Changes to ‘Member of the family unit—direct family, definition.
Massive Effect On Filipino Partner Visa Applications.
On the 16th of November 2016, I sent ‘scenario’ to a migration law specialist for a clarification of
My email to him explained this situation:
Trying to get this scenario ‘around my head’ and I just need a second opinion please.
I have a potential applicant for partner visa.
However, she has a 10 year old and 30 year old brothers who she claims are ‘dependent family members’ to her.
Her own mother died January this year 2016 and the father abandoned that relationship 8 or 9 years ago and she can’t locate him anymore.
The birth certificate of the 10 old brother has the deceased mothers name but states the father as ‘unknown’ and she can prove he has been dependent on her ever since the mother died this January 2016.
The 30 year old brother is currently on a student visa without ‘no further stay’ in Australia valid until 2019 and he is now totally dependent on her for his entire cost of living. He did, however, work full-time for a period of time in the past but he stop and started studying full-time and is in Australia doing a full time course and this has been the case for over 12 months now.
I don’t think I have an issue with the 10 year old brother, as he will be dependent for 12month or more this January 2017, however, as the 30 year old previously worked but then stopped and started studying full-time, can he still be eligible to claim to be a dependent member of her family unit?
If you need more information to determine this please ask me what other information you may need to decide their claim for dependent family member of the primary applicant?
Thank you and Mabuhay! I remain.
To my utmost shock and surprise he responded this way
You better lodge today or tomorrow-the provision below comes into effect on 19 November and will prevent both brothers from being included.
Leaving that aside I think you will have big problems with the older brother and possible 4020 issues with documents. .I would be very interested to see what he put in his student visa application.
Schedule 4—Member of the family unit—direct family
Migration Regulations 1994
1 Regulation 1.03 (definition of dependent child)
After “a child” (wherever occurring), insert “or step child”.
2 Regulation 1.03 (subparagraph (b)(ii) of the definition of dependent child)
After “the child’s”, insert “or step child’s”.
3 Regulation 1.12
Repeal the regulation, substitute:
1.12 Member of the family unit
(1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
(2) A person is a member of the family unit of another person (the family head) if the person:
(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 orde facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
This subregulation has effect subject to the later subregulations of this regulation.
It is now clear that unless you strictly fit the new definition of a ‘member of a family unit’ as itemised above then your application for a fiancé, spouse or de facto partner visa will not be approved if you are claiming a ‘member of the family unit’ using the old definition after the 19th of November 2016.
The old definition should now be ‘removed and replaced’ and not applied to any new or future visa applicationsfor Australia from the Philippines after the 19th of November, 2016.
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