Many people choose to migrate to Australia to give their children greater opportunities in life. Many applicants, when applying for a permanent residency visa or a transitional temporary visa, include their minor children in the application. Many migration agents tell applicants that in such cases, both parents of the child must sign Form 1229.
So how exactly should Form 1229 be completed? And what happens if it cannot be provided? In this article, we explain in detail how the Form 1229 requirement works in practice.
Author: Lawyer Yuwen Huang
Bachelor of Laws from East China University of Political Science and Law; Juris Doctor from the University of New South Wales. Admitted as a Solicitor of the NSW Supreme Court.
Over 10 years of legal practice experience across China and Australia. Since 2016, has focused exclusively on Australian immigration law. To date, has handled more than 500 immigration matters and helped hundreds of families successfully settle in Australia.
Legal Background
Public interest criteria (PIC) 4017
Australian immigration law contains a requirement: where an applicant is under 18 years of age, they must satisfy Public Interest Criteria (PIC) 4017. How did this legal requirement come about?
Under international law, the Hague Conference produced the Hague Convention on the Civil Aspects of International Child Abduction. In brief, to prevent minors from being abducted to other countries, their international travel requires the consent ofboth parents with parental responsibility.
Australia, as a signatory to this international convention, is required to comply with its provisions. Australia has therefore enacted a series of laws to give effect to the convention. PIC 4017 in the Migration Act is one expression of this international treaty.
Three Ways to Satisfy PIC 4017
01. Both parents with parental responsibility consent to the child travelling to Australia
Where both parents and the child are included in the same visa application, the Department of Home Affairs will automatically assume that the child’s application has been consented to by both parents.
Case 1:
A husband and wife have one child. All three apply together for a Subclass 188A Business Innovation and Investment (provisional) visa. Because all three are included in the application, no additional steps are required — the Department automatically assumes parental consent for the child to travel to Australia.
If one parent is not included in the visa application, it is necessary to provide Form 1229 completed and signed by both biological parents.
Form 1229 requires the personal details of the child’s biological parents, with each signing individually. A key reminder: the signatures on the form should match, as closely as possible, the signatures on official documents such as a passport or driver’s licence.
Case 2:
A husband and wife have one child. The husband remains in China to work, while the wife and child apply together for an Australian student visa. In this situation, both the husband and wife must jointly sign Form 1229.
02. The laws of the child’s country of origin permit the child to be brought to Australia
Generally, a child may travel to Australia with just one parent only where the laws of the child’s country of origin grant that parentSole Custody of the child.
Under Article 27 of the Civil Code of the People’s Republic of China, parents are the legal guardians of their minor children. Only where one parent has died or lost the capacity to act as guardian can another person obtain guardianship of the minor child.
In this context, therefore, Chinese law does not automatically assign sole custody of a child to either parent.
Case 3:
After the child’s birth, the parents divorce. The child lives with the mother, who holds day-to-day custody. The child’s biological father is still alive and has not lost his capacity to act as guardian.
In this situation, although the father does not have day-to-day custody, he still shares joint guardianship with the mother. As a result, if the child needs to accompany the mother to live in Australia, the biological father must still sign Form 1229.
Case 4:
After the child’s birth, the parents divorce. The child lives with the mother, who holds day-to-day custody. The child’s biological father is still alive and has not lost his capacity to act as guardian.
At the time of divorce, both parties signed a divorce agreement or mediated settlement that expressly permitted the child to freely accompany the mother to settle in another country.
In this scenario, even if the father is unwilling to sign Form 1229, the divorce agreement/mediated settlement alone can still satisfy the requirements of PIC 4017.
Case 5:
After the child’s birth, the father passes away, and the child lives with the mother. In this situation, the mother holds sole custody of the child. When the child and mother apply together for an Australian visa, only the relevant evidence of the biological father’s death needs to be provided.
Case 6:
After the child’s birth, the father is missing or paternity cannot be established, and the child lives with the mother. In this situation, although the biological father cannot be located, he objectively exists and still holds legal guardianship over the child. Accordingly, ifthe father being simply missing,does notautomatically satisfy PIC 4017. In this case, a Chinese court order is required to appoint the mother as the sole guardian before the child can accompany the mother to Australia.
03. An Australian court order permits the child to come to Australia.
This pathway operates in a similar manner to Case 6 above. Once an Australian court appoints one parent or another relative as the child’s sole guardian, only that guardian’s consent is required to satisfy PIC 4017.
Case 7:
The child is studying in Australia and has been living with their aunt, while the biological parents live in China. Due to an unexpected event, both biological parents pass away. The aunt obtains sole guardianship of the child through an Australian court order. The aunt can then unilaterally consent to the child remaining in Australia.
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— Conclusion —
Because PIC 4017 derives from an international convention, there is no waiver or exemption available under Australian migration law. This means that where the requirements cannot be satisfied, the child will have no opportunity whatsoever to obtain an Australian visa and enter Australia until they turn 18.
If your child is facing a situation like this, please get in touch with us promptly. Our family law solicitors at Newstars and NS Legal will assess your specific circumstances and provide practical solutions.
We will do everything we can
to help every family reunite.
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