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Partner visas – the sponsors obligations and limitations on the ability to sponsor

partner visas refusal sponsorship sponsors obligations migration australia spouse couples

Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC

There are certain circumstances where an Australian citizen or permanent resident who wants to sponsor their partner will be subject to limitations on their ability to do so.

The approval of sponsorships for all subclasses of partner visas is subject to certain limitations on sponsorships contained in r 1.20J, r 1.20KA, r 1.20KB and r 1.20KC of the Migration Regulations 1994.

The following article outlines the various issues a sponsor may face:

Regulation 1.20J – Limitation on ‘serial sponsorship’

This regulation is aimed at those sponsors who are referred to as ‘serial sponsors’.

Regulation 1.20J allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only if the sponsor can satisfy the Minister is satisfied that there are compelling circumstances affecting the sponsor.

The Minister can approve sponsorships or nominations if ‘compelling circumstances’ such as:

  • the previous spouse or interdependent partner has died;
  • the previous spouse or interdependent partner has abandoned the sponsor or nominator, and there are children requiring care and support;
  • the new relationship is long-standing; or
  • there are dependent children of the new relationship.

Whilst these are the main considerations it is important to note that they are not exhaustive and any appeal to the Administrative Appeals Tribunal (Tribunal) where a sponsorship or nomination is refused must consider the individual circumstances of each case, because the purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions.

Consideration must also be given to:

  • the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved;
  • the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

The meaning of ‘compelling circumstances’ in the context of r.1.20J was considered by the Full Federal Court in Babicci v MIMIA A (2005) 141 FCR 285.

In that case the Court held that ‘on any view of the meaning of compelling, the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the provision should be waived’

In Nagaki v MIBP [2016] FCCA 1070 the Court identified circumstances which of themselves could not constitute compelling circumstances in the context of r.1.20J. They were:

  • The genuineness of the relationship between the applicant and sponsor could not, in and of itself, constitute a compelling circumstance affecting a sponsor
  • An applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa on the basis of being in a partner relationship for three years or longer within the definition of ‘long-term partner relationship.

Regulation 1.20KA – Limitation on ‘split applications’

Regulation 1.20KA prevents persons who have been granted contributory parent or aged contributory parent visas from sponsoring a pre-existing spouse or de facto partner for a partner or prospective marriage visa for 5 years after the day when the person was granted the contributory parent visa.

However, the sponsorship may be approved:

  • if the visa applicant had compelling reasons, other than his or her financial circumstances, for not applying for a contributory parent visa at the same time as their spouse or de facto partner; or
  • if the visa applicant applied for a contributory parent visa at the same time as the sponsor and withdrew the application before it was granted, the visa applicant had compelling reasons, other than his or her financial circumstances, for withdrawing the application for a contributory parent visa.

Regulation 1.20KB – Restrictions on sponsorship where ‘sponsor of concern’

Regulation 1.20KB prevents persons who have been charged or convicted of a child sex offence or similar serious offences from sponsoring a spouse or child where any of the applicants are under 18 years at the time of the decision on the application for approval of the sponsorship.

The limitation applies to visa applications made on or after 27 March 2010. The sponsorship limitation does not apply where:

  • none of the applicants is under 18 years at the time of the decision for approval of the sponsorship;
  • the sponsor or their spouse or de facto partner was charged with a registrable offence, and that charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction; or
  • the sponsor or their spouse or de facto partner was convicted of a registrable offence, and the conviction has been quashed or otherwise set aside.

If the limitation does apply, the Minister, or the Tribunal on review, nevertheless retains discretion to approve the sponsorship if:

  • the sponsor or their spouse or de facto partner completed the sentence imposed for the registrable offence (including periods of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship, and they have not been subsequently charged with a registrable offence, and there are compelling circumstances affecting the sponsor or the applicant; or
  • the sponsor or their spouse or de facto partner completed the sentence imposed for the registrable offence (including periods of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship, has subsequently been charged with a registrable offence but such charge has been withdrawn, dismissed or otherwise disposed of without the recording of the conviction, and there are compelling circumstances affecting the sponsor or the applicant.

A registrable offence means any of the following:

  1. an offence that is a registrable offence within the meaning of any of the following Acts:
    • the Child Protection (Offenders Registration) Act 2000 (NSW);
    • the Sex Offenders Registration Act 2004 (Vic);
    • the Child Sex Offenders Registration Act 2006 (SA);
    • the Crimes (Child Sex Offenders) Act 2005 (ACT);
  2. an offence that would be a registrable offence under paragraph (a) if it were committed in a jurisdiction mentioned in that paragraph;
  3. an offence that is a reportable offence within the meaning of any of the following Acts:
    • the Child Protection (Offender Reporting) Act 2004 (Qld);
    • the Community Protection (Offender Reporting) Act 2004 (WA);
    • the Community Protection (Offender Reporting) Act 2005 (Tas);
    • the Child Protection (Offender Reporting and Registration) Act (NT);
  4. an offence that would be a reportable offence under paragraph (c) if it were committed in a jurisdiction mentioned in that paragraph.

Regulation 1.20KC – Restrictions on sponsorship where ‘a relevant offence’ or ‘significant criminal record’

Regulation 1.20KC prevents persons who have been convicted of a relevant offence or have a significant criminal record in relation to the relevant offence or relevant offences.

The Minister must refuse to approve the sponsorship of each applicant for the visa if the sponsor has been convicted of a relevant offence or relevant offences and the sponsor has a significant criminal record in relation to the relevant offence or relevant offences.

However, the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):

  • the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;
  • the best interests of any children of the sponsor or any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;
  • the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

A relevant offence is an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

  1. violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
  2. the harassment, molestation, intimidation or stalking of a person;
  3. the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
  4. firearms or other dangerous weapons;
  5. people smuggling;
  6. human trafficking, slavery or slavery‑like practices (including forced marriage), kidnapping or unlawful confinement;
  7. attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);
  8. aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

A significant criminal record in relation to a relevant offence or relevant offences if, for that offence or those offences:

  1.  the sponsor has been sentenced to death; or
  2.  the sponsor has been sentenced to imprisonment for life; or
  3. the sponsor has been sentenced to a term of imprisonment of 12 months or more; or
  4. the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

At FC Lawyers we have acted for sponsors in all the circumstances outlined in this article. It is important to note that expert advice and assistance is very important when responding to a case where a sponsorship or nomination could or has been refused.

Want to know more about your sponsors obligations and limitations?

Contact our expert team for a consultation if you’re wanting to begin your partner visa application. There are many sponsors obligations and limitations so it’s important to speak with a registered migration agent today. 

 

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