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Skill Select Subclass189 and Dependent definition

4K views 7 replies 2 participants last post by  MarkNortham 
#1 ·
Hi there

Greetings. I am a Canadian PR and am currently living in Calgary, Alberta, Canada. I have been working here in Oil & Gas industry as a Mechanical Engineer for last two years and am registered as Professional Engineer (P.Eng.) with Association of Professional Engineers and Geoscientists of Alberta. I had my M.A.Sc. in Mechanical Engineering from Concordia University, Canada. I have about 6+ years of industrial work experience and 3+ years of research experience under my belth. I have recently got married in Bangladesh and my wife is living there. I also have my widow mother and two unmarried younger sister (one is 26+ year old and another one 24+ sisters) as my dependent and they are living in my house in Bangladesh with my wife. My mother and my sisters are dependent on me for funds for livlihood and above all morally due to socio environment of Bangladesh. My wife works in Bank and currently doing her MBA.

I am considering applying to Skillselect Subclass 189 (preferrably) or 190. My main reason for considering Australia is due to recent changes in immigration rules in Canada, I am unable to bring my entire family here in Canada specially my mother and sisters. I know I can include my wife in the application for Australian Immigration.

As for information of my mother and sister: my mother is a home maker and is of the age of senior citizen, 60 years old. One of my sister has completed her Bachelor in Economics and is currently doing her MBA. Another sister of mine is doing her Bachelor and is still far from graduation.

I will appreciate if any one could suggest if I apply under the mentioned class, will I be able to include my mother and sisters as my dependent in my application considering the fact that we live in different country, Canada and Bangladesh. Prior to coming to Canada I lived with them and they were dependent on me that time as well.
 
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#2 ·
Hi Arefinanwar -

Welcome to the forum! You've asked a very interesting question.

There are 2 key definitions that are necessary to better understand how Australian migration works. The first is "member of the family unit" - this definition is:

1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.


So for any proposed secondary applicant (ie, dependent), they generally must first satisfy the definition of a member of the family unit. But notice that other than 1.12(1)(a) (spouse), the rest of the possible member of the family unit options all require that the person be a dependent. Now we have to look to the definition of "dependent" which is:

(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.


So when determining whether someone can be included as a member of the family unit for visas such as the subclass 189 independent skilled visa, you first have to determine whether the person is a member of the family unit, and if so, whether their circumstances fit the definition of being "dependent".

That being said, there are more aspects to the regulations than I've listed above, but I hope this helps you understand the basics. These are the types of issues that migration agents sort out on a regular basis - as you see above, the law is quite specific, and you have to be very careful that the person exactly matches each and every requirement one way or another to avoid a refusal, etc.

Hope this helps -

Best,

Mark Northam
 
#3 · (Edited)
Mark

Thanks for the insight. I still need clarification on few points.

"
1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(ii) is usually resident in the family head's household; and
"

What is the definition of household per 1.12 (1) (e) (ii)? Does it mean that my sisters and mother have to live with me under the same roof? I believe definition of household is different in immigration and taxation law than its academic meaning. If the definition is not restricted to living under the same roof (we live in different country), my mother and sisters qualify being part of my family as per 1.12 (1).

Everything comes down to the point that though they are dependent on me in reality under the regulation as you mentioned, but does Australian Immigration definition accepts it as we live in different country?

Will appreciate your feedback. I would like to take help from migration agent in processing my case if I can include my mother and sisters as dependent in my application.
 
#4 ·
It would take a fair bit of legal research to determine this conclusively, as "household" is not defined in the immigration regulations. But "usually resident" does have some commonly accepted meanings in immigration regulations, which refers to where a person is physically and indicates that a person is "usually resident" if they consider a place their home, sleep there, have their personal property there, etc. A person can have more than one residence (ie, homes in 2 countries), but the one they are at the majority of the time and the one that qualifies as their primary "home" would likely qualify as the place they are usually resident in.

I'll do some more checking and see if there's anything clearly defined elsewhere.

Best,

Mark Northam
 
#6 ·
Hi Arefin -

Have done some more checking on this, and there is no clear answer. The term "household" is not defined in immigration law. "Usually resident" has commonly accepted meanings in immigration law, all having to do with a person's physical location and where they call "home" and consider to be their primary place of residence.

My feeling is that a good argument could be made where a dependent is not in the main applicant's physical location because of a temporary situation - ie, maybe the dependent is away attending school for a while, or maybe the main applicant is away working. However I think that argument would not be likely to be successful if the two people (applicant and proposed dependent) are living apart on a long-term or permanent basis. Because there is no clear definition of this in immigration law, that leaves you with the option of lodging the application and arguing your case to DIAC. Assuming you are outside Australia when the decision is made, you would not have review rights at the Migration Review Tribunal if the application is refused, so you essentially have one shot at it. You may want to consider hiring a registered migration agent or someone else to do legal research and try and locate some MRT or AAT tribunal cases with a similar situation where the tribunal agreed that the people living elsewhere were dependents - it could strengthen your case considerably when arguing with DIAC should that become necessary.

Hope this helps -

Best,

Mark Northam
 
#7 ·
Hi Mark

Thanks a lot for the insight. Per your explanation it seems to be almost impossible the way I was planning for.

I am thinking of an alternative way. I am wondering per regulation 1.12 (1), does a female person in the family qualify for the definition of 'family head'? Is it restricted to gender?

Regards,
Arefin
 
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