coffeebean
Hi guys
I'm sorry to butt into this thread late, but I have direct, recent and relevant experience of confusing myself in exactly the same ways as you, so I hope this might help! This is how we resolved the whole thing on behalf of my mother, who is an elderly British widow with two daughters, one in the UK and the other in Australia.
First, I don't think that a tourist visa must necessarily be confined to six months at a time in Australia. I recommend a close look at the sub-clbutt 676 tourist-visa, applied for on paper, using Form 48R. All the information about it, and the Form, is on www.australia.org.uk, which is the Australian High Commission in London. What it says is that the 676 will normally only allow 6 months at a time in Australia, but that in "exceptional circumstances," it is possible for it to allow up to 12 months in Oz. It also says that DIMA will consider anything that you think is relevant, and you choose to tell them, about the circumstances of the particular case. They mean what they say, I have found.
Both of you have "exceptional circumstances" on behalf of your respective mothers. One because the Balance of Family Test cannot be satisfied, and the other because you cannot make a valid application to give sponsorship and-or an butturance of Support on behalf of your own mother just yet. In your shoes, I would send a covering letter, explaining what is preventing your mothers from being able to make applications for CP visas, and requesting a full 12 months in Australia in these circs. If you adopt my idea, the visa will cost £35 per person to apply for, and the worst that could happen is that DIMA decide that the circs are not exceptional enough, and so limit you to 6 months instead. For the sake of a quick covering letter, I believe it is worth the attempt. My impression is that they are pretty sympathetic to the plights of some parents, and the paper 676 is the only application that really gives you a chance to explain what is unusual about your own circumstances (or rather, those of your mothers.)
Your other question is whether you can use tourist-visas to get the Parents out to Australia, and then make valid applications for Contributory Aged Parent visas off the back of the tourist-visas. I started out with high hopes of this very idea too.....!
I found that it wasn't possible in Mum's case. The reason is because she has had several paper 676 visas, so Condition 8503 is now imposed every time. That prevents the Parent from being able to make a valid application for any sort of Parent visa from onshore in Australia. The downside with even a first application for a paper 676 is that I think it is likely that Condition 8503 will be imposed, even on the first one, in order to block the route which you both hope might be possible. So you should be aware of this belief of mine before you decide what to do for the best.
At least one Migration Agent is convinced that what you want to do can be done. There was a thread about it on BE about 3 months ago. The suggestion was that the Parent could enter Australia on an ETA. Whilst there, the Parent could apply to extend the ETA for a further 6 months by approaching a local DIMA office in some way. According to the Agent promoting this theory, Condition 8503 would not be imposed on the would be no bar to the Parent launching an onshore application for a CAP visa off the back of the extended tourist-visa. (Apparently it cannot be done off the back of an ETA, because of conditions peculiar to ETAs, so I gathered.) The relevant Agent was convinced that his own suggestion would work. History does not relate whether or not he has ever done it successfully on behalf of a client, however.
JAJ sounded major alarm bells about this suggestion. He said that if the intention was that the parent should use any sort of tourist-visa for the purpose of entering Australia in order to launch an onshore application for permanent residence, then the purpose of the visit could not be considered to be tourism. It is not often that I agree with JAJ, but I do agree with him completely about this one.
I disagree with him about what DIMA might do, however. He was uttering dire predictions of the Parent being put back on the same plane they arrived on etc, which I don't think is a serious likelihood for a British Parent, quite honestly. They have never done it with my mother in well over 20 different entries to Australia. I think that the airport officials might have their doubts about the real purpose of the visit but without solid proof, I think they would err on the side of caution and sit tight.
If there is going to be a real problem with the idea, I reckon it is more likely to happen at the point when the application for the CAP visa is launched. At that point, I think our hypothetical Parent would have a hard job to convince DIMA that he or she entered Australia with nothing more than a temporary tourist-visit in mind, but then had a change of heart and plans once out there! Bells & the other one spring to mind!
I think that at this stage, DIMA could become very hostile indeed, because they would by then have prima facie, de facto evidence that this Parent never did intend to be a genuine tourist. That might result in DIMA cancelling the tourist-visa in response to receipt of the CAP application. They might also consider placing the Parent in Immigration Detention, as a warning to others if nothing else, and they might feel inspired to deport the Parent on top. In such a dire situation, I would expect the Parent to make an emergency application for a Bridging Visa, but it might be necessary to try to get that from the MRT or the Court if DIMA tried to resist the idea. Finally, I can also see a situation where the scenario could be used to cast doubt on the applicant's honesty and integrity, raising questions about whether they satisfy the criterion that a wannabe migrant to Australia must be of good character.
Because of Condition 8503, it would have been futile to put any of this to the acid test in Mum's case, and she would not have agreed to act as a guinea-pig for testing a bold legal theory in any event! Therefore, for her, I was forced to attack this from the opposite direction, if you like. She could not make a valid onshore application, so she would have to apply for an ordinary CP visa from offshore instead. There is absolutely no bar to tackling the question this way around.
However, at the time the POPC's Newsletter said that they were taking about 9 months, on average, to process CP applications (they only deal with offshore applications.) Mum had already been in the UK for 4 months and was desperate to re-join her only grandchildren, who are with my sister, out in Australia. I felt like a privatesensian gaoler for keeping the poor woman trapped in the UK with winter & Christmas approaching, but there was no point in risking a half-baked application for the sake of a (legally) unnecessary rush with the many considerations involved.
Reading the DIMA website to within an inch of its life, I came across a paragraph which said that a Parent who has applied for a CP visa from offshore can visit Australia on a tourist-visa during the wait for the CP visa to be processed, as long as he or she can satisfy all the criteria for the type of tourist visa which is requested. (What type to request - ETA, e-676 or paper 676 - depends on how long the Parent wants to go out to Australia for, as far as I can work out.) My mother's Instructions were that she wanted to be able to spend as much time as possible in Australia during the wait. She was categorical about this, but accepted that she would have to leave Australia before the CP visa could be granted.
Accordingly, once both applications were ready (for the CP visa and for a paper 676 requesting 8 unbroken months in Australia) I sent both off by post on the same day, one to the POPC in Perth and the other to the Australian High Commission in London. I sent covering letters with each application, explaining exactly what Mum wanted to do during the 9 month processing period indicated by the POPC newsletter. I also sent the POPC a copy of the covering letter to London and vice versa, so that nobody could be in the slightest doubt about Mum's exact wishes.
The POPC received the application safely within 10 days of despatch. London issued the new tourist visa and we received that exactly a fortnight after the twin applications were despatched. Mum flew to Australia a week later. The day after she reached Perth, my sister obtained certified copies of the 2 new pages in Mum's pbuttport, showing the new tourist-visa and the date stamp confirming Mum's arrival in Perth, and sent those to the POPC to make their own copy of Mum's pbuttport complete.
Mum will have to leave Australia before the CP visa can be granted. If the timing works as I expect it to, she will leave Australia about a month before the POPC are ready to issue the CP visa. That suits our own plans, because Mum wants to make a visit to the UK anyway later this year, and my cautious legal mind wants Mum to be seen to leave Australia voluntarily (which will kill off the tourist-visa) some weeks in advance of the issue of the CP visa, so that there is no possible query about whether or not Mum was in Australia at the time of the Grant. If the applicant is in Australia, the CP visa MUST BE REFUSED, so it is crucial to ensure that this bit does not get the chance to go wrong. Once Mum is back in the UK, her pbuttport will contain a new stamp proving that she left Australia on August 12. We will get that page copied, certified and send it to the POPC, with instructions for them to revert to using the UK address given on the application form for any direct correspondence with Mum. This will absolutely prevent any possible confusion or doubt, and I reckon that one cannot be too careful with this.
Plainly, there is no question but that the whole thing is 100% legitimate, and there can be no possible allegations of attempted deception or less than total honesty and integrity. Also, doing it this way around actually works far better than a Bridging Visa, because of the Medicare element. Somebody on a Bridging Visa is not enbreastled to Medicare, as I understand this. On a tourist visa instead, Mum has the same access to Medicare as any other British tourist making a genuine tourist-visit to Oz. Ergo, I reckon that DIMA's own suggestion about how best to tackle the waiting period is actually a much better, more elegant, more sophisticated and far more appropriate way to proceed than my own original idea of trying to do this the other way around.
If you have any queries, I will do my best to buttist. Meanwhile I hope this is of some help in your own deliberations.
Gill Palmer
