CPV

[purplealster]

Hi,

 

I am more of a lurker, not much of a poster! However, I saw an immigration lawyer today with bringing my Mother over on a CPV and we left with more questions than answers! I am sure that many people have asked these same questions before, but I have 3 kids under 4 and finding the time to go into past post history is a bit hard

 

1) Do step-children count in the CPV application with regards to balance of family? My dad was married briefly before my marriage to Mom and had two kids from this marriage. He sadly passed away in 2005. My step sister and step brother live in London and then myself (PR) and my sister (on a 457) live in Sydney. As it stands, my mom would be ok to come here as both her biological children are here, but the issue is that both myself and my sister need to have PR (which she will have eventually, but can only apply for in April 2013 - long story as to why!) but the lawyer is insisting that my step brother and step sister are to be counted in the BOF test. If this IS the case, my Mom wont be able to apply for the CPV for another 3 years as my sister will not have PR until at least the end of 2013. I know that the following is stated in the CP booklet, however he was quite insistent that they were to be counted:

Stepchildren are only counted if they are:

a child of the applicant's current partner; or under 18 and a child of a former partner of the applicant, or a former partner of the applicant's current partner, and the applicant or the applicant's partner has a legal responsibility to look after the child

 

2) Once the CPV is granted, you come into the country to activate the visa and you then have 5 years to move here permanently. Is there any specific rule that states you have to live here for a certain amount of time within that five years? I ask as I have a number of friends that have come here permanently just before the 5 years are up and not had any problems. However, the immigration lawyer states that my Mom has to live here for a full two years within that 5 year time frame or else it will cause issues and she will have to apply for a RRV once that 5 years was up. Once again some clarification would be greatly appreciated as he was quite insistent about this, as my understanding was that once you had activated this PR visa you had 5 years in which to move here.

 

Thank you for reading this (and if someone suggests changing lawyers, reccomendations for Sydney would be welcome!)

 

Kind Regards,

 

Purpleal

[Guest guest36187]

 

1) Do step-children count in the CPV application with regards to balance of family? My dad was married briefly before my marriage to Mom and had two kids from this marriage. He sadly passed away in 2005. My step sister and step brother live in London and then myself (PR) and my sister (on a 457) live in Sydney. As it stands, my mom would be ok to come here as both her biological children are here, but the issue is that both myself and my sister need to have PR (which she will have eventually, but can only apply for in April 2013 - long story as to why!) but the lawyer is insisting that my step brother and step sister are to be counted in the BOF test. If this IS the case, my Mom wont be able to apply for the CPV for another 3 years as my sister will not have PR until at least the end of 2013. I know that the following is stated in the CP booklet, however he was quite insistent that they were to be counted:

Stepchildren are only counted if they are:

a child of the applicant's current partner; or under 18 and a child of a former partner of the applicant, or a former partner of the applicant's current partner, and the applicant or the applicant's partner has a legal responsibility to look after the child

 

 

Stepkids do count in the application for a cpv. I am pretty sure that there is no way around this.

 

 

2) Once the CPV is granted, you come into the country to activate the visa and you then have 5 years to move here permanently. Is there any specific rule that states you have to live here for a certain amount of time within that five years? I ask as I have a number of friends that have come here permanently just before the 5 years are up and not had any problems. However, the immigration lawyer states that my Mom has to live here for a full two years within that 5 year time frame or else it will cause issues and she will have to apply for a RRV once that 5 years was up. Once again some clarification would be greatly appreciated as he was quite insistent about this, as my understanding was that once you had activated this PR visa you had 5 years in which to move here.

 

Thats right. You have to validate your visa in teh year timespan from medical/police check (whichever was first). Then you have the 5 years.

 

However you will be able to apply for citizenship in 4 years. There are criteria attached to this.

 

If you do not have citizenship and have just the PR visa then after the 5 years you do have to apply for a RRV. There is always the chance if you do nto `show commitment to living in australia` that this could be refused.

Thank you for reading this (and if someone suggests changing lawyers, reccomendations for Sydney would be welcome!)

 

Kind Regards,

 

However as you cant apply til 2013, rules will almost definately have changed before then and probably more than once!!!!

[Linday]

Hi Purpleal

 

I do know that step children are normally counted if one of the partners has children from a previous marriage.

 

However, I am just wondering how old the step children are? The guidance seems pretty clear to me. How can your dad be your mum’s current partner if he is no longer alive?

 

Leaving that aside, and supposing they don’t count, you say your mum can only apply when both you and your sister have permanent residence. This is not strictly true. She only needs to have 50% of her children in Australia, so if there is just the two of you, then if your sister is ‘settled’ in Australia she can sponsor your mum, regardless of where you are.

 

The key to this is being regarded as ‘settled’ which is normally a period of 2 years permanent residency but not necessarily as they take into consideration things like whether you have bought a house, have a job, car, children in school etc.

 

There is an interesting article on this here:

 

http://www.gomatilda.com/news/article.cfm?articleid=441

 

With regard to the question of when you have to move over to Oz, Joanna is correct, except the five years starts from the date of visa grant not from validation, so you need to take this into consideration, especially as you normally have about a year to validate. You get five years to come and go as you please from the date of visa grant. The problem is that unless you are a citizen, after this five years you will need a Resident Return Visa in order to re-enter the country if you leave for a holiday for example. And in order to obtain this you need to have spent at least two out of the five years in Australia. Hence the advice to move to Oz permanently within 3 years.

 

There is lots of useful information here:

 

http://www.chireckles.com/cpv/tracker.php

 

 

You say you have consulted an immigration lawyer. I am not sure if you mean an immigration agent. If not your best bet is to take some advice from a reputable immigration agent. It is well worth getting specialist advice on a problem like this. George Lombard who posts on this forum is well respected and has helped us in the past. His fee for specific advice was very reasonable and there was no pressure to use him to apply for the visa. Alan Collett from Go Matilda (see above link) is also very reputable.

 

 

Best of luck.

[Linday]

Just to add, whichever agent you decide to use, make sure they are a MARA registered agent. Both the above agents are.

[purplealster]

Hi,

Thanks Linday and Joanne for your help.

Linday, my half brother/ sister are 48 and 43 years of age and live in London whislt my Mum lives in South Africa.

My younger sister has been in Australia since Nov 2008. She was on a bridging visa for 2 years and is now on a 457. Due to her contract with work they will only sponsor her for PR 3 years after the 457 was granted (in April 2010) so in total would have been in Aus for 5 years when that happens (April 2013) - would that be sufficient in terms of proving that she is 'settled' here?

 

With regards to the BOF test, there seems to be a bit of a contradiction in terms of what is in their booklet. In one line it says :

 

The following children are counted in the BoF test:

• children of both parents, including children of previous marriages or de facto

relationships of either parent, including adopted and step-children, and children in

institutions -

 

And then it says in another:

 

Note: Step-children are only counted if they are:

• a child of the applicant’s current partner; or

• under 18 years of age and a child of a former partner of the applicant, or a former

partner of the applicant’s current partner, and the applicant or the applicant’s partner

has a legal responsibility to look after the child.

 

Now, as my Father is dead, how can he be her current partner? True, they were married when he passed away, but their marriage ceased too when he died. She is free to remarry should she wish, so if he was still her current/legal partner would this not be bigamy? Am I making sense, struggling to articulate what I mean!

Anyway, I am a bit confused about the statements above - can anyone clarify these for me?

 

I did phone the department that deals with the CPV but the woman I spoke to was clueless, kept on putting me on hold to 'check with her colleague' and then just telling me to go to page 25 of the booklet - which I did, but it just doesnt make sense!

 

Obvisously, the rules are the rules and I am not trying to find a away around them, I am just trying to get a straight answer from someone (please?) as everyone I have spoken to (not on the forum, on the phone) seems to give me a different answer

 

Many Thanks and Kind Regards,

 

Purpleal

 

 

[Pumpkin]

It seems very clear to me that the step children do not count as they are not the children of your mother's current partner and they are not under 18 and dependent upon her. So assuming you are PR, the BoF test is passed.

 

So long as the visa is validated within the given time, your mother have five years to make the move and she can move the day before the five years is up if she so wishes. The trouble with that is only if she needs to leave and re-enter Australia, because she would need to demonstrate some substantial ties to get the RRV. If she has a house and her family around her then she might very well be able to do this. The two year thing is just to say that a RRV will be assured (at the moment) but it most certainly isn't a condition and people do get RRV's without the 2 years in Australia.

 

I recommend finding a new agent.

[Linday]

You could try emailing the Parent Visa Centre:

 

WA.Parents@immi.gov.au

 

I have always found I get a better response as it will be dealt with by someone more knowledgeable.

 

However, I would say it is pretty clear from the guidance that the step-children do not count.

 

With regard to the question of your sister being 'settled' this is not easy to answer as each case is different and depends on lots of factors at the time of application. Your sister would have to have a permanent visa, but according to the article on Go Matilda they can take temporary residence into consideration.

 

As suggested it might be well worth just taking some advice from a reputable agent when the time comes.