Is your family eligible for visa on basis of their relation to you?
November 10, 2016
After next Friday 18 November 2016, your adult children and other relatives may not be able to obtain a visa on the basis of being a member of your family unit.
Broadly, a person may be eligible for a visa if they are a member of the family unit of a person who meets the primary criteria for the grant of the visa.
For instance, if you are eligible for a subclass 186 Employer Nomination Scheme visa on the basis of your work with your employer, members of your family unit would generally also be eligible for that visa on the basis of their relationship to you.
Current law until 18 November 2016
In summary, the following people may currently be accepted as a member of your family unit:
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your spouse or de facto partner;
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your dependent children (and their dependent children if any), including step equivalents; and
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other relatives who are not married or in a de facto relationship (single), who usually live in your household and are dependent on you. Other relatives include: grandparents, grandchildren, aunts, uncles, nieces, nephews (and their step equivalents).
After 18 November 2016, some children and other relatives will no longer be accepted as a member of your family unit for Australian immigration law purposes (unless you are applying for a refugee or humanitarian visa).
New law from 19 November 2016 onwards
For the purposes of applications lodged on or after 19 November 2016, membership of your family unit will generally be limited to your:
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spouse or de facto partner;
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children / step children who are single and not engaged to be married, and:
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are under 18 years of age;
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are between 18 and 22 years of age and are dependent on you or your spouse or de facto partner; or
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are 23 years of age or older and are wholly/substantially reliant on you or your spouse or de factor partner for financial support due to a total or partial loss of their bodily or mental functions.
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As a concession, under the new law if a person was granted a specified visa on the basis of being a member of your family unit (including under the law which applies until 18 November 2016), and whilst holding that visa the person applies for a specified further visa, they will be deemed to continue to be a member of your family unit.
For instance, if your healthy 25-year-old daughter was granted a Subclass 457 visa on the basis of being a member of your family unit, she will be eligible for a further Subclass 457 visa, Subclass 186 visa or a Subclass 187 visa on the basis of being a member of your family unit if she applies for such visa prior to the expiry of her existing Subclass 457 visa.
In the case of student visa applications, the new law is even tighter; excluding all children aged 18 years or more altogether. Whilst, in the case of distinguished talent visa applications by children under 18 years of age, the law includes concessions in the case of parents and members of their family unit.
To take advantage of the current law which will only apply until Friday 18 November 2016, or for advice and information about your particular circumstances, you should reach out to your usual Fragomen contact or email [email protected].
MARN 0318952
