Dear Denis
You seem to have decided that what you want is to try to find a visa
that will grant your mother temporary residence in Australia and then,
once she is out there, enable her to launch an onshore application for
a Contributory Aged Parent (CAP) visa.
The only visa that would achieve this without difficulty would be the
new Investor Retirement visa, in my view.
http://www.immi.gov.au/allforms/retirement/overview_invest_retire.htm
This visa is very expensive, I reckon, for something which confers only
temporary residence in Australia for a finite number of years.
Nevertheless, it does confer "residence," and therefore makes it
possible to launch an onshore application for a CAP visa, I believe.
Opinion is divided about whether it is possible for someone to enter
Australia on a tourist visa (there seem to be at least 3 possible
types) and then to launch a CAP application off the back of that
instead. Some agents believe that this is possible, though the way
they reckon it can be done is pretty convoluted, and I am a mite
sceptical about whether the protagonists of this theory have ever
actually done it successfully on behalf of a client of theirs. Other
agents disagree about the do-ability of the idea anyway.
I am not a migration agent. However, I do have a legal background
(albeit in a totally unrelated field of Law, and in English, not
Australian, Law.) My own view is that it is not do-able because a
tourist-visa does not, by its nature, grant "residence." Somebody
who calls themselves a "tourist" necessarily intends to leave
Australia at the end of their temporary tourist-visit. Anything short
of that intention is not tourism, in my view. JAJ is fond of warning
that the Parent intent on this attempt runs the risk of the Immigration
Officer at the airport becoming suspicious, refusing the Parent entry
into Australia, and cancelling the tourist visa at the airport. That
is a potential risk, in my view, and I think he is right to warn about
it, though I don't think that JAJ's theory is the whole or the end
of the potential story with this.
I reckon that in reality, the Airport Officer might have his or her
doubts, but that the chances are that the Parent would be given the
benefit of the doubt at the airport. I think the bigger risk would
come at the point when the application for the CAP visa is launched.
That, in my view, is an admission by the Parent-applicant that the
purpose for which they entered Australia had nothing to do with genuine
tourism but that it had everything to do with trying to shoehorn
themselves into a position of being able to try to launch an onshore
application for Permanent Residence, via a CAP visa.
I think the brown stuff could well hit the rotating object at this
point. If I were DIMA, I would bide my time and wait for this
"tourist" to play into my hands in this way, instead of risking
jumping the gun - potentially unreasonably, unfairly and wrongly - at
the airport. However, in DIMA's shoes, I would consider cancelling
the tourist-visa in response to receipt of the CAP application,
possibly consider putting the Parent into Immigration detention, and I
would be thinking about deporting this Parent pdq. Pour encouragez les
autres, among other reasons. The Parent might try to apply for a
Bridging Visa at that stage. That application might or might not
succeed, but in DIMA's shoes, I would be minded to try to resist that
application as well.
Additionally, even if the Court or the MRT (I'm not sure whether the
MRT has jurisdiction in this situation) were to order DIMA to grant the
Bridging Visa plus entertain the application for the CAP visa, I think
DIMA would still be left with a further potential bite at the cherry in
terms of trying to resist granting the CAP visa. I reckon DIMA would
be able to argue that the Parent essentially acted dishonestly in
trying to claim to be a "tourist" when - by his or her own, later
de facto admission - tourism was not the intention. I would argue
that this casts a doubt on the applicant's integrity, and therefore
on whether or not the Parent meets the criterion that a wannabe migrant
must be of good character.
The Parent who embarks on this route is taking an unacceptable risk, in
my firm opinion, because it is a risk that can easily be avoided. DIMA
themselves, on their website, describe the machinery for a much
simpler, much more elegant route, which does not involve any potential
allegations of misfeasance, and which gets the Parent into a far better
position - at far less potential cost - than the hypothetical
Parent described above.
Where a Parent currently has no right of residence in Australia, which
your mother doesn't and neither does mine, what they can do instead
of all the stuff described above (and my mother is doing the
alternative successfully, right now, with DIMA's full knowledge and
blessing) is this:
Mum was in the UK in November 2005. On 19th Nov 2005, I sent off two
visa applications on her behalf. The first was sent to the POPC and is
an application for a Contributory Parent (migrant) visa. The second,
sent the same day, was for a paper sub-class 676 tourist-visa. I sent
that to the Australian High Commission in London, using Form 48R which
can be downloaded from the AHC website. At the time, the POPC were
saying that they were taking about 9 months, on average, to process
applications for CP visas. A paper 676 visa will normally only allow 6
unbroken months in Australia. However, in exceptional circumstances,
it can allow anything up to 12 unbroken months in Australia. I sent a
covering letter with the 676 application, referring to the timeline
published by the POPC, and asking for the 676 visa to give Mum 8
unbroken months in Australia. The 676 visa arrived exactly a fortnight
after I posted the application for it. Mum flew to Perth 8 days later.
She is there now and need not leave until 12 August 2006. If all goes
well, I anticipate that the POPC will be ready to grant the CP visa in
September or October 2006.
So yes, Mum will have to leave Australia before the CP visa is granted,
and then she will have to fly back to Australia in order to validate
the CP visa within the time permitted for that. However, that bit of
globe-trotting is only a very minor nuisance, and the cost of it is
infinitely less than a battle in the Migration Review Tribunal and/or
the Court. Also, whilst she is in Oz on her current tourist-visa, Mum
has the same rights to Medicare as any other British tourist visiting
Australia. She would not have any access to Medicare if she were in
Australia on a Bridging Visa instead.
Also, it puts a complete block on any notion that my mother's
character is in any way doubtful. DIMA knew exactly how we wanted to
play this before they accepted a penny of Mum's money in respect of
either of her applications. I sent AHC London a copy of the covering
letter that accompanied the application for the CP visa, and I sent the
POPC a copy of the covering letter to the AHC too. So both arms of
DIMA were well & truly aware of exactly what Mum wanted to do, right
from the outset. As soon as she arrived in Australia, we then did
everything necessary to inform the POPC formally of Mum's arrival in
Perth, so everything is fine there as well.
Therefore I hope that you will be persuaded to consider a similar
approach on behalf of your own mother, because I really do think it
would represent the cheapest, simplest, most hassle-free option for her
in exactly the same way as it is doing for my mother as well.
Good luck in whatever you decide. If you want to ask me any further
questions, please feel free to do so, and I will do my best to help
out.
Gill Palmer
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