The explanatory statement to the legislative instrument that created visa subclass 870 states that the new visa "is not intended to be a pathway to any other parent category visa". However, with respect, the legislation has not achieved that purpose. For instance, we explain how it is possible to apply for an 870 visa and then, while that application is pending, apply for a 143 visa, and vice-versa.
It is true that the legislative instrument that introduced visa subclass 870, the Migration Amendment (Temporary Sponsored Parent Visa and Other Measures) Regulations 2019, has added the following provision to Schedule 1 of the existing parent visas (e.g. subclasses 143, 173, etc):
(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.
Let us use, as an example, visa subclass 143.
The above provision does not prevent the making of a valid application for subclass 143 in all circumstances. That is only prevented if, at the time of the 143 application, the applicant "holds" a subclass 870 visa.
If, at the time of application for the 143 visa, an 870 visa has been applied for, but not processed, the 143 applicant does not "hold" an 870 visa. In that case, the above provision will not prevent the making of a valid 143 application.
However, that is not the end of the story. It is also true that Schedule 2 for subclass 143 includes the following provision:
143.22 Criteria to be satisfied at time of decision
143.232 If the applicant has previously made a valid application for another parent visa, that application is not outstanding.
Schedule 2 appears to indicate that if, at the time of the decision whether to grant a 143 visa, the applicant has a pending 870 application, the 143 will be refused, correct? Wrong, for the following reasons.
The remainder of this article is only available to Premium and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Premium or Platinum subscription, click on 'Login' below.