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Australasian Legal Information Institute

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Australasian Legal Information Institute

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When a person travels to any country, visa is an essential requirement. To attain a visa, a range of legalities have to be followed and various criteria have to be fulfilled. In the following parts, various aspects of Australia’s Visa System have been discussed in different scenarios. A specific emphasis has been laid towards the Family Visas available in Australia.
Section 4AA of the Family Law Act, 1975 contains the definition of de facto relationships. As per this section, states that an individual is considered to be in a de facto relationship with other being, when the both these people are not married legally and are also not related as a family. This section also states that in order to be in the purview of de facto relationship, the couple has to be living together on a genuine domestic basis.
Certain criteria have been laid down to establish if de facto relationship was present between a couple. This includes the duration of the relationship; nature and extent of shared dwelling; existence of sexual relationship; extent of financial interdependence or reliance and provisions of financial support; the reputation and public aspects of relationship, amongst other things.
To clarify the duration of a relationship, a reference has to be made to section 90SB of this act. This section relates to settlement of property in cases of de facto relationship. The criteria stated in this section states that the relationship must have existed for a period of minimum two years.
On the basis of application of various sections of Family Law Act, 1975, it can be held that Emma was not a de facto partner of Jason. Even though they were living together for six months in a common apartment, they could not be held as de factor partners as per section 90SB of the act.
Jason can apply for a visa under Family Visa Subclass of Prospective Marriage (300). He can than sponsor Emma as per Schedule 2 of the Migration Regulations.
There are two main categories under family visa, which are applicable for gaining visa for parents and these include Contributory Parent visa and Contributory Aged Parent visa. To avail these two categories of visa, the sponsor has to meet certain eligibility criteria. The applicant of such visa must have a child who is either an Australian citizen or a permanent Australian resident or an eligible New Zealand citizen.
Contributory Parent visa are available to parents of an Australian citizen who reside in countries other than Australia. The age of the parent is not a criterion in this category of visa. Two types of Contributory Parent visa are provided to an applicant. These are Contributory Parent (Temporary) (173) visa, and Contributory Parent (Migrant) (143) visa.
For an Australian resident, the other option for family visa is to apply for Contributory Aged Parent visa for his or her parents. These further have two categories, viz., Contributory Aged Parent (Temporary) (884) visa, and Contributory Aged Parent (Residence) (864) visa.
To avail the Contributory Aged Parent, an applicant has to meet a crucial eligibility requirement of age. Men, who are above the age of 65 years, can apply for a Contributory Aged Parent visa (864). From January 1, 2014 onwards, the age for women who can apply for a Contributory Aged Parent (864) has been set as 65 years. So, a parent applicant for a visa under this category has to be of the age of 65 years.
On the basis of above factors, it is recommended to Emma to apply for the Contributory Parent (Migrant) (143) visa. Since Emma is a permanent resident of Australia, she can sponsor her parents for a family visa. A contributory parent visa under category 143 would enable Emma’s parents to reside in Australia on a permanent basis. Such sponsorship of her parents has to be for the first two years.
Being Emma’s husband, even Jason can sponsor the application of Emma’s parents for a contributory parent visa.
A close relative can be sponsored by a resident of Australia and where all the relatives of such a resident are in Australia except that close relative. The Migration Regulations define the remaining relative in R1.15 as a person whose parents, siblings and non dependent children are settled in Australia. Also, if such a person has a partner then the partner’s parents, siblings and non dependent children are also settled in Australia. Such family visa is provided in two classes, 115 and 835. Close relative is usually over the age of 18 years but in some circumstances, it can be taken as under 18 years.
Michelle is Emma’s sibling and her husband is dead. She had a 5 year old son in France and other than that she has no relative there. Emma is a citizen of Australia and her parents are in Australia. This qualifies Michelle to apply for a remaining relative visa for Australia. Also, since Michelle’s son is dependent on her, she can apply for a visa for her son also. The category for her son would remain the same.
For Michelle, Emma has to sponsor her application for a family visa under the category of Remaining Relative visa (Subclass 115) offshore. Since Michelle is a native of France and not Australia, the visa under this subsection is applicable for her. Emma would also have to provide such sponsorship for Michelle for a time period of two years. Emma, being a permanent resident of Australian is eligible to sponsor Michelle for a family visa under sub clause 115.
And again, since Jason is Emma’s husband, even he can sponsor the application of Michelle, as she is his partner’s sibling, for a contributory parent visa.
Australasian Legal Information Institute, Commonwealth Consolidated Regulations: Migration Regulations 1994- Reg 1.15, Australasian Legal Information Institute, 2016
Australasian Legal Information Institute, Commonwealth Consolidated Regulations: Family Law Act 1975 – Sect 4AA, Australasian Legal Information Institute, 2016 < https://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html >
Department of Immigration and Border Protection, Reaming Relative visa: subclass 115, Australian Government, 2016 < https://www.border.gov.au/Trav/Visa-1/115->
John Vrachnas et al, Migration and Refugee Law in Australia: Principles and Practice in Australia (Cambridge University Press, 3rd ed, 2012)
Legal Services Commission of South Australia, Two year time requirement- property disputes, Legal Services Commission of South Australia, 2016 < https://www.lawhandbook.sa.gov.au/ch21s05s03.php >
Mary Crock, Immigration and refugee law in Australia (Federation Press, 1998)
Migration Angels, 143 – Contributory Parent (Permanent) Visa, Migration Angels, 2016 < https://www.migrationangels.com/au/family/contributory-parent-visa-permanent/>
Mirko Bagaric et al, Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2007.

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