Family Migration

Once a migrant has settled and been living here for a while, it is quite natural for them to consider helping family members to join them in Australia. The main areas covered under Australia’s family migration program are: Spouse (or Partner), Parents, Child or Other Family. Oakfair Lawyers is able to advise you on which visa will suit your situation.

Spouse (or Partner)

This category covers migration to Australia as Spouse (married or de facto), Prospective Spouse (fiance or fiancee), or interdependent partner of an Australian citizen or permanent resident. The last visa listed covers, but is not restricted to, partners in same sex relationships.

In all these visas, proof there is a genuine and continuing relationship is necessary. In addition, the applicant must show they have a commitment to a shared life as a couple, to the exclusion of all others, and that they live together (ie. they don’t live separately and apart on an ongoing basis). Sponsorship (called nomination, if the application is made in Australia) by the applicant’s Australian partner, and the provision of an Assurance of Support are also required.

It should be noted that in Australia, spouses and de facto partners do not have an automatic right to reside in this country simply on the basis of their relationship to an Australian citizen or permanent resident. A marriage certificate, on its own, is not sufficient. The relationship test must still be met. In the situation of a de facto partnership, the couple must show that they have been together in that relationship for at least 12 months. Examples of the type of evidence required include photographs, joint utilities and bank statements, joint correspondence and statutory declarations from others attesting to the existence of the relationship.

Once Immigration is satisfied, a temporary visa is granted allowing time for further processing of the application. Only after 2 years have elapsed will the permanent visa be granted.

Where a Prospective Spouse visa is concerned, the couple must have met, and are personally known to each other. This is the case even if the marriage has been traditionally arranged. (Immigration will take into account these religious and cultural factors when determining the genuineness of the relationship.) Please note that application for this visa can only be made overseas. If Immigration is satisfied that the requirements have been met, a temporary visa is granted allowing the applicant to travel to Australia to be married. This must occur within 9 months from the grant of visa. Once the marriage has occurred, a Spouse visa is then applied for in the same way discussed above.

Child

This category covers migration to Australia as a Dependent Child, an Orphan Relative or Adoptee.

With respect to a Child visa, the applicant must be a natural, adopted or stepchild of an Australian citizen or permanent resident. Sponsorship by that parent is required. The child must be under 18 years, though they can be as old as 25 if they can show they are a full-time student. Whatever the age, the child must show they are still dependent on their sponsoring parent. Obviously, this will be much easier for the child still living at home. If the applicant has married, divorced, are in a de facto relationship or engaged to be married, then these would be indicators of a lack of “dependency” on the sponsoring parent and they may not qualify for the visa.

Where a child is being adopted after the parent became an Australia citizen or permanent resident, then the Adoption visa would be the most appropriate.

An Orphan Relative visa applies where both the child’s natural parents are dead, or permanently incapacitated, and are unable to look at the child. With respect to the latter, it relates to some physical or mental disability which renders the parents with little choice but to have their child in the care of relatives.

Parents

Parents who wish to migrate to Australia, to be with their children, must pass the Balance of Family test. This test requires that at least half the applicant’s children must live in Australia. Alternatively, they must have more children in Australia than in any other country. Their child must also be resident in Australia for at least 2 years before the application is lodged.

An Aged Parent visa applies if the application is to be made in Australia. In addition to the above requirements, parents must also meet the minimum age to qualify. This is 65 years for men, and between 60 and 65 years for women depending on when they were born.

Sponsorship and Assurance of Support are required are required for these visas.

Note that this category has “capping” restrictions, ie. only a maximum number of visas are issued in a given year. As visas are processed, they are place in a queue awaiting the next available place. With the demand for parent visas much higher than the number of places available, applicants should expect a lengthy wait. There are currently plans in place to increase the current placement of 500, to possibly as high as 4500 with the passing of new legislation.

Other Family

The Aged Dependent Relative visa is most appropriate for those who are single, widowed or divorced, and dependent on a close family relative, who is an Australian citizen or permanent resident, over 18 years, and living in Australia. They must have been dependent on this relative for at least 3 years before the application, and meet the minimum age to qualify (see above).

Where all family members have migrated to Australia, leaving their brother, sister or child alone overseas, then that remaining family member may apply for the Remaining Relative visa.

A Carer visa applies where the applicant needs to be in Australia to care for a family member, seriously ill and requiring assistance to attend to the daily practicalities of life. The carer must be prepared to give substantial and continual assistance, and the need for support must continue for at least 2 years.

Sponsorship and Assurance of Support are required for these visas.

Please complete our visa assessment form to have your options professionally assessed.