The Migration Act 1958 (Cth) allows Australian citizens to bring eligible family members or partners to live in Australia through the family migration stream. Eligible applicants include spouses, a fiancé, de facto partners (including same-sex partners), children, parents and, in some circumstances, other relatives.
There is no automatic entitlement for Australian citizens to bring family members into Australia. Sponsorship is fundamental to the family migration stream.
A sponsor must satisfy certain eligibility requirements according to the visa type, provide undertakings, and follow the prescribed approval process.
Visa applicants and their family members must also meet specific criteria.
This article provides an overview of visa types within the family stream migration category and the importance of sponsorship.
Bringing my partner to Australia
Partner migration allows married or de facto partners of Australian citizens, permanent residents and eligible New Zealand citizens to reside permanently in Australia.
There are two types of partner visas:
- Prospective marriage visas for those intending to marry – this allows entry into Australia by the sponsored fiancé. If granted, the visa is valid for nine months during which time the marriage must take place. A prospective marriage visa may only be applied for and granted if the applicant is outside of Australia.
- Partner visas for those already married or in a de facto relationship. A successful applicant will initially be granted a temporary visa and after a period of two years a further assessment is made. Provided there is a long-standing relationship (and other criteria is met) the grant of a permanent visa will usually follow.
Where relevant, dependent children may be included in a partner visa application.
Bringing a child to Australia
Three types of visas apply in this category – a child visa for a dependent child of the Australian sponsor, an adoption visa for a child adopted outside of Australia and an orphan relative visa for a minor child who cannot be cared for by either foreign parent and will, upon arrival, be cared for by the Australian sponsor.
Bringing parents to Australia
Parent and Aged Parent visas are subject to capping, meaning that the Minister for Home Affairs will limit the number of people granted these visa types each year. For this reason, a parent visa or aged parent visa has a current processing time of thirty (30) years. A contributory parent visa is available for applicants willing to pay a higher visa application fee in exchange for a faster processing time, currently about 3½ to 4 years.
Three visa categories in the family migration stream may allow other family members to live in Australia. The carer visa applies to applicants who can provide substantial and continuing assistance to an Australian relative with a medical condition, an aged dependent relative visa applies to single, widowed, divorced or separated applicants who are dependent on an Australian relative, and a remaining relative visa may allow entry to a person who is a sibling, child or step child of the sponsor and who has no close relatives outside of Australia.
Unfortunately all these visas are currently subject to capping which results in significant waiting and processing times.
Family stream visa applicants must be sponsored by a close family relative or partner, which is determined according to the type of visa applied for.
Sponsorship carries a legally binding obligation for a specified timeframe.
The sponsor must ensure that the visa holder is supported during the settlement phase to minimise, wherever possible, any burden on the Australian community. The sponsor should also ensure that the visa holder is equipped with all information and advice necessary to assist in his or her settlement in Australia.
The sponsor is financially responsible to the Australian Government for any commitments that the visa holder may incur whilst in Australia.
A sponsor must provide adequate accommodation and financial assistance to meet the visa holder’s reasonable living needs for a period of two years after the visa is granted.
The sponsor must also provide financial and domestic support for any children, the subject of a partner visa, so that the partner can attend English classes.
Limitations on eligibility to be a sponsor
A proposed sponsor who has been convicted of a ‘registrable offence’ will not be approved if the visa application includes a child under 18 years. A registrable offence includes convictions for child sex offences or other serious offences considered to put a child at risk.
Police checks must accompany applications for sponsorship if one or more of the applicants is under 18 years.
A proposed sponsor is also limited to the number of visa applicants he or she may sponsor as a fiancé or partner. Unless compelling circumstances exist, a person may not sponsor more than two partner or prospective marriage visa applicants for a minimum of five years between each sponsorship.
The sponsor of a partner or fiancé visa holder must also notify the Department of Immigration if the relationship breaks down. In some circumstances, if a temporary visa has been granted, the visa holder may still be eligible for a permanent partner visa.
Making the application
There are specific requirements to lodge a valid visa application for each family stream category of visa. In addition to the sponsorship obligations, the visa applicant must meet certain health criteria and pass the character test.
There are various pathways and visa types available – identifying the most appropriate one for your circumstances is an essential first step in preparing a visa application. Migration law changes frequently and it is important to obtain considered and current advice from a legal professional before proceeding with any visa application.
Navigating the range of visas in Australia can be a complicated process, and that’s why we’re here to help you. Contact TK Legal today for information and advice about sponsoring a family member or partner today.