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Sponsor Overseas? Family Migration Applicants, Read This!

Key points

Can an expired travel visa affect a family migration application with a PR sponsor overseas?

Once a PR sponsor’s travel visa expires while they are overseas, the system no longer regards them as a permanent resident. Family migration requires sponsorship eligibility to be met when the application is lodged, and renewing the visa later cannot remedy an eligibility gap at that time.

  • Paper applications, including Subclasses 101, 103 and 143, are lodged when the Department of Home Affairs receives the documents, not when they are posted.

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

S57 notice requesting an explanation of Subclass 101 child visa sponsorship eligibility
Hero image

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

Clause 101.212 and sponsor status requirements on the lodgement date
Figure 2

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

Sponsorship eligibility at application for Subclass 309 partner and 143 parent visas
Figure 3

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.

Questions and answers

How much extra time should I allow to post family migration documents from overseas to the processing centre in Western Australia?

It often takes a few extra days or even a week. Before posting, ensure the sponsor’s PR validity is sufficient to cover transit without expiring.

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