Doug wrote:
> I raised this topic several years ago but did not find a satisfactory
> outcome. Perhaps regulations have changed so please assist if possible.
>
> OUR CIRCUMSTANCES:
> My wife (born in UK, now an Australian Citizen) and I (Australian born
> and bred) would like her mother (UK citizen, aged 84) to live with us in
> Australia. She currently travels out here once a year, stays 3 months
> and then goes back to England. She has done this annual excursion almost
> every year for the last 23 years - in total about 23 trips. She is in
> reasonable health but wishes to stay permanently with us - she considers
> this her home.
>
>
> She is not wealthy and neither are we. My wife (60 years old) and I (53
> years old) are both working and have the means to support her beyond her
> English pension should she need it. She has another son (50 years
> old)living in Sydney who is also an Australian Citizen. She has three
> other sons living in the UK.
>
> Is there some way we can achieve our common goal, ie. for her to be able
> to stay in Australia with some degree of permanency? She is currently in
> Australia and would love not having to return to the UK to live.
>
> Any constructive comments would be appreciated.
Hello Doug
I really feel for you and your family. My mother is now 86 and she was
eventually granted a Contributory Parent visa two months ago, which
gives her PR in Oz at long last.
What happened in our own case was that my father died in 1991 and Mum's
first application for Parent migration in 1993 was refused. It was
refused because although Mum only has two children of her own, she also
has a step-daughter who was Dad's daughter by his first wife. Mum's
step-daughter (our half-sister) lives in the UK. I am the elder child
of the second marriage and I also live in the UK. My younger sister
lives in Oz and has done for about 26 years now. At the time, the
Balance of Family test made no distinction between Mum's blood-childen
and her step-child, so she couldn't satisfy the BoF Test, which we felt
was iniquitous but that was the law and there was nothing we could do
about it.
They did eventually alter the step-child provisions in 2003, and my
half-sister became irrelevant to the BoF Test as a result. That paved
the way for Mum's eventual recent visa. But that only came about
because a Chinese family, whose mother was a vitual clone of my mother
on the facts, stood up to DIMA and won on appeal, effectively creating
new Law as a result. (Technically, it was slightly more complicated
than that but the nuances are not relevant to your own situation. What
IS relevant to you is that the Xu family blazed a legal trail which
made it possible for my mother and others like her to follow Mrs Xu to
Australia.)
So my first suggestion is NEVER give up. This test is iniquitous and
it does occasionally get ameliorated by just enough to make migration
possible eventually. My mother is the living proof of this. An old
lady of 97 from Devon migrated to Oz permanently in 2005, so Mum is by
no means the oldest to have succeeded in the end. either.
I think what I would do in your shoes is to get your Federal MP aboard.
The fact is that this Test takes no account of gender. The only girl
with four brothers is by far the one most likely to make a good fist of
looking after her elderly mother. She has a far better incentive to do
so than any of her sisters in law, realistically.
The Minister alone has the power to waive the BoF Test in a situation
where not doing so would cause grave hardship to a family which is
resident and settled in Australia (your wife's.) The Minister's power
is purely discretionary. That is why you need a Fed MP on your side,
to help to make the case for the Minister making an exception for your
MiL.
It would be a long and tortuous route and you would need top notch
legal advice every step of the way, from proper solicitors who are also
Migration Agents, not just from run of the mill Migration Agents in my
view. Specifically, I would suggest a word with Diana Tong or Nigel
Dobbie at Parish Patience in Sydney. They are very, very tough and
tenacious Immi Law Litigation solicitors and they have won some
ground-breaking cases.
To get to the stage of a Ministerial Appeal, what you would have to do
is as follows:
Apply for a Contributory Parent visa preferably. Specifically, apply
for a Contributory Aged Parent visa if at all possible financially,
whilst your MiL is onshore in Australia. I assume she is using 3-month
ETAs? You would have to move like greased lightning to get the
application in, because it MUST be made before the ETA expires.
DIMA would reject the application because the BoF test is not met. No
worries. The next step is to appeal to the Migration Review Tribunal I
would think. In a situation like this, the usual tactic seems to be to
offer no evidence to the MRT because it is common ground that they
cannot assist. However, S351 of the Migration Act provides that no
appeal can be made to the Minister unless an appeal to the MRT has been
made and has failed, so this is a piece of procedure that cannot be
omitted, tedious and pointless though it is.
The only way to launch such an application initially is off the back of
a sub-class 976 ETA. No other visa would do except for an Investor
Retirement sub-class 405 visa, and it is odds-on that your MiL would
not be able to afford one of those. The reason is because neither of
these visas can attract Condition 8503 - no further stay.
For somebody who believes that the Parent application would succeed, I
would steer the applicant firmly AWAY from this course of action.
Where the Bof Test can be met, other ideas are vastly better. However,
in your situation the whole thing would come down to convincing the
Minister to make an exception and my instinct is that audacity and
chutzpah (by the shedload) would both be required. Obviously the ETA
would expire long before the Parent application would get considered,
ergo a Bridging Visa A would be needed in order to keep your MiL in
Australia.
This route is not unlawful. Do not listen to Migration Agents about
this one. The ones who are not solicitors are not trained in statutory
interpretation. The best analogy I can give you here is a tax one.
Tax evasion is illegal. Tax avoidance via exploiting a loophole is
lawful. The loophole here is that an ETA cannot attract Condition
8503. Parliament could change the Law so as to block this loophole if
it wanted to. DIMA could also refuse tto grant the ETA in the first
place. Properly competent advisers do not moralise in situations like
yours. Morality is the not the job of the legal profession - it is the
job of the Church instead, just as we leave doctors to handle the job
of curing the physically sick.
The Minister has been known to take account of cultural factors in some
parts of the world. As I understand it, in some cultures, it is deemed
completely inappropriate for a son to take care of his mother or for
his sister to take care of their father. The Tribunal has accepted
this proposition on many occasions. I believe that that should set an
inescapable precedent. Who can speculate about what is 'appropriate'
in a WASP culture instead?
If you were to succeed on this sort of argument, you would effectively
be creating new Law. I am a UK-trained lawyer by background but I have
never been anywhere near Immigration Law anywhere. I am by no means an
expert on this stuff. But case-Law makes new Law more often than
lay-people might imagine, simply because the lawyer involved becomes
passionately convinced of what natural justice demands despite the grey
nature of the area of Law concerned.
What you do NOT need in a situation like this is a bunch of pit-ponies
telling you what Section 1.05 of the Migration Regulations 1994 (as
amended) says. You can read that for yourself by telling a search
engine to find ComLaw and following the obvious links.
What you need are tough, capable, experienced and innovative Immi
Litigation specialist solicitors with a demonstrable track record of
winning in spite of the seeming odds against. Parish Patience is such
a firm in my observation and opinion. The guts of the BoF Test needs
challenging on your particular set of facts.
I'm not saying that you can win. Unfortunately, I am not the arbiter
of this one. But I believe that there is enough meat on the bone to
make it worth asking The Best to have an extremely close look at the
question along the lines that I am suggesting.
E-mail me if I can help further.
Regards
Gill
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