Tag Archives: 870 visa

Renewing Subclass 870 Visas – The 90 Day Conundrum

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Many individuals apply for subclass 870 Sponsored Parent Temporary visas while they are waiting for permanent residency visas to be granted under subclass 143, Contributory Parent.

Subclass 870 visas are granted with a 3 year or a 5 year validity.

With processing times for subclass 143 visa applications now taking substantially longer than was anticipated when the applications were lodged – and was indicated by the Department of Home Affairs at that time – subclass 870 visa holders are now having to renew the visa because their permanent residency visa is not going to be granted within the validity period of their present 870 visa.

A practical problem facing those intending to renew their 870 visa is the need for most to be outside Australia for at least 90 days before applying.

This is what the Migration Regulations relevantly say:

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.

Permissions to apply onshore – ie when in Australia – for an initial subclass 870 visa were being approved during the Covid period when the border was closed.

However, such permissions are no longer being approved generally.

Department of Home Affairs policy guidance in this regard says:

Permission may be given to apply while in Australia in exceptional circumstances, such as an accident or serious illness which means the person cannot depart Australia to apply outside Australia.

There are no criteria in the Regulations in relation to approval of requests for permission to apply in Australia. The Minister has an unfettered discretion to give permission and all requests for permission must be considered on their merits. However, as indicated above, the policy intention is that permission will only be granted in exceptional cases, which would usually be where the parent is unable to depart Australia. The general expectation is that parents must apply for the Subclass 870 visa from outside Australia.

A request for permission to apply in Australia may be approved if the parent is unable to depart Australia, due to, for example:

  • an accident or serious illness (there should be medical evidence provided with the request); or
  • a natural disaster preventing travel to parent’s home country (e.g. ongoing ash cloud due to a volcanic eruption, pandemic or war).

On the other hand, a request for permission to apply in Australia should generally not be approved if the only reason for the request is that:

  • the parent does not want to travel overseas because of the cost and inconvenience including situations where a prospective visa applicant would simply prefer to remain in Australia for family related reasons (eg because a family member is due to give birth). In this case it is the responsibility of the parent to apply for and be granted a different visa if they seek to remain in Australia, before departing and re-applying for a further temporary parent visa offshore;
  • departure of the parent is not convenient for the sponsor;
  • the prospective visa applicant has sold their assets in their home country, and set themselves up in Australia in anticipation of being able to apply for and be granted another visa without leaving Australia;
  • the prospective visa applicant has failed to meet the permanent visa health requirement in relation to another visa application

A request for permission to apply in Australia should be supplemented with detailed information outlining the circumstances that are relevant to the request. 

A question to be asked by those whose subclass 870 visa is about to expire is therefore: do I need another subclass 870 visa?

Key to answering this is the reasonably expected timeline for the subclass 143 visa to be granted.

In this regard our contributory parent visa processing time calculator may be helpful to provide an indicative timeline of when the subclass 143 visa will be granted.

If there is a reasonable expectation of subclass 143 visa grant within 12 to 15 months of your subclass 870 visa expiring and you want to spend substantially all of that time in Australia you might reasonably look to a 12 month visitor visa under subclass 600.

If the processing time for the 143 visa grant is longer than this and you cannot leverage the exceptional circumstances provisions discussed above you should plan to have an extended holiday outside Australia of at least 3 months.

The sponsor application would be prepared in the last few weeks of one’s time in Australia – recall here that a new family sponsor approval application cannot be submitted while an existing family sponsorship is ongoing.

Family sponsorships are presently taking some 6 to 8 weeks to be approved.

The subclass 870 visa application would then be lodged, after which one can return to Australia on (say) a 3 month visitor visa (subclass e651, if available) while awaiting a decision on the 870 visa application.

Remember than you can be in Australia when a subclass 870 visa is granted.

At the moment visa applications under subclass 870 are also taking 6 to 8 weeks to be processed to a decision.

Clearly there are several logistical issues to address in this situation.  

Go Matilda Parent Visas will be delighted to support existing subclass 870 visa holders who need help renewing their subclass 870 visas.

Please complete the enquiry form on this web page if you think you will need help with your subclass 870 visa renewal and would like a free initial chat.

 

 

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

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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

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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.

 

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

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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.

Number of visa applications on hand – Subclass 870, Temporary Sponsored Parent Visas

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We have received details of the number of subclass 870 parent visa applications that are awaiting processing and the granting of visas.

As at 31 August, 2021 there were 1,826 applications on hand at the Department of Home Affairs, awaiting a decision.

Given there is an annual quota of 15,000 visas available under this visa subclass there is clearly scope for all of these visas to be granted once Australia’s Covid related border restrictions are eased – and for over 13,000 more visa grants before the end of the current program year on 30 June 2022.