spuds

Hi Guys,

OK, following on from enquiries yesterday, my brother has decided that the easist route to PR might be a defacto relationship visa. His girlfriend has citizenship though they have not lived together for 12 months yet so I'm assuming they will have to proove their relationship through other means.

The fact is that he needs PR in order to get my parents into Australia on a contributory parent visa. I will have had PR for 2 years next April and am happy to sponsor my folks but as we have a step-sister in the UK we need to both be Permanent Residents in Aus for them to meet the 'Balance of Family Test.'

So... as the defacto visa is granted in two steps - a temp visa first and then PR two years later - do we have to wait for the full PR visa in order to meet the Balance of Family requirements or will he count as a PR/settled with the temp de facto visa?

Help please!

Thanks,

Em

phoenixinoz

Hi Em

I've attached the CPV booklet for you to take a look at;-)

I have had a quick look and on page 12 it states ""at least half of your children must be PERMENENTLY resident in Australia"

I hope this answers your question?...but before you give up hope, read the document as sometimes there are extra clauses ;-)

Good luck!

spuds

Hi PhoenixOz,

Thanks for that though I have already read it from cover to cover! The DIMIA website suggests the following:

All parents applying for a visa in the Parent or Contributory Parent category must meet the 'balance of family' test. This means the parent must have:

at least half of their children living lawfully and permanently in Australia, or

more children living lawfully and permanently in Australia than in any other single country overseas.


The point is, both my brother and I will be living lawfully and permanently in Australia though he won't have full PR until the end of 2007. Does this make him a temp resident in the meantime or will he still count as a PR???

welshtony

The regulation says that your brother must be "lawfully and permantly resident in Australia" - it does not expressly say he must be the holder of a permanent visa - so there may be room to argue that this is the case once he receives a temorary partner visa.

Unless they get married and/or have a child, they will need 12 months de-facto evidence before applying.

Also, the fact that you have a step-sister is not relevant to the Balance of Family test - it is a question of whether your parents have 2 or 3 chidren. If your step sister is not the natural or adopted child of either of your parents, then she may or may not be a step-child under migration law and even if she is a step child under migration law, she may still not be a consideration under the balance of family test.

So get professional advice on this, it is quite technical and relates to the definition in the migration regulations as well as the definition of Balance of Family.


Tony

spuds

Hi Tony,

Thanks for that, the 12 month 'living together' restriction can also be gotten round by the looks of it:
"Partners who are not living together may be required to demonstrate a high level of proof that they are not living separately and apart on a permanent basis."

They have been together for 12 months, just not living together for all that time.

As for my step-sister I think she is actually a half-sister by law and is my father's but not my mother's child so she will count towards the balance of family test. I just don't want to spend $4 for a migration agent to tell us what I pretty much already know!

I just need to find out whether he is counted as living in Australia permanently if he is granted the temp spuse visa.

welshtony

OK - so if she is your father's natural child then there is no way we can look at the possible loophole concerning step children.

the de-facto 12 months can take into consideration periods of separation in between periods of cohabitation, depending on the circumstances - so if they were living together at some stage 12 months ago or more, you may have a case.

On the "Lawfully and permanently resident in Australia" - I think this is open to interpretation. However, Immigration policy suggests to meet this requirement, he should be the holder of a permanent visa. So if you apply and argue the point clearly, there is a chance of success - unfortunately, there is a larger chance of failure in my opinion, as the DIMIA officers tend to follow the policy ahead of the law. It is no consloation that you could appeal to the MRT as by the time a review application was processed, your brother would have got his permanent residence.


Tony

phoenixinoz

Hi Em

Sorry I didn't reply. I've been out all day and I'm about to go out again tonight.

I notice welshtony has answered your questions, so you're in very good hands! [good onya Tony]

Fingers crossed all goes well for you Em ;-)

JAJ

If they have not lived together for 12 months, be aware that DIMIA are usually quite strict on this requirement (it doesn't apply if legally married, but does apply to de-facto couples).

This certainly won't be the quickest way to PR compared to doing a skill assessment and getting PR through ENS.



Jeremy