Dependents & secondary visa holders of applicants sometimes get left behind


 


DEPENDENTS & SECONDARY VISA HOLDERS OF APPLICANTS SOMETIMES GET LEFT BEHIND

By Lorenzo Boccabella, BA, LLB, a specialist in migration law (26 November 2020)

Dependents and sometimes partners can be in quite a fragile situation during the visa processing stage and during any visa cancellation process.  Death of the primary applicant will be a visa disaster as well. The age of the dependent needs careful management during the processing and progression to permanent residence. Secondary visa holders can become stranded in a visa cancellation of the primary visa holder.

The skilling up of the secondary visa applicants therefore is never to be ignored.

Death of the primary applicant before visa grant for example would usually mean the offspring of the visa applicant are no longer members of the visa applicant’s family unit and the visa cannot be granted.

For example in a mixed family situation,  in the transition from a subclass  309 to a subclass 100 partner visa, if the father dies before the grant of the subclass 100 permanent resident visa then the offspring of the father will no longer be eligible for grant of the permanent residence subclass 100 visa!

Similar catastrophes can occur in the processing of a second subclass 482 visa. If the primary applicant dies during the processing period the visa will not be granted to the secondary applicant/s

In some visa cancellations, the secondary visa holders will be left stranded through the effect of s140 of the Migration Act which states:

(1)  If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia)… a visa held by another person because of being a member of the family unit of the person is also cancelled.  

In many visas the secondary visa criteria needs to be satisfied at time of decision, ie the subclass 482 visa and many others.

The member of the family as far as offspring are concerned is defined in Reg 1.12(2):

General rule

 (2)  A person is a member of the family unit of another person (the family head) if the person:
(a)  is a 
spouse or de facto partner of the family head; or
(b)  is a 
child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

(i)  has not turned 18; or
(ii) 
has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii)  has turned 23 and is under paragraph 
1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or 

(c)  is a dependent child of a person who meets the conditions in paragraph (b).

Dependent’ is defined in Reg 1.05A:

Reg 1.05A    Dependent 

(1)  Subject to subregulation (2), a person (the first person) is dependent on another person if: 

(a)  at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b)  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.

There is a concession for the transition from some visas to another visa, a notable exception is the transition from the subclass 188 to the extension 188 in the business visa regime, where there is no exception. The exceptions are setout in reg 1.12(5) and broadly cover:

Contributory parent temporary to permanent,

Business skills temporary to permanent (but not the extension visa)

482 to ENS or RSMS

457/482 to 482

In these cases, of course, the visa applicant in the second visa does not have to be under 23.

But in many cases, (1)death of the primary applicant or visa holder, (2) the offspring turning 23 before visa grant or (3) the primary visa holder’s visa being cancelled, will lead to the offspring and in some cases the partner, stranded.

So secondary visa holders need to skill up meet criteria for other visas in their own right, including meeting English language requirements. Partners often are stranded by having failed to learn English even though they have been present in Australia for years. Often partners are left in low skilled jobs like cleaning without thinking about their own individual visa future.

Of course, in all of the above, there needs to be a careful balance between remaining dependant for the visa grant process and working or skilling up. A person can have part-time work and still be dependent. But never let the 23 age date approach without careful planning.

If visa cancellation is looming then the secondary visa applicants need to scramble to qualify for and apply for another visa before the visa cancellation happens.

For permanent resident visas, the secondary visa holders should get Resident Return Visas in their own right as soon as the two year’s residence qualification is up.

Fortunately in character cases, visa cancellation is not automatic for secondary visa holders. But if the secondary visa holder was hoping for a new visa on the basis of being a dependent of the primary visa holder then that pathway is shut.

If there is a death of a primary visa holder in transition to permanent residence, there must be very careful planning. There is no need to notify Immigration immediately. In say the subclass 309 stage the secondary visa holder still holds a valid visa and can apply for a new visa. The strategy there would be to take advantage of the time available to position oneself to apply for a new visa. A student visa is an obvious pathway.

Finally offspring of a subclass 820 visa applicant are caught by the bar on applying for a new partner visa if there is a relationship change and the applicants need to take advantage of the concession on the s48 bar!

This short article does not cover catastrophic accidents to the primary visa applicant who may then fail the 4005 health test, secondary visa applicants will similarly have their visas refused.

Divya Aggarwal