Migration Law and Death
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 13th November 2024
“Nothing is certain, except death and taxes”
In life many of us prepare for the eventuality of death, like, getting life insurance, making a will etc.
In migration law, very few people prepare for death, yet death can lead to the death of a visa application.
Death of the primary applicant will lead to each secondary applicant not meeting the time of decision ‘member of family unit test.
Even if we look at the basic criteria for the subclass 482 visa the secondary criteria states:
(1) The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.
If the primary applicant dies during the visa processing stage then the primary applicant, of course, being deceased is not the holder of a subclass 482 visa.
In relation to the subclass 186 visa the secondary criteria states:
186.3 Secondary criteria
Note: These criteria are for applicants seeking to satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.
186.31 Criteria
(1) The applicant meets the requirements of subclause (2), (3), (4) or (5).
(2) The applicant:
(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) made a combined application with the primary applicant.
As can be seen, once the primary 186 visa applicant dies, the primary visa is not granted and therefore the secondary visa is not the member of the family unit of a person who holds a 186 visa.
The 186 visa does have a family violence exception for secondary visa applicants if the relationship with the primary applicant has ceased (which would include death) and the secondary visa applicant experienced family violence.
Of course some visas have a specific rescue criterion for a person whose partner has died, ie the subclass 820 partner visa;
820.22 Criteria to be satisfied at time of decision
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
Rarely does anyone do anything to consider the contingency that the primary visa applicant might die before grant.
Usually the secondary visa applicant would have been without a substantive visa for more than 28 days so the options for applying any sort of visa onshore are very limited.
Acting quickly one could apply for a BVB and then apply for a further visa offshore, a student visa is an obvious example.
Generally secondary visa applicants put all their eggs in the primary visa applicant’s basket.
The normal ‘insurance’ approaches we take in life elsewhere are just not considered.
Secondary visa applicants (including both partners and offspring) should acquire a score of at least a 6 in the IELTS (or the equivalent). Secondly they should also skill up to be a possible candidate for a subclass 482 visa. Persons holding a BVA can generally do an apprenticeship in Australia, because of the low wages for an apprentice, they would still be a dependent. Of course BVA/BVB holders can study and acquire skills (assuming they have permission to study).
The other rescue process is the various working holidays visas but this requires a trip offshore.
The tragic situation I have come across regularly enough is the death of the primary applicant and the dependants end up having spent years in Australia having lived in foreign bubble in Australia, with minimal English, poor education and minimal skills, all relying of the eventual visa grant visa the primary applicant who ended up dying before grant.
Sometimes a person will get notice of a pending death and callous as it may sound the secondary visa applicants have to plan for that.
Finally a note on the transition from the temporary business visas to the permanent residence business visas (ie the subclass 888), often the primary visa applicant is elderly and the parties need to be aware that death before the permanent residence grant has to be planned for.
All instances, where there is a death or impending death of the primary applicant, need specialist advice.
The ‘death and taxes’ quote comes from Benjamin Franklin, one of USA's Founding Fathers. On 13 November, 1789, he wrote to French scientist Jean-Baptiste Le Roy which included this:
"Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes."
However while Franklin made the quote famous, it also turned up in a play 70 years earlier by Christopher Bullock in his work, "The Cobbler of Preston" where the script included, "it's impossible to be sure of anything but death and taxes"!
My life adage is that all knowledge is acquired, consciously or subconsciously and perhaps Franklin at some stage saw the play before he wrote his famous letter.
This article was written on 13 November 2024.
Lorenzo Boccabella, Barrister-at-law, specialist in migraiton law