Including Dependent Children in Your 820 Application

A dependent child is included in the 820 as a combined applicant, inside the same application, when it is lodged — and the Department of Home Affairs says any family member applying with you must also be in Australia when you apply. Timing is the whole game: once the subclass 820 is granted, family members cannot be added, and a child has to take a longer route.

Which children can be included?

Under clause 820.311 of the Migration Regulations 1994, the secondary criteria are open to a dependent child of a person who has applied for the partner visa, and to a member of the family unit of a subclass 300 holder or former holder who has applied. Two definitions do the work.

Dependent child is defined in regulation 1.03 as the child or stepchild of a person — but not one who is engaged to be married or who has a spouse or de facto partner — who either has not turned 18, or has turned 18 and is dependent on that person or incapacitated for work due to a total or partial loss of bodily or mental functions.

Dependent is defined in regulation 1.05A, and it is a financial test: the person must be, and have been for a substantial period beforehand, wholly or substantially reliant on the other person for financial support to meet basic needs for food, clothing and shelter, and that reliance must be greater than reliance on any other source.

Member of the family unit is a wider term, defined in regulation 1.12: a spouse or de facto partner, a child or stepchild under 18, one aged 18 to 22 who is dependent, and a dependent child of such a child. For the 820 it matters only on the subclass 300 path; otherwise clause 820.311 uses the dependent child test.

The child must also be included in the sponsorship. Clause 820.311 requires the sponsorship of the primary applicant to include the child, and clause 820.325 requires it to have been approved and still in force when the visa is decided.

What the Department needs for each child

Each child is a separate applicant with their own requirements and their own charge. See additional applicant charges.

• Identity documents — passport, full birth certificate showing both parents, and evidence of any name change. Anything not in English needs translation. See identity documents and translations.
• Evidence of the relationship to the parent. The birth certificate usually does this. For a stepchild, the evidence must also establish the marriage or de facto relationship that creates the step-relationship.
• Evidence of dependency, for a child over 18: financial support, shared household costs, enrolment records, or medical evidence where the claim is incapacity for work.
• Health. Clause 820.323 applies the health criterion to each secondary applicant. Health assessment results are valid for 12 months and a health undertaking runs for six months, so timing matters. See health examinations.
• Character. The same clause applies the character criterion, and the Department says it can extend to family members who do not apply. Police certificates are required once a child reaches the age at which the Department asks for them, and are valid for 12 months from issue. See police certificates and character requirement.
• The Australian values statement, for any child who had turned 18 at the time of application.

Consent and custody when the other parent is not coming

This is where applications with children stall. Clause 820.324 says that if a child applicant has not turned 18, public interest criteria 4017 and 4018 must be satisfied for them. Criterion 4017 requires the Minister to be satisfied of one of three things:

• the law of the child's home country permits the child's removal; or
• each person who can lawfully determine where the child is to live consents to the grant of the visa; or
• the grant of the visa would be consistent with any Australian child order in force in relation to the child.

Where the other parent is not migrating, that usually means producing either their written consent, in a form that can be verified, or a court order. Where the family's arrangements are governed by Australian family law, orders under the Family Law Act 1975 are what the Department wants; the regulations refer to an Australian child order, not an informal agreement between parents.

Whether a consent or an order can be obtained, and on what terms, is a family law question for a family lawyer rather than a migration one. It also takes time: a consent to negotiate, or an order to apply for, can add months, and the criterion is assessed at the time of decision.

The best interests of the child

Criterion 4018 requires the Minister to be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. The Department puts it more simply on the subclass 820 page: the visa might not be granted if it is not in the best interests of an applicant under 18.

It is a negative test, not an invitation to argue the merits of the move. It does mean material suggesting the child would be at risk, or that the arrangements for their care are unclear, is relevant. See school enrolment for children.

Adding a child after the 820 is granted

You cannot. The Department is explicit that family members cannot be added to the application after the subclass 820 has been granted. The route it sets out instead has three steps:

1. The child must first obtain a Dependent child visa (subclass 445).
2. The child can then be included in the permanent subclass 801 application, while in Australia, using Form 1002.
3. The Department is told through its Partner Processing Enquiry Form.

The regulations match this: clause 801.321 allows the permanent visa to be granted to a secondary applicant holding a subclass 445 or 820 visa, where the primary applicant has been granted the 801. The 445 is not a detour — it is the designed path. See subclass 801 permanent visa.

A child born during processing, and a baby born after grant

If a child is born to the applicant after the application is made but before it is decided, regulation 2.08 treats the child as having applied for a visa of the same class at birth, combined with the parent's application, and requires the child to satisfy the time-of-decision criteria.

A baby born after the 820 has been granted is a different case, and the Department asks to be told about it. Family members cannot be added at that stage. Before assuming a visa is needed at all, check the child's citizenship position — a child born in Australia may acquire Australian citizenship at birth depending on the parents' status under the Australian Citizenship Act 2007, and a citizen needs nothing from the Department. Either way, notify the birth promptly through ImmiAccount or Form 1022 — see telling Home Affairs about changes.

An application prepared by an Australian migration lawyer is more likely to succeed where children are involved. The consent and custody criterion is the one most often left until a case officer asks about it, by which time the other parent's cooperation, or a court date, is months away — and a child left out at lodgement cannot be added once the 820 is granted.

Next: work through the mechanics of adding each child as a combined applicant on lodging in ImmiAccount, or step back to how to apply for the 820 visa.

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