 

Child 2 is the one who presents the potential problem. This child definitely CANNOT be the sponsor until he has PR in Oz but it may be possible to exclude him from the Balance of Family Test in the meanwhile, meaning that Mum could apply sooner rather than later for a visa which is likely to take some time to be granted (eg anything up to 10 years.)

 

With an Aged Parent visa there could be potential problems. Probably due to a drafting error, the Aged Parent subclass 804 visa was the only one which did not require the Balance of Family Test to be resolved at the time of application. People took advantage of this loophole in the legislation so the loophole was blocked in July 2009.

 

The sponsor must be a settled Citizen or Permanent Resident, which Child 1 clearly is.

 

Child 2 must be "lawfully and permanently resident in Oz." It is a different test from the test for Child 1. If Child 2 is permanently resident in Oz as a question of fact then he cannot be permanently resident anywhere else as well.

 

So:

 

1. Why shouldn't Child 1 be the Sponsor? and

2. What is Child 2's exact situation, please?

 

Remember that although the Sponsor and the Assurer of Support may be the same person they are very different roles from each other's.

 

Cheers

 

Gill

[Kazzarazza 691]

Hi Gill,

 

Happy New Year to you and thanks very much for your reply. No apology needed - I haven't been around much myself since Christmas time.

 

I think you have cleared up the balance of family / sponsorship queries for us.

 

Child 2 lived in NZ for approx 8-9 yrs (gained NZ citizenship) and is now "lawfully and permanently resident" in Australia, courtesy of a special category visa given to NZ passport holders. He arrived in Adelaide in July 07, worked for just over a year, went back to NZ to sell his house Aug 08 which took him one school term (he got a teaching job for that term) and returned to Adelaide Dec 08 where he has lived and worked since. He is also currently buying a house in Adelaide and has no assets or ties left in NZ. We now understand he couldn't be the sponsor without gaining an Aus PR visa first. He is planning on applying before he reaches 45 later this year.

 

Child 1 (Me) has already agreed to sponsor my step-daughter. So, I guess the obvious question is, can you sponsor two applicants - especially considering the first one is already in the system and should be processed at the very latest 2012 and the second applicant (Mum) would be waiting anything up to 10 years.

 

There is no rush, other than the desire for mum to join the queue as soon as possible and give her some options for the future. However, if I can't offer to sponsor her and she has to wait for my brother then we'll just have to be patient. (We've learnt plenty about patience in the past 12 months - LOL)

 

Thanks again, Kazza :hug:

 

PS. It's great to see all the Cat 5 visa grants in the last 3-4 weeks. Hope they keep on coming and they soon get onto the Cat 6's.

[Guest Gollywobbler]

Hi Kazza

 

There is no reason why you can't sponsor your Mum as well as your daughter, so no problem there.

 

NZ brother's exact status depends on whether he is an "eligible NZ Citizen." What is this person? Good question!

 

ComLaw Legislative Instrument Compilations - Migration Regulations 1994 (SR 1994 No. 268)

 

Mum's subclass 804 visa can be found in Volume 5 of the Migration Regulations 1994.

 

http://www.comlaw.gov.au/comlaw/Legislation/LegislativeInstrumentCompilation1.nsf/0/3BE22E1E4CCC41C1CA2576A100006FDA/$file/MigrationRegs1994Vol5.pdf

 

According to the first part of S804, Mum will be OK as long as Section 48 of the Migration Act does not apply to her. I don't think it does or will do so but you would need to read S48 of the Migration Act to make sure. The Act is in ComLaw - look under "commonly viewed legislation" and it appears just above the Migration Act. The idea that migration agents are legal experts is nonsense - most of them don't even have law degrees anywhere, let alone in Australian Law - which might not include Aussie Immi Law as a compulsory subject anyway (English law degrees don't insist on English Immi Law being a compulsory subject.)

 

According to S804.212, NZ Brother will be a Child as long as Bro is an settled Eligible NZ Citizen and Bro could also sponsor Mum too.

 

According to S804, the definition of "eligible Kiwi" is in S1.03 (Definitions) of the Regs, which is in Volume 1.

 

http://www.comlaw.gov.au/comlaw/Legislation/LegislativeInstrumentCompilation1.nsf/0/1DF8595529C37E71CA2576A100006C1E/$file/MigrationRegs1994Vol1.pdf

 

The definition of "eligible Kiwi" is on Page 28 of the Vol 1 Regs. I'm using the PDF versions and page numbers because the pdf is the authorised version.

 

I think (not sure) that until about 2001 a Kiwi who turned up in Oz would automatically obtain Oz Citizenship, Medicare and Centrelink Benefits. Apparently this was then changed in order to prevent "Kiwi Dole Bludgers" in Oz. I am not sure exactly when the change was made but if Bro goes to the nearest DIAC office with his passport, they should be able to tell him whether he is an eligible Kiwi or not if it is not clear from Reg 1.03. I think (but again I am NOT sure) that he may have reached Oz soon enough to count as an eligible Kiwi. If he did then all of your problems are over.

 

My bro in law is a Kiwi by birth but his family moved to Oz over 40 years ago and he definitely has Australian Citizenship. He wasn't relevant to my mother's Contributory Parent visa anyway, had had Aussie Citizenship for some time before we applied anyway and I decided that I could ignore bro in law so I've never investigated the term "eligible NZ Citizen" in any detail. I'm pretty sure that a New Zealander told me that the change was in about 2001, though, but it was said en passant so I didn't pay much attention (well - none) to the details!

 

If NZ Bro is already an Eligible NZ Citizen, what will he be applying for before he turns 45? He might be elgible for Aussie Citizenship now, in which case he needs to get a move on with that as soon as possible because he will be OK on the 2 year rule as long as he applies before mid 2010:

 

Australian Citizenship – Becoming an Australian Citizen

 

The Citizenship Wizard should be able to work out whether or not NZ Bro is an eligible Kiwi, I would have thought?

 

Cheers

 

Gill