BRINGING OTHER FAMILY MEMBERS TO AUSTRALIA

A number of visas are available to the siblings and more distant relatives of Australian citizens and permanent residents.

These visas include:

• remaining relative visas
• carer visas
• Split family humanitarian visas

There are issues associated with each of these visas, such as the time it takes for the visa to be granted, the limited number of visas that are available each year relative to the number of applications that are lodged, and the nature of the evidence that needs to be provided in order to qualify for one of these visas.

Our expert immigration lawyers can advise whether any of these visas represents the best way to bring family members to Australia. We have acted in a number of these cases and can provide you with clear and detailed advice about what evidence needs to be included in the application.

Remaining Relative Visa

The Remaining Relative Visa is designed to enable Australian citizens, Australian permanent residents or eligible New Zealand citizens, (who are usually resident and settled in Australia), to sponsor a remaining relative to migrate to Australia.

Generally, you can apply for a Remaining Relative Visa if:

• You are the brother, sister, child or step equivalent of an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is settled and usually resident in Australia; and
• The Australian resident, or their spouse (if any), is aged 18 years or older and is sponsoring you; and
• You have an assurance of support; and
• For a child under 18, who was adopted overseas by an Australian citizen, Australian permanent resident or eligible New Zealand citizen, your adoptive parent must have spent the required 12 months living overseas prior to the Adoption Visa application; and
• You and your spouse together do not have any other near relatives other than those who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

Determining if a Person is ‘Usually Resident’ – Following a recent decision by the Australian Full Federal Court, there are new procedures for assessing where a person is ‘usually resident’.

Applicants may be asked to provide additional information about where they usually reside, so that their application can be assessed under the new procedures.

If you are in Australia now and you are considering applying for a Remaining Relative Visa, you need to know that:

• If you or your spouse are assessed to be usually resident in Australia and only in Australia, and you have a near relative other than those near relatives in Australia who are entitled to sponsor you for the visa, you will not meet the legislative criteria for a Remaining Relative Visa.
• All applicants should also note that that you may be asked to provide further information about where your near relatives usually reside, and in some cases, what contact you have with those near relatives.

Remaining Relative Sponsorship – Your application to migrate or remain permanently in Australia as a remaining relative must be sponsored by your relative in Australia.

Your application cannot be approved if your sponsor:

• Has previously sponsored/nominated a person who has subsequently been granted a visa on the basis of being a remaining relative; or
• Was granted a visa to Australia on the basis of being a last remaining relative.

Carer Visa

A Carer Visa may be granted to relatives of Australian citizens, permanent residents or eligible New Zealand citizens needing a specified level of care when sponsored by qualified relatives.

The following relatives of the person requiring care may apply:

• (a) the spouse of the person; or
• (b) a child, adopted child, parent, brother or sister of the person; or
• (c) a step-child, step-parent, step-brother or step-sister of the person.
• (d) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, stepgrandchild, step-aunt, step-uncle, step-niece or step-nephew.

The sponsor must be an Australian citizen, permanent Australian resident, or an eligible New Zealand citizen. The sponsor does not necessarily need to be the person requiring care. The sponsor could be a relative of the person requiring care, which includes:

• Their spouse;
• Their dependant child;
• Their dependant grandchild; or
• A relative (spouse, child, parent, brother, sister, grandparent, grandchild, aunt, uncle, niece, nephew (or step-equivalents) ) of the sponsor or the spouse of the sponsor who (1) has never married or is widowed, divorced or separated and (2) who lives with the sponsor and – his dependant on him/her.

The person requiring care must be an Australian citizen, permanent Australian resident or an eligible New Zealand citizen, related to the visa applicant and the sponsor, if he or she is not the sponsor. In other words, the person needing care, the sponsor and the visa applicant must be related. There are technical definitions of the relationship which vary from time to time. It is therefore advisable to seek advice from a competent registered migration agent before lodgement of visa application to minimize the chance of visa refusal.

The person requiring care must undergo medical examination by a health service provider specified by the minister, and an assessment certificate must be issued by the health service provider that the medical condition has an impairment rating of at least 30 points causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life which will continue for at least 2 years and will require direct assistance in attending to the practical aspects of daily life.

Proof must be given that the assistance cannot be reasonably be obtained from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or from welfare, hospital, nursing or community services in Australia.

The principal applicant for a carer visa must be willing and able to provide to the relative needing care substantial and continuing assistance of the kind needed in attending to the practical aspects of daily life. Assistance includes hygiene, toileting, dressing, eating, mobility, special exercising, therapy, giving medication, constant monitoring and supervision. The carer and all members of his or her family unit must pass health and character tests.

Humanitarian program – split family provisions

To be eligible, the child must be dependent on the parent, under 25, be the natural, adopted or step child of their sponsor-parent who must be an Australian citizen, permanent resident or eligible New Zealand citizen and must act as a sponsor for the child. The child must also be single.

With this visa the child can live permanently in Australia and travel to and from Australia for 5 years from the date of the visa grant.

Is for the immediate family members of people granted any permanent humanitarian visa (including Protection and Resolution of Status visas) in the last five years.

‘Immediate family’ means you are the spouse, de facto partner (including same-sex partner), dependent child (step-child) or in certain circumstances a parent (step-parent) of the person in Australia who is proposing your entry.

You can only apply as a parent under these ‘split family’ provisions if your child in Australia is under 18 years of age.

To be considered as the immediate family member of a humanitarian visa holder, applicants must satisfy the following:

• on the date of the grant of the proposer’s Permanent Protection, Resolution of Status or Humanitarian visa, the applicants overseas must have been a member of the proposer’s immediate family
• the applicant’s relationship to the proposer must have been declared to the department before the grant of the proposer’s visa
• the offshore application must be made within five years of the grant of the proposer’s visa
• the applicant must continue to be a member of the proposer’s immediate family
• the applicant and proposer must not have arrived in Australia as an Irregular Maritime Arrival on or after the 13 August 2012.

Only proposer who:

• holds a permanent humanitarian visa (includes Permanent Protection visas), and
• did not arrive in Australia as an Irregular Maritime Arrival on or after 13 August 2012

may propose their immediate family members for entry to Australia through the offshore Humanitarian Program.

Generally, visas for immediate family members are granted in the same category as the proposer’s visa.