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.
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.
Contributory Parent Visa Medical checks 75Try a search of Austlii, I suggest, and see what it comes up with in relation to cardiac problems and Criterion 4005, which is the health-provision for Contributory Parent visas. My mother is...
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-clbutt 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 hbuttle-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
