Permanent Visas: Family Migration

Based on the contribution of The Late Michael Clothier, former Accredited Immigration Law Specialist, as amended by Er-kai Wang, Migration Lawyer (LPN: 5512853), Legal Aid ACT and current to June 2022

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Australia's permanent migration program is set in the Annual Federal Budget. Some family stream visa numbers are also capped by legislative instruments.

Eligibility

Only certain family members who are resident overseas can be sponsored to migrate to Australia by relatives who have permanent residence or citizenship in Australia.

Relatives are divided into several visa categories and different tests apply to each category.

The main permanent visa categories of family migration are given in schedule 2 as:

• Partner visa (includes de facto partners): see subclasses 309 and 100 (note: holders of Prospective Marriage subclass 300 visas are eligible to apply for the onshore Partner visas)
• Child visa: see subclass 101
• Orphan relative visa: see subclass 117
• Adoption visa: see subclass 102
• Parent visa: see subclass 103 and subclass 143

Same-Sex Partner Migration

On 1 July 2009, the Migration Regulations were amended to:

• remove discrimination between same-sex and opposite-sex de facto couples, and between the children of same-sex and opposite-sex de facto couples; and
• ensure that the regulations are consistent with amendments made by part 2 of schedule 10 to the Same-sex Relationships (Equal Treatment in Commonwealth laws – General Law Reform) Act 2008 (Cth) to the Migration Act.

What is required of sponsors?

You must be either an Australian citizen or a permanent resident and must be aged 18 years or over. However, if you are under 18 years and sponsoring a spouse, parent or fiancé/fiancée, then your parent or close relative, guardian and in some cases even a community organisation may sponsor. In many cases (but never for spouses) you must also have been resident here for a reasonable period (currently regarded as two years by the Department unless exceptional circumstances exist). You must ensure that your relative will have accommodation and sufficient money to look after themself for at least 12 months after arrival. A promise is required that you will provide general information and advice to help your relative settle.

For sponsors of partner and prospective marriage visa applications, you must provide Australian and/or foreign police checks when requested and consent to Immigration disclosing your convictions for 'relevant offences' to the visa applicant(s). A 'relevant offence' is an offence against a law, either in Australia or overseas involving serious and violent offencs such as murder, sexual assault and people smuggling. A partner or prospective marriage visa application may be if the sponsor has a 'significant criminal record', i.e. if they have been sentenced to death, life imprisonment, a term of imprisonment of 12 months or more or, 2 or more terms of imprisonment where the total sentence is 12 months or more. This includes any suspended and/or concurrent sentences.

If you are sponsoring parents or any relatives in the other family visa category (or relatives outside these categories who are unable to support themselves), you will be required to sign an Assurance of Support and you will be responsible for their financial support for the first two years after entry.

Assurance of Support

All visa applications that require an “assurance of support” are now subject to the following rules.

• The validity of the assurance is 10 years for contributory parent visa applicants, and two years for all others;
• Liability covers any payments of Special Benefit, Job Search or Newstart Allowances made by the Department of Social Security (DSS) to the migrating relatives (parents, preferential and concessional classes) during those two years;
• The assurance consists of a refundable bond of $10,000 per principal applicant and $4,000 per secondary applicant for contributory parent visa applicants, and $3,500 per principal applicant and $1,500 per other adult for all others. The contributory parent bond will be returned after 10 years and the bond for all others will be returned (with interest) two years after the migrant’s entry into Australia, provided that the DSS makes no claim on the money in those periods.

It should be noted that the sponsor does not necessarily have to be the person who supplies the assurance of support, nor even a relative. The assurer must just be someone with sufficient assets or income to be acceptable to Centrelink (this department has been given the task of assessing assurances of support for the Department of Home Affairs). However, given the large sums of money now involved in sponsoring relatives, it will be fairly rare that a friend of the family will want to sign such a document and pay the money involved upfront. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond may not be the limit of liability if a greater amount is paid by Centrelink to the migrating relative during the first two years. (The conditions are contained In the Assurance of Support application; read it carefully). For more information visit the Department’s website.

Who are child migrants?

To receive a visa in the child (migrant) class you must:

1. be a natural or step-child (under 18 years, or between 18 and 25 years if still in full-time study) of an Australian citizen or permanent resident (certain adopted children also qualify): subclass 101; or
2. have been adopted overseas by an Australian citizen or permanent resident who has been residing overseas for more than 12 months (at the time of the visa application): subclass 102; or
3. be an orphan relative, i.e. an unmarried orphan under 18 years and a relative of an Australian citizen or resident. An applicant can still be an “orphan” even if both parents are alive but their whereabouts are “unknown” or they are “permanently incapacitated” (by physical, legal or other factual reasons) and thereby unable to care for the child (see reg 1.14 Migration Regulations).

Parent Visas: The Balance of Family Test

If you are sponsoring your parents, they can only be considered in the parent visa category if they meet the balance of family test. The balance of family test requires at least half of their children to be living permanently in Australia, or that more of their children live permanently in Australia than in any other country. In order to count as living permanently in Australia, those children must be:

• Australian citizens;
• Australian permanent residents who are usually resident in Australia; or
• eligible New Zealand citizens who are normally resident in Australia.

The test is applied on the following basis:

• all children of both parents are counted, including any children of a de facto spouse;
• all children of both parents are counted, regardless of whether the children are dependent or self-supporting, married, single or divorced;
• all children of either of your parents from a previous marriage or relationship are counted, as well as any children adopted by either parent and any children in institutions (except for children born or adopted after the relationship or marriage ceased); and
• children whose whereabouts are unknown or cannot be verified are counted as being in your parents’ country of usual residence, unless their death can be presumed by their absence.

Children who are not counted in the test are:

• children removed by court order, by adoption or by operation of law (other than marriage) from the exclusive custody of the parent;
• children resident in a country where they suffer persecution or abuse of human rights in a situation such that it is not possible to reunite the children and the parent in another country; and
• children resident in a refugee camp.

Other than in the exceptions noted above, the social and cultural values of your family, or the economic circumstances of the children, are not taken into account in applying the test (reg 1.05 Migration Regulations).

Furthermore, it is indicated in policy that in practice, it would be rare for a child to be excluded from the balance of family test on the grounds that they had been removed from the exclusive custody of the parent. This is because a person will have had exclusive custody of the child if that person had the sole legal right to the daily care and control of the child and the sole legal right and the sole legal responsibility to make decisions concerning the daily care and control of the child.

Summary of the Permanent Family Visa Subclasses

Subclass 864: contributory aged parent visa

This visa is available for aged parents are in Australia and eligible to apply. The visa application charge is around AUD$50,000 for each adult applicant. Their sponsors need to lodge a AUD$10,000 “assurance of support bond” and AUD$4,000 for each family member who is over the age of 18 (i.e. spouse, children, etc.) for 10 years as a guarantee that the visa applicants will not access social security payments in that time.

Subclass 802: child visa

This visa is available to applicants in Australia who are dependent children of Australian citizens or permanent residents.

A dependent child is a person’s natural or adopted child. The child must be younger than 18 years old, and be unmarried (and not engaged). If the child has turned 18 years, they must be under 25 years and be dependent or at least substantially incapacitated (for work) because of a physical or mental impairment (see reg 1.03 Migration Regulations).

Note that dependant is also defined in regulation 1.05A to mean someone who is “wholly or substantially dependent on another person for financial support” (except for certain refugee visas that allow for psychological and physical dependence).

Subclass 836: carer visa

This visa is available to people in Australia who want to stay to help an Australian relative who needs care due to a long-term or permanent medical condition. Carer visa applications are subject to capping and queuing arrangements. The current estimated waiting period is four and half years before an application is released for final processing. A carer certificate must be obtained by the sponsoring relative from Bupa (www.bupamvs.com.au/carervisamvs).

Subclass 837: Orphan relative visa

This visa is available to an applicant in Australia who meets the criteria for subclass 837: orphan relative (see reg 1.14 for definition), and who is the relative of a settled Australian citizen or permanent resident who has nominated the applicant, and who is usually resident in Australia.

Subclass 838: aged dependent relative visa

This visa is available to people who are usually residents in Australia, who are single, widowed or divorced, who are old enough to receive the age pension, and who are financially dependent on a relative. The relative must be a settled Australian citizen or a permanent resident who has nominated the applicant.

Subclass 808: confirmatory (residence) visa

This visa is available to an applicant in Australia who has previously applied overseas to enter Australia permanently and has been allowed to enter Australia on a provisional basis, subject to proof that certain outstanding criteria will be proved after entry (see subclass 808, sch 2 Migration Regulations).

Subclass 820/801: partner visa

This visa is available to an applicant in Australia who has been in a genuine marital or domestic relationship (heterosexual or same-sex) with an Australian citizen or resident. The applicant is granted a provisional partner visa (subclass 820) first and after two years, the person will be granted a permanent subclass 801 visa. The two-year period may be waived for long-term partner relationships (i.e. those that have been no less than three years, or two years if there is a child of the relationship).

The relationship must be genuine and continuing until the date of the decision whether to grant the visa, unless:

• the Australian partner has died and the widow or widower would have continued with the relationship if the partner had not died, and has developed close business, cultural or personal ties in Australia; or
• the relationship has ceased during the minimum two-year period of temporary residence as the partner of an Australian citizen, due to family violence by the Australian partner; or
• the marriage has ceased during the two-year period, but the applicant has custody or joint custody of at least one child, in respect of whom a court has granted joint custody or access or a residence order or contact order to the Australian party, or the Australian party is subject to a formal maintenance obligation or other obligation under the Family Law Act 1975 (Cth) (see subclass 801, sch 2 Migration Regulations).

This visa is also available to applicants who have entered Australia on a subclass 300: prospective marriage visa and have married the person named in their application (see subclass 300, sch 2 Migration Regulations).