How can my son remain part of our 188 visa in Australia after he turns 23?

Answers

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  Lisa De Leon

  Australian Visa Options

  April 25, 2023

  Unfortunately the definition of a Member of the Family Unit is contained in the legislation for the 188 visa category and there is no flexibility in this. The Administrative Appeals Tribunal will also abide by this legislation. The only exception in the legislation to being aged 23 or under is if the member of the family unit 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. If the Tribunal does not find in your favour before your son's 23rd birthday, he will need to find a different visa pathway.

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  Christina Lim

  Regis Gateways Pty Ltd

  March 28, 2023

  Your case involves a refused 188 visa extension. Therefore, if you are unable to secure the extension before he turns 23, he will not be eligible for the 188 extension visa to be able to go forward for a SC888 permanent residence visa. If your son is able to study in Australia, and continues with a tertiary education, look at alternative pathways for him to remain in Australia. When he works in a skilled occupation in the near future, he may eventually be able to qualify for his own visa. Consult a migration professional on how to plan towards this.

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  James Hall

  ANZ Migrate

  March 28, 2023

  This is a potentially complex issue and you should discuss with a registered migration agent. I'll provide some initial feedback here. Do note that the provisions to include a member of the family unit, such as your son, despite no longer meeting the requirements to qualify as a member (eg. he's 23 or older), only apply for the transition from the subclass 188 to the subclass 888 permanent residence visa. This does not apply to the transition from subclass 188 to a subclass 188 extension, meaning that if he's 23 or older when the decision is made on the subclass 188 extension, he will no longer be considered a member of the family unit and will not be granted the visa (there are some exceptions for children with conditions that render them dependent as adults, but I assume this does not apply to your son). Your son can remain in Australia for the 5 years the subclass 188 visa is held. For other options this is a longer discussion and you should discuss this with a registered migration agent.

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  Venkateswaran Palat Krishnan

  Ven Waran

  March 28, 2023

  The visa eligibility including the age criteria for all applicants are to be met at the time of actual visa application. Therefore, when a review is lodged on the visa application, all criteria for eligibility, including age criteria of all applicants need to be met as on the date the original application was submitted. Thus he will be part of the original application on which the review has been sought. However, if there is a new application being lodged, then all applicants need to meet the criteria at the time of lodging the new application.

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  Quentin Kuo

  Quentin Kuo Law + Immigration

  March 27, 2023

  I would strongly recommend exploring other pain-free pathways - unless the 188 is one that is of high investment value. Your son would be young and resourceful under you and your adviser's guidance. A trip or two or alternative pathways to return to Australia should not be an issue under the right career path to return to PR in Australia. Finally, I am not sure of the circumstances, however, leaving before 23 is not a must. If there are no bars on your son, then apply for another visa under an acceptable primary purpose.