Child Visa
The Child Visa is one of the central pathways within Australia’s family reunion migration framework.
Its legislative purpose is clear: to allow the dependent children of Australian citizens, permanent residents and eligible New Zealand citizens to come to Australia to be reunited with their parents and, where the criteria are met, to obtain permanent residence.
In practice, although the Child Visa appears straightforward, it covers a wide range of situations, including:
The legal standards, supporting evidence and procedural requirements applicable to these scenarios are not identical.
The core legal framework for the Child Visa is set out in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), with detailed criteria for each subclass contained in Schedule 2.
When NS Legal assists with a Child Visa application, the focus is on clarifying the actual structure of the family, identifying the applicable subclass, assessing the eligibility of the sponsor and whether the child meets the age and dependency criteria, and managing sensitive issues such as custody and family violence appropriately.
a child of a previous marriage seeking to come to Australia to join a newly formed family;
a child born to the current partner before the marriage or before arrival in Australia, applying to join the family;
an orphan relative whose parents are deceased or unable to care for the child;
an adult child who remains financially dependent on a parent due to study or disability;
circumstances involving sole custody or shared custody arising from a separated family;
circumstances involving step-children, adopted children or de facto adoption relationships.
The Main Child Visa Subclasses
Australian migration law provides several Child Visa subclasses, which can be grouped broadly into the Child stream and the Orphan Relative stream, each of which is further divided into offshore and onshore applications.
Child stream (ordinary dependent child):
- Subclass 101 — Child (offshore): for dependent children who lodge their application from outside Australia;
- Subclass 802 — Child (onshore): for dependent children who hold a valid visa and are inside Australia, for example a child who has remained in Australia on a student visa, bridging visa or another temporary visa and seeks to obtain permanent residence.
Orphan Relative stream:
- Subclass 117 — Orphan Relative (offshore): for dependent relatives under 18 whose parents are deceased or unable to care for the child, sponsored by an adult relative in Australia;
- Subclass 837 — Orphan Relative (onshore): the onshore equivalent of the above.
Both streams lead to permanent residence visas. Once granted, the applicant obtains Australian permanent residence and the associated rights to work, study and Medicare.
Age Criteria
The most commonly misunderstood part of the Child Visa is the age criteria.
Many families assume that any biological child is eligible, but in practice the age and dependency requirements are strict and must be satisfied at the time of lodgement.
Under the Migration Regulations 1994 (Cth), a child eligible for a Child Visa generally needs to satisfy one of the following three situations:
- Under 18 years of age: the most common scenario, which applies to the majority of child applicants;
- Between 18 and 25 years of age, undertaking full-time study and financially dependent on the parent: requires evidence of study (such as offer letters, certificates of enrolment and fee receipts) together with evidence of financial support from the parent (such as bank transfer records and records of payment of living expenses);
- Any age, but unable to work due to a physical, cognitive or intellectual disability: requires medical assessments and disability evidence demonstrating that the child cannot achieve financial independence within a reasonable period.
It is important to note that the relevant time for assessing age is the time the application is lodged, not the time of assessment or grant.
For children who are approaching their 18th or 25th birthdays, the timing of lodgement should therefore be assessed as early as possible to avoid missing the statutory window.
In addition, a child who is married or in a de facto relationship is generally not regarded as a dependent child for the purposes of a Child Visa — in those circumstances, alternative pathways such as a Partner Visa should be considered.
Sponsorship Requirements
Another core element of the Child Visa is the sponsor. The sponsor is usually the child’s parent, but in certain circumstances a step-parent, an adoptive parent or an eligible adult relative may also be permitted to act as sponsor.
The sponsor generally needs to meet the following requirements:
- be an Australian citizen, permanent resident or eligible New Zealand citizen;
- have a legally recognised parent-child relationship with the applicant (including step-parent or adoptive relationships);
- agree to assume the corresponding sponsorship obligations, including basic needs such as initial accommodation, living costs and education for the child after arrival in Australia;
- meet character requirements, particularly in relation to child-protection history.
Where a step-parent acts as sponsor, Australian migration law permits step-parent sponsorship but generally requires that the step-parent be in a legally recognised marriage or de facto relationship with the child’s biological parent, and that a family relationship has been established between the step-parent and the child.
Where an adoptive parent acts as sponsor, evidence consistent with Australian adoption law or a recognised foreign adoption must be provided.
Family-violence safeguards: in certain circumstances, where the sponsorship relationship is terminated after the application has been lodged due to family violence or similar reasons, the child may still be entitled to continue with the visa application.
These protections are contained within the family-violence provisions of the Migration Regulations and are designed to prevent a child from being placed at status risk due to the sponsor’s violent conduct.
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Documentation
The documentary requirements for a Child Visa are relatively clear, but vary considerably between matters. The following are commonly required documents:
- Full birth certificate: showing the names of both parents — short-form or abbreviated versions are generally not accepted;
- Adoption order: required where the child is adopted, and must be issued by an authority with proper jurisdiction;
- Custody / family court orders: where the child is in the sole custody of one parent, or where the parents are separated or divorced, custody or parental-responsibility orders issued by the Family Court of Australia (now the FCFCOA — Federal Circuit and Family Court of Australia), or an equivalent foreign court, will be required;
- Evidence of financial dependency: in matters involving adult children aged 18-25 in full-time study, evidence of study, records of payment of living expenses, bank statements and evidence of cohabitation will be required;
- Disability evidence: in matters where financial dependency arises from disability, qualified medical assessments, disability certification and capacity-for-work assessments will be required;
- Written consent of both parents (where applicable): where the child is sponsored by one parent and the other parent is still living, the written consent of the other parent to the child’s migration to Australia is generally required. Where the other parent does not consent, a court order granting sole custody must be provided;
- Health and character evidence: child applicants are generally required to undergo health examinations and, depending on age, to provide police clearance certificates.
In matters involving an Orphan Relative application, evidence is also required showing that both parents are deceased or unable to care for the child — for example death certificates, medical or psychiatric assessments, or records from a child-protection agency.
Family-Violence Provisions
Australian migration law sets out express family-violence provisions in the Child Visa programme.
The legislative purpose is to prevent children from being forced to abandon a visa application, or from being trapped in an unsafe family environment, because of a sponsor’s violent conduct.
In practice, the family-violence provisions may apply where, after the application has been lodged, the child experiences:
- physical, psychological, sexual or economic violence from the sponsor against the child or members of the child’s family;
- being forced to leave the sponsor’s residence due to family violence;
- termination of the sponsorship relationship due to family violence, where the child otherwise meets the criteria for grant of the visa.
Under the relevant provisions of the Migration Regulations, a child in family-violence circumstances may, where eligible, continue with the visa application even without ongoing support from the sponsor.
The evidence typically required includes police reports, child-protection agency records, medical records and opinions from social workers or counsellors.
The application of the family-violence provisions can be complex, particularly where cross-border evidence-gathering or evidence preservation is difficult.
Legal assistance should be sought as early as possible so that key evidence is properly preserved and the appropriate process is selected.
Step-Children and Adopted Children
In practice, step-children and adopted children are two of the more common — and more frequently misunderstood — categories within Child Visa matters. Step-children:
- A step-child needs to show that the step-parent is in a legally recognised marriage or de facto relationship with the biological parent;
- Where the biological parent is deceased or has been absent for an extended period, the step-parent may become the sole carer of the child and may be eligible to sponsor;
- Where the biological parent is still living, written consent from that biological parent to the child’s migration to Australia is generally required; failing that, a court order granting sole custody will need to be provided.
Adopted children:
- An adoption completed lawfully within Australia (in accordance with state or territory adoption law), or in a country that is a party to the Hague Convention on Intercountry Adoption, is generally recognised by Australian migration law;
- An adoption completed in a country that is not a Hague Convention party is assessed separately and will involve assessment of the lawfulness of the adoption, the eligibility of the adopters and the factual transfer of parental responsibility;
- In some circumstances, the relevant Australian adoption authority will require an Expression of Interest (EOI) and assessment process before an adoption is formally completed and a visa applied for.
These two categories generally require more detailed legal documentation and more careful procedural sequencing, and full assessment is recommended before lodgement.
Recent Reforms and Processing Times
In recent years the Department of Home Affairs has made a number of adjustments to the processing and standards applicable to the Child Visa programme, including:
- Quota management: Child Visas (Subclasses 101, 802, 117 and 837) sit within the family-migration cap, and the annual planning level affects the actual pace of grants;
- Processing order and priority: in most cases, applications for children under 18 are prioritised, particularly where there are urgent family-reunion circumstances;
- Processing-time ranges: based on data published in recent years, offshore Subclass 101 applications typically take between 18 and 36 months, and some matters may take longer; onshore Subclass 802 processing times are comparable;
- Health and character standards: in recent years Australia has tightened scrutiny in relation to the health of children and to custody arrangements, particularly in matters involving children with disability or cross-border adoption.
It is important to note that processing times are not guarantees.
Actual processing depends on a combination of factors including the completeness of the documentation, the visa category, the applicant’s country of residence and the complexity of the matter.
As far as possible, the documentation should be fully prepared at the lodgement stage so as to avoid additional delay caused by later requests for further evidence.
How We Can Help
A Child Visa application involves family structure, legal relationships and evidence preparation at multiple levels.
When NS Legal’s migration team assists with a Child Visa matter, the approach generally proceeds from several angles.
First, we will map out the family background and the relevant relationships, clarifying the legal link between the applicant and the sponsor, and identifying whether the matter involves step-parenting, adoption, change of custody or other circumstances requiring special handling.
Second, we will assess the suitability of the visa subclass, particularly in matters involving offshore/onshore considerations, age thresholds or Orphan Relative scenarios, so as to ensure the most appropriate pathway is selected.
In practice, we are typically able to assist clients to:
- assess whether the applicant meets the legal criteria for a Child stream or Orphan Relative stream visa;
- clarify sponsorship eligibility, including the particular considerations for step-parents, adoptive parents and adult-relative sponsorship;
- draft application statements, evidence of family relationships and explanations of custody arrangements;
- coordinate the obtaining of custody or adoption orders from the Family Court of Australia (now the FCFCOA) or from a foreign court;
- prepare the financial-dependency evidence required for adult dependent children aged 18-25 or for children with disability;
- where family violence is involved, assist in preserving evidence and in advancing the application under the family-violence provisions;
- monitor application progress, respond to requests from the Department of Home Affairs for further documentation and, where necessary, apply for ministerial intervention or ART review.
Our goal is to help families achieve reunion in the most secure way possible, and to assist with the various legal details at every stage of lodgement, assessment and any subsequent procedure.
Frequently Asked Questions
Can a child over 18 still apply for a Child Visa?
Yes, but only where particular conditions are met. An adult child aged 18-25 must be in full-time study and financially dependent on the parent; a child over 25 generally needs to show that they are unable to work due to a physical, cognitive or intellectual disability. It is important to remember that the relevant time for assessing age is the time of lodgement, not the time of assessment, and the timing of lodgement should be considered as early as possible.
Does the sponsor have to be a biological parent?
Not necessarily. In addition to a biological parent, the sponsor may also be an eligible step-parent, an adoptive parent or (in Orphan Relative matters) an adult relative. Step-parent sponsorship generally requires a legally recognised marriage or de facto relationship between the step-parent and the child’s biological parent; adoptive-parent sponsorship requires a lawful adoption order. All sponsors must satisfy character requirements.
If the parents have separated, is the consent of the other parent required?
Generally, yes. Where the child is sponsored by one parent and the other parent is still living, Australian migration law generally requires the written consent of the other parent to the child’s migration to Australia. Where consent is not provided, an order granting sole custody or parental responsibility, issued by the FCFCOA or an equivalent foreign court, will be required.
Can a child on a bridging visa apply for Subclass 802 onshore?
Generally, yes, provided the child is lawfully in Australia at the time of lodgement. Where the current visa carries a condition 8503 (No Further Stay) restriction, a waiver will need to be sought before a Subclass 802 application can be lodged. The current visa conditions and legal position should be confirmed at the preparation stage.
How long does Child Visa processing take?
Based on data published in recent years, processing of Subclasses 101 and 802 typically takes between 18 and 36 months, and some matters may take longer. Processing times depend on factors including the completeness of the documentation, the visa category, quota management and the complexity of the matter. As far as possible, the documentation should be fully prepared at the lodgement stage so as to avoid additional delay caused by later requests for further evidence.
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