TOPICS
| Relative – Defined | He definition of a family or family member is important for the type of visa subclass under application or eligibility of secondary applicants. |
| Parent Visa Applications – 1 at a time only | Only one parent visa application can be considered by the department at any one time. |
| Balance of Family Tests | Some parent visa applications are subject to BFT. |
| ‘Settled’ and ‘usually resident’ | Sponsorship eligibility can be affected by the determination of being settled or usually resident. |
| Cap and Queue System | Understand the basics of the cap and queue system. |
| Working Aged Verses Aged Parents | This distinction is important for when and where applications are made. |
| Assurance of Support | A number of family visas will require an assurance of support or bond of assurance. |
Relative – Definition
For certain family sponsorships, the definition of a family member will determine the applicant’s eligibility. The following relationships usually apply:
| Close Relative | a spouse, de facto partner, child, step-child, adopted child, parent, step-parent, brother, sister, step-brother, step-sister, adoptive brother or adoptive sister |
| Relative | Close relatives + grandparent, step-grandparent, grandchild, step-grandchild, aunt, uncle, step-aunt, step-uncle, niece, nephew, step-niece or step-nephew |
| Skilled regional or sponsored | All relatives + first cousin |
| Refugee or humanitarian | All relatives + First or Second cousin |
| Child | Can be child by birth, adoption or step child (however certain Regulations will limit secondary applications for some child types under certain conditions) |
| Dependent Child | – Child or step child not yet 18 years of age- Child or step child not yet 25, unmarried and not engaged, who is dependent upon the applicant or not able to work due to mental or physical incapacity. |
| Stepchild | – Child of current spouse or de facto partner or- Child of former spouse or de facto but now under guardianship or custodial care by law. |
Parent Visa – One only at a Time
Current law only permits one parent visa application to be considered at a time. A second and concurrent parent visa application would be invalid, and thus not considered by the Department.
Balance of Family Tests
Balance of family tests are applied to parent sponsorships. The important element in the balance of family test is the weighing of eligible with ineligible children.
Eligible children are those considered to be usually resident in Australia, such as PR or citizens of Australia. Ineligible children are those usually resident in an overseas country.
All children and step children are considered in the test, and the nature and quality of the relationships are not considered.
The test is applied only at time of application.
‘Settled’ and ‘Usually Resident’
When applying to sponsor a relative through a number of the Family visa subclasses, the degree to which an applicant is considered ‘settled’ or ‘usually resident’ in Australia will influence the decision by a case officer.
Australian Immigration Law often limits sponsorship of family members to those sponsors who can demonstrate their commitment to Australia. This is contained in the Migration Regulations at (at R1.03) to be one who is ‘settled’ by being lawfully resident for a reasonable period (usually taken by policy guidance to be around two years, depending on the particulars of the case).
Persons with less evidence of permanent ties to Australia may be considered ‘usually resident’. The departmental officers will consider a person to be usually resident by such factors as:
– Their physical presence in country;
– Length of stay;
– Places where they eat and sleep and make usual abode;
– Whether they retain or seek the right to re-enter the country (for example, whilst the holder of PR);
– The demonstrated intent to make Australia their usual country of abode.
To make a stronger case for sponsorship in family visa applications, it is advisable to demonstrate strong ties to Australia through the key areas of employment, family, emotional, assets, cultural and social links. The more documentary evidence that can be provided, the stronger your case will be in showing long term commitment to a life Australia.
Passing the balance of family test requires the applicant to show that the number of eligible children or step children are equal to or greater than the number of ineligible children.
Changing Sponsor
Often times it is necessary to change sponsor for a family sponsorship application, either because of changed circumstances or, for example, when it is important to provide for assurance of support.
This may also be required in order for a sponsoring family member to meet the two year requirement to provide accommodation finance and employment support to certain sponsored family members.
Cap and Queue System
The capping system limits the number of visas issued to applicants for a certain subclass in a financial year. Those applicants outside of the number of capped applications will roll over into the following financial year for reconsideration.
Their place in the queue will remain at the level they entered, progressing slowly to consideration of their application when sufficient spaces are available.
Spouse and child subclasses are not capped.
Working Age verses Aged Parents
Aged parent visas can be applied for onshore or offshore, whilst working aged parent visas can only be applied from offshore.
The definition of working as opposed to aged parents is the age at which the individual is entitled to apply for the aged pension in Australia.
Aged parents applying for subclass 804 visa onshore cannot be subject to condition 8503 No Further Stay or be barred from applying for substantive visas (for example, because they are illegal non-citizens).
Assurance of Support
Assurances of support (AoS) are administered by Centrelink and not DIAC. AoS is an undertaking by an Australian resident or organisation (the assurer) and the Australian Government. Under an AoS, the assurer agrees to support the migrant (the assuree), so they do not have to rely on payments from Centrelink. The assurer also agrees to repay any recoverable payments paid to the assuree during the AoS period.
Support for any children of the assuree may also be covered by the agreement.
Centrelink decides who can be an assurer by assessing the assurer’s financial capacity to provide support. Before applying to become an assurer, a person should consider whether they are able to meet the legal and financial obligations of providing an AoS.
Mandatory, or bonded, AoS are required for only Parent, Aged Parent, Contributory Parent, Aged Dependent Relative and Remaining relative visas.
Assurers can be anyone (or organisation) aged over 18, Australian or New Zealand citizens and have the financial capacity to meet the assurance undertakings and is willing to assure against debts to the Commonwealth by assurees.
Assurances can cover two adults and multiple dependent minors. Dependents over the age of 18 require separate assurances.
Assurances are evidenced with present proof of income for individuals, or financial statements of organisations, as well as evidence of income for the previous two years. Notice of Assessment issued by the ATO are typically used.
Joint assurances are permissible where the assurer does not have the financial capacity or evidence of proof of income to be eligible to be assurer in one’s own right.