Regulation 138 — Member of the family class — exceptions
Text of provision
The definitions in this section apply in this Division and in Division 2.
Plain English
Regulation 138 excludes certain persons from family class membership even where a qualifying family relationship exists. Key exclusions include: a person who was not disclosed as a dependent at the time the sponsor became a permanent resident and could have been included (the "non-accompanying dependent" rule); a spouse in a marriage that took place after a deportation order; and persons in bad faith relationships under r 4.
Practical effect
The non-accompanying dependent exclusion under r 138 is a significant trap. If a person became a permanent resident without declaring a dependent child who could have been included, that child is permanently barred from family class sponsorship. This does not prevent sponsorship under other classes if available, but the family class route is closed. The exclusion also applies to children born after the sponsor's permanent residence who were not included — this rule was upheld by the Federal Court and has harsh consequences for families who are unaware of it.