Last updated 23 January 2017
Only certain family members resident overseas can be sponsored to enter Australia by relatives who have permanent residence or citizenship in Australia. Relatives are divided into distinct visa categories, and different tests apply to each category. The main permanent visa categories of family migration are:
- Partner visas (includes de facto and same-sex spouses) (see subclasses 300, 309, 100, 801 and 820)
- Child visas (see subclasses 101 and 802) including Orphan Relative visas (see subclasses 117 and 837) and Adoption visas (see subclass 102) (not discussed in detail here)
- other family visas including aged dependent relatives, remaining relatives and carers (see subclasses 114, 115, 116, 835, 836 and 838)
- Parent visas (see subclasses 103, 143, 804 and 864).
Requirement of sponsors of family migration visa
A sponsor must be either an Australian citizen, permanent resident or eligible New Zealand citizen and must usually be aged 18 years or over. In some cases, the sponsor must also have been resident in Australia for a reasonable period. Current Department of Immigration and Border Protection (DIBP) policy states that, generally, two years of residence is required. The sponsor must ensure that their relative will have accommodation and sufficient money to look after themselves for two years after arrival (regs 1.20(2)(a), 1.20(2)(c) Migration Regulations 1994 (Cth) (Migration Regulations)). A form must be signed by the sponsor committing to these obligations including the provision of information and advice to help the migrating relative to settle in Australia.
Assurance of support
For some family migration visas, an assurance of support is mandatory (e.g. parent and aged dependent relative, aged dependent relative, contributory parent, parent, aged parent, remaining relative). For others it is discretionary (e.g. orphan relative and child, adopted or orphaned relative under 18 at the time of application). An assurance of support is no longer required for any partner visas.
An assurance of support means that a person will pay the Commonwealth the amount of any social security payments paid to a visa holder during a specified period (ss 1061ZZGA, 1061ZZGG Social Security Act 1991 (Cth) (Social Security Act)). The assurance of support is usually valid for two years from the date of grant of the visa or, if the applicant is outside Australia, from the date that the visa applicant arrives in Australia (s 1061ZZGF Social Security Act). A refundable bond may be required to be paid.
The sponsor does not necessarily have to be the person who supplies the assurance of support nor a relative. The assurer must just be someone with sufficient assets or income to be acceptable to Centrelink. 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 up front. Accordingly, assurers need to consider their obligations carefully, as even the refundable bond ($10 000 for contributory parent and $5000 for parent (including aged parent), aged dependent relative and remaining relative visa applicant) may not be the limit of liability if a greater amount is paid by Centrelink to the migrating relative during the first two years.
An applicant for a Partner visa (subclasses 801 and 820 in Australia, subclasses 309 and 100 outside Australia) must be the spouse or de facto partner of the sponsor. Spouses must be married, in a genuine and continuing relationship, live together (or not live permanently or separately apart) and have a mutual commitment to a shared life as husband and wife to the exclusion of all others (s 5F Migration Act 1958 (Cth) (Migration Act), reg 1.09A Migration Regulations). De facto partners (including same-sex partners) must be in a genuine and continuing relationship, live together (or not live permanently or separately apart) and have a mutual commitment to a shared life to the exclusion of all others (ss 5CB(1)–(2) Migration Act, reg 1.09A Migration Regulations).
Partners are initially granted temporary residence (subclasses 801 or 309), which they must maintain for two years before a permanent spouse visa will be granted unless they have a long-term partner relationship or, for an offshore partner visa, are sponsored by the holder of a permanent humanitarian visa. The relationship must be genuine and continuing until the date of decision whether to grant the permanent visa, unless:
- the Australian partner has died and the widow or widower would have continued with the relationship if the partner had not died (sch 2, reg 100.221(3) Migration Regulations)
- the relationship has ceased during the minimum two-year period of temporary residence due to family violence by the Australian partner (sch 2, reg 100.221(4)(c) Migration Regulations)
- the relationship 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 under the Family Law Act 1975 (Cth) (sch 2, reg 100.221(4)(c) Migration Regulations).
A Prospective Marriage visa (subclass 300) allows for temporary entry of fiancées, who must marry within nine months of arrival in Australia.
There are a number of on-shore and off-shore visa options that relate to the children of Australian citizens and permanent residents. These are set out in class BT (onshore) and AH (offshore). An applicant for a visa in this class must:
- be a dependent biological or stepchild of an Australian citizen or permanent resident (certain adopted children also qualify) (subclasses 101 and 802)
- have been adopted overseas by an Australian citizen or permanent resident who had been residing overseas for more than 12 months (at the time of the visa application) (see subclass 102 for further requirements)
- be an orphan relative (i.e. an orphan under 18 years who does not have a spouse or de facto partner and is a relative of an Australian citizen or resident). Relative has a specific definition which includes the siblings, nieces and nephews of the Australian citizen or relative (reg 1.03 Migration Regulations). An applicant can still be an orphan even if both parents are alive but their whereabouts are unknown or they are permanently incapacitated and thereby unable to care for the child (subclasses 117 and 837, reg 1.14 Migration Regulations).
Applicants for a Dependent Child visa or Orphan Relative visa must not have a spouse or de facto partner (regs 1.03–1.14 Migration Regulations). A dependent child must also not be engaged to be married (reg 1.03 Migration Regulations).
In some circumstances, the applicant must be under 18 years of age at the time of the application. This is the case for all applications for Orphan Relative visas, for applications by stepchildren applying for child visas and for all adopted children applying for adoption visas.
An applicant for a Dependent Child visa who is 18 years or older must be dependent or incapacitated for work because of a physical or mental impairment (reg 1.03 Migration Regulations). ‘Dependent’ is defined in reg 1.05A (Migration Regulation) to mean someone who is ‘wholly or substantially dependent on another person for financial support, for food, clothing and shelter’ (except for certain refugee visas which allow for psychological and physical dependence).
Further criteria apply and are set out in the relevant subclasses.
Other Family visa
To receive a visa in the Other Family visa class, an applicant must be the relative of a settled Australian citizen or permanent resident who has nominated the applicant and who is usually resident in Australia. The applicant must also be one of the following:
- an aged dependent relative (subclasses 114 and 838). An aged dependent relative must not have a spouse or de facto partner, must be currently dependent on the sponsor and must have been dependent on the sponsor for a reasonable period. The relative must also be old enough to be granted an age pension under the Social Security Act (reg 1.03 Migration Regulations)
- a remaining relative (subclasses 115 and 835). A remaining relative and their spouse must have no parents, siblings or non-dependent children who are not usually resident in Australia as a permanent resident or citizen. The sponsor must be the parent or sibling (including stepsibling) of the applicant (reg 1.15 Migration Regulations)
- a carer (subclasses 116 and 836). A carer must be a person willing and able to give substantial continuing assistance to an Australian relative who has a medical condition that impairs their ability to attend to the practical aspects of daily life. The Australian relative’s impairment must be rated in an examination by a Commonwealth medical officer to be at least 30 as shown under the Social Security Impairment Ratings Tables (reg 1.15AA(1)(c) Migration Regulations). The need for assistance must be likely to continue for at least two years. Also, it must be proved that no other relative or health, community or welfare service in Australia is reasonably able to provide the Australian relative with the necessary assistance (reg 1.15AA Migration Regulations).
There are currently substantial waiting periods before visa of the above subclasses may be granted. The Department of Immigration and Border Protection should be consulted for up-to-date information.
Applications for a parent of an Australian permanent resident or citizen to migrate to Australia will involve significant costs and/or substantial waiting times. Sponsors and applicants should seek immigration advice to identify whether this is a realistic option for their family.