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13A Montgomery Street
KOGARAH NSW 2217


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Ground Floor
54 Martin Place
SYDNEY NSW 2000


Email: solicitors@gmhlegal.com
Phone: (02) 9587 0458
Facsimile: (02) 9587 2936


CHILDREN VISAS


Children born in Australia automatically acquire Australian citizenship if at least one parent is an Australian citizen or permanent resident at the time of the child’s birth.

Children born outside Australia to parents who are not Australian citizens do not automatically acquire Australian citizenship and they are not eligible for citizenship by descent. Therefore, children born outside Australia to permanent resident parents will need to apply for and be granted a migration (ie. Permanent resident) visa to be able to enter and remain in Australia with their parents.

Most children born overseas to permanent resident parents will need to apply for a Child (subclass 101) visa.

Basic requirements


All people who apply for a permanent visa, including children of Australian citizens or permanent residents, must pay the costs and charges associated with the visa application (see page 11) and meet all the required legislative criteria, which includes meeting the health requirement. In addition, parents (and step-parents) who sponsor a child for a child category visa (ie. a Child (subclasses 101 and 802), an Orphan Relative (subclasses 117 and 837) or an Adoption (subclass 102) visa) are also required to provide police checks and meet relevant sponsorship requirements relating to the protection of children.

It is in the applicant’s interest to provide all the documents requested with a valid application.

Failure to do so may result in the processing of the application being delayed or a decision being made to refuse to grant the visa.

The processing time for a child category visa may vary depending on individual circumstances, the complexity of each case and, given the differing circumstances of national and regional caseloads, the location.

For a person who is applying for a child category visa, the following basic requirements must be met. Note: If the applicant is a child who is under 16 years of age, the child’s parent, relative or guardian may complete and sign the form on the child’s behalf (depending on the visa for which the child is applying).

Child (subclasses 101 and 802) visas


The child must be sponsored by:

  • an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian parent); or
  • if the Australian parent is under 18 years of age, the Australian parent’s cohabiting partner if that partner is 18 years of age or over and an Australian citizen, permanent resident or eligible New Zealand citizen.

The child must be:

  • a natural (biological) child of the Australian parent; or
  • an adopted child or a step-child of the Australian parent within the meaning of the Migration Act 1958; or
  • a child conceived through an artificial conception procedure (ACP); or
  • a child born under surrogacy arrangements, where parentage has been transferred by court order under a prescribed state or territory law.

In addition, the child may be adopted, but that adoption must have taken place before the parent became an Australian citizen or permanent resident or eligible New Zealand citizen and must have been an adoption within the meaning of the Migration Regulations 1994.

A child applying outside Australia, who was adopted after the parent became an Australian citizen or permanent resident or eligible New Zealand citizen, cannot apply for a Child (subclass 101) visa and should consider applying for an Adoption (subclass 102) visa.

The child must be under 25 years of age, but if 18 years of age or over must be a full-time student and dependent on their sponsoring parent. The only exception to the age limit and full-time student requirement is where the child has a disability that stops them from working.

A Child visa application can be made outside Australia (subclass 101) or in Australia (subclass 802).

If the child is in Australia and has had a visa refused or cancelled and does not hold a substantive visa, in order to make a valid application for a Child (subclass 802) visa they must be under 25 years of age (unless claiming to be incapacitated for work due to disability) and must provide a completed and signed form 40CH Sponsorship for a child to migrate to Australia.

Orphan Relative (subclasses 117 and 837) visa


The child must be under 18 years of age and not married or in a de facto partner relationship. The child must be a relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, who is willing to sponsor the child and be able to look after the child because the child has no parent able to care for them

The relative must be either the child’s brother or sister, grandparent, aunt or uncle, or niece or nephew (or step equivalents). An Orphan Relative visa application can be made outside Australia (subclass 117) or in Australia (subclass 837).

Adoption (subclass 102) visa


The child must have been adopted or be in the process of being adopted by an Australian citizen, permanent resident or eligible New Zealand citizen and must be sponsored by that person.

The child must be under 18 years of age when the visa application is lodged with the department and also when the visa application is decided.

An Adoption (subclass 102) visa application can only be made outside Australia.

Dependent children of Partner visa applicants


A dependent child whose parent holds a temporary Partner visa, that is:

  • a temporary Partner (subclass 820) visa; or
  • a provisional Partner (subclass 309) visa; or
  • a provisional spouse or interdependency visa, should consider applying for a temporary Dependent Child (subclass 445) visa.

A subclass 445 visa relates only to partner category visas. If granted, this temporary visa allows the child to travel to, enter and/or remain in Australia until a decision is made on the parent’s application for a permanent Partner (subclass 100 or 801) visa. Like the temporary Partner visa, the subclass 445 visa is a pre-requisite for a child who does not hold a temporary Partner visa to be granted a permanent Partner visa at the same time as their parent.

After the grant of a subclass 445 visa, the child should then immediately apply for the permanent Partner visa of the same class as their parent. It is essential that this application is lodged before a decision is made on the parent’s permanent Partner visa application as the subclass 445 visa automatically ceases as soon as the parent’s permanent Partner visa is granted. Failure to do this may result in the child becoming unlawful in Australia, or the child not having a permanent visa option.

Australian Citizenship


Any child born outside Australia to a parent who is an Australian citizen at the time of the child’s birth may be eligible for Australian citizen by descent.

A child who has been adopted outside Australia by an Australian citizen must hold an activated permanent visa to be eligible to apply for citizenship by conferral. In other words, the child must have entered Australia on their Adoption (subclass 102) visa (or any other visa providing permanent residence) before they can apply for citizenship by conferral. Once their visa has been activated they can apply for citizenship either in or outside Australia.

A child adopted overseas by an Australian citizen under full Hague Adoption Convention arrangements may be eligible to become an Australian citizen if a valid adoption compliance certificate has been issued in accordance with Article 23 of that Convention. That child would also have the option of applying for an Adoption (subclass 102) visa. However, costs and visa application processing times are greater than for the citizenship application process.

Sponsorship


The child must be sponsored by the parent, relative or guardian (as applicable for the visa subclass chosen). The sponsor gives a written undertaking to provide support for the child during their first 2 years in Australia, including accommodation and financial assistance as required to meet the child’s reasonable living needs.

The sponsor must be 18 years of age or over and must be either an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen. In addition, the sponsor for an Orphan Relative visa must be settled in Australia, that is, they have been lawfully resident in Australia for a reasonable period (usually 2 years).

Protection of children


The Australian Government considers that the safety of children is paramount and this is reflected in policies about the sponsorship of minors for visas to enter Australia. The government wants to ensure that children seeking to enter Australia under partner and child category visas are protected from being sponsored by people with convictions for child sex offences or other serious offences indicating that they may pose a significant risk to a child in their care.

From 27 March 2010, a sponsorship limitation in the Migration Regulations 1994 prevents a sponsorship from being approved if one of the proposed applicants is under 18 years of age and the Minister is satisfied that the sponsor or the sponsor’s spouse or de facto partner has a conviction or outstanding charge for a registrable offence. Sponsors (and their partners, if they have one) of child category visa applications lodged on or after 27 March 2010, where the child is under 18 years of age, are required to provide an Australian National Police Check and/or foreign police certificate(s) as part of the process of assessing the application. The results of the police certificate(s) are used by the department to assess the sponsorship application and whether or not the visa application satisfies public interest criteria relating to the best interests of the children.

A sponsorship that would otherwise be refused under this limitation may be approved at the discretion of the Minister or their delegate if 5 years have passed since completion of the sentence for the last relevant offence and there are compelling circumstances affecting the sponsor or the visa applicant.

In addition to the Australian National Police Check or other police certificate(s), sponsors (and their partners, if they have one) must disclose to the department any information relating to any conviction for child sex offences they have had or any charges currently awaiting legal action. It is also important that migration applicants, and any non-migrating person who can lawfully determine where a migrating minor child is to live, are informed when the sponsor and/or their partner has such convictions or outstanding charges.

When the department is aware of any convictions or charges of this nature, through either:

  • the Australian National Police Check or other police certificate(s) provided;
  • the answers provided on form 40CH Sponsorship for a child to migrate to Australia; or
  • liaison with relevant Commonwealth, state and territory agencies;

it may inform the migration applicant, and any non-migrating person who can lawfully determine where the applicant’s migrating minor child may live, about the convictions or charges. Signing the sponsorship undertaking will be taken as your acknowledgement of this approach. If the sponsor has a partner, that partner must also sign an acknowledgement of this approach in form 40CH.

Call the experienced team at GMH Legal to assist you in your matter. A free consultation with GMH Legal is an opportunity to gain deep insights into your legal situation and all of your options.

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