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:
(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.
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.