Reading 12 – Including other family members in visa applications

INCLUDING OTHER FAMILY MEMBERS IN VISA APPLICATIONS

INTRODUCTION

Regulation 2.08A of the Migration Regulations 1994 (Cth) (the Regulations) allows for the addition of a
spouse, de facto partner or a dependent child to certain visa applications which have been lodged and not
yet decided. Regulation 2.08B allows for the addition of dependent children to certain temporary visa
applications.

OPERATION OF REG 2.08A

Regulation 2.08A only applies in respect of permanent visa applications which allow for "combined
applications" in their respective Sch 1 provisions.

Applicable "time of application" requirements must be met at the time the request to add another family
member is made to the Department of Home Affairs (the Department) and any "time of decision" criteria are
equally assessed as though the application had been made as a combined application to begin with.

Additional applicant charges may also be applicable, depending on which visa subclass the additional
applicant is applying for.

In addition, the additional applicant must still meet the provisions of Sch 1 that relate to the whereabouts of
an applicant at the time of application and apply to a visa of the same class;

Purpose of reg 2.08A

Regulation 2.08A was inserted to account for the change in personal circumstances that may affect visa
applicants who are experiencing lengthy processing times.

During lengthy processing times, the family composition of a visa applicant may change and reg 2.08A
facilitates the inclusion of family members, provided they meet the definition of “spouse”, “de facto partner” or
“dependent child”, and other relevant Sch 2 secondary visa criteria are also met. For example, this may
apply in respect of a visa applicant who enters into a relationship with a person (who has dependent
children) during the processing period.

Alternatively, applicants may have partners or dependent children who were not included in the original
application due to related Sch 1 requirements, such as the requirement that the family member be
onshore/offshore at time of the application.

Practice Tip: Always check Sch 1 provisions pertaining to a certain visa in order to confirm that combined
applications are permitted to be made.

A request to include an additional applicant is required to be made in writing and in all instances, appropriate
evidence in support will need to be provided to demonstrate the relationship and, where applicable,
dependency.

Addition of a spouse or de facto partner under reg 2.08A

In order to be added, via the operation of reg 2.08A, to a permanent visa application in processing, the
additional applicant is required to meet the definition requirements of their respective categories as follows:
 Reading 12 – Including other family members in visa applications

• "spouse", as defined in s 5F of the Migration Act 1958 (Cth) (the Act); and

• "de facto partner", as defined in s 5CB of the Act.

Addition of a dependent child under reg 2.08A

In order for a person to add a "dependent child" to their application, the child needs to meet the definition of
"dependent child" as prescribed by reg 1.03. The relevant requirements are:

• there is a parent-child relationship, as prescribed by s 5CA of Act; or

• there is a step-child relationship (as defined under reg 1.03); and

• the child has not turned 18; or

• the child has turned 18 and is either dependent on that person (within the meaning given to
‘dependent’ under regulation 1.05A) or is incapacitated for work.

Note that "dependent" and "dependent child" definitions are separate, but related.

Applicants currently the subject of merits review

Regulation 2.08A cannot be utilised where an applicant has lodged a review application with the
Administrative Appeals Tribunal. In these situations, an applicant may only utilise reg 2.08A to add a
dependent partner or child to their pre-existing permanent visa application if the review application is remitted
to the Department for a fresh decision. This is because a fresh decision has to be made and the application
reverts to the primary decision making stage.

ADDITION OF A DEPENDENT CHILD UNDER REG 2.08B

Dependent children of certain temporary visa applicants may be able to use the provisions of reg 2.08B to be
added to a lodged, but undecided, application.

Regulation 2.08B(1)(a) lists the applicable temporary visa subclasses where a combined application is
permitted. These include the subclass 485 (Temporary Graduate), 489 (Regional Sponsored) and 820
(Partner) visas.

Applicable "time of application" requirements must be met at the time the request to add a dependent child is
made to the Department, and any "time of decision" criteria are equally assessed as though the application
had been made as a combined application to begin with.

Similar to the operation of reg 2.08A, the request must be made in writing and appropriate evidence must be
provided to satisfy the requirements of the definition of dependent child.

Additional applicant charges and other temporary application charges may also be applicable, depending on
the visa subclass that has been applied for.

The same principles outlined above for reg 2.08A regarding adding a dependent child while there is a
pending merits review application also apply to reg 2.08B