2002

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (CONTRIBUTORY PARENTS MIGRATION SCHEME) BILL 2002

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural and Indigenous Affairs,

The Hon. Philip Ruddock MP)

 

 

MIGRATION LEGISLATION AMENDMENT (CONTRIBUTORY PARENTS MIGRATION SCHEME) BILL 2002

 

OUTLINE

 

Overview

 

1.       The Migration Legislation Amendment (Contributory Parent Migration Scheme) Bill 2002 (“the Bill”) amends the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“the Regulations”) to implement the Government’s migration policy in relation to permanent and temporary entry arrangements for parents.

 

2.       The Bill will enable a significant increase in parent migration while minimising the costs to the Budget.  A contingency reserve of 4,000 places has been set aside in the Migration Program for this purpose. 

 

3.       This Bill and the Migration (Visa Application) Charge Amendment Bill 2002 are to be considered as a package of Bills and, as such, will pass through the Parliament together.  The Migration (Visa Application) Charge Amendment Bill 2002 sets out a new visa application charge limit in relation to the proposed new parent visas contained in this Bill.

 

Migration Act 1958

 

4.       Schedule 1 to the Bill makes minor technical amendments to the Act.

 

Migration Regulations 1994

 

5.       Schedules 2 and 3 to the Bill amend the Regulations to, amongst other things:

 

·          establish new parent visa classes and subclasses, both offshore and onshore;

 

·          increase the assurance of support (“AOS”) bond and period of effect in relation to applicants for the new parent visa classes; and

 

·          offset the health costs of parent entry by requiring applicants for the new visa classes to pay a $25,000 second instalment of visa application charge, either as a one-off payment or as a staggered payment (consisting of $15,000 for the grant of a new temporary parent visa and the remaining $10,000 for the grant of a new permanent parent visa).

 

FINANCIAL IMPACT STATEMENT

 

1.       The financial impact of the amendments contained in the Bill is estimated, for the first six years, to be budget positive in net terms as a result of the increase in revenue from the increased health services charge.  This charge will initially more than offset expenses arising primarily from increases in demands for services from other portfolios.  In the longer term, and beyond the initial 6 year period, it is anticipated that the amendments will result in a net cost to the budget.

 

2.       Some of the portfolios likely to be affected by the changes include:

 

·          the Department of Health and Ageing (including the Medical Benefits Scheme, Australian Health Care Agreements and the Pharmaceutical Benefits Scheme);

 

·          the Department of Immigration and Multicultural and Indigenous Affairs (including the Adult Migrant English Program); and

 

·          the Department of Family and Community Services (including family benefit payments and Centrelink). 

 

1.       T he net positive financial impact of the amendments contained in Schedules 2 and 3 to the Bill is estimated to be $2.4m in the first year, $56.6m in the second year, $47.6m in the third year, and $42.7m in the fourth year (for a total of $149.3m benefit to the budget over the first four years).

 

2.       The net cost (net of the visa application charge) to the budget over 20 years, as estimated by the Australian Government Actuary, is anticipated to be $2 billion (net present value).  This cost should be partially offset by estimated taxation revenues which, based on modelling by independent consultant economists, are in the order of $1 billion (net present value).

MIGRATION LEGISLATION AMENDMENT (CONTRIBUTORY PARENTS MIGRATION SCHEME) BILL 2002

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1           Short title

 

1.       The short title by which this Act may be cited is the Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2002 .

 

Clause 2           Commencement

 

2.       Subclause 2(1) contains a table setting out the commencement information for the Act.  The subclause also provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

3.       The effect of item 1 of the table is that sections 1, 2 and 3 of the Act commence on the day on which this Act receives the Royal Assent.

 

4.       The effect of item 2 of the table is that Schedule 1 to the Act commences immediately after the commencement of the Migration (Visa Application) Charge Amendment Act 2002 .

 

5.       The effect of item 3 of the table is that Schedule 2 to the Act commences on a single day to be fixed by Proclamation, subject to subclause 2(3) and subclause 2(4).

 

6.       The effect of item 4 of the table is that Schedule 3 to the Act also commences on a single day to be fixed by Proclamation, subject to subclause 2(3) and subclause 2(4).

 

7.       Subclause 2(3) provides that a Proclamation under items 3 or 4 of the table must not specify a day that occurs before the day on which the Migration (Visa Application) Charge Amendment Act 2002 commences.

 

8.       Subclause 2(4) provides that, if a provision covered by item 3 or 4 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, that provision is repealed on the first day after the end of that period. 

 

9.       The effect of subclause 2(3) and subclause 2(4) is to ensure that Schedules 2 and 3 to this Act do not commence before the Migration (Visa Application) Charge Amendment Act 2002 .  Schedules 2 and 3 to the Act cannot commence before the commencement of the Migration (Visa Application) Charge Amendment Act 2002 because there would be no lawful basis to require payment of the second instalment of the visa application charge for the new parent visas.  That is, the Migration (Visa Application) Charge Amendment Act 2002 must first establish a new visa application charge limit in relation to the new parent visas.

 

10.   The note in subclause 2(1) makes it clear that the table only relates to the provisions of the Act as originally passed by the Parliament and assented to.  The table will not be expanded to deal with provisions inserted into the Act after it receives the Royal Assent.

 

11.   Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional information that may be included in any published version of the Act but which is not part of the Act.

 

Clause 3          Schedule(s)

 

12.   Subclause 3(1) provides that each Act, and each regulation, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

13.   Subclause 3(2) provides that the amendment of any regulation under subclause 3(1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

 

14.   To avoid doubt, subclause 3(3) provides that the regulations amended under subclause 3(1) are taken to still be regulations. 

 

 

SCHEDULE 1 - Visa Application Charge

 

 

Migration Act 1958

 

Item 1             Subsection 5(1) (definition of visa application charge limit )

Item 2             Subsection 45B(1) (note)

 

15.   These items make minor amendments to the definition of “visa application charge limit” in subsection 5(1), and the note at the end of subsection 45B(1), to clarify that the visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997 (“the VAC Act”).

 

16.   These amendments are necessary as a consequence of the proposed insertion of new section 6 into the VAC Act by item 3 of Schedule 1 to the Migration (Visa Application) Charge Amendment Bill 2002.  New section 6 sets out a visa application charge limit in relation to applications for a “contributory parent visa”. 

 

17.   The visa application charge limit set out in section 5 of the VAC Act continues to apply in relation to applications for all other visas.

 

Item 3             At the end of section 45B

 

18.   This item inserts new subsections 45B(3) and 45B(4) at the end of section 45B of the Act.  New subsections 45B(3) and 45B(4) set out the publication requirements in relation to the new Contributory Parent Visa Composite Index.

 

19.   Item 1 of Schedule 1 to the Migration (Visa Application) Charge Amendment Bill 2002 proposes to insert new section 3A into the VAC Act to define “Contributory Parent Visa Composite Index”.  Under new section 3A, “Contributory Parent Visa Composite Index” is defined to mean the Contributory Parent Visa Composite Index, expressed as a percentage, published by the Australian Government Actuary for a financial year.

 

20.   Under new subsection 45B(3), the Minister must publish the Contributory Parent Visa Composite Index for a financial year in the Gazette before the start of the financial year. 

 

21.   The note to new subsection 45B(3) makes it clear that the Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas.

 

22.   Item 1 of Schedule 1 to the Migration (Visa Application) Charge Amendment Bill 2002 proposes to insert new section 3A into the VAC Act to define a “contributory parent visa”.  New section 3A defines a “contributory parent visa” to mean a permanent or temporary visa included in a class of visas under regulations made under the Migration Act 1958 , being a class that has the words “contributory parent” or “contributory aged parent” in its title.

 

23.   New subsection 45B(4) clarifies the effect if the Contributory Parent Visa Composite Index for a financial year is not published as required by new subsection 45B(3).  It provides that the Contributory Parent Visa Composite Index is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.

SCHEDULE 2 - Offshore contributory parent visas

 

 

Migration Regulations 1994

 

Item 1             Regulation 1.03, after definition of parent

 

24.   This item inserts a new definition of “parent visa” into regulation 1.03.  “Parent visa” is defined, for the purposes of the Migration Regulations, to mean a visa of a class that is specified in Schedule 1 using the word “parent” in the title of the visa.

 

Item 2             After subregulation 1.12(2)

 

25.   This item inserts new subregulations 1.12(3) and 1.12(4) into the Migration Regulations to add to the meaning of “member of the family unit” in certain circumstances. 

 

26.   “Member of the family unit” is defined in regulation 1.03 to have the meaning set out in regulation 1.12.

 

27.   In broad terms, subregulation 1.12(1) provides that a person is a member of the family unit of another person (“the family head”) if the person is:

 

·          a spouse of the family head; or

·          a dependent child of the family head or of a spouse of the family head; or

·          a relative of the family head or of a spouse of the family head who is dependent on the family head.

 

1.       New subregulations 1.12(3) and 1.12(4) provide that, in specified circumstances, a person is also a member of the family unit of an applicant for a Contributory Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence) (Class DG) visa where he or she is no longer “dependent”. 

 

2.       Broadly, these circumstances are as follows:

 

·          at the time of application for one of the new temporary contributory parent visas, the person satisfied the definition of “member of the family unit” in subregulation 1.12(1) (being a dependent child or dependent on the family head); and

·          since the time of application for one of the new temporary visas, the person has ceased to be a dependent child or dependent on the family head.

 

1.       “Dependent” is defined in regulation 1.05A.  A person is dependent on another person if, for example, he or she is, and has been for a substantial period, wholly or substantially reliant on the other person for financial support to meet basic needs for food, clothing and shelter.  This reliance on the other person must be greater than any reliance on any other person or source of support.

 

2.       This amendment ensures that a new temporary parent visa holder, who has ceased to be dependent, is able to satisfy the secondary criteria for the grant of a Subclass 143 (Contributory Parent) visa or a Subclass 864 (Contributory Aged Parent) visa.

Item 3             After subregulation 2.07AG(2)

 

3.       This item inserts new subregulations 2.07AG(3) and 2.07AG(4) into the Migration Regulations to, in relation to certain applicants, limit the substantive visa applications that are valid for the purposes of section 46 of the Act.  This is necessary to uphold the integrity of the new parent visa scheme and ensure that the Australian taxpayer is not unduly burdened by parents, who initially apply for a new temporary parent visa, later applying for substantive visas other than those permitted.

 

4.       New subregulation 2.07AG(3) provides that an application for a substantive visa by a person who has, at any time since last entering Australia, held a Subclass 173 (Contributory Parent (Temporary)) visa, is a valid application only if it is an application for:

 

·          a Contributory Parent (Migrant) (Class CA) visa; or

·          a Medical Treatment (Visitor) (Class UB) visa; or

·          a protection visa.

 

1.       New subregulation 2.07AG(4) provides that an application for a substantive visa by a  person who has, at any time since last entering Australia, held a Subclass 884 (Contributory Aged Parent (Temporary)) visa, is a valid application only if it is an application for:

 

·          a Contributory Aged Parent (Residence) (Class DG) visa; or

·          a Medical Treatment (Visitor) (Class UB) visa; or

·          a protection visa.

 

1.       “Substantive visa” is defined in subsection 5(1) of the Act to mean a visa other than a bridging visa, a criminal justice visa or an enforcement visa.

 

Item 4             Paragraph 2.08A(2A)(c)

 

2.       This item makes a minor technical amendment as a consequence of the insertion of new paragraphs 2.08A(2A)(d) and 2.08A(2A)(e) by item 5 of this Schedule.

 

Item 5             After paragraph 2.08A(2A)(c)

 

3.       This item inserts new paragraphs 2.08A(2A)(d) and 2.08A(2A)(e) into Part 2 of the Regulations to limit the circumstances in which applicants may be added to an application for a new Contributory Parent (Migrant) (Class CA) visa or a new Contributory Aged Parent (Residence) (Class DG) visa.

 

4.       New paragraph 2.08A(2A)(d) prevents the addition of applicants to an application for a new Contributory Parent (Migrant) (Class CA) visa where the applicant for the visa is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application.

 

5.       New paragraph 2.08A(2A)(e) prevents the addition of applicants to an application for a new Contributory Aged Parent (Residence) (Class DG) visa where the applicant for this visa is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application.

 

6.       These amendments ensure that access to the modified criteria for the grant of a new Subclass 143 (Contributory Parent) visa or Subclass 864 (Contributory Aged Parent) visa is confined to applicants who have previously satisfied the criteria for the grant of a new Subclass 173 (Contributory Parent (Temporary)) visa or a new Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

Item 6             Paragraph 2.36(1)(b)

 

7.       This item modifies the assurance of support (“AOS”) scheme provided for under Division 2.7 of Part 2 of the Migration Regulations.  The scheme allows the Commonwealth to recover specified social security benefits paid to an assured person while an AOS is in effect in respect of that person.  Currently, under regulation 2.36, the period of effect of an AOS is 2 years.

 

8.       An AOS is a criterion for the grant of certain visas under the Migration Regulations, including the proposed new visa subclasses contained in the Contributory Parent (Migrant) (Class CA) and Contributory Aged Parent (Residence) (Class DG) visa classes.

 

9.       New paragraph 2.36(1)(b) provides for a 10-year period of effect for an AOS given in respect of an applicant for one of the above classes.  This period of effect begins from the later of the following days:

 

·          the day when the person enters Australia; or

·          the day when the person is granted the relevant visa.

 

The period of effect for an AOS given in respect of an applicant for any other class of visa remains the same.

 

1.       The extension of the AOS period to 10 years for applicants for these new visa classes is intended to ensure that the requirement to reside in Australia for 10 years before a person can access an Age Pension is given real meaning.  For example, once the two year AOS period has passed, a parent can access Special Benefit for the remaining eight years until they become eligible for Age Pension.  The amendment is intended to ensure that the Commonwealth can recover any Special Benefit (around $10,000 per person per annum), or any other benefit listed in regulation 2.38, received by a parent during the first 10 years of residence.

 

Item 7             Subregulation 2.39(4)

 

2.       This item increases the amount of money which must be lodged as a bond in relation to an AOS given in respect of an applicant for a Contributory Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence) (Class DG) visa.

 

3.       Regulation 2.39 provides for lodgement of a bond in respect of a “required” AOS.  A “required” AOS is one that is an unconditional requirement for the grant of a visa.  The criteria for the proposed new visa subclasses contained in the Contributory Parent (Migrant) (Class CA) and Contributory Aged Parent (Residence) (Class DG) visa classes include a required AOS.

 

4.       Under subregulations 2.39(2) and (3), a person who gives a required AOS in respect of an applicant for a visa who has turned 18, must lodge with the Minister a bond, securing payment to the Commonwealth, on demand, of any amount (up to the amount of the bond) due to the Commonwealth under regulation 2.38.  This represents the first step only in any debt recovery action taken by the Commonwealth.  The bond must be lodged before a decision is made on the application to which the required AOS relates.

 

5.       New paragraph 2.39(4)(c) increases the bond payable in relation to an applicant for a Contributory Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence) (Class DG) visa. 

 

6.       Under new subparagraph 2.39(4)(c)(i), the bond payable in relation to an applicant for one of the new permanent visas, who is over 18 years of age and who satisfies the primary criteria for the grant of a visa, is increased from $3,500 to $10,000. 

 

7.       Under new subparagraph 2.39(4)(c)(ii), the bond payable in relation to an applicant for one of the new permanent visas, who is over 18 years of age and who satisfies the secondary criteria for the grant of a visa, is increased from $1,500 to $4,000.

 

8.       The increased bond amount for these applicants is intended to more closely reflect the potential cost to the Budget of a parent who relies on social security. Currently, the cost of Special Benefit that a parent can access in lieu of the Age Pension is around $10,000 per person per annum. After ten years’ residency a person of pensionable age can then access an Age Pension of around $11,200 per annum.

 

9.       This bond will be released, with interest after ten years, less any amount needed to repay recoverable benefits and allowances paid to the assuree during that period. 

 

10.   Under new paragraphs 2.39(4)(a) and 2.39(4)(b), the current bond amounts are retained for applications for any other class of visa.

 

Item 8             Paragraph 4.14(2)(b)

 

11.   This item makes a minor technical amendment consequential to the insertion of new paragraph 4.14(2)(c) by item 9 of this Schedule.

 

Item 9             After paragraph 4.14(2)(b)

 

12.   This item inserts new paragraph 4.14(2)(c) in Part 4 of the Migration Regulations to provide for the refund of a fee paid on an application for review by the Migration Review Tribunal (“MRT”) in certain circumstances.

 

13.   These circumstances are where, in relation to an application for a parent visa, the applicant withdraws his or her review application because:

 

·          he or she applied for another parent visa after lodging the application for review; and

·          he or she wants to have a decision made on the application for the other parent visa.

 

1.       This amendment is consequential to the insertion of a new time of decision criterion for parent visas, which may require an applicant to withdraw an application for review of a parent visa decision in order to have a primary decision made on his or her parent visa application.

 

Item 10           Schedule 1, after paragraph 1124(3)(aa)

Item 11           Schedule 1, after paragraph 1124A(3)(b)

 

2.       These items insert a new requirement for making a valid application for a Parent (Migrant) (Class AX) visa or an Aged Parent (Residence) (Class BP) visa where the applicant has previously made a valid application for another parent visa.

 

3.       In these circumstances, new paragraphs 1124(3)(ab) and 1124A(3)(ba) require that, either:

 

·          a decision to grant or to refuse to grant that other parent visa has been made; or

·          the application for that other parent visa has been withdrawn.

 

1.       “Parent visa” is defined in regulation 1.03 to mean a visa of a class that is specified in Schedule 1 using the word “parent” in the title of the visa.

 

2.       In effect, this amendment means that an applicant can only validly make one parent visa application at a time.

 

Item 12           Schedule 1, after item 1129

 

3.       This item inserts new item 1130 into Schedule 1 to the Migration Regulations.  This item establishes the new Contributory Parent (Migrant) (Class CA) visa class.

 

Contributory Parent (Migrant) (Class CA)

 

The requirements for making a valid application for the new Contributory Parent (Migrant) (Class CA) visa class are as follows:

 

·          Applications must be made on form 47PA, unless the applicant is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa, in which case the application must be made on from 47PT;

 

·          The first instalment of the visa application charge is:

 

-                                             Nil for an applicant who has made a valid application for a Parent (Migrant) (Class AX) visa before the day on which this item commences and withdrew that application at the same time as making the application for the Contributory Parent (Migrant) (Class CA) visa;

-                                             $160 for an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; and

-                                             $1,175 in any other case.

 

·          The second instalment of the visa application charge is:

 

-                                             Nil for an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, and:

§   is the natural or adopted child, or step-child, of an applicant for a Contributory Parent (Migrant) (Class CA) visa; and

§   had not turned 18 at the time of application for the Contributory Parent (Temporary) (Class UT) visa;

-                                             $1,050 for an applicant who is a dependent child of an applicant for a Contributory Parent (Migrant) (Class CA) visa and has not turned 18 at the time of application (unless the applicant met the requirements above);

-                                             $10,000 for an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application (unless the applicant met the requirements above); and

-                                             $25,000 in any other case.

 

·          If the applicant is in Australia and holds a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, the application must be made in Australia but not in immigration clearance.  Otherwise, applications must be made by posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice for subparagraph 1130(3)(b)(i) or by having the application delivered by a courier service to the address specified in a Gazette Notice for subparagraph 1130(3)(b)(ii).

 

·          If the applicant has previously made a valid application for another parent visa (as defined in regulation 1.03):

 

-                                             a decision to grant or to refuse to grant that visa must have been made; or

-                                             the application for that visa must have been withdrawn.

 

·          An application by a person claiming to be a member of the family unit of a person who is an applicant for a Contributory Parent (Migrant) (Class CA) visa may be made at the same time and place as, and combined with, the application by that person.

 

·          An application by a person:

 

-                                                     holding a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; and

-                                             claiming to be a member of the family unit of a person who is an applicant for a Contributory Parent (Migrant) (Class CA) visa;

 

may also be made at the same time, and combined with, the application by that person. 

 

1.       This amendment offers an alternative way for an applicant who holds a Subclass 173 (Contributory Parent (Temporary) visa to make a combined application.  It allows an application by such a person, who claims to be a member of the family unit of an applicant for a Contributory Parent (Migrant) (Class CA) visa, to be combined with the application by that person regardless of the fact that it is not made in the same place. 

 

2.       The class contains one visa subclass - Subclass 143 (Contributory Parent).  The criteria for the grant of a visa in this subclass are inserted into Schedule 2 to the Migration Regulations by item 19 of this Schedule.

 

Item 13           Schedule 1, after item 1220A

 

3.       This item inserts new item 1221 into Schedule 1 to the Migration Regulations.  This item establishes the new Contributory Parent (Temporary) (Class UT) visa class.

 

Contributory Parent (Temporary) (Class UT)

 

The requirements for making a valid application for the new Contributory Parent (Temporary) (Class UT) visa class are as follows:

 

·          Applications must be made on form 47PA;

 

·          The first instalment of the visa application charge is:

 

-                                             Nil for an applicant who has made a valid application for a Parent (Migrant) (Class AX) visa before the day on which this item commences and withdrew that application at the same time as making the application for the Contributory Parent (Temporary) (Class UT) visa; and

-                                             $1,175 in any other case.

 

·          The second instalment of the visa application charge is:

 

-                                             $1,050 for an applicant who is a dependant child of an applicant for a Contributory Aged Parent (Temporary) (Class UT) visa and has not turned 18 at the time of application; and

-                                             $15,000 in any other case.

 

·          Applications must be made by posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice for subparagraph 1221(3)(a)(i) or having the application delivered by a courier service to the address specified in a Gazette Notice for subparagraph 1221(3)(a)(ii).

 

·          If the applicant has previously made a valid application for another parent visa (as defined in regulation 1.03):

 

-                                             a decision to grant or to refuse to grant that visa must have been made; or

-                                             the application for that visa must have been withdrawn.

 

·          An application by a person claiming to be a member of the family unit may of a person who is an applicant for a Contributory Parent (Temporary) (Class UT) visa may be made at the same time and place as, and combined with, the application by that person.

 

1.       The class contains one visa subclass - Subclass 173 (Contributory Parent (Temporary)).  The criteria for the grant of a visa in this subclass are inserted into Schedule 2 to the Migration Regulations by item 20 of this Schedule.

 

Item 14           Schedule 1, subitem 1301(1)

Item 15           Schedule 1, subitem 1303(1)

Item 16           Schedule 1, subitem 1305(1)

 

2.       These consequential amendments ensure that, where an application for a Contributory Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence) (Class DG) visa is made on form 47PT, it is also a valid application for the following bridging visas:

 

·          a Bridging A (Class WA) visa;

·          a Bridging C (Class WC) visa;

·          a Bridging E (Class WE) visa.

 

Item 17          Schedule 2, after clause 103.228

Item 18          Schedule 2, after clause 103.326

 

1.       These items make consequential amendments to Part 103 of Schedule 2 to the Migration Regulations.  New clauses 103.229 and 103.327 require that, if a primary or secondary applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

2.       Under paragraphs 103.229(a) and 103.327(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

3.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the Migration Review Tribunal (“MRT”); or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraphs 103.229(b) and 103.327(b) require any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the Administrative Appeals Tribunal (“the AAT”) or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 103 (Parent) visa application.

 

2.       The purpose of these amendments is to ensure that, at the time of decision, an applicant for a Parent (Migrant) (Class AX) visa is only eligible for the grant of the Subclass 103 (Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of an existing parent visa and a new parent visa concurrently.

 

Item 19           Schedule 2, after Part 139

 

3.       This item inserts new Part 143 into Schedule 2 to the Migration Regulations.  The purpose of new Part 143 is to make provision for the grant of a new Subclass 143 (Contributory Parent) visa to a parent with a child in Australia, or to members of the family unit of a parent who satisfies the primary criteria.

 

4.       The criteria for the Subclass 143 (Contributory Parent) visa are broadly similar to the criteria for the existing Subclass 103 (Parent) visa, with certain special provisions for applicants who hold a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application.

 

5.       The note to new Division 143.1 provides a reference to definitions that are relevant for the purposes of new Part 143.   It provides that “eligible New Zealand citizen”, “aged parent”, “close relative”, “guardian”, “parent”, “parent visa”, “settled” and “spouse” are defined in regulation 1.03, and “balance of family test” is defined in regulation 1.05.

 

6.       New Division 143.2 sets out the primary criteria that must be satisfied by an applicant for the grant of a Subclass 143 (Contributory Parent) visa.  The note to new Division 143.2 provides that the primary criteria must be satisfied by at least 1 member of a family unit.  The other members of the family unit who are applicants for a Subclass 143 (Contributory Parent) visa need satisfy only the secondary criteria.

 

7.       New Subdivision 143.21 sets out the primary criteria to be satisfied at the time of application.

 

8.       Under new clause 143.211, an applicant must be, either:

 

·          the parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

·          a person who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application and is no longer the parent of such a child because the child has died, and he or she is not the parent of another such child.

 

1.       New clause 143.212 sets out the sponsorship requirements to be satisfied by the primary applicant.  It provides that he or she must either be sponsored in accordance with new subclause 143.212(2) or 143.212(3) or be taken, under new subclause 143.212(4), to be sponsored in accordance with new clause 143.212. 

 

2.       New subclauses 143.212(2) and 143.212(3) set out who may sponsor an applicant according to whether or not the child of the applicant has turned 18.

 

3.       New subclause 143.212(2) provides that, where the child has turned 18, the child or the child’s cohabiting spouse must sponsor the applicant.  However, the child’s cohabiting spouse must have turned 18 and be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

4.       New subclause 143.212(3) provides for the situation where the child has not turned 18.  In these circumstances, the child’s cohabiting spouse, a close relative or guardian of the child, or a close relative or guardian of the child’s spouse must sponsor the applicant, subject to the following requirements:

 

·          that he or she has turned 18; and

·          is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       Alternatively, a community organisation may also sponsor the applicant if the child has not turned 18.

 

2.       New subclause 143.212(4) provides that an applicant is taken to be sponsored for the purposes of new clause 143.212 in the following circumstances:

 

·          the applicant is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; and

·          the person who sponsored the applicant for the Subclass 173 (Contributory Parent (Temporary)) visa dies before the Subclass 173 (Contributory Parent (Temporary)) visa ceases to be in effect; and

·          there is no other sponsor available who could meet the requirements set out in subclause 143.212(2) or 143.212(3).

 

1.       This amendment reflects the policy intention that, in these circumstances, an applicant for a Contributory Parent (Migrant) (Class CA) visa should not be required to satisfy sponsorship requirements to be eligible for the grant of a Subclass 143 (Contributory Parent) visa.

 

2.       New clause 143.213 provides that an applicant who is not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa must satisfy the balance of family test.  Broadly, a parent will satisfy the test if:

 

·          at least half of their children live in Australia; or

·          the number of children in Australia is greater than the greatest number of children resident in any single country overseas.

 

1.       An applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa is exempt from having to satisfy the balance of family test because he or she has already satisfied this criterion in relation to the grant of his or her Subclass 173 (Contributory Parent (Temporary)) visa. 

 

2.       New Subdivision 143.22 sets out the primary criteria to be satisfied at the time of decision for an applicant to be eligible for the grant of a Subclass 143 (Contributory Parent) visa.

 

3.       New clause 143.221 requires the applicant to continue to meet the requirements set out in clause 143.211. Therefore, at the time of decision the applicant must:

 

·          still be a parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

·          still be a person who is not a parent of such a child because, since the time of application for the Subclass 173 (Contributory Parent (Temporary)) visa, the child has died and he or she has no other child in Australia who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       New clause 143.222 sets out the sponsorship requirements that an applicant must meet at the time of decision.  Under new clause 143.222, an applicant must meet the requirements of either new paragraph 143.222(a) or 143.222(b). 

 

2.       The general rule, that sponsorship in accordance with new subclause 143.212(2) or 143.212(3) must be approved by the Minister and still be in force, is provided in new paragraph 143.222(a).  This applies in relation to:

 

·          for an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application - the sponsor at the time of application or another sponsor who meets the requirements set out in subclause 143.212(2) or 143.212(3); or

·          in any other case - the sponsor at the time of application.

 

1.       Alternatively, an applicant may satisfy the criterion in clause 143.222 if all of the following requirements of new paragraph 143.222(b) are satisfied:

 

·          the applicant was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application;

·          a sponsor of the applicant who usually resides in Australia dies before a decision is made to grant, or to refuse to grant, the Subclass 143 (Contributory Parent) visa;

·          there is no other sponsor available who meets the requirements set out in subclause 143.212(2) or 143.212(3).

 

1.       New paragraph 143.222(b) covers the situation where either:

 

·          the applicant was sponsored in accordance with subclause 143.212(2) or (3), but the sponsor died before the decision to grant or refuse to grant the Subclass 143 visa was made, and no other sponsor is available; or

·          the applicant was taken to be sponsored under subclause 143.212(4) and there is still no other sponsor available at the time of decision; or

·          the applicant was taken to be sponsored under subclause 143.212(4) and although another sponsor became available after time of application, that sponsor died before a decision to grant or refuse to grant the Subclass 143 visa was made.

 

1.       New clause 143.223 provides that, if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa, the applicant must continue to satisfy the balance of family test.

 

2.       New clause 143.224 requires the applicant to satisfy public interest criteria 4001, 4002 and 4003.  These criteria relate, broadly, to issues of character.

 

3.       New clause 143.225 requires an applicant who was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, to satisfy public interest criteria 4004, 4005, 4009 and 4010. These criteria relate, broadly, to issues of health and other aspects of the public interest.

 

4.       New clause 143.226 sets out a modified health requirement for an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application.  It requires the applicant to have undergone any health checks that the Minister considers appropriate. 

 

5.       This provision recognises that such an applicant will previously have satisfied the health criteria for the grant of his or her Subclass 173 (Contributory Parent (Temporary)) visa.  However, it also provides flexibility for a health check to be required where appropriate, for example, where the applicant has recently travelled to a country with a high risk of tuberculosis.

 

6.       New clause 143.227 requires that, if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010.

 

7.       New clause 143.228 requires that an AOS in relation to the applicant has been given and been accepted by the Minister.  Items 6 and 7 of this Schedule introduce modified AOS arrangements in respect of a primary applicant for a Contributory Parent (Migrant) (Class CA) visa, including an AOS period of 10 years and an AOS bond of $10,000.

 

8.       New clause 143.229 provides that if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is an applicant for a Subclass 143 (Contributory Parent) visa must be a person who:

 

·          satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

·          if he or she has previously been in Australia, satisfies special return criteria 5001, 5002, 5010.

 

1.       Under new clause 143.230, if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 143 (Contributory Parent) visa must be a person who satisfies:

 

·          public interest criteria 4001, 4002, 4003 and 4004; and

·          public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo an assessment in relation to that criterion.

 

1.       New clause 143.231 requires that if a person:

 

·          is a member of the applicant’s family unit; and

·          has not turned 18; and

·          made a combined application with the applicant

 

public interest criteria 4015 and 4016 must be satisfied in relation to that secondary applicant.

 

1.       Public interest criterion 4015 provides that the Minister must be satisfied of one of the following:

 

·          the law of the person’s home country permits the removal of the applicant;

·          each person who can lawfully determine where the person is to live consents to the grant of the visa;

·          the grant of the visa would be consistent with any Australian child order in force in relation to the person.

 

1.       Public interest criterion 4016 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the person.

 

2.       New clause 143.232 requires that, if an applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

3.       Under paragraph 143.232(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

4.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 143.232(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 143 (Contributory Parent) visa application.

 

2.       The purpose of these amendments is to ensure that, at the time of decision, an applicant for a Parent (Migrant) (Class AX) visa is only eligible for the grant of the Subclass 143 (Contributory Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of an existing parent visa and a new parent visa concurrently.

 

3.       New Division 143.3 provides for the secondary criteria that must be satisfied for the grant of a Subclass 143 (Contributory Parent) visa. 

 

4.       New Subdivision 143.31 sets out the criteria to be satisfied by secondary applicants at the time of application.

 

5.       New clause 143.311 provides that the applicant must be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria in Subdivision 143.21.  Item 2 of this Schedule amends regulation 1.12 to expand the definition of “member of a family unit” to ensure that a person who:

 

·          holds a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application for the Subclass 143 (Contributory Parent) visa; and

·          is no longer dependent;

 

is eligible for the grant of a Subclass 143 (Contributory Parent) visa.

 

1.       New clause 143.312 requires that, either:

 

·          the sponsorship mentioned in subclause 143.212(2) or 143.212(3) of the person who satisfies the primary criteria includes sponsorship of the applicant; or

·          the person who satisfies the primary criteria, and the applicant, meets the requirements of subclause 143.212(4).

 

This ensures that the applicant seeking to satisfy the secondary criteria is also sponsored, or taken to be sponsored.

 

1.       New Subdivision 143.32 sets out the secondary criteria to be satisfied at the time of decision for a secondary applicant to be eligible for the grant of the Subclass 143 (Contributory Parent) visa. 

 

2.       New clause 143.321 provides that the applicant must continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 (Contributory Parent) visa.

 

3.       New clause 143.322 sets out the sponsorship requirements to be satisfied by secondary applicants seeking to satisfy the time of decision criteria. 

 

4.       The general rule, that the sponsorship mentioned in subclause 143.222(a), which includes sponsorship of the secondary applicant, must have been approved by the Minister and still be in force, is provided in paragraph 143.322(a).  This applies in relation to the sponsorship of the secondary applicant.

 

5.       As an alternative to paragraph 143.322(a), paragraph 143.322(b) provides that clause 143.322 is also satisfied where the person who satisfied the primary criteria at the time of decision met the requirements of paragraph 143.222(b) and the secondary applicant meets those same requirements at the time of decision.

 

6.       New clause 143.323 requires the applicant to satisfy public interest criteria 4001, 4002 and 4003.  These criteria relate, broadly, to character and other aspects of the public interest.

 

7.       New clause 143.324 requires an applicant who was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application to satisfy public interest criteria 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to health.

 

8.       New clause 143.325 sets out a modified health requirement for an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application.  It requires the applicant to have undergone any health checks that the Minister considers appropriate. 

 

9.       This provision recognises that such an applicant will previously have satisfied the health criteria for the grant of his or her Subclass 173 (Contributory Parent (Temporary)) visa.  However, it also provides flexibility for a health check to be required where appropriate, for example, where the applicant has recently travelled to a country with a high risk of tuberculosis.

 

10.   New clause 143.326 requires that, if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010.

 

11.   New clause 143.327 requires either:

 

·          the applicant to be included in the AOS given in relation to the person who satisfies the primary criteria, and that the assurance has been accepted by the Minister; or

·          an AOS in relation to the applicant has been given to, and been accepted by, the Minister.

 

1.       Items 6 and 7 of this Schedule introduce modified AOS arrangements in respect of a secondary applicant for a Contributory Parent (Migrant) (Class CA) visa, including an AOS period of 10 years and an AOS bond of $4,000.

 

2.       New clause 143.328 requires that if the applicant has not turned 18, public interest criteria 4017 and 4018 must be satisfied.

 

3.       New clause 143.329 requires that, if an applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

4.       Under paragraph 143.329(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

5.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 143.329(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 143 (Contributory Parent) visa application.

 

2.       The purpose of this amendment is to ensure that, at the time of decision, an applicant for a Contributory Parent (Migrant) (Class CA) visa is only eligible for the grant of the Subclass 143 (Contributory Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 143.4 provides the circumstances applicable to the grant of a new Subclass 143 (Contributory Parent) visa.

 

4.       New clause 143.411 provides that if the applicant is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, he or she may be in or outside Australia, but not in immigration clearance, when the visa is granted. 

 

5.       New clause 143.412 provides that if the applicant is not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, he or she must be outside Australia when the visa is granted.

 

6.       The note to new clause 143.412 provides that the second instalment of the visa application charge (if any) must be paid before the visa can be granted.  Item 12 of this Schedule specifies the amount of visa application charge to be paid by applicants at this time.

 

7.       New Division 143.5 sets out when a Subclass 143 (Contributory Parent) visa is in effect.  New clause 143.511 provides that a Subclass 143 (Contributory Parent) visa is a permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

 

8.       New Division 143.6 provides the conditions that may or must be imposed on a Subclass 143 (Contributory Parent) visa. 

 

9.       Under new clause 143.611, if the applicant is outside when the visa is granted, first entry to Australia must be made before a date specified by the Minister. 

 

10.   Under new clause 143.612, either or both of conditions 8502 and 8515 may be imposed on a Subclass 143 (Contributory Parent) visa. 

 

11.   Condition 8502 provides that the holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. 

 

12.   Condition 8515 provides that the holder of the visa must not marry before entering Australia.

 

13.   New clause 143.711 requires that the visa be evidenced by way of a visa label affixed to a valid passport.

 

Item 20           Schedule 2, after Part 159

 

14.   This item inserts new Part 173 into Schedule 2 to the Migration Regulations.  The purpose of new Part 173 is to make provision for the grant of a new Subclass 173 (Contributory Parent (Temporary)) visa to a parent with a child in Australia, or to members of the family unit of a parent who satisfies the primary criteria.

 

15.   The criteria for the grant of a Subclass 173 (Contributory Parent (Temporary)) visa are based on the criteria for the grant of the existing Subclass 103 (Parent) visa.

 

16.   The note to new Division 173.1 sets out that the terms “eligible New Zealand citizen”, “aged parent”, “close relative”, “guardian”, “parent”, “parent visa”, “settled” and “spouse” are defined in regulations 1.03, and “balance of family test” is defined in regulation 1.05.

 

17.   New Division 173.2 sets out the primary criteria to be satisfied by an applicant for the grant of a Subclass 173 (Contributory Parent (Temporary)) visa.  The note to new Division 173.2 explains that the primary criteria must be satisfied by at least 1 member of a family unit.  The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

 

18.   New Subdivision 173.21 sets out the primary criteria to be satisfied by an applicant at the time of application.

 

19.   New clause 173.211 requires the applicant to be the parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

20.   New clause 173.212 sets out the sponsorship requirements to be satisfied by an applicant.  New subclauses 173.212(2) and 173.212(3) set out who may sponsor an applicant according to whether or not the child of the applicant has turned 18.

 

21.   New subclause 173.212(2) provides that, where the child of the applicant has turned 18, the child or the child’s cohabiting spouse must sponsor the applicant.  However, the child’s cohabiting spouse must have turned 18 and be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

22.   New subclause 173.212(3) provides for the situation where the child has not turned 18.  In these circumstances, the child’s cohabiting spouse, a close relative or guardian of the child, or a close relative or guardian of the child’s spouse must sponsor the applicant, subject to the following requirements:

 

·          that he or she has turned 18; and

·          is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       Alternatively, a community organisation may also sponsor the applicant if the child has not turned 18.

 

2.       New clause 173.213 requires an applicant to satisfy the balance of family test.  Broadly, a parent will satisfy the test if:

 

·          at least half of their children live in Australia; or

·          the number of children in Australia is greater than the greatest number of children resident in any single country overseas.

 

1.       New Subdivision 173.22 sets out the primary criteria to be satisfied by an applicant at the time of decision.

 

2.       New clause 173.221 requires the applicant to continue to satisfy the criterion in clause 173.211, that is, to be a parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

3.       Under new clause 173.222, the sponsorship in accordance with clause 173.212 must have been approved by the Minister and still be in force.

 

4.       New clause 173.223 requires an applicant to continue to satisfy the balance of family test.

 

5.       Under new clause 173.224, an applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to issues of health, character and other aspects of the public interest.

 

6.       New clause 173.225 requires that, if the applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002 and 5010.

 

7.       New clause 173.226 requires each member of the family unit of the applicant who is an applicant for a Subclass 173 (Contributory Parent (Temporary)) visa to be a person who:

 

·          satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

·          if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

 

1.       Under new clause 173.227, each member of the family unit of the applicant who is not an applicant for a Subclass 173 (Contributory Parent (Temporary)) visa must satisfy:

 

·          public interest criteria 4001, 4002, 4003 and 4004; and

·          public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo an assessment in relation to that criterion.

 

1.       New clause 173.228 requires that if a person:

 

·          is a member of the applicant's family unit; and

·          has not turned 18; and

·          made a combined application with the applicant;

 

public interest criteria 4015 and 4016 must be satisfied in relation to that secondary applicant.

 

1.       Public interest criterion 4015 provides that the Minister must be satisfied of one of the following:

 

·          the law of the person’s home country permits the removal of the applicant;

·          each person who can lawfully determine where the person is to live consents to the grant of the visa;

·          the grant of the visa would be consistent with any Australian child order in force in relation to the person.

 

1.       Public interest criterion 4016 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the person.

 

2.       New clause 173.229 requires that, if the applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

3.       Under paragraph 173.229(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

4.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 173.229(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 173 (Contributory Parent (Temporary)) visa application.

 

2.       The purpose of this amendment is to ensure that, at time of decision, an applicant for a Contributory Parent (Temporary) (Class UT) visa is only eligible for the grant of the Subclass 173 (Contributory Parent (Temporary)) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 173.3 sets out the secondary criteria that must be satisfied for an applicant to be eligible for the grant of a Subclass 173 (Contributory Parent (Temporary)) visa. 

 

4.       New Subdivision 173.31 sets out the secondary criteria to be satisfied at the time of application.

 

5.       New clause 173.311 provides that the applicant must be a member of the family unit of a person who satisfies the primary criteria in Subdivision 173.21.  The applicant must also have made a combined application with the person who satisfies the primary criteria in Subdivision 173.21.

 

6.       New clause 173.312 requires the sponsorship mentioned in clause 173.212 of the person who satisfies the primary criteria to include sponsorship of the secondary applicant.

 

7.       New Subdivision 173.32 sets out the secondary criteria to be satisfied at the time of decision.

 

8.       New clause 173.321 requires the applicant to continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa.

 

9.       New clause 173.322 requires the sponsorship in accordance with new clause 173.312 to have been approved by the Minister and still be in force.

 

10.   New clause 173.323 provides that the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

 

11.   New clause 173.324 provides that, if the applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002 and 5010.

 

12.   New clause 173.325 requires that if the applicant has not turned 18, public interest criteria 4017 and 4018 must be satisfied.

 

13.   New clause 173.326 requires that, if an applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

14.   Under paragraph 173.326(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

15.   “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 173.326(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 173 (Contributory Parent (Temporary)) visa application.

 

2.       The purpose of this amendment is to ensure that, at time of decision, an applicant for a Contributory Parent (Temporary) (Class UT) visa is only eligible for the grant of the Subclass 173 (Contributory Parent (Temporary)) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 173.4 sets out the circumstances applicable to the grant of a new Subclass 173 (Contributory Parent (Temporary)) visa.

 

4.       New clause 173.411 requires that the applicant must be outside Australia when the visa is granted. 

 

5.       The note to new clause 173.411 provides that the second instalment of the visa application charge (if any) must be paid before the visa can be granted.  Item 13 of this Schedule provides that the amount of visa application charge to be paid at this time is $15,000, unless the applicant is a dependent child who had not turned 18 at the time of application.

 

6.       New Division 173.5 sets out when a Subclass 173 (Contributory Parent (Temporary)) visa is in effect.  New clause 173.511 provides that a Subclass 173 (Contributory Parent (Temporary)) visa is a temporary visa permitting the holder to travel to, enter and remain in Australia for 2 years from a date specified by the Minister for this purpose.

 

7.       New Division 173.6 provides the conditions that may or must be attached to a Subclass 173 (Contributory Parent (Temporary)) visa.

 

8.       New clause 173.611 requires an applicant’s first entry as a holder of a Subclass 173 (Contributory Parent (Temporary)) visa to be made before a date specified by the Minister for the purpose.

 

9.       New clause 173.612 provides that either or both of conditions 8502 and 8515 may be imposed on the visa.

 

10.   Condition 8502 provides that the holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa.

 

11.   Condition 8515 provides that the holder of the visa must not marry before entering Australia.

 

12.   New clause 173.711 requires that the visa be evidenced by way of a visa label affixed to a passport.

 

Item 21           Schedule 2, paragraph 773.213(2)(zq)

 

13.   This item makes a minor technical amendment to paragraph 773.213(2)(zq) consequential to the amendment made by item 22, which inserts two new visa classes into subclause 773.213(2).

 

Item 22           Schedule 2, after paragraph 773.213(2)(zq)

 

14.   This item inserts the new Contributory Parent (Migrant) (Class CA) visa class and Contributory Aged Parent (Residence) (Class DG) visa class into subclause 773.213(2) to enable a dependant child of a person who holds one of these visas, who arrives in Australia in the care of that person, to be eligible for the grant of a Subclass 773 (Border) visa. 

 

15.   This means that where a child has for some reason been “omitted” from their parent’s visa, the child may be granted a Subclass 773 (Border) visa to lawfully enter Australia.

 

Item 23           Schedule 2, paragraph 773.213(3)(l)

 

16.   This item makes a minor technical amendment to paragraph 773.213(3)(l) consequential to the amendment made by item 24, which inserts two new visa classes into subclause 773.213(3).

 

Item 24           Schedule 2, after paragraph 773.213(3)(l)

 

17.   This item inserts the new Contributory Parent (Temporary) (Class UT) visa class and Contributory Aged Parent (Temporary) (Class UU) visa class into subclause 773.213(3) to enable a dependant child of a person who holds one of these visas, who arrives in Australia in the care of that person, to be eligible for the grant of a Subclass 773 (Border) visa. 

 

18.   This means that where a child has for some reason been “omitted” from their parent’s visa, the child may be granted a Subclass 773 (Border) visa to lawfully enter Australia.

 

SCHEDULE 3 - Onshore contributory parent visas

 

 

Migration Regulations 1994

 

Item 1             Schedule 1, after item 1130

 

19.   This item inserts new item 1130A into Schedule 1 to the Migration Regulations.  This item establishes the new Contributory Aged Parent (Residence) (Class DG) visa class.

 

Contributory Aged Parent (Residence) (Class DG)

 

The requirements for making a valid application for the new Contributory Aged Parent (Residence) (Class DG) visa class are as follows:

 

·          Applications must be made on form 47PA, unless the applicant is the holder of a Subclass 884 (Special Aged Parent (Temporary)) visa, in which case the application must be made on form 47PT;

 

·          The first instalment of the visa application charge is:

 

-                                             Nil for an applicant who has made a valid application for an Aged Parent (Residence) (Class BP) visa before the day on which this item commences and withdrew that application at the same time as making the application for the Contributory Aged Parent (Residence) (Class DG) visa;

-                                             $160 for an applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application; and

-                                             $1,745 in any other case.

 

·          The second instalment of the visa application charge is:

 

-                                             Nil for an applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, and

§   is the natural or adopted child, or step-child, of an applicant for a Contributory Aged Parent (Class DG) visa; and

§   had not turned 18 at the time of application for the Contributory Aged Parent (Temporary) (Class UU) visa;

-                                             $1,050 for an applicant who is a dependent child of an applicant for a Contributory Aged Parent (Residence) (Class DG) visa and has not turned 18 years at the time of application (unless the applicant met the requirement above);

-                                             $10,000 for an applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application (unless the applicant met the requirement above); and

-                                             $25,000 in any other case.

 

·          Applications must be made in Australia but not in immigration clearance.

 

·          The applicant must be in Australia but not in immigration clearance.

 

·          If the applicant has previously made a valid application for another parent visa (as defined in regulation 1.03):

 

-                                             a decision to grant or to refuse to grant that visa must have been made; or

-                                             the application for that visa must have been withdrawn.

 

·          An application by a person claiming to be a member of the family unit of a person who is an applicant for a Contributory Aged Parent (Residence) (Class DG) visa may be made at the same time and place as, and combined with, the application by that person.

 

1.       The class contains one visa subclass - Subclass 864 (Contributory Aged Parent).   The criteria for the grant of a visa in this subclass are inserted into Schedule 2 to the Migration Regulations by item 5 of this Schedule.

 

Item 2             Schedule 1, after item 1221

 

2.       This item inserts new item 1221A into Schedule 1 to the Migration Regulations.  This item establishes the new Contributory Aged Parent (Temporary) (Class UU) visa class.

 

Contributory Aged Parent (Temporary) (Class UU)

 

The requirements for making a valid application for the new Contributory Aged Parent (Temporary) (Class UU) visa class are as follows:

 

·          Applications must be made on form 47PA;

 

·          The first instalment of the visa application charge is:

 

-                                             Nil for an applicant who has made a valid application for an Aged Parent (Residence) (Class BP) visa before the day on which this item commences and withdrew that application at the same time as making the application for the Contributory Aged Parent (Temporary) (Class UU) visa; and

-                                             $1,745 in any other case.

 

·          The second instalment of the visa application charge is:

 

-                                             $1,050 for an applicant who is a dependant child of an applicant for a Contributory Aged Parent (Temporary) (Class UU) visa and has not turned 18 at the time of application; and

-                                             $15,000 in any other case.

 

·          Applications must be made in Australia but not in immigration clearance.

 

·          The applicant must be in Australia but not in immigration clearance.

 

·          If the applicant has previously made a valid application for another parent visa (as defined in regulation 1.03):

 

-                                             a decision to grant or to refuse to grant that visa must have been made; or

-                                             the application for that visa must have been withdrawn.

 

·          An application by a person claiming to be a member of the family unit may of a person who is an applicant for a Contributory Aged Parent (Temporary) (Class UU) visa may be made at the same time and place as, and combined with, the application by that person.

 

1.       The class contains one visa subclass - Subclass 884 (Contributory Aged Parent).  The criteria for the grant of a visa in this subclass are inserted into Schedule 2 to the Migration Regulations by item 6 of this Schedule.

 

Item 3             Schedule 2, after clause 804.227

Item 4             Schedule 2, after clause 804.325

 

2.       These items make consequential amendments to Part 804 of Schedule 2 to the Migration Regulations.  New clauses 804.228 and 804.326 require that, if a primary or secondary applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

3.       Under paragraphs 804.228(a) and 804.326(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

4.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraphs 804.228(b) and 804.326(b) require any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 804 (Aged Parent) visa application.

 

2.       The purpose of these amendments is to ensure that, at the time of decision, an applicant for an Aged Parent (Residence) (Class BP) visa is only eligible for the grant of the Subclass 804 (Aged Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of an existing parent visa and a new parent visa concurrently.

 

Item 5             Schedule 2, after Part 863

 

3.       This item inserts new Part 864 into Schedule 2 to the Migration Regulations.  The purpose of new Part 864 is to make provision for the grant of a new Subclass 864 (Contributory Aged Parent) visa to an aged parent with a child in Australia, or to members of the family unit of an aged parent who satisfies the primary criteria.

 

4.       The criteria for the Subclass 864 (Contributory Aged Parent) visa are broadly similar to the criteria for the existing Subclass 804 (Aged Parent) visa, with certain special provisions for applicants who hold a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application.

 

5.       An “aged parent” is defined in regulation 1.03 to mean a parent who is old enough to be granted an age pension under the Social Security Act 1991 .  Regulation 1.03 further provides that a “working age parent” is a parent who is not an aged parent.

 

6.       The note to new Division 864.1 provides a reference to definitions that are relevant for the purposes of new Part 864.  It provides that the terms “eligible New Zealand citizen”, “aged parent”, “close relative”, “guardian”, “parent”, “parent visa”, “settled” and “spouse” are defined in regulations 1.03, and “balance of family test” is defined in regulation 1.05.

 

7.       New Division 864.2 sets out the primary criteria that must be satisfied by an applicant for the grant of a Subclass 864 (Contributory Aged Parent) visa.  The note to new Division 864.2 provides that the primary criteria must be satisfied by at least 1 member of a family unit.  The other members of the family unit who are applicants for a Subclass 864 (Contributory Aged Parent) visa need satisfy only the secondary criteria.

 

8.       New Subdivision 864.21 sets out the primary criteria to be satisfied at the time of application.

 

9.       New subclause 864.211(1) sets out a general rule that an applicant must be:

 

·          the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

·          a person who is not the holder of a substantive visa and immediately before ceasing to hold a substantive visa was not the holder of a Subclass 771 (Transit) visa and satisfies criterion 3002.

 

1.       Criterion 3002 in Schedule 3 to the Regulations requires an application to have been validly made within 12 months after the relevant day, which is set out in criterion 3001.  Broadly speaking, the relevant day is linked to when the applicant last ceased to hold a substantive visa or entered Australia unlawfully.

 

2.       New subclause 864.211(2) sets out an exception to subclause 864.211(1).  That is, subclause 864.211(1) does not apply to an applicant who withdrew his or her application for a Subclass 804 (Aged Parent) visa at the time of making the application for the Subclass 864 (Contributory Aged Parent) visa. 

 

3.       This amendment is necessary to facilitate the transfer of former applicants seeking to be granted a Subclass 804 visa to the new Subclass 864 (Contributory Aged Parent) visa.  Such applicants may not hold a substantive visa and may have made their application in respect of the Subclass 804 visa more than 12 months ago. 

 

4.       New clause 864.212 provides that the applicant must be, either:

 

·          the aged parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

·          a person who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application and is no longer the parent of such a child because the child has died, and he or she is not the parent of another such child.

 

1.       New clause 864.213 sets out the sponsorship requirements to be satisfied by an applicant.  It provides that an applicant must either be sponsored in accordance with new subclause 864.213(2) or 864.213(3), or be taken to be sponsored under subclause 864.213(4).

 

2.       New subclause 864.213(2) provides that where the child has turned 18, the child or the child’s cohabiting spouse must sponsor the applicant.  However, the child’s cohabiting spouse must have turned 18 and be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen. 

 

3.       New subclause 864.213(3) provides for the situation where the child has not turned 18.  In these circumstances, the child’s cohabiting spouse, a close relative or guardian of the child, or a close relative or guardian of the child’s spouse must sponsor the applicant, subject to the following requirements:

 

·          that he or she has turned 18; and

·          is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       Alternatively, a community organisation may also sponsor the applicant if the child has not turned 18.

 

2.       New subclause 864.213(4) provides that an applicant is taken to be sponsored for the purposes of new clause 864.213 in the following circumstances:

 

·          the applicant is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application; and

·          the person who sponsored the applicant for the Subclass 884 (Contributory Aged Parent (Temporary)) visa dies before the Subclass 884 (Contributory Aged Parent (Temporary)) visa ceases to be in effect; and

·          there is no other sponsor available who could meet the requirements set out in subclause 864.213(2) or 864.213(3).

 

1.       This amendment reflects the policy intention that, in these circumstances, an applicant for a Contributory Aged Parent (Residence) (Class DG) visa should not be required to satisfy sponsorship requirements to be eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa.

 

2.       New clause 864.214 provides that an applicant who is not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application must satisfy the balance of family test. Broadly, a parent will satisfy the test if:

 

·          at least half of their children live in Australia; or

·          the number of children in Australia is greater than the greatest number of children resident in any single country overseas.

 

1.       An applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa is exempt from having to satisfy the balance of family test because he or she has previously satisfied this criterion in relation to the grant of his or her Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

2.       New Subdivision 864.22 sets out the primary criteria to be satisfied at the time of decision for an applicant to be eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa.

 

3.       New clause 864.221 provides that the applicant must continue to meet the requirements set out in clause 864.212.  Therefore, at the time of decision the applicant must:

 

·          still be an aged parent of a child who is a settled Australian citizen, a settled Australian permanent resident or settled eligible New Zealand citizen; or

·          be a person who is not an aged parent of such a child because, since the time of application for the Subclass 884 (Contributory Aged Parent (Temporary)) visa, the child has died and he or she has no other child in Australia who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       New clause 864.222 sets out the sponsorship requirements that an applicant must meet at the time of decision.  Under new clause 864.222, an applicant must meet the requirements of either paragraph 864.222(a) or paragraph 864.222(b). 

 

2.       The general rule, that sponsorship in accordance with new subclause 864.213(2) or 864.213(3) must be approved by the Minister and still be in force, is provided in new paragraph 864.222(a).  This applies in relation to:

 

·          for an applicant who was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application - the sponsor at the time of application or another sponsor who meets the requirements set out in subclause 864.213(2) or 864.213(3); or

·          in any other case - the sponsor at the time of application.

 

1.       Alternatively, an applicant may satisfy the criterion in clause 864.222 by meeting the requirements of new paragraph 864.222(b).  Under new paragraph 864.222(b), all of the following must apply:

 

·          the applicant was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application;

·          a sponsor of the applicant who usually resides in Australia dies before a decision was made to grant, or to refuse to grant, the Subclass 864 (Contributory Aged Parent) visa;

·          there is no other sponsor available who meets the requirements set out in subclause 864.213(2) or 864.213(3).

 

1.       New paragraph 864.222(b) covers the situation where either:

 

·          the applicant was sponsored in accordance with subclause 864.213(2) or 864.213(3), but the sponsor died before the decision to grant or refuse to grant the Subclass 864 visa was made, and no other sponsor is available; or

·          the applicant was taken to be sponsored under subclause 864.213(4) and there is still no other sponsor available at the time of decision; or

·          the applicant was taken to be sponsored under subclause 864.213(4) and although another sponsor became available after time of application, the sponsor died before a decision to grant or refuse to grant the Subclass 864 visa was made.

 

1.       Under new clause 864.223, if the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, the applicant must satisfy:

 

·          the balance of family test; and

·          public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to issues of health, character and other aspects of the public interest. 

 

1.       New clause 864.224 requires that, if the applicant was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, the applicant must:

 

·          satisfy public interest criteria 4001, 4002 and 4003 (which relate, broadly, to issues of character); and

·          have undergone any health checks that the Minister considers appropriate (for example, where the applicant had recently travelled to a country with a high risk of tuberculosis).

 

1.       This provision recognises the fact that such applicants will previously have satisfied the balance of family test and the public interest criteria for the grant of his or her Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

2.       New clause 864.225 provides that, if the applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002, and 5010.

 

3.       New clause 864.226 requires that an AOS in relation to the applicant has been given and accepted by the Minister.  Items 6 and 7 of Schedule 1 introduce modified AOS arrangements in respect of a primary applicant for a Contributory Aged Parent (Residence) (Class DG) visa, including an AOS period of 10 years and an AOS bond of $10,000.

 

4.       Under new clause 864.227, if the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is an applicant for a Subclass 864 (Contributory Aged Parent) visa must be a person who:

 

·          satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

·          if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

 

1.       Under new clause 864.228, if the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 864 (Contributory Aged Parent) visa must satisfy:

 

·          public interest criteria 4001, 4002, 4003 and 4004; and

·          public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo an assessment in relation to that criterion.

 

1.       New clause 864.229 requires that if a person:

 

·          is a member of the applicant’s family unit; and

·          has not turned 18; and

·          made a combined application with the applicant

 

public interest criteria 4015 and 4016 must be satisfied in relation to the secondary applicant.

 

1.       Public interest criterion 4015 provides that the Minister must be satisfied of one of the following:

 

·          the law of the person’s home country permits the removal of the applicant;

·          each person who can lawfully determine where the person is to live consents to the grant of the visa;

·          the grant of the visa would be consistent with any Australian child order in force in relation to the person.

 

1.       Public interest criterion 4016 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the person.

 

2.       New clause 864.230 requires that, if the applicant has already made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

3.       Under paragraph 864.230(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

4.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 864.230(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 864 (Contributory Aged Parent) visa application.

 

2.       The purpose of this amendment is to ensure that, at the time of decision, an applicant for a Contributory Aged Parent (Residence) (Class DG) visa is only eligible for the grant of the Subclass 864 (Contributory Aged Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 864.3 provides for the secondary criteria that must be satisfied for the grant of a Subclass 864 (Contributory Aged Parent) visa.

 

4.       New Subdivision 864.31 sets out the criteria to be satisfied by secondary applicants at the time of application.

 

5.       New clause 864.311 provides that the applicant must be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria in Subdivision 864.21.  Item 2 of Schedule 2 to the Bill amends regulation 1.12 to expand the definition of “member of a family unit” to ensure that a person who:

 

·          holds a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application for the Subclass 864 (Contributory Aged Parent) visa; and

·          is no longer dependent;

 

is eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa.

 

1.       New clause 864.312 requires that either:

 

·          the sponsorship mentioned in subclause 864.213(2) or 864.213(3) of the person who satisfies the primary criteria include sponsorship of the applicant; or

·          the person who satisfies the primary criteria, and the applicant, meet the requirements of subclause 864.213(4).

 

This ensures that the applicant seeking to satisfy the secondary criteria is also sponsored, or taken to be sponsored. 

 

1.       New Subdivision 864.32 sets out the secondary criteria to be satisfied at the time of decision for a secondary applicant to be eligible for the grant of the Subclass 864 (Contributory Aged Parent) visa. 

 

2.       New clause 864.321 provides that the applicant must continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 864 (Contributory Aged Parent) visa. 

 

3.       New clause 864.322 sets out the sponsorship requirements to be satisfied by secondary applicants at the time of decision. 

 

4.       The general rule, that the sponsorship mentioned in paragraph 864.222(a), that includes sponsorship of the secondary applicant, must have been approved by the Minister and still be in force, is provided in paragraph 864.322(a). 

 

5.       As an alternative to paragraph 864.322(a), paragraph 864.322(b) provides that clause 864.322 is also satisfied where the person who, at the time of decision, satisfied the primary criteria met the requirements of paragraph 864.222(b) and the secondary applicant also meets those requirements at the time of decision.

 

6.       New clause 864.323 requires the applicant to satisfy public interest criteria 4001, 4002 and 4003.  These criteria relate, broadly, to character.

 

7.       New clause 864.324 requires an applicant who was not the holder of a Subclass 884 (Contributory Parent (Temporary)) visa at the time of application to satisfy public interest criteria 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to health and other aspects of the public interest.

 

8.       New clause 864.325 sets out a modified health requirement for an applicant who was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application.  It requires the applicant to have undergone any health checks that the Minister considers appropriate.

 

9.       This provision recognises that such an applicant will previously have satisfied the health criteria for the grant of his or her Subclass 884 (Contributory Aged Parent (Temporary)) visa. However, it also provides flexibility for a health check to be required where appropriate, for example, where the applicant has recently travelled to a country with a high risk of tuberculosis.

 

10.   New clause 864.326 provides that, if the applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002 and 5010.

 

11.   New clause 864.327 requires either:

 

·          the applicant to be included in the AOS given in relation to the person who satisfies the primary criteria, and that the assurance has been accepted by the Minister; or

·          an AOS in relation to the applicant to have been given to, and accepted by, the Minister.

 

1.       Items 6 and 7 of Schedule 1 introduce modified AOS arrangements in respect of a secondary applicant for a Contributory Aged Parent (Residence) (Class DG) visa, including an AOS period of 10 years and an AOS bond of $4,000.

 

2.       New clause 864.328 requires that if the applicant has not turned 18, public interest criteria 4017 and 4018 must be satisfied.

 

3.       New clause 864.329 provides that if the applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

4.       Under paragraph 864.329(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

5.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 864.329(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 864 (Contributory Aged Parent) visa application.

 

2.       The purpose of this amendment is to ensure that, at the time of decision, an applicant for a Contributory Aged Parent (Residence) (Class DG) visa is only eligible for the grant of the Subclass 864 (Contributory Aged Parent) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 864.4 provides the circumstances applicable to the grant of a new Subclass 864 (Contributory Aged Parent) visa.

 

4.       New clause 864.411 requires that the applicant must be in Australia, but not in immigration clearance, when the visa is granted.

 

5.       The note to new clause 864.411 provides that the second instalment of the visa application charge (if any) must be paid before the visa can be granted.  Item 1 of this Schedule specifies the amount of visa application charge to be paid by an applicant at this time. 

 

6.       New Division 864.5 sets out when a Subclass 864 (Contributory Aged Parent) visa is in effect.  New clause 864.511 provides that a Subclass 864 (Contributory Aged Parent) visa is a permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

 

7.       New Division 864.6 provides that there are no conditions applicable to the grant of a Subclass 864 (Contributory Aged Parent) visa. 

 

8.       New clause 864.711 requires that the visa be evidenced by way of a visa label affixed to a valid passport.

 

Item 6             Schedule 2, after Part 882

 

9.       This item inserts new Part 884 into Schedule 2 to the Migration Regulations.  The purpose of new Part 884 is to make provision for the grant of a new Subclass 884 (Contributory Aged Parent (Temporary)) visa to an aged parent with a child in Australia, or to members of the family unit of an aged parent who satisfies the primary criteria.

 

10.   The criteria for the Subclass 884 (Contributory Aged Parent) visa are based on the criteria for the existing Subclass 804 (Aged Parent) visa.

 

11.   The note to new Division 884.1 sets out that the terms “eligible New Zealand citizen”, “aged parent”, “close relative”, “guardian”, “parent”, “settled” and “spouse” are defined in regulation 1.03, and “balance of family test” is defined in regulation 1.05.

 

12.   An “aged parent” is defined in regulation 1.03 to mean a parent who is old enough to be granted an age pension under the Social Security Act 1991 .  Regulation 1.03 further provides that a “working age parent” is a parent who is not an aged parent.

 

13.   New Division 884.2 sets out the primary criteria that must be satisfied by an applicant for the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.  The note to new Division 884.2 explains that the primary criteria must be satisfied by at least 1 member of a family unit.  The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

 

14.   New Subdivision 884.21 sets out the primary criteria to be satisfied at the time of application.

 

15.   New subclause 884.211(1) sets out a general rule that an applicant must be:

 

·          the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

·          a person who is not the holder of a substantive visa and immediately before ceasing to hold a substantive visa was not the holder of a Subclass 771 (Transit) visa and satisfies criterion 3002.

 

1.       Criterion 3002 in Schedule 3 to the Regulations requires an application to have been validly made within 12 months after the relevant day, which is set out in criterion 3001.  Broadly speaking, the relevant day is linked to when the applicant last ceased to hold a substantive visa or entered Australia unlawfully.

 

2.       New subclause 884.211(2) sets out an exception to subclause 884.211(1).  That is, subclause 884.211(1) does not apply to an applicant who withdrew his or her application for a Subclass 804 (Aged Parent) visa at the time of making the application for the Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

3.       This amendment is necessary to facilitate the transfer of former applicants seeking to be granted a Subclass 804 visa to the new Subclass 884 (Contributory Aged Parent (Temporary)) visa.  Such applicants may not hold a substantive visa and may have made their application in respect of the Subclass 804 visa more than 12 months ago. 

 

4.       New clause 884.212 requires an applicant to be the aged parent of a child who is a settled Australian citizen, settled Australian permanent resident or a settled eligible New Zealand citizen and be sponsored in accordance with new subclause 884.212(2) or 884.212(3). 

 

5.       New subclause 884.212(2) provides that, where the child has turned 18, the child or the child’s cohabiting spouse must sponsor the applicant.  However, the child’s cohabiting spouse must have turned 18 and be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

6.       New subclause 884.212(3) provides for the situation where the child has not turned 18.  In these circumstances, the child’s cohabiting spouse, a close relative or guardian of the child, or a close relative or guardian of the child’s spouse must sponsor the applicant, subject to the following requirements:

 

·          that he or she has turned 18; and

·          is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

1.       Alternatively, a community organisation may also sponsor the applicant if the child has not turned 18.

 

2.       New clause 884.213 requires an applicant to satisfy the balance of family test.  Broadly, a parent will satisfy the test if:

 

·          at least half of their children live in Australia; or

·          the number of children in Australia is greater than the greatest number of children resident in any single country overseas.

 

1.       New Subdivision 884.22 sets out the primary criteria to be satisfied at the time of decision for an applicant to be eligible for the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

 

2.       Under new clause 884.221, the applicant must continue to satisfy the criterion in new subclause 884.212(1), that is, to be an aged parent of a child who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

 

3.       New clause 884.222 requires that the sponsorship in accordance with clause 884.212 must have been approved by the Minister and still be in force.

 

4.       New clause 884.223 requires the applicant to continue to satisfy the balance of family test.

 

5.       New clause 884.224 provides that the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to issues of health, character and other aspects of the public interest.

 

6.       New clause 884.225 requires that, if the applicant has previously been in Australia, the applicant satisfy special return criteria 5001, 5002 and 5010.

 

7.       Under new clause 884.226, each member of the family unit of the applicant who is an applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa must be a person who:

 

·          satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and

·          if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

 

1.       New clause 884.227 requires each member of the family unit of the applicant who is not an applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa to satisfy:

 

·          public interest criteria 4001, 4002, 4003 and 4004; and

·          public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo an assessment in relation to that criterion.

 

1.       New clause 884.228 provides that if a person:

 

·          is a member of the applicant’s family unit; and

·          has not turned 18; and

·          made a combined application with the applicant

 

public interest criteria 4015 and 4016 must be satisfied in relation to the secondary applicant.

 

1.       Public interest criterion 4015 provides that the Minister must be satisfied of one of the following:

 

·          the law of the person’s home country permits the removal of the applicant;

·          each person who can lawfully determine where the person is to live consents to the grant of the visa;

·          the grant of the visa would be consistent with any Australian child order in force in relation to the person.

 

1.       Public interest criterion 4016 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the person.

 

2.       New clause 884.229 requires that, if an applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

3.       Under paragraph 884.229(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

4.       “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 884.229(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 884 (Contributory Aged Parent (Temporary)) visa application.

 

2.       The purpose of this amendment is to ensure that, at the time of decision, an applicant for a Contributory Aged Parent (Temporary) (Class UU) visa is only eligible for the grant of the Subclass 884 (Contributory Aged Parent (Temporary)) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New Division 884.3 provides for the secondary criteria that must be satisfied for an applicant to be eligible for the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

4.       New Subdivision 884.31 sets out the secondary criteria to be satisfied at the time of application.

 

5.       New clause 884.311 provides that the applicant must be a member of the family unit of a person who satisfies the primary criteria in Subdivision 884.21.  The applicant must also have made a combined application with the person who satisfies the primary criteria in Subdivision 884.21.

 

6.       New clause 884.312 requires that the sponsorship mentioned in clause 884.212 of the person who satisfies the primary criteria include sponsorship of the applicant.

 

7.       New Subdivision 884.32 sets out the secondary criteria to be satisfied at the time of decision. 

 

8.       New clause 884.321 provides that the applicant must continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

 

9.       New clause 884.322 provides that sponsorship in accordance with new clause 884.312 must have been approved by the Minister and still be in force.

 

10.   New clause 884.323 requires the applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.  These criteria relate, broadly, to issues of health, character and other public interest matters.

 

11.   New clause 884.324 requires that if the applicant has not turned 18, public interest criteria 4017 and 4018 must be satisfied.

 

12.   New clause 884.325 provides that, if an applicant has previously made a valid application for another parent visa, certain things must have occurred in relation to that other parent visa application.

 

13.   Under paragraph 884.325(a), an application for another parent visa that has been previously made must have been finally determined (within the meaning of subsection 5(9) of the Act) or withdrawn.

 

14.   “Finally determined” is defined in subsection 5(9) of the Act to mean, in relation to an application, when either:

 

·          a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 of the Act; or

·          a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such review could be instituted has ended without a review having been instituted as prescribed.

 

1.       In broad terms, this means that either:

 

·          the application for the other parent visa must have been withdrawn before a primary decision was made on whether to grant or refuse to grant the visa; or

·          the primary decision to refuse to grant that other parent visa must:

-           not be subject to review by the MRT; or

-           no longer subject to review by the MRT, because the review has been completed; or

-           not be able to be reviewed by the MRT because the prescribed period for seeking review has ended.

 

1.       In addition, paragraph 884.325(b) requires any of the following to have occurred in relation to that other parent visa application:

 

·          each decision that has been made in respect of the application is not, or is no longer, subject to any form of review by the AAT or judicial review proceedings (including proceedings on appeal);

·          a decision that has been made in respect of the application was subject to review by the AAT or judicial review proceedings (including any proceedings on appeal) but the period within which such a review or review proceedings could be instituted has ended without a review or review proceedings having been instituted as prescribed;

·          if the applicant has applied for review by the MRT, AAT or judicial review proceedings (including proceedings on appeal) the applicant has withdrawn all applications for the review or review proceedings.

 

1.       Broadly, the first two dot points impose an equivalent "finally determined" requirement in relation to review by the AAT or any judicial review proceedings.  The last dot point provides an alternative to this in that it allows an application to withdraw any review proceedings in order to have a decision made on his or her Subclass 884 (Contributory Aged Parent (Temporary)) visa application.

 

2.       The purpose of this amendment is to ensure that, at the time of decision, an applicant for a Contributory Aged Parent (Temporary) (Class UU) visa is only eligible for the grant of the Subclass 884 (Contributory Aged Parent (Temporary)) visa and not another parent visa (as defined in regulation 1.03).  This removes the difficulties associated with an applicant being eligible for the grant of a new parent visa and an existing parent visa concurrently.

 

3.       New clause 884.326 provides that, if the applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002 and 5010.

 

4.       New Division 884.4 provides the circumstances applicable to the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

 

5.       New clause 884.411 requires that the applicant must be in Australia, but not in immigration clearance, when the visa is granted.

 

6.       The note to new clause 884.411 provides that the second instalment of the visa application charge (if any) must be paid before the visa can be granted.  Item 2 of this Schedule provides that the amount of visa application charge to be paid at this time is $15,000, unless the applicant is a dependent child of the applicant who has not turned 18 at the time of application.

 

7.       New Division 884.5 sets out when a Subclass 884 (Contributory Aged Parent (Temporary)) visa is in effect.  New clause 884.511 provides that a Subclass 884 (Contributory Aged Parent (Temporary)) visa is a temporary visa permitting the holder to travel to and enter Australia for 2 years from a date specified by the Minister for the purpose.

 

8.       New Division 884.6 provides that there are no conditions applicable to the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa. 

 

9.       New clause 884.711 requires that the visa be evidenced by way of a visa label affixed to a valid passport.