All posts by Alan Collett

Subclass 870 Visa Holders – Condition 8501 – Requirement to Maintain Health Insurance – RHCA Relaxation

Condition 8501 is required to be included on all subclass 870 Sponsored Parent Temporary Visas.  

This condition requires the visa holder to maintain adequate health insurance for the duration of their stay in Australia.

However, Department of Home Affairs policy guidance provides a relaxation for those who can access Medicare under a Reciprocal Health Care Agreement (RHCA).

At the current time Australia has Reciprocal Health Care Agreements (RHCAs) with eleven countries, being the United Kingdom, Sweden, Belgium, Finland, Italy, Malta, the Netherlands, New Zealand, Norway, Slovenia and the Republic of Ireland.

The provisions of RHCAs vary, and frequently entitle residents of these countries to obtain a RHCA-specific Medicare card and to receive access to limited subsidised health services for medically necessary treatment while visiting Australia.

It should be noted that simply being a citizen of a country that has a RHCA with Australia may not necessarily entitle a person to access Medicare –  Services Australia is responsible for determining a person’s eligibility to enrol in Medicare under a RHCA.

Importantly for subclass 870 visa holders who have arrived in Australia from a RHCA country if the 870 visa holder has enrolled with Medicare and holds a valid Medicare card issued under a RHCA the Department considers they meet the minimum requirements for adequate arrangements for health insurance given the RHCA covers the visa holder for the entirety of their stay in Australia.

Individuals who have not yet enrolled in Medicare under a RHCA must obtain private health insurance even if they are entitled to Medicare.

In other words private health insurance must be maintained by a subclass 870 visa holder while in Australia until s/he has enrolled in the Medicare system under the applicable RHCA.

A couple of specific additional points:

  • Citizens of the Republic of Ireland are not eligible to receive a Medicare card but can access certain Medicare services by presenting their passport. Therefore, for citizens of the Republic of Ireland, the Department considers that evidence of an Irish passport is sufficient to meet the requirement for adequate health insurance.
  • Those who are residents and citizens of Malta or Italy are eligible for a reciprocal Medicare card only for the first six months of their stay in Australia.  This is sufficient to meet the requirement to have adequate arrangements for health insurance at the visa application stage, but these persons will need to make adequate arrangements for health insurance once they cease to be eligible for reciprocal health care to satisfy condition 8501.

 

Subclass 870 visa renewals – The need to be outside Australia – Visa strategy for subclass 870 visa holders

The first subclass 870 Sponsored Parent Temporary Visas were granted almost 3 years ago.   With the validity of these visas coming to an end and the processing time for subclass 143 visas extending significantly beyond what was expected when the first SPTVs were granted thoughts are now turning to the requirements for subclass 870 visa renewals – including most notably the need to be offshore (outside Australia) for a period of time.

Underpinning the requirements for the granting of visas generally is legislation (ie the law) and Department of Home Affairs policy guidance.

Relevantly, the Migration Regulations say in the time of application requirements for subclass 870 visas:

870.223

(1)  If:

(a) the applicant is outside Australia at the time of application; and

(b) the applicant previously held a Subclass 870 visa; and

(c) there are no exceptional circumstances;

the applicant has been outside Australia for at least 90 consecutive days since the relevant departure day of the applicant.

(2)  The relevant departure day of an applicant is:

(a) if the applicant was in Australia when the last Subclass 870 visa held by the applicant ceased to be in effect—the first day on which the applicant left Australia after that visa ceased to be in effect; or

(b) if the applicant was not in Australia when the last Subclass 870 visa held by the applicant ceased to be in effect—the last day on which the applicant left Australia while that visa was in effect.

The key to not departing Australia is therefore whether one can argue “exceptional circumstances.”

In this regard we have been advised by the Department as follows:

As a temporary visa, the SPTV does not provide a right to remain in Australia permanently. Clause 870.223 gives effect to the policy intention that an applicant must be outside Australia for at least 90 consecutive days before making an application for a second SPTV.

 If a SPTV holder is unable to depart Australia prior to the expiry of their visa, a sponsor can request that the visa holder be permitted to apply for a further SPTV in Australia, or they can apply for an alternative visa to maintain lawful status.

It should also be noted that Schedule 1 of the Migration Regulations 1994 says that: “… an applicant for a subclass 870 visa cannot be the holder of an 870 visa at the time the visa application is submitted.”

This means that an application for a further subclass 870 visa if an existing 870 visa is currently in effect will be an invalid application.

If one wants to remain in Australia upon the expiry of an existing 870 visa and is to seek a renewal 870 visa another visa will therefore be required between the two subclass 870 visas.

This might be – say – an onshore visitor visa (subclass 600), or a student visa (subclass 500).

Key in this regard is avoiding the inclusion of condition 8503 No Further Stay on the visa.

A condition 8503 prevents an application for another visa being submitted while in Australia.

Note: The Department of Home Affairs has announced a concession due to COVID restrictions on the ability to enter Australia.

If you held a Sponsored Parent Temporary Visa (subclass 870) and were outside Australia on 1 July 2021 your visa period has been automatically extended by 18 months.

This concession aims to assist SPTV holders who could not spend the full 3 or 5 years on their visa in Australia due to COVID-19 travel restrictions.

If your visa was extended under this concession, the additional 18 months will not count toward your cumulative 10 year maximum stay period.

Sponsorship obligations for SPTV Sponsors have also been extended for the same 18 month period.

Comments:

Visa strategy and a consideration of timing are going to become key issues for parents who have subclass 870 visas.  

With a need for approval of the sponsor required before the 870 visa renewal application can be lodged there are real risks here for those who don’t understand the requirements and plan accordingly.

We foresee subclass 870 visa holders going through the distress and upset of having to depart Australia at short notice, or becoming unlawful – ie staying in Australia after the expiry of the 870 visa and not having applied for a further visa that will allow them to remain in Australia.

Many parents who hold subclass 870 visas have bought homes in Australia/have long term rental commitments for their homes, and have brought their personal wealth to Australia in anticipation of their application for permanent residency visas under subclass 143 visa (Contributory Parent) being processed on the basis of timelines advised on the website of the Department of Home Affairs.

As readers of this blog will know, these timelines are backward looking, and do not bear any resemblance to the actual timeline one should expect given the number of visa applications in the system and the number of visas being granted annually.

Details of visa processing times for parents are available here.

We strongly recommend that subclass 870 visa holders take active steps 6 to 12 months before the expiry of their visa to consider their visa strategy and what should be done to ensure there is no interruption in their ability to remain in Australia.

Go Matilda Visas is actively involved in advising parents as to their visa strategies, the preparation of parent visa applications, and the management of parent visa applications to a decision.  

If you require help and support we invite you to complete the enquiry form on this web page.

 

Parent and Aged Parent Visa Processing Times – Number of Applications Lodged Presently

Go Matilda Visas has submitted a Freedom of Information request to the Australian Government and has obtained details of the number of non Contributory Parent visa applications under sub classes 103 (Parent) and 804 (Aged Parent) that were lodged and queued as at the end of December 2021.

As visa applicants and their families will be aware, the Australian Government presently advises a timeline for the granting of these visas of some 30+ years.

Schedules that detail the number of applications based on the queue date of the application are in the schedules below (pdf format).

It should be remembered that with visa sub class 804 a queue date is issued once an initial assessment of health and character – ie medical examinations and police clearances – has been completed successfully.

The total number of visas available across the subclass 103 and 804 visa sub classes was 900 in the program year to 30 June 2021, and is expected to be the same for the current program year that ends on 30 June 2022.

In addition, the Department of Home Affairs presently advises:

“Onshore Aged Parent (BP804) visas have been assessed up to Queued Date of December 2012.

Onshore Aged Parent applications with a Queued Date of December 2012 onwards are likely to take longer to process while we action offshore Parent (AX103) applications to bring the dates back to parity.”

At the time of preparing this blog the Parent Visa Centre is assessing subclass 103 visa applications that were queued up to October 2010.

Subclass 804 visa applications in train – 31 Dec 2021

Subclass 103 visa applications in train – 31 Dec 2021

Some High Level Thoughts

  • Given the details we have received and 900 visas allocated to these sub classes annually it will be some 7 years before subclass 804 applications are being assessed again by delegates at the PVC.
  • With a total number of visa applications under sub classes 103 and 804 of about 41,500, allowing for an attrition rate of (say) 15% (due to the withdrawal of the visa application – which might include transfers of applications to Contributory Parent visa sub classes 143 and 864; or the death of the visa applicant; or the failure to satisfy the health requirement), and a continuing annual number of visas granted of 900 we think the total processing time for a visa application under sub class 103 or 804 will be closer to 40+ years, rather than the 30+ years currently identified by the Department of Home Affairs – remembering that a queue date is usually forthcoming some 2 to 3 years after the visa application is submitted.
  • Of course, for subclass 804 visa applicants the difference between 30 and 40 years may not be overly significant, given the main applicant must be aged (as defined – presently 66.5+ years old) when the application is lodged.

Go Matilda Visas is a proactive firm of visa advisors.   We look after visa applications for a significant number of parents, and will be pleased to have an initial free no obligation conversation if you are intending to submit a parent visa application – whether this is for a non contributory or a contributory parent visa.

Please complete the enquiry form on this page if this is of interest.

 

 

 

Number of parent visa applications – Retirement visa pathway

In the last 3 years subclass 410 (Retirement) and 405 (Investor Retirement) visa holders have been able to obtain permanent residency visas under subclass 143 or 103, without the need to have family living in Australia or to meet the balance of family test.

See the details discussed here.

In so doing these visa holders are able to access the Medicare public health care system in Australia.

Many subclass 410 and 405 visa holders are otherwise unable to access Medicare.

We have obtained details of the number of these applications in the system as at 31 August 2021:

Number of Retirement Pathway visa applications – at 31 Aug 2021

Given the Department of Home Affairs allocated 125 x Contributory Parent visas to Retirement visa pathway applicants in the year to 30 June 2021 and there were only 48 applications outstanding as at 31 August 2021 we consider that subclass 410 and 405 visa holders who apply now for permanent residency under subclass 143 can reasonably expect a permanent visa to be granted in the next 6 to 12 months, particularly if the application is decision ready and the visa applicants have no significant health issues.

Note: following enquiry of the Department regarding when we can reasonably expect subclass 103 visa applications made by subclass 410 and 405 visa holders to be processed we are advised that there is no allocation in the Migration Program for the year to 30 June 2022.   We therefore anticipate subclass 103 visas for Retirement Pathway applicants will start being processed in the Program year that starts on the 1st of July, 2022.    Information in this regard updated on 6 Jan 2022.

If you are a subclass 410 or 405 visa holder, would like to apply for permanent residency, and would like to have a free initial chat to discuss your options please complete the enquiry form on this web page.

Subclass 870 visa applications and Other parent visa applications – You need to submit them in the right order!

The details of Australia’s migration regulations are ignored by many, particularly by those who don’t appoint a registered migration agent.

The consequences of doing so can mean parents and their children may need to spend years apart in different countries in the future – or you might find that you spend money on an application for a subclass 870 visa that has to be withdrawn if you want to also apply for a parent visa that provides for permanent residency.

Here are the details:

Schedule 1 of Australia’s Migration Regulations prevents a Sponsored Parent (Temporary) visa applicant or visa holder from applying for another permanent or temporary Parent visa.

Here are relevant extracts from the Regulations which pertain to the parent visas under subclasses 143, 173, 864, 884, 103, and 804:

If the applicant has previously made a valid application for another parent visa:

(i)  a decision to grant or to refuse to grant that visa has been made; or

(ii)  the application for that visa has been withdrawn

and

The applicant:

(i)  does not hold a Subclass 870 Sponsored Parent (Temporary) visa; and

(ii)  if the applicant held such a visa—has left Australia since that visa ceased to be in effect.

The same provisions do not apply for a subclass 870 application.

In other words, if you are thinking of applying for a subclass 870 visa as well as (say) a permanent parent visa under subclass 143 make sure you apply for the subclass 143 visa first.

Applying for a subclass 870 visa first will prevent an application being made for the subclass 143 visa, unless you withdraw the subclass 870 visa application – costing at least A$1,000 per visa applicant, plus (potentially) the family sponsor application fee of A$420.

And if a subclass 870 visa has already been granted the visa holder will not be able to apply for a permanent residency visa until the time the 870 visa has ceased to be in effect, and the individual has left Australia.

Visa strategy is therefore critical.

If you think you need help with your parent visa application Go Matilda Visas invites you to complete the enquiry form on this web page for a free initial discussion.

Once we have had an initial chat we can send details to you of our fee for assisting with a parent visa application.