BLO5606 Australian Immigration and Visa System Law Management
Questions:
You have recently obtained registration as a migration agent Su Ling comes to your office today and asks for your help in regularising her immigration status in Australia. She tells you she is now aged 42 but still unmarried and living with her son Sunny. who turned 18 last week, in an apartment in Richmond.
Su Ling also tells you her son suffers from a congenital heart condition which restricts his employment opportunities and requires regular care and attention. They rely heavily on support from her brother Su Man, an Australian citizen working as a dentist in Sydney. Su Ling tells you she would prefer not to leave Australia. but if necessary, she is prepared to go back to China with Sunny for a while, whilst awaiting the outcome of any visa application.
Advise Su Ling on TWO possible visa options for permanent residence and the necessary procedural matters for each option.
Answers:
Issue
The issue in this case is to determine the two possible visa options for permanent residencies along with the procedures required to obtain the visa.
Facts
Su ling is a mother of Sunny who has acquired Australian citizenship under
the Australian Citizenship Act and also faces medical issues. The mother is not a lawful citizen of Australia and seeks option through which she can acquire permanent residency.
Laws
The first kind of permanent visa she can apply is the protection visa subclass 866. The visa is provided under Section 35A of the Migration Act 1858[1]. The visa is only provided to refugees who are at present residing in Australia and are eligible under protection obligations of Australia. Further the visa can be provided if the person does not enter Australia in an illegal manner. The person must also be able to satisfy the complementary protection criteria under the Migration Act.
In order to get a subclass 866 protection visa the applicant must fill Form 866 part A, B, C. all questions must be answered in Part B and the Applicant must provide recent passport size photographs, part C must be filed separately by all individuals included in the Visa[2].
The second type of permanent visa which can be applied by Su Ling in this case is the Subclass 836 carers visa under reg 1.15AA Migration Regulations 1994[3]. The visa is provided to a person who is having a relative in Australia with permanent or temporary medical issue and is willing to care after such a person. The relative n this case has to get assessed by Bupa Medical Visa Services and no other person in Australia can provide care for the relative. The visa is only provided if a person related to the ill person sponsors the carer in Australia. The application for such visa must be made outside Australia[4].
Application
As Su Ling had not entered Australia Illegally and had a valid visa at the time of arrival in Australia she is eligible to make an application for Subclass 866 visa. She is further required to to stay in Australia in order to make the application and as she is present in Australia she is eligible to so do. She can get sponsored by her brother who is a permanent resident of Australia in this case.
Sunny is having heart problems and he requires care and attention permanently. Sunny has attained Australian citizenship when he reached the age of 10 according to the Australian Citizenship Act. There is no one presently in Australia who can take care of his condition other than his mother. As Su ling agrees to depart Australia she would be eligible to make an application for subclass 836 Visa when she has successfully went outside Australia. Sunny also needs to be assessed by Bupa Medical visa services in order for his mother to be eligible for a carer’s visa. In this case she can obtain sponsorship from her brother Su Man, who in a lawful citizen of Australia.
Thus it can be concluded that Su Ling is eligible for Subclass 866 and 836 under the Migration Act 1958.
References
Galligan, Brian, Martina Boese, and Melissa Phillips. Becoming Australian: Migration, Settlement, Citizenship. Melbourne University Press, 2014.
Hugo, Graeme. "Change and continuity in Australian international migration policy." International Migration Review 48.3 (2014): 868-890.’
The Migration Act 1958 The Migration regulations 1994
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