Can I add my wife as an applicant after I lodged my visa?
The other day a client came into our office asked that very question regarding his recently lodged 489 visa application. After he had lodged the visa he married offshore and of course wanted to include her in his application.
Before coming to our office he had received advice that he could include her in his application but unfortunately we had to inform him that this was not possible. We are not sure how that information went down with his newly wed.
Adding Partners after you lodge
I imagine many regular readers are pulling out your mobiles about to send me an email of how they got married after they lodged their PR visas and then their spouse was included. PR did I hear you say? Well of course that is what makes all the difference.
You see the 489 visa is a Temporary Residence (TR) visa and that is where the confusion begins. For nearly all TR visas you cannot add a spouse after the visa has been lodged and it is still under processing.
The quiet law, Reg 2.08A
The law that governs the ability to add a partner to an undecided PR application is found in regulation 2.08A. Unless you know its existence it is difficult to locate. This regulation is what gives the power to add that partner after lodgment.
Regulations 2.08A and 2.08B were inserted into the Regulations because of the delays that occur in finalising some applications and the changes in personal circumstances that occur over time.
According to DIBP policy there are two situations these regulations cover;
The original applicant has acquired a partner or dependent child since applying for their visa.
The partner and/or dependent child were not included in the original application for some reason (for example, because the relevant Schedule 1 item required to them to be in Australia and they were outside Australia when that application was made).
Adding children?
Newborn children are automatically added to an undecided application using a different power, Reg2.08. This regulation applies to both temporary and permanent residency applications. A child born to an applicant after a visa application is made, but before it is decided (that is, visa granted or refused), is taken to have applied at birth even if the department is not notified of the birth of the child until after the decision is made and the grant letters sent out.
Reg 2.08B gives the power to add non-newborn children to undecided applications.
A formal request must be received
When making visa applications you are obligated to inform the DIBP of a change of circumstances which of course, would mean informing them if you got married. However even if you inform them of your new marital status, you still need to make a formal request to have your partner or dependent child included. However with newborn children technically no formal request needs to be made but if you want your child to be added to the application you need to tell them about the birth just as the change of circumstances requires.
If your waiting for a review at the AAT/MRT?
Current DIBP policy is that a partner or dependent child cannot be added to an application during merits review of a refusal decision. This also includes newborn children. However if you win at the review and your file is remitted to the DIBP for further processing then it is possible to add your partner or dependent child then. Again you must be sure to make the formal request. Newborn children would just be added as a matter of procedure.
We have had a number of cases where children are born during the wait for a MRT hearing. In these cases the child adopts the same bridging visa as the parents but cannot be included in the application under review. In these cases the child is lawful resident in Australia but has no visa application in process.
Now with regard to the person who originally asked us that question, they need to wait until the 489 visa is granted then his wife applies for her 489 visa.
