NEW LIMITATIONS ON APPROVAL OF SPONSORSHIPS FOR THE PARTNER AND PROSPECTIVE MARRIAGE VISA APPLICATIONSDecember 13, 2016
It has always been a requirement for the sponsor of a Partner or Prospective Marriage application to provide the Australian Department of Immigration & Border Protection with his or her Australian Federal Police and other national police certificates where there is a child applicant below the age of 18 years of age included in the visa application. The reason being where a child is also being sponsored there is a legal obligation on the part of the Department to inform the parent of the child that the sponsor has no criminal record and if there is the Department is legally obliged to disclose those convictions and it is then up to the parent visa applicant to decide whether that criminal history affects his or her decision to proceed with the application or to withdraw the application henceforth.
With effect for 18 November 2016 the Department issued new limitations that requires all sponsors of such visas must also:
- Provide their Australian or foreign police checks to the Department; and
- Consent to those police checks be provided to the visa applicants disclosing any relevant offences if any.
Relevant offences have been defined as:
- Violence against a person including (without limitation) murder, assault, sexual assault and the threat of violence.
- The harassment, molestation, intimidation, and stalking of a person.
- The breach of a family domestic violence order.
- Firearms or other dangerous weapons.
- People smuggling.
- Human trafficking, slavery or slavery like practices (including forced marriage), kidnapping or unlawful confinement.
- Aiding, abetting, or counselling or procuring the commission of an offence involving any of the matters mentioned above.
- Attempting to commit any of the above offences.
This new limitation only applies to new sponsorship applications where the visa application is lodged on or after 18 November 2016 and does not affect second stage partner visa applications where the applicants already hold the Subclass 820 or 309 visas. If the sponsor declines to provide the police check(s) as required or does not provide consent to the Department to disclose the adverse information to the visa applicant then the visa application MUST and WILL be refused.
Unfortunately where the sponsor has a conviction for a relevant offence and has a significant criminal record, the visa application MUST be refused, unless it is considered reasonable not to refuse the application. The Department has determined that a significant criminal record is one where the sponsor has been sentenced to a prison term of 12 months or more or two or more sentences totaling 12 months or more. Whether it is reasonable to refuse the application will depend on the following factors but not limited to:
- The length of time since the sponsor completed the sentences for the relevant offences.
- The best interest of any children of the sponsor or primary applicant; and
- The length of the relationship between and the primary visa applicant.
Where the sponsor’s conviction for a relevant offence has been quashed or he or she has been pardoned in relation to a relevant offence then the Department is not required to disclose that information to the visa applicant. Finally if an application is refused on the ground that the sponsor has a relevant offence that is an impediment to granting the visa application then there is no basis for the visa application charge to be refunded.
For further information on Partner or Prospective marriage visa applications you are invited to contact James Tan Immigration Consultants.
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