Recently, we have received several offshore-child Subclass 101 migration DIY applications that finally reached assessment, only to be hit with an s57 notice asking the applicant to explain why the sponsor is not eligible — or face refusal (hero image)
Today we want to flag this! It’s not only Subclass 101 child visas — Subclass 309 partner visas, Subclass 103/143 parent migration and other family-class visas can all fall into the same trap when the sponsor is offshore of Australia
In Schedule 2 of the Migration Regulations (i.e. the substantive visa grant criteria), each visa sets out clear conditions that must be met at application and at grant. Taking the Subclass 101 visa as an example, under clause 101.212 (figure 2):
At the time of application, the applicant must be sponsored by a person who is at least 18 years old and is an Australian citizen, a permanent resident, or an eligible New Zealand citizen
And the Department will make this explicit in the s57 letter (figure 2):
To satisfy 101.212(b), the sponsor must be an Australian citizen or PR on the day the visa application was lodged
In other words, even if the sponsor later renews their visa, as long as they were not a PR or citizen at the moment of lodgement, the criterion is not met and the visa may be refused
This most commonly happens when the sponsor has been overseas long term
Although Australian PR holders can in theory reside in Australia permanently, their travel facility expires once they leave the country, and to maintain valid PR while offshore they need to apply for a Subclass 155 or 157 visa.
If the sponsor is offshore and their PR travel facility has already expired, then in the Department’s system they are no longer considered a PR
Even a short gap can cause problems — take this case study:
The sponsor was offshore; PR expired on 19 March
The new Subclass 155 was granted on 10 April
The child visa was lodged on 4 April
So on 4 April, the sponsor was legally not a PR, which failed 101.212(b), and the application was refused
And it’s not just the child visa (figure 3)
Subclass 309 partner visa also requires the sponsor to be a citizen or PR at the time of application
Subclass 143 parent migration works the same way — the sponsor’s eligibility must be met at the time of application
Whether it’s child, partner or parent migration, the sponsor must have valid PR at the very moment of lodgement, and this cannot be remedied afterwards
This is especially true for paper applications (such as Subclass 101, 103 and 143), where the lodgement date is determined by when the Department receives the materials, not when they were posted
If you are mailing from overseas to the visa processing centre in Western Australia, it can easily take several extra days or even a week
So before posting the application, make sure the sponsor’s PR validity has enough buffer and will not expire in transit
The most frustrating aspect of family migration right now is the processing timeframe — whether it is a child visa with an 18-month queue, a partner visa provisional stage that takes well over a year, or the contributory parent visa where the wait stretches to more than a decade. If a refusal is triggered because of the sponsor’s status, the only option is to re-lodge and start waiting all over again — another painful round! So please take this seriously.
