cl 189.221 — Subclass 189 secondary criteria — Migration Regulations 1994
Text of provision
189.221 Criteria to be satisfied at time of application — secondary applicants
The applicant:
(a) is a member of the family unit of a person who satisfies the criteria in clause 189.211; and
(b) if the applicant has turned 18 — is not the holder of a substantive visa.
189.222 Criteria to be satisfied at time of decision — secondary applicants
The applicant:
(a) is a member of the family unit of a person (the primary applicant) who:
(i) has been granted the Subclass 189 visa; or
(ii) satisfies the criteria in clause 189.211 and 189.212;
(b) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4010, 4020 and 4021; and
(c) if the applicant has turned 18 — satisfies special return criteria 5001 and 5002.
Plain English
Clause 189.221 sets out the criteria for secondary applicants — that is, family members included in a Subclass 189 application. The primary applicant is the main skilled worker; secondary applicants are their spouse/partner and dependent children.
A secondary applicant must be a member of the family unit of the primary applicant. "Member of the family unit" is defined in s 5 of the Migration Act and includes a spouse, de facto partner, and dependent children under 23 (or older if unable to support themselves due to disability).
Secondary applicants do not need to independently satisfy the skills, points, age or English requirements that apply to the primary applicant. Their eligibility depends on being a family unit member and satisfying the public interest criteria (health and character requirements).
Practical effect
A secondary applicant's visa is dependent on the primary applicant's visa. If the primary applicant's Subclass 189 visa is refused or cancelled, the secondary applicant's visa will also be affected.
The requirement in cl 189.221(b) that an adult secondary applicant not be a holder of a substantive visa means that an adult family member who already holds a valid visa of their own (e.g. a separate work visa) cannot be added as a secondary applicant unless that visa has ceased.
The public interest criteria referenced in cl 189.222(b) include the health examination requirement (4005 is not listed here but health requirements apply) and character requirements (4020 for providing correct information). All adult secondary applicants must undergo health and character checks.
Secondary applicants must be included in the visa application at the time it is lodged; family members who are not included cannot be added to the application after lodgement in most circumstances.