Subclass 802 — Child

802.1—Interpretation

802.111

In this Part: letter of support means a letter of support provided by a State or Territory government welfare authority that:

(a) supports a child’s application for permanent residency in Australia; and

(b) sets out:

(i) the circumstances leading to the involvement of a State or Territory government welfare authority in the welfare of the child; and

(ii) the State or Territory government welfare authority’s reasons for supporting the child’s application for permanent residency in Australia; and

(c) describes the nature of the State or Territory government welfare authority’s continued involvement in the welfare of the child; and

(d) shows the letterhead of the State or Territory government welfare authority; and

(e) is signed by a manager or director employed by the State or Territory government welfare authority.

Note: eligible New Zealand citizen is defined in regulation 1.03.

802.2—Primary criteria

Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. However, if an application for a visa is supported by a letter of support from a State or Territory government welfare authority, no member of the family unit is able to satisfy the secondary criteria unless regulation 2.08 applies.

802.21—Criteria to be satisfied at time of application

802.211

If the applicant is a person to whom section 48 of the Act applies, the applicant:

(a) has not been refused a visa or had a visa cancelled under section 501 of the Act; and

(b) since last applying for a substantive visa, has become a dependent child of:

(i) an Australian citizen; or

(ii) the holder of a permanent visa; or

(iii) an eligible New Zealand citizen.

802.212

(1) The applicant:

(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

(b) subject to subclause (2), has not turned 25.

(1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

(2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

802.213

(1) If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

(a) was under 18 when the adoption took place; and

(b) meets the requirements of subclause (2), (3), (4) or (5).

(2) The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

(3) The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

(4) The applicant meets the requirements of this subclause if:

(a) the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

(b) before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent’s spouse or de facto partner as suitable adoptive parents, for the applicant.

(5) The applicant meets the requirements of this subclause if:

(a) the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

(b) either:

(i) when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

(ii) the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

(c) the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

(d) the adoptive parent has, or the adoptive parent and the adoptive parent’s spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.

802.214

(1) If the applicant has turned 18:

(a) the applicant:

(i) is not engaged to be married; and

(ii) does not have a spouse or de facto partner; and

(iii) has never had a spouse or de facto partner; and

(b) the applicant is not engaged in full-time work; and

(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

802.215

The applicant is:

(a) a person whose application is supported by a letter of support from a State or Territory government welfare authority; or

(b) sponsored by a person who:

(i) has turned 18; and

(ii) is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

(iii) is:

(A) the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a); or

(B) the cohabiting spouse or de facto partner of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a).

802.216

Clauses 802.211 to 802.214 are not required to be satisfied if the application for a visa is supported by a letter of support from a State or Territory government welfare authority.

802.22—Criteria to be satisfied at time of decision

802.221

(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:

(a) continues to satisfy the criterion in clause 802.212; or

(b) does not continue to satisfy that criterion only because the applicant has turned 18.

(2) In the case of an applicant who had turned 18 at the time of application:

(a) the applicant:

(i) continues to satisfy the criterion in clause 802.212; or

(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and

(b) the applicant continues to satisfy the criterion in clause 802.214.

802.222

If the Minister has requested an assurance of support in relation to the applicant, the Minister is satisfied that the assurance has been accepted by the Secretary of Social Services.

802.223

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4020 and 4021; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

802.224

(1) Each member of the family unit of the applicant who is an applicant for a Subclass 802 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4020; and

(b) if the person had turned 18 at the time of application—satisfies public interest criterion 4019.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 802 visa is a person who satisfies public interest criterion 4007, unless

the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

802.225

If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

802.226

The sponsorship mentioned in clause 802.215 has been approved by the Minister and is still in force. Note: Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.

802.226A

(1) Clauses 802.221 to 802.226 are not required to be satisfied if the application for a visa is supported by a letter of support from a State or Territory government welfare authority.

(2) If the application for a visa is supported by a letter of support from a State or Territory government welfare authority:

(a) the applicant satisfies:

(i) the criteria in subclauses (3), (4), (5) and (6); and

(ii) public interest criteria 4001, 4002, 4003, 4018, 4020 and 4021; and

(b) the Minister is satisfied that:

(i) the grant of visa is in the public interest; and

(ii) the State or Territory government welfare authority supports the applicant’s application for permanent residency in Australia.

(3) The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

(a) a Medical Officer of the Commonwealth;

(b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

(4) The applicant:

(a) has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(b) is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination; or

(c) is a person:

(i) who is confirmed by a relevant medical practitioner to be pregnant; and

(ii) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(iii) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

(iv) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

(5) A relevant medical practitioner:

(a) has considered:

(i) the results of any tests carried out for the purposes of the medical examination required under subclause (3); and

(ii) the radiological report (if any) required under subclause (4) in respect of the applicant; and

(b) if he or she is not a Medical Officer of the Commonwealth and considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, has referred any relevant results and reports to a Medical Officer of the Commonwealth.

(6) If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

802.3—Secondary criteria

Note: If any member of a family unit satisfies the primary criteria, the other members of the family unit are eligible for the grant of the visa if they satisfy the secondary criteria and their applications are made before the Minister has decided to grant or refuse to grant the visa to the first person. However, if an application for a visa is supported by a letter of support from a State or Territory government welfare authority, no member of the family unit is able to satisfy the secondary criteria unless regulation 2.08 applies.

802.31—Criteria to be satisfied at time of application

802.311

Each of the following is satisfied:

(a) the applicant is a member of the family unit of a person to whom paragraph 802.215(b) applies;

(b) the applicant is a member of the family unit of a person who:

(i) has applied for a Child (Residence) (Class BT) visa; and

(ii) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 802.21;

(c) the Minister has not decided to grant or refuse to grant the visa to that other person.

802.312

The sponsorship mentioned in clause 802.215 of the person who satisfies the primary criteria includes sponsorship of the applicant.

802.32—Criteria to be satisfied at time of decision

802.321

The applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 802 visa.

802.322

The applicant:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

802.323

If the Minister has requested an assurance of support in relation to the person who satisfies the primary criteria, the Minister is satisfied that:

(a) the applicant is included in the assurance of support given in relation to that person, and that assurance has been accepted by the Secretary of Social Services; or

(b) an assurance of support in relation to the applicant has been accepted by the Secretary of Social Services.

802.324

If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

802.325

The sponsorship mentioned in clause 802.312 has been approved by the Minister and is still in force.

802.326

The applicant satisfies public interest criteria 4020 and 4021.

802.327

Clauses 802.321 to 802.325 are not required to be satisfied if the application for a visa is supported by a letter of support from a State or Territory government welfare authority.

802.328

(1) If the applicant’s application for a visa is supported by a letter of support from a State or Territory government welfare authority and the applicant is an applicant to whom regulation 2.08 applies:

(a) the applicant must:

(i) be a member of the family unit of a person to whom paragraph 802.215(a) applies; and

(ii) satisfy subclauses (2), (3), (4) and (5); and

(iii) satisfy public interest criteria 4018; and

(b) the Minister must be satisfied that:

(i) the grant of visa is in the public interest; and

(ii) the State or Territory government welfare authority supports the applicant’s application for permanent residency in Australia.

(2) The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

(a) a Medical Officer of the Commonwealth;

(b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

(3) The applicant:

(a) has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(b) is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination; or

(c) is a person:

(i) who is confirmed by a relevant medical practitioner to be pregnant; and

(ii) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(iii) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

(iv) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

(4) A relevant medical practitioner:

(a) has considered:

(i) the results of any tests carried out for the purposes of the medical examination required under subclause (2); and

(ii) the radiological report (if any) required under subclause (3) in respect of the applicant; and

(b) if he or she is not a Medical Officer of the Commonwealth and considers that the applicant has a disease or condition that is, or may result in the

applicant being, a threat to public health in Australia or a danger to the Australian community, has referred any relevant results and reports to a Medical Officer of the Commonwealth.

(5) If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

802.4—Circumstances applicable to grant

802.411

The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

802.5—When visa is in effect

802.511

Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

802.6—Conditions: Nil.