The Australian Government is very serious about protecting not only its citizens and residents, but also any person applying for a visa where an Australian citizen or permanent resident is sponsoring them.
Since 2016, Australian citizens and permanent resident who want to sponsor an applicant for a partner visa or a prospective (fiancé) marriage visa have been subject to a character test.
This initiative was introduced to address the growing issue of domestic and family violence on our community.
The Department of Home Affairs (DoHA) can refuse a sponsorship application for a partner visa if the sponsor has a significant criminal record in relation to various offences.
How does it work?
If you want to sponsor an applicant for a partner visa including a prospective (fiancé) visa, you must:
- provide an Australian and foreign police check when you apply for sponsorship; and
- provide written consent to the DoHA to disclose any convictions for relevant offences to the visa applicant.
The visa will be automatically refused by the DoHA if the sponsor does not provide the police checks or provide the consent to disclose the relevant information to the applicant.
What is a relevant offence?
A relevant offence is an offence against a law, either in Australia or overseas, involving:
- violence, including murder, assault, sexual assault or the threat of violence
- harassment, molestation, intimidation or stalking
- the breach of an apprehended violence or similar order
- firearms or other dangerous weapons
- people smuggling
- human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement
- attempting to commit any of these offences
- aiding, abetting, counselling or procuring such offences
Convictions for relevant offences that have been quashed or otherwise nullified or pardoned are not taken into consideration.
What is a significant criminal record?
You will be considered to have a significant criminal record if you have been sentenced to:
- life imprisonment
- imprisonment of 12 months or more
- 2 or more terms of imprisonment that total 12 months or more
Will the visa be refused?
If a sponsor has a conviction for a relevant offence and a significant criminal record the DoHA must refuse the visa, unless it is assessed that it is reasonable not to do so.
The DoHA will consider all the circumstances before they make the decision including but not limited to:
- how long it has been since the sponsor completed their sentence
- the best interests of any child or the sponsor or primary visa applicant
- how long the sponsor and the main visa applicant have been in a relationship
The Minister in his Explanatory Statement when introducing this legislation stated that whilst regard must be given to the matters above, they are not exhaustive, and all matters relevant to determining the implications of refusing the sponsorship should be considered.
Each case must be determined on its own merits and by a case to case basis.
For example, in cases where the sponsor has completed the sentence for the relevant offence a significant period of time ago and has not reoffended since that time, and is in a long term relationship with the applicant with no signs of concerns, this may weigh in favour of an approval of the sponsorship despite the fact the sponsor has a significant criminal record for a relevant offence.
How can we help with your visa application and assessing the character test?
At FC Lawyers our experienced team of Accredited Specialists have acted for sponsors and their applicant partners in presenting their case for the approval of their sponsorship, both with the DoHA and before the Tribunals in relation to appeals against decisions by the DoHA and the Minister.
These matters must be taken seriously, and comprehensive material and submissions provided to have any chance of success. Contact our team of registered migration agents and immigration lawyers today to discuss any issues with your or your sponsor character test and visa application.