Citizens and permanent residents may be able to sponsor, with an assurance of support, a parent, spouse or prospective spouse, or a natural child, child for adoption or orphan relative. Migrant English fees and various tests apply.
Only certain family members who are resident overseas can be sponsored to enter by relatives who have permanent residence or citizenship in Australia.
Relatives are divided into seven visa categories and different tests apply to each category. A tenth category (called a “prospective marriage” visa, see subclass 300, sch 2 Migration Regulations) allows for temporary entry of fiancés and fiancées, who must marry within nine months of arrival in Australia. The main permanent visa categories of family migration are given in schedule 2 as:
• spouse visa (includes de facto spouses): see subclasses 309 and 100 (note that such spouses must now wait two years after arrival before getting permanent residence, unless they have a “long-term marriage”, see “Subclass 801: partner (residence) visa”);
• child visa: see subclass 101;
• orphan relative visa: see subclass 117;
• adoption visa: see subclass 102;
• parent visa: see subclass 103 and subclass 143.
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.
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 Home Affairs 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.
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.
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 $5,000 per principal applicant and $2,000 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.
• The assurance also requires the payment of a non-refundable health levy of $1,050 per visa applicant. Adults and children are treated equally.
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 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 on form 28; read it carefully.) For more information visit Home Affairs’ website at www.homeaffairs.gov.au.
Migrants who apply to migrate, and who do not have functional English, will pay a sliding charge based on their migration visa class. This can range from zero fees for spouse visas to up to $9,795 for the principal applicant of a business skills migration visa.
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).
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).