Applicants for both Skilled and Humanitarian visas (as well as certain other visas) are entitled to include their immediate family as additional visa applicants. Thus, a migrant may be granted a subclass 482 (Temporary Skills Shortage) visa. This is a common employer sponsored visa where the applicant has skills that their employer has not been able to fill through the local labour market. If they have included their partner and children in their application, then each family member is granted a subclass 482 visa for the same period and on the same conditions as the main applicant.
The Migration Regulations refer to these additional family members, in typically robotic fashion, as being ‘members of the family unit’.
But according to the regulations who does (and does not) get to be included in the family unit on a visa application? For both better and worse, the Regulations stipulate that the ‘family unit’ is limited to:
- The family head (ie the main visa applicant)
- The spouse or de facto partner of the family head;
- A dependent child or step-child of the family head or a dependent child of the spouse or de facto partner.
Intriguingly, ‘dependent child’ can encompass not only those children under 18, but also:
- Children (including step-children) between 18 and 23 who remain financially dependent upon the family head or their spouse; or
- Children who have turned 23 but who are ‘the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions’.
A question we are frequently asked is whether an applicant can include an adult sibling with a disability in their visa application as part of the family unit. Unfortunately, as can be seen from the above, there is no latitude within the regulations to allow for this for non-humanitarian visas, although it is worth noting that for certain refugee and protection visas, the family unit can include:
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Its important to note that, for the duration of the visa grant, each family member holds their visa independently of one another. So, for example, where a spouse has been granted a subclass 482 visa for 4 years, and the relationship with the family head breaks down, there is no way the spousal visa can be ‘cancelled’ by the family head before the expiry of the 4 year period. (However, beyond that period, should they wish to stay, the spouse would have to apply for a new visa purely on the basis of their own skills and experience).
Whether the definition of who is part of the ‘family unit’ needs further refinement to accord with changing social mores is a normative one that is beyond the scope of this article. But nevertheless it can be helpful for prospective applicants to understand the limits of who may be able to migrate with them.
How can we help?
Snedden Hall & Gallop has experience in applying for and managing visas, and we are happy to assist you with these matters. Contact our Migration Team on 02 6285 8000 or info@shglawyers.com.au to discuss your unique situation.
