The evidence for being usually resident somewhere may be seen in a variety of factors, including maintaining a home in a particular place, going to work there, owning property, business or other interests there, having family and other ties in the place. Absence from a place at a particular time does not automatically mean it is not a person's usual residence, as the person may have already established usual residence there in circumstances where their absence is still consistent with having usual residence in that place.
It follows that a person who holds a permanent visa but has not activated that visa by entering Australia may, depending on the facts of the case, be considered usually resident if they have the intention of making Australia their home, had previously lawfully entered Australia (even if only on a temporary visa at that stage) and established the type of links that are indicative of usual residence
A person who has never entered Australia could not be found to be usually resident in Australia as they have never established their physical presence in Australia.
If you find that somewhat confusing I can assure you that you are not alone so the following examples may be of help.
A) There are three children in Jim`s family. Jim obtained his PR of Australia last month but has been living here the last 4 years on his student visa and then bridging visa. He has one sister in India and one sister living in the US. Since there are greater number of children who are not PR of Australia the balance of family cannot be met. If one of Jim`s sisters became a permanent resident and migrated to Australia the the BoF would be met and he could sponsor. Jim`s time on the student visa and the bridging visa would meet the settled and usually resident criteria.
B) Sue has one sister who is an American citizen living in the US. Sue obtained her Australian PR after her two year course here. As soon as she became a PR she was eligible to sponsor as the BoF has been met and she has lived in Australia for more than 2 years, thus meeting the settled and usually resident criteria. She can sponsor her parents.
C) Yatin has five sisters. Two in Australia and are citizens like himself, living here for a number of years. The other two sisters live back in India and have never been to Australia. Yatin can sponsor his parents for there are a greater number of children in Australia who meet the criteria.
D) Paul has one brother and one sister and they both live with him in Australia. Paul obtained his PR last week after a two year course here. His brother has also has applied for PR via the partner visa and has been granted the temporary residency visa last month. His sister is due to finish her course and apply for PR in about a month. Even though all the children live in Australia only one of them has the visa status that qualifies them to be counted, Paul. His brother is on the TR partner visa and will not become PR until his two years is up (another 18 months). When his sister applies for PR and this is granted, then the BoF will be met. If her application is delayed in processing then Pauls brother may obtain his PR first so then the BoF will be met.
E) Jesica has no brothers of sisters. She applied for PR of Australia whilst she was in America and had it granted last month. She plans to move to Australia soon and then wants to sponsor her mother to join her. The problem is that even though being a PR on one hand and moving to Australia to live permanently would meet the BoF as she could be considred as "usually resident" after a short priod, she cannot sponsor her mother until the definition of "settled" has been met. After she has lived in Australia for the required two year period her mother could then apply.
F) Peter has one brother who is now an Australian citizen like himself and a sister who lives in the UK and has no Australian residency status. Peter`s brother has just left to live in the UK with his sister for three years while he studies his Ph.D. there. He then wants to work for a while in Europe afterwards. Peters parents want to migrate to Australia. Since Peters brother has moved to the UK, even though he is an Australian citizen describing him as "usually resident` would be difficult and thus the BoF cannot be met. Peter will have to wait until his brother moves back to Australia before he can sponsor his parents.
G) Junaid is a PR of Australia and lived here for 5 years. He has 6 other brothers and sisters. Two brothers are here with him in Australia and they just obtained their PR. He has three sisters in Bangladesh and they have no Australian visas. One of his brothers is planning to return to Bangladesh for a year to do a one year Masters degree and is planning to return afterwards. He still keeps his car and possessions at his brothers place in Australia. The Bof can still be met since Junaids brothers abcence from Australia is only temporary and he has already established a life here.
Options for Parent visa
There are a number of options you can choose in lodging a parent visa for Australia which on paper seems appealing but in reality when you check the detail, they are limited.
A few years ago DIAC introduced a system where a medicare levey was charged to applicants to help the government share the burden of the expected elderly community would impact upon the Australian health budget. Most Australians could have cared less that new elderly arrivals had to pay a great deal to live in Australia however that was only one side of the picture. On the other hand many residents who had lived and paid their taxes for many years in Australia thought such a move was grossly unfair on them, they felt they had earnt the right to bring their parents to Australia.
So then you had two sets of parent visas one could apply for (Contributory sub classes), one where they paid a great deal of money, and where they didn't (Non-Contributory). These are as follows;
- Aged Parent (Residence) visa- Subclass 804
- Contributory Aged Parent (Residence) visa- Subclass 864
- Contributory Aged Parent (Temporary) visa- Subclass 884
- Contributory Parent (Migrant) visa- Subclass 143
- Contributory Parent (Temporary) visa- Subclass 173
- Parent (Migrant) visa- Subclass 103
Only the 804 and the 103 are the ones where the big money is not paid but DIAC has tried to force people away from applying for these by limiting the number of grants to such a trickle that it now can take up to 15 years before the grant decision making process will take place. This creates such disadvantage to those who do not have the monetary resources to apply for the contributory sub-classes.
The Aged Parent visa
Please find PAMS's Age requirements below.
There are 3 Age Requirements
The regulation 1.03 aged parent definition requires the persons to be old enough to be granted an age pension under the Social Security Act 1991, under which;
- all men qualify for an age pension at 65 years of age but
- transitional arrangements apply to women. The age at which women qualify for an age pension can be found using the table below;
Date of birth Period when women in age group qualify Age
Before 1.7.1935 Before 1 Jan 1996 60
1.7.1935-31.12.1936 Between 1 Jan 1996 & 30 Jun 1997 60.5
1.1.1937- 30.6.1938 Between 1 Jan 1998 & 30 Jun 1999 61
1.7.1938-31.12.1939 Between 1 Jan 2000 & 30 Jun 2001 61.5
1.1.1940- 30.6.1941 Between 1 Jan 2002 & 30 Jun 2003 62
1.7.1941-31.12.1942 Between 1 Jan 2004 & 30 Jun 2005 62.5
1.1.1943- 30.6.1944 Between 1 Jan 2006 & 30 Jun 2007 63
1.7.1944-31.12.1945 Between 1 Jan 2008 & 30 Jun 2009 63.5
1.1.1946- 30.6.1947 Between 1 Jan 2010 & 30 Jun 2011 64
1.7.1947-31.12.1948 Between 1 Jan 2012 & 30 Jun 2013 64.5
1.1.1949 onwards From 1 Jan 2014 onwards 65
Meeting the requirements to be considered as "aged" is one part, then next tough decision is which visa sub class to use.
In Part 2 to be released next Wednesday we will cover the advantages and disadvantages of each visa.