BLO5606 Australia Visa System

Aysel, a widow from Turkey, came to Australia on a Student Guardian (subclass 590) visa to look after her only daughter Melek, aged 16, studying Year 11 at Parramatta Girls College. Aysel’s subclass 590 visa carried the conditions 8101, 8201, 8501, 8516, 8534, 8537 and 8538.Whilst in Australia, Aysel befriended Dennis, an Australian bachelor, who was living next door in her apartment block. After some time, Dennis and Aysel became romantically involved and had discussed possible marriage. So Aysel came to see you to enquire as to whether her visa would allow her to get married and apply for permanent residence without having to return home, as she did not want to leave Melek on her own in Australia.

(a) In this situation, what would your answer be to Aysel’s enquiry? You do not need to go into detail as to how she might be able to make her application, if she is allowed to do so.As things turned out, the supposedly romantic relationship between Dennis and Aysel fizzled out anyway after Aysel demanded a “dowry” of $200,000 from Dennis
before she would consider marrying him, upon which Dennis suddenly went cold on the thought of matrimony. Life then went back to as it was before Aysel had met Dennis.

One evening, after Aysel and Melek had attended a parent-teacher meeting at the school, they were on the way home when a drunk driver ran a red light and crashed into their car. Aysel was killed instantly. Melek was more fortunate in that she only suffered relatively minor injuries from the accident. Aysel has a first cousin Hasan (her mother’s brother’s son) who is an Australian citizen living in Cabramatta. Aysel and Melek had visited Hasan’s family regularly and Aysel called Hasan “brother” while Melek called him “uncle”. After the death of Aysel, Hasan visited Melek in hospital and told her not to worry that he will look after her.

Hasan came to your office today and explained that, with the death of her mother Aysel, Melek has no other relatives living anywhere else in the world so he would like to help Melek obtain permanent residence in Australia. Hasan said he has a friend who had sponsored a nephew under the “orphan relative” visa category and asks whether he can do the same for Melek.
(b) Explain to Hasan the requirements for an Orphan Relative visa. In this situation can Hasan sponsor Melek for this visa.
(c) If the Orphan Relative visa is not an option, what other visa would you suggest to Hasan to help Melek obtain permanent residence in Australia.

In the given situation, Aysel is residing in Australia on Student Guardian Visa to look after her 16-year daughter Melek. After some time, she gets into a relationship with Dennis, and they are planning for their marriage. However, she is not sure about her legal eligibility for this marriage as she is on a temporary visa.

Legal provisions

If an individual has issued a visa of Student Guardian, there are certain circumstances attached to the visa. Visa’s one condition to be considered the condition 8534 that is ‘no further stay’. This condition says that after coming to Australia, an individual might not give any visa at the same time as the person stay in Australia, apart from  a  Student Guardian or Protection visa. According to Australian rules and laws, if someone is planning to get married or is in a committed relationship with the resident of Australia, it is possible for the individual to acquire a visa on the basis of its partner for migration to Australia. The citizen or eternal resident of Australia would be acting on the behalf as a supporter for the visa. This all means that the supporter will give a paperwork statement assuring in order to support its partner for the initial two years in Australia inclusive of financial help and accommodation so as to experience reasonable standards of living. Applicants of Family immigration are considered on the basis of individual under the authorities of Australian immigration, further, are considered  in opposition to requirements of  Australia's health and character.

Advice

By considering above described provisions, it can be said that Aysel is entitled to make application for permanent residence if get legally married to Dennis.

By considering the further part of the case study; Aysel met with an accident and was killed instantly due to which Melek get an orphan. Now Cousin of Aysel in planning to adopt Melek and provide her financial assistance. Due to this aspect, he wants to know about requirements for the orphan relative visa.

Legal provisions

A visa of orphan’s relative enables the child of the orphan to stay permanently in Australia along with their relative. However, for this visa the relative should be; brother or sister, aunt or uncle, grandparents or stepchildren and must be authorized Australian resident, citizen or an entitled citizen of New Zealand. Visa of orphans relative contains two of the subclass on the time period of its child application; those two subclasses are (Subclass 837) when the child is in Australia during the application period, (Subclass 117) when the child is not in Australia during the application period.

In accordance with the provisions of 837, for the eligibility of visa, the child should be 18 or younger in age, unmarried or in a relationship, need to be sponsor by eligible relative and must be in a circumstance in which their family is not able to take care of them as they are dead or are unable to care for them. If the parents of the child are capable of caring them but are not wanting to, in this situation child is permitted to apply for Visa. If child’s parents are not found, then the application requires the time period of missing and what efforts have been made in order to find them.

Responsibilities regarding acquiring and utilizing visa of orphan’s relative are mentioned as below:  

Eligibility of Sponsor

Sponsor is required to follow the following obligations for being eligible to sponsor an applicant for a visa.

Eligibility criteria sponsor is required to satisfy one of the following aspects, i.e. a citizen of Australia, a citizen of New Zealand, permanent visa of Australia holder.

Note:  An eligible New Zealand eligible citizen sponsor should also experience health and quality requirements.

A sponsor is also required to be the brother or sister, nephew or niece, aunt or uncle, grandparents of the child. The sponsor must be an official citizen of Australia for a reasonable time period (2 years), and lastly must be of 18 years.

Note: In case the age of sponsor is less than 18 years, then their cohabitating partner can act on behalf of the sponsor, only if they are of 18 years or one from the following information; citizen of Australia, citizen of New Zealand, permanent visa of Australia holder 

Custody of children below the age of 18 years

Sponsors are required to meet one of the following given obligation while giving application to sponsor children less than 18 years; they must contain the own official right to identify where shall the child be living, or eliminate the child from residential country, if another person can officially identify where the child must be living, the sponsor must acquire a legislative statement from this individual, giving permission to migrate their child. They must hold a viable order through court permitting them to permanently eliminate a child from the residential country of the child. They must obtain an order from court issued by Australian Family Court, and the visa grant should be reliable according to the order. 

Advice

On the basis of legal provisions and case facts, it can be said that Hasan is entitled to adopt Melek as per the provisions of orphan relative visa onshore subclass 837 by considering the cited requirements. It is because Melek is under 18 and her mother is dead, and Hasan is only eligible relative to assist her.

If the option of Orphan Relative Visa is not available with Hasan, then he wants to inquire about other available options to assist Melek for obtaining permanent residence in Australia.

Legal provisions

Remaining relative visas (subclass 835/115)

  Provisions of Remaining relative visas 115 enables youngsters who have relatives, living in Australia as the permanents citizens. The sponsor must give a pledge to support the child. A child is a visa eligible if he/she has a parent, sibling (must be a citizen of Australia) and if he/she has no sibling, parent or nondependent children apart from those living in Australia. Sponsor is mandatory to make available a written response in order to provide support to the child, accommodation and financial help for the child for initial 2 years of residing in Australia on a Remaining Relative visa.

It enables the child to remain and travel in Australia for ever. The child can study and work in Australia; they can register in Medicare, schemes in Australia regarding health care and expense, can apply for the citizenship of Australia (if eligible), sponsor who is said to be eligible relatives for permanent residence, can travel in and around Australia (for 5 years) from the time the visa is approved, after the date there will be required of another visa to come into Australia

Adoption of child

An individual relative in Australia is entitled to adopt a child if there is of 18 years or above and they are resident of the country. For this purpose; they are required to make application to the Chief Executive Officer of department of Family Court of Western Australia, and they must provide approval for the placement of the child, for the purpose of adoption. Further, they must having physical and mental eligibility to take care of child until they attain the age of 18 years and they are having willingness to support the connection of child with their parents and culture in a best possible manner. Their relationship with the child must be stable and they should be able to provide stable family environment. In addition to this, they must not be guilty of any conduct and have good reputation in society.

Advice

By complying with the above-described options, Hasan will be able to assist Melek for obtaining permanent residence in Australia as all the conditions of the cited options are satisfied as Melek is currently residing in Australia and she is getting of assurance of support from Hasan and family members satisfies the criteria of health and moral conduct. Further, for adoption of Melek, Hasan is required to attend general information session and then two or three education session. After these sessions, he will be able to file expression of interest for adoption of Melek supported by formal application. Department will review application of Hasan to ensure that he satisfied all the essential criteria to be eligible for the adoption.

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