Partner Visa Non-Migrating Children

What are partner visa non-migrating children?

Partner visa non-migrating children are the children of a partner visa applicant who are not included as applicants in the partner visa application. The phrase "partner visa non-migrating children" covers a child who lives with the other parent in another country, an adult son or daughter who has built a separate life, and a child who will stay behind with grandparents or relatives for now. These children are not applying to come to Australia, but the law still cares about them. They must be declared, some of them must be health checked, and the way they are dealt with can decide whether the parent's own partner visa in Australia is granted. My Migration Lawyers is an Australian immigration law firm that advises on these family disclosure issues in partner visa matters.

Many applicants assume that a child who is not coming does not belong in the application. That assumption is wrong, and it is one of the most damaging mistakes in partner visa applications. The rules on partner visa non-migrating children are not about whether the child will travel. They are about whether the Department of Home Affairs has a full and true picture of the applicant's family, and whether every member of the applicant's family unit meets the public interest criteria that the Migration Regulations 1994 apply to them.

This guide explains who counts as a non-migrating child, why every child must be declared, which partner visa non-migrating children are treated as members of the family unit, when those children need health examinations and character checks, what custody and consent rules apply, what happens if a child is left off the form, and how a non-migrating child might later join the parent in Australia. It applies to the onshore Subclass 820 visa and Subclass 801 visa, the offshore Subclass 309 visa and Subclass 100 visa, and the Subclass 300 prospective marriage visa.

Who usually falls into this group

The children most often treated as partner visa non-migrating children fall into four groups.

The first group is children under 18 who live with their other parent. A parent who separated from a former spouse may have a child who lives with that former spouse, often under a custody order or an informal family arrangement. The child will not move to Australia, but the child is still the applicant's child.

The second group is adult children. A son or daughter aged 25 who works, lives independently and has no plan to migrate is usually not applying. That child may or may not be a member of the family unit, depending on age and dependency, but the child is still a child of the applicant and must be disclosed where the form asks about children.

The third group is children who will stay behind for a period. Some families decide that a teenager will finish school in the home country before joining the parent, or that a young child will stay with grandparents until the parent is settled. These children are non-migrating for now, but the family may want them to come later.

The fourth group is children of the sponsor or children from a relationship that is not widely known, including children in same-sex and blended families covered on the LGBTI partner visa page. Stepchildren raise their own issues, which are covered in a separate guide, but the starting point is the same. Children connected to the family must be disclosed truthfully.

Why the label matters

The label "non-migrating" describes what the family intends. It does not change the legal obligations. The application asks about family members because the Department must assess the whole family unit, not only the people who travel. That is why the rules on partner visa non-migrating children sit beside the health, character and integrity criteria that every partner visa must satisfy. The Subclass 820 visa explained guide sets out those wider criteria, and the guide on what an immigration lawyer does explains how legal advice fits into the process.

Do you have to declare partner visa non-migrating children?

Yes. You must declare partner visa non-migrating children in the application, even though they are not applying and will not travel to Australia. Section 101 of the Migration Act 1958 requires a non-citizen to complete the application form so that all questions on it are answered and no incorrect answers are given. The partner visa application asks about the applicant's family members, including children who are not migrating, so a child who is left off is an incorrect answer.

The Department's own guidance on health examinations reflects the same position. It tells applicants that the visa processing officer will advise if any non-migrating family members need health examinations after the visa application is made. The officer can only do that if the non-migrating family members have been declared in the first place.

What "declare" actually means

Declaring partner visa non-migrating children means listing each child accurately in the application and in any other form that asks about family, such as Form 80. The details usually include the child's full name, date of birth, country of birth, citizenship, relationship to the applicant, and where and with whom the child lives. The answers must match identity documents, birth certificates and anything previously given to the Department in an earlier visa application. Applicants who first came on a visitor visa should check what they said about their children at that time, a point also raised in the guide on moving from a tourist visa to a partner visa. Online applications are made through ImmiAccount, and the guide on how to create an ImmiAccount explains the account set up.

Consistency matters as much as completeness. If the applicant listed three children in a visitor visa application five years ago and lists two in the partner visa application, the Department will notice. If one child appears under a different name or date of birth, the Department will ask why. A partner visa that is otherwise strong can become a credibility case because the family section of the forms does not line up across applications.

Declaring is not the same as including

A common source of confusion is the difference between declaring a child and including a child as an applicant. A declared child is disclosed as a family member. An included child is an applicant who seeks a visa in a combined application. Partner visa non-migrating children are declared but not included. The Department may still assess a declared child against certain public interest criteria, as explained below, but the child is not granted a visa.

Couples who want a child to migrate with the applicant are asking a different question. That question concerns adding a child as a secondary applicant and the dependency and custody evidence that goes with it. The partner visa document checklist and the Subclass 820 visa guide describe the general documents for applicants and secondary applicants, and the 820 partner visa evidence checklist sets out the evidence usually gathered.

Adult children must also be disclosed

Adult sons and daughters are among the partner visa non-migrating children most often left off. Applicants reason that an adult child who lives independently has nothing to do with the partner visa. Where a question asks about the applicant's children, it means all of them, whatever their age. An adult child who is not a member of the family unit will not usually be assessed against the health or character criteria, but the child must still be disclosed truthfully where the forms ask about children.

What the sponsor must disclose

The sponsor also completes forms that ask about family and previous relationships, including children from those relationships. Sponsors often have children from a previous marriage who live with the other parent. Those children are not partner visa non-migrating children of the applicant in the strict sense, but they must be disclosed accurately by the sponsor. Where the sponsor's previous relationships are relevant to sponsorship limitations, accurate disclosure of the sponsor's own family history becomes even more important. The guide on when a sponsor cannot sponsor a partner explains those limits.

Which partner visa non-migrating children are members of the family unit?

Partner visa non-migrating children are members of the applicant's family unit if they meet the definition in regulation 1.12 of the Migration Regulations 1994, and that status decides whether they must meet the health and character criteria. Under the general rule in subregulation 1.12(2), a child or step-child of the applicant, or of the applicant's spouse or de facto partner, is a member of the family unit if the child is not engaged to be married and does not have a spouse or de facto partner, and the child:

• has not turned 18; or
• has turned 18 but has not turned 23, and is dependent on the applicant or on the applicant's spouse or de facto partner; or
• has turned 23 and is dependent on the applicant or the partner within the meaning of paragraph 1.05A(1)(b).

A dependent child of a child who meets those conditions is also a member of the family unit.

What this means in practice

Every child of the applicant who is under 18, unmarried and not engaged is a member of the family unit, wherever the child lives and whoever has custody. A 10 year old who lives with the other parent in another country, and whom the applicant sees twice a year, is still a member of the applicant's family unit for migration purposes. That surprises many applicants. Custody arrangements do not remove the child from the definition.

A child aged 18 to 22 is a member of the family unit only if the child is dependent on the applicant or the applicant's partner. A child aged 23 or older is a member of the family unit only if the narrower dependency test in paragraph 1.05A(1)(b) is met. An adult child who is married, in a de facto relationship or engaged is not a member of the family unit at all.

A common error about partner visa non-migrating children

The common error is to think that only children who live with the applicant, or children the applicant supports, are relevant. That is not how the definition works for children under 18. Age is enough. The second error is the reverse: assuming that every adult child is a member of the family unit. An independent adult child is not, although the child must still be disclosed where the forms ask about children.

Getting the classification right is the first practical step with partner visa non-migrating children. It decides who will be asked for health examinations and police certificates, and who will not. Dependency of an adult child is a question of fact. Where a child aged 18 or over is financially supported by the applicant, the answer can go either way, and the evidence needs careful review. The relationship definitions are also central to the wider de facto partner visa and spouse rules, and the same regulation book governs both. The guide on whether you really need 12 months of de facto relationship shows how closely the Migration Regulations define family relationships.

Why the family unit definition matters so much

The family unit definition is the gateway to the "one fails, all fail" criteria. If a non-migrating child is a member of the family unit, the Schedule 2 partner criteria generally require that child to satisfy certain public interest criteria before the parent can be granted the visa. If the child is not a member of the family unit, those criteria do not apply to the child. That is why the classification of partner visa non-migrating children must be settled before lodgement, not after a request arrives from the Department.

Applicants who lodge without advice often discover the issue only when the Department asks for health examinations for a child who lives with a former partner who will not cooperate. At that point, the options are narrower and the timeline is controlled by the Department. Getting advice from an immigration lawyer for a partner visa before lodgement allows those problems to be identified and planned for while the applicant still controls the timing. A partner visa lawyer can review the family section of the forms against the definitions, and the guide comparing a partner visa lawyer with doing it yourself explains where self-prepared applications most often go wrong.

Do partner visa non-migrating children need health examinations?

Partner visa non-migrating children who are members of the applicant's family unit generally must satisfy the health criterion in public interest criterion (PIC) 4007, unless the decision maker is satisfied that it would be unreasonable to require the child to undergo assessment against that criterion. This requirement is written into the Schedule 2 criteria for every partner visa subclass. It is not a matter of Department preference.

The relevant provisions are:

• paragraph 820.224(1A)(b) for the Subclass 820 visa;
• subclause 801.224(2) for the Subclass 801 visa;
• subclause 309.228(2) for the Subclass 309 visa;
• subclause 100.224(2) for the Subclass 100 visa; and
• subclause 300.226(2) for the Subclass 300 visa.

Each of these provisions says, in substance, that the primary applicant cannot be granted the visa unless each member of the family unit who is not an applicant satisfies PICs 4001, 4002, 4003 and 4004, and satisfies PIC 4007 unless the decision maker is satisfied that it would be unreasonable to require the person to undergo assessment in relation to PIC 4007.

How the health request usually arrives

For partner visa non-migrating children, the request for health examinations normally comes from the Department after lodgement. The Department's health guidance says the visa processing officer will let the applicant know if any non-migrating family members need health examinations after the visa application is made. The applicant should not book examinations for a non-migrating child on their own initiative before being asked, because the Department generates the requirements for each person in the family.

When a request arrives, it will set a time for the examinations to be completed. Partner visa non-migrating children who live in another country attend a panel clinic in that country. For a child who lives with the other parent, the other parent's cooperation is usually needed to take the child to the clinic. That practical problem is where many applications stall. Onshore applicants usually hold a bridging visa while this is resolved, and the guide to bridging visas in Australia and the guide on work rights while waiting for a Subclass 820 visa explain what that means day to day.

When requiring a health examination may be unreasonable

The words "unless the Minister is satisfied that it would be unreasonable" give the decision maker a discretion. It is not a waiver of the health criterion that the applicant can claim as of right. It is a judgement the decision maker makes on the facts. The applicant must put the facts and the evidence before the decision maker.

Situations that applicants commonly raise include a child who lives with a former partner who refuses to allow the examination, a child whose whereabouts are not known to the applicant, and a child in a country or region where access to a panel clinic is not realistically possible. Whether any of these is enough in a particular case depends on the evidence and on Department policy at the time. A bare statement that the other parent "will not help" carries little weight. Evidence of genuine attempts to arrange the examination, correspondence with the other parent, court orders that limit the applicant's role, and an explanation of why the child cannot attend usually carry far more.

The request should be made in writing, before the deadline for the examinations, with supporting evidence. Missing the deadline without explanation can lead to a decision on the information the Department already holds. The guide on responding to a section 56 request explains how requests for information and deadlines work.

What happens if a non-migrating child fails the health criterion

If a non-migrating child who is a member of the family unit is assessed and does not satisfy PIC 4007, the parent's partner visa cannot be granted under the "one fails, all fail" criterion, unless the health criterion is satisfied in another way, such as through a health waiver where the visa allows one. This is one of the harshest consequences in the rules on partner visa non-migrating children. A child who will never live in Australia can still be the reason the parent's visa is refused.

PIC 4007 is the health criterion used for partner visas, and it contains a waiver mechanism that can be considered in some circumstances. The Medical Officer of the Commonwealth gives an opinion on the health assessment, and the decision maker then considers whether the criterion is met or whether a waiver should be exercised. Whether a waiver is available and whether it should be exercised for partner visa non-migrating children is a technical question that should be assessed against the current health policy before any response is sent. Couples facing a health issue for a non-migrating child should obtain advice before responding, because the order and content of the response can matter. Where a refusal has already been made, the partner visa refusals page explains how the firm reviews the decision, and the wider visa refusals page covers refusals of other visa types.

Character criteria for non-migrating children

The same provisions require partner visa non-migrating children who are members of the family unit to satisfy PICs 4001 to 4004. PIC 4001 and PIC 4002 relate to character and security, PIC 4003 relates to foreign policy and similar matters, and PIC 4004 relates to debts to the Commonwealth. For a young child, these criteria rarely raise any problem. For an older dependent child, the Department may ask for police certificates from countries where the child has lived. The Subclass 801 and Subclass 100 policy notes that penal clearances may be required at the permanent stage for applicable members of the family unit, including where a person has reached an age that requires them to meet the character criteria since the provisional visa was granted.

Custody and consent for partner visa non-migrating children

For partner visa non-migrating children, the custody and best interests criteria in PIC 4015 and PIC 4016 generally do not apply, because those criteria are directed at children under 18 who make a combined application with the primary applicant. Clause 820.225, clause 801.225, clause 309.229 and clause 100.225 each refer to a member of the family unit aged under 18 who made a combined application. A child who is not applying has not made a combined application.

This is a point that is often misunderstood. Applicants worry that they need the other parent's written consent before they can apply, even though the child is staying behind. For partner visa non-migrating children, the consent criteria aimed at a child's migration are not triggered by the parent's own application. The consent question arises when a child is migrating or is later added as an applicant. The partner visa lawyers page and the firm's Subclass 820 partner visa guide explain where the custody criteria fit when a child is migrating.

Where custody still matters

Custody still matters in three practical ways.

First, the health examination request. A child who lives with the other parent can only be examined if someone with authority takes the child to the clinic. If the other parent will not cooperate, the applicant needs evidence of that for the "unreasonable" discretion.

Second, the accuracy of the forms. The forms ask where the child lives and with whom. The answer must match any parenting orders, divorce documents and earlier applications.

Third, the future. If the family later wants the child to join the parent in Australia, the custody and consent criteria will apply at that point. A parent who has been honest and consistent about partner visa non-migrating children from the beginning is in a much better position when that day comes.

Children with an Australian connection

Some partner visa non-migrating children have their own connection to Australia. A child of a previous relationship with an Australian citizen may already be an Australian citizen. A child born to the applicant and the sponsor in Australia often acquires citizenship by birth. Citizen children are not "migrating" in the visa sense, but they are still part of the family history and still belong in the forms where the forms ask about children. A child of the relationship can also be relevant evidence of the relationship itself, and the guide to partner visa relationship evidence explains how children feature in the assessment of the household and commitment. The partner visa relationship statement guide explains how the couple's account should describe children and family arrangements, the guide to preparing evidence of a genuine relationship covers supporting documents, and Form 888 statements from people who know the family can describe the couple's role with children.

What happens if you leave a child off a partner visa application?

Leaving a child off a partner visa application is an incorrect answer under section 101 of the Migration Act 1958, and it can lead to refusal under PIC 4020, to cancellation of a granted visa under the incorrect information provisions, and to serious credibility problems in later applications. The omission of partner visa non-migrating children is one of the most common ways an otherwise genuine couple ends up facing an integrity concern.

Sections 101, 104 and 105 of the Migration Act

Section 101 requires every question on the application form to be answered and no incorrect answers to be given. Section 104 requires an applicant to tell the Department in writing, as soon as practicable, if circumstances change so that an answer on the form becomes incorrect. Section 105 requires an applicant who becomes aware that an answer was incorrect when it was given to notify the Department in writing of the incorrectness and the correct answer. Both section 104 and section 105 continue to apply despite the grant of any visa.

In practice, an applicant who realises after lodgement that partner visa non-migrating children were left off must correct the record. The usual form for correcting an answer that was wrong when given is Form 1023, Notification of incorrect answers. A change that happens after lodgement, such as the birth of a child, is notified as a change of circumstances, and the guide on Form 1022 change of circumstances explains that process.

PIC 4020 and false or misleading information

PIC 4020 is the integrity criterion for partner visas. Under PIC 4020(1), there must be no evidence that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application or a visa held in the 12 months before the application. PIC 4020(5) defines information that is false or misleading in a material particular as information that is false or misleading at the time it is given and relevant to any of the criteria considered in making a decision on the application, whether or not the decision is made because of that information.

The Department's PIC 4020 policy expressly includes omission of facts as an example of false or misleading information. Partner visa non-migrating children are relevant to the criteria because members of the family unit must meet health and character criteria. Omitting a child who is a member of the family unit is therefore capable of being information that is misleading in a material particular.

Waiver and the non-grant period

PIC 4020(4) allows the decision maker to waive the requirements of PIC 4020(1) and PIC 4020(2) where compelling circumstances affect the interests of Australia, or where compassionate or compelling circumstances affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In partner visa matters, the interests of the Australian sponsor and any Australian children are often central to that argument. A waiver is discretionary and is never guaranteed.

If an applicant is refused under PIC 4020(1), PIC 4020(2) can then affect the applicant and members of the applicant's family unit in later applications made within three years. The Department's policy says the reference to member of the family unit in PIC 4020 includes members of the family unit whether or not they are included in the application. The consequences of mishandling partner visa non-migrating children can therefore reach the very children who were left off.

Cancellation after grant

Where a visa has already been granted and the Department later discovers that partner visa non-migrating children were left off, the visa may be liable to cancellation under the incorrect information provisions in Subdivision C of Division 3 of Part 2 of the Migration Act, which include section 109. Cancellation is not automatic. The visa holder is given notice and an opportunity to respond. However, a cancellation process is stressful, slow and risky, and it is far better to correct the record voluntarily than to wait for the Department to find the omission. The firm's visa cancellations page explains how notices of intention to consider cancellation are handled.

Was the omission a mistake?

Many omissions of partner visa non-migrating children are honest mistakes. An applicant may have misunderstood the question, assumed an adult child was irrelevant, or relied on a relative or friend to complete the form. The Department's policy says the information must be false or misleading at the time it is given, and the circumstances of the omission are relevant to how the Department responds. An honest mistake that is promptly corrected is very different from a deliberate concealment discovered by the Department.

The key is timing and explanation. A voluntary correction with a clear, truthful explanation and supporting documents gives the decision maker the chance to see the full picture. A response written only after a natural justice letter for a partner visa arrives starts from a weaker position, because the Department has already formed a concern. Where an omission has just come to light and a deadline is running, urgent immigration lawyer advice explains how to obtain advice quickly.

Can partner visa non-migrating children join the parent later?

Yes, partner visa non-migrating children can sometimes join the parent later, but the pathway depends on the child's age and dependency, on the stage the parent's partner visa has reached, and on whether the child was properly declared from the start. There is no single "join later" visa. The law offers different mechanisms at different stages, and some of them close once a decision is made.

Before the provisional visa is decided

While the parent's Subclass 820 or Subclass 309 application is still undecided, regulation 2.08B allows a dependent child to be added to the application at the applicant's written request, provided the requirements of that regulation are met. The Department's policy notes that this may be done by attaching Form 1436, Adding an additional applicant, in ImmiAccount. Regulation 2.08 adds a newborn child by operation of law. Once a child is added, the child is no longer one of the partner visa non-migrating children. The child becomes a secondary applicant, and the custody, consent and dependency criteria then apply to that child.

Families who change their mind after lodgement should act before the provisional visa is decided. After that point, the mechanism changes. The guide on how long a Subclass 820 onshore partner visa takes helps families estimate how long that window may stay open.

After the provisional visa is granted

Once the parent holds a Subclass 820 or Subclass 309 visa, a dependent child who was not included in, or added to, the provisional application may be sponsored for a Subclass 445 (Dependent Child) visa before the permanent partner visa is granted. The Department's policy for the Subclass 801 and Subclass 100 visas explains that regulation 2.08A allows a dependent child to be added to the permanent application, but that the child must hold a Subclass 820, Subclass 309 or Subclass 445 visa at the time of decision. In practice, a child who joins at this stage usually needs a Subclass 445 visa first.

Once the child holds the Subclass 445 visa, the child can be added to the parent's permanent application by a written request under regulation 2.08A, or through Form 1002, Application by a subclass 445 dependent child for a permanent partner visa. Timing is critical. The Subclass 445 route is tied to the period before the permanent visa is decided.

After the permanent visa is granted

After the parent holds a permanent partner visa, the Subclass 445 route is generally no longer the pathway. Other family visa options may be relevant, depending on the child's age, dependency and circumstances, and they each have their own criteria. The family's history of declarations becomes very important at this point. The Department will compare what the parent said about partner visa non-migrating children in the partner visa application with what is said in the new application.

A parent who declared the child, explained why the child was staying behind, and arranged health examinations when asked has a consistent record. A parent who never mentioned the child must now explain why the child appears for the first time. That explanation will be tested against the incorrect information provisions and the parent's own visa history. This is one of the most practical reasons to deal with partner visa non-migrating children correctly at the outset. Parents who were previously refused a visa face additional scrutiny, as the guide on a partner visa after a visa refusal explains.

Adult children who later want to migrate

Adult partner visa non-migrating children who are not dependent are usually outside the partner visa framework entirely. They cannot be added to the parent's partner visa, and they will need their own visa pathway based on their own circumstances. A parent's partner visa does not create a right for an independent adult child to migrate. Families are sometimes surprised by this, and it is better to understand it before lodgement than to discover it later. Where the relationship itself ends before the permanent stage, the position of the whole family changes, as explained in the guide on what happens if the relationship breaks down.

Partner visa non-migrating children at the permanent stage

At the permanent stage, partner visa non-migrating children who are members of the family unit must again satisfy the relevant public interest criteria under subclause 801.224(2) or subclause 100.224(2), unless it would be unreasonable to require the health assessment. The permanent stage is not a formality for the family unit. Changes since the provisional grant must be reported, and new family members must be assessed.

When a new non-migrating child is disclosed

The Department's Subclass 801 and Subclass 100 policy deals with the situation where a new non-applicant dependent family member is disclosed during processing of the permanent visa. It says that person must be assessed under subclause 801.224(2) or subclause 100.224(2), including in relation to the health criterion, unless the decision maker is satisfied that it would be unreasonable to require the assessment. A new child might be born, adopted or newly disclosed. Each of these situations should be handled carefully and reported accurately.

Children who change category over time

Partner visa non-migrating children can move in or out of the family unit between the two stages. A 17 year old at lodgement may be 20 by the permanent stage, and is then a member of the family unit only if dependent. A dependent 22 year old may turn 23 and fall under the narrower dependency test in paragraph 1.05A(1)(b). A child may marry or become engaged and leave the family unit altogether. Section 104 of the Migration Act requires changes in circumstances to be notified when they make an earlier answer incorrect, so these changes should be reported and their effect on the family unit assessed.

The Subclass 820 vs Subclass 801 guide explains the two stages, and the Subclass 820 processing time guide explains why the gap between them can be long enough for a family's circumstances to change.

Health and character at the second stage

The Department's permanent stage policy says members of the family unit who did not complete immigration medical examinations at the provisional stage and are being included as dependants on the permanent visa will be required to complete them at the second stage. It also says applicable members of the family unit may need current penal clearances for countries where they have lived for a cumulative period of 12 months or more since the provisional visa was granted, or where they have reached an age requiring them to meet the character criteria. Couples should expect the family unit, including partner visa non-migrating children, to be looked at again.

Common mistakes with partner visa non-migrating children

The most common mistakes with partner visa non-migrating children are leaving children off the forms, misclassifying adult children, ignoring health requests, and giving inconsistent family details across applications. Each of these can turn a straightforward partner visa into a refusal or a credibility case.

Leaving off a child who lives with the other parent

This is the most frequent error. The applicant thinks of the application as being about the couple and the children who will live with them. A child who lives with a former partner is left off because "the child is not part of this". The law takes the opposite view. A child under 18 is a member of the family unit regardless of custody, and must be declared.

Assuming adult children are irrelevant

Adult children who live independently are usually not members of the family unit, but they must still be disclosed where the forms ask about children. Some applicants omit adult children entirely. Others include an independent adult child as a dependant without evidence of dependency. Both approaches cause problems.

Missing the health deadline

When the Department asks for health examinations for partner visa non-migrating children, the request has a deadline. Families sometimes assume the request is a mistake, or wait for the other parent to agree, and the deadline passes. A decision can then be made on the information available. If the examination cannot be arranged, the applicant should say so in writing before the deadline and explain why, with evidence.

Inconsistent details across applications

The Department holds records of earlier visa applications by the applicant and the sponsor. Children's names, dates of birth and the number of children must match across every application. Inconsistency can trigger PIC 4020 concerns, even where the omission in an earlier application was itself innocent. The guide on why partner visas get refused and the guide on Subclass 820 refusal reasons explain how credibility problems lead to refusals.

Relying on someone else to complete the family section

The applicant is responsible for the answers, even where a friend, relative or unregulated helper filled in the form. The declaration at the end of the application confirms the information is complete and correct. Couples who prepared their own application and are now unsure whether partner visa non-migrating children were properly declared can have it checked. The guide on hiring an immigration lawyer after lodging your own application explains how that works, and the guide on getting a second opinion from an immigration lawyer explains how an existing file is reviewed. Couples deciding who should help can read the factual comparison of a migration agent and an immigration lawyer and the guide on partner visa help from a migration agent or lawyer.

What Tribunal decisions show about partner visa non-migrating children

Tribunal decisions show that the family unit, health criteria and false or misleading information issues that surround partner visa non-migrating children are regularly the centre of partner visa reviews. The cases below are remittals: in each, the Tribunal sent the matter back to the Department to reconsider. The descriptions are limited to the issues recorded for each decision. They do not mean any later outcome was a grant.

Health of non-migrating children

In Evangelio (Migration) [2022] AATA 1109, a Subclass 820 matter, the recorded issues were that the health criteria were not met, that the medical opinion was validly made, and that the applicant's non-migrating sons did not satisfy PIC 4007(1)(c) because of the sons' health conditions. The case illustrates the central point of this guide: partner visa non-migrating children can be assessed against the health criterion, and the outcome of that assessment affects the parent's visa. In Smith (Migration) [2024] AATA 3921, a Subclass 300 matter, the recorded issues included the health criteria, medical assessment, Department records showing the applicants were auto cleared, and a member of the family unit.

Adult children and the family unit

In 2421153 (Migration) [2025] ARTA 2911, a Subclass 309 matter, the recorded issues concerned a secondary applicant adult child, younger siblings who had been granted visas, and whether a dependent member of the family unit was aged 23 or older at the time of application. In PHAM (Migration) [2020] AATA 6062, the recorded issue was whether the visa applicant was a dependent child, being a dependant of the family head as defined in regulation 1.05A. These decisions show how closely age and dependency are examined when a child's status in the family unit is in dispute.

Undisclosed relationships and children

In Larney (Migration) [2020] AATA 224, a Subclass 820 matter that followed a Federal Court remittal, the recorded issues were false or misleading information, previous relationships, and the mother of the applicant's children. In PALASIT (MIGRATION) [2026] ARTA 1914, the recorded issues were false or misleading information, a previous relationship that was not declared, an element of fraud or deception, and the discretion to waive the criterion. In Burns (Migration) [2022] AATA 1657, a Subclass 309 matter, the recorded issues were incorrect information in the visa application about countries of previous residence, compelling or compassionate circumstances, and children born of the relationship. In Mohammadi (Migration) [2021] AATA 5554, the recorded issues included false or misleading information about the biological parentage of a secondary applicant, DNA test results, and whether the information was material to the application.

Together, these decisions show why the family history in a partner visa application must be complete and accurate, and why the treatment of partner visa non-migrating children is not a minor administrative detail. The guide to what to expect at an ART review explains the review process, and the partner visa refused appeal options guide explains the steps after a refusal. A visa appeal lawyer can assess whether a refusal is worth taking further. Review deadlines are short and strictly applied, so a refusal should be assessed immediately.

How My Migration Lawyers helps with partner visa non-migrating children

My Migration Lawyers helps couples deal with partner visa non-migrating children by settling which children must be declared, which are members of the family unit, and what the Department is likely to ask for, before the application is lodged. The firm acts in many partner visa matters involving children who live with a former partner overseas, adult children, blended families and children who will join the family later. It regularly handles complex cases where a health examination cannot easily be arranged, where earlier applications disclosed the family differently, or where a child was left off and the record must now be corrected.

Before lodgement

The firm starts with the whole family history, not only the couple. It reviews the applicant's and sponsor's children, their ages, where they live, any parenting orders, and how the family was described in every earlier visa application. It then classifies each child under regulation 1.12 and identifies which partner visa non-migrating children are likely to be asked for health examinations and police certificates. Where cooperation from a former partner may be a problem, the firm advises on the evidence to gather early so that the "unreasonable" discretion can be properly argued if it is needed. The firm also checks the family sections of the application and Form 80 against identity documents, so that names, dates and countries are consistent.

During processing

When the Department asks for health examinations or more information about partner visa non-migrating children, the firm prepares the response, including any written request that the decision maker treat an examination as unreasonable, with the supporting evidence. Where a child was omitted, the firm advises on correcting the record, prepares the notification and explanation, and responds to any section 56 request or natural justice letter. The explanation is the applicant's own account, reviewed for accuracy and confirmed by the applicant. Where the firm is appointed, it lodges Form 956 so the Department deals with the firm directly.

When a child wants to join later

The firm advises families who want a declared non-migrating child to join the parent, including whether the child can be added before the provisional decision, whether the Subclass 445 route is available before the permanent visa is decided, and what custody and consent evidence will then be needed. It also advises on permanent stage reporting when a child's age, dependency or relationship status has changed.

After a refusal or a cancellation notice

Where a partner visa has been refused because of a health issue with a non-migrating child, an undeclared child, or PIC 4020, the firm reviews the decision record and advises whether review should be sought. Where a granted visa faces cancellation because a child was not disclosed, it prepares the response to the notice. The firm also advises on related issues, such as Schedule 3 waivers and the Schedule 3 criteria for onshore applicants and the family violence provisions where a relationship has broken down.

Who leads the work

Partner visa matters at My Migration Lawyers are led by Weiwei Zhang, Principal Lawyer. More about the firm is on the About My Migration Lawyers page and the partner visa lawyers guide. The firm works on fixed fees, and the guide to booking an immigration lawyer consultation explains what happens at the first meeting. Couples comparing firms can read the guides on choosing the best partner visa lawyer in Australia and on how to find and check Australian migration lawyers. Couples who already have a representative but want a change can read the guide on how to change your immigration lawyer. The firm acts for couples across Australia with consultations by video, including clients in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta.

Book a consultation about partner visa non-migrating children

If you have children who are not coming to Australia with you, the safest time to deal with partner visa non-migrating children is before you lodge, or as soon as you realise a child was left off. Book a Consultation with My Migration Lawyers to have your family details, health requirements and options reviewed. You can also call 1300 040 300.