People often make applications for Subclass 820 Partner visas in Australia, when they are here on a Subclass 600 Visitor visa, a student visa, a 457 visa, or some other temporary visa. If you have done this, you may have your children from a past relationship with you here in Australia; or perhaps your children have been left at home in another country.
If your children are in Australia at the time that you apply for your Partner visa, they can usually be included as secondary applicants on your application, so long as your partner is sponsoring them too. Sometimes, though, there may be something preventing them being added to the application. For example, in some circumstances a child may have a “no further stay” condition, such as condition 8503, imposed on the visa they entered Australia on, even when their parent did not have that condition.
In such a case, it may be possible to lodge the sponsorship application and the Partner visa application for the parent, then make a request to waive the “no further stay” condition for the child and if the “no further stay” condition is successfully waived, an application for the child can then be added to the parent’s Partner visa application.
This is not a straightforward process and I strongly recommend that you seek professional help with it; but it’s good to know that it may be possible for your family. The “no further stay” condition must be waived and the child’s visa application must be made, before a decision is made by the Department of Immigration and Border Protection on the parent’s Subclass 820 Provisional Partner visa, for the strategy to be viable.
If, instead, a parent’s Subclass 820 or Subclass 309 Provisional Partner visa has already been granted and a child in Australia or outside Australia was not included in that application, then an application can often be made for a Subclass 445 Dependent Child visa. This visa can be applied for only after the parent’s Provisional Partner visa has been granted but a decision on the Subclass 801 0r Subclass 100 Permanent Partner visa has not yet been made. A child holding the Dependent Child Visa can then be granted the Permanent Partner visa at the same time that the parent is.
Usually, the child must be either under 18 years or aged between 18 and 25 years, still in study and more financially dependent on the parent for its basic needs that it is on any other person. There may be some exceptions to this rule, if a child older than 25 years has a disability. However, such cases can be difficult to negotiate regarding the health requirements for Australian visas and may invoke the “one fails all fails” rule, whereby all member of a family unit may fail to secure a visa if one member of the family unit has a condition which causes them to fail the health criteria and for which a “health waiver” cannot be successfully obtained. These are extremely complex cases and professional help should probably always be sought.
Finally, if a parent has already been granted a Subclass 801 0r Subclass 100 Australian permanent residency Partner visa (or any other permanent residency visa in Australia), then it will often be possible to apply for a Subclass 101 Child visa for the child. Again, usually, the child must be either under 18 years or aged between 18 and 25 years, and still in study and more financially dependent on the parent for its basic needs that it is on any other person. There are some exceptions to this, particularly for children of parents who have been granted Humanitarian stream visas. Again, I suggest you seek professional advice in all cases involving children aged over 18 years.
If you wish to contact us for professional advice about any of the issues raised in this post, please use the details below:
Migration Agents Registration Number 0957773
Legal Practitioner NSW 55486