Partner Visa - Sponsor Character Requirements
Both Applicants and Sponsors must meet strict character requirements in order to have a Partner Visa approved. We’ve recently dealt with a number of situations where applicants have asked the question, “My sponsor has a criminal conviction, can they still sponsor me?.” This article is going to look at the character requirements that apply to Sponsors in particular. Sponsor Character provisions are governed under regulations 1.20KB, 1.20KC and 1.20KD. These provisions focus on two types of offences ‘relevant offences’ and ‘registrable offences’. Sponsors that have criminal records should be aware that they may be required to disclose these offences to their partners as part of the process.
Sponsors that have a significant criminal record in relation to a ‘relevant offence’ may have their sponsorship application refused. You should expect processing delays when lodging an application where the Sponsor has a significant criminal record in relation to a relevant offence.
So, what is a relevant offence? Broadly speaking ‘relevant offences’ are defined to include offences involving violence against a person, offences involving harassment, molestation, intimidation or stalking of a person, breaches of apprehended violence orders, firearms and other weapons offences, people smuggling, human trafficking or assisting in relation to the above.
A significant criminal record is defined as being sentenced to death, life imprisonment or a term of imprisonment of 12 months or more calculated on a cumulative basis on the basis of a ‘relevant offence’. It should be noted that a term of imprisonment includes court orders which require a person to participate in a residential drug rehabilitation scheme or programs for the mentally ill. Suspended sentences are also considered to be terms of imprisonment. Concurrent sentences are counted separately and added together on a cumulative basis.
So if you have a significant criminal record in relation to a relevant offence, what does this mean in terms of your sponsorship application? It is important to keep in mind that the case officer assigned to your matter has discretion in whether to reject the sponsorship or not. The legislation provides that a case officer must consider the impact that refusal would have upon children related to the visa application, the length of time that the applicant and sponsor have been in a relationship and the time that has elapsed since the offence occurred. Case officers also have discretion to consider any other relevant matters in coming to a decision. Establishing good character and outlining your specific compelling and compassionate circumstances will be essential for convincing a case officer to exercise discretion in the Sponsor’s favour.
Registrable offences cover offences under the various Child Protection and Sex Offender’s legislative regimes in the States and Territories of Australia. It is important to note that these provisions are only of concern when the application includes a child under the age of 18, at the time of decision.
Understandably the bar is set higher for these sorts of offences and even being charged is enough to warrant a sponsorship refusal. A sponsor that has been charged or convicted of a registrable offence must have the sponsorship refused except for where the conviction was quashed or set aside, or the charge was withdrawn, dismissed or otherwise disposed of without the recording of a conviction.
Decision makers have the power to approve a sponsorship notwithstanding the conviction, but only in situations where at the time of application 5 years has passed since completing the sentence AND there are compelling circumstances affecting the sponsor or the applicant. As with the situation above, seeking professional advice prior to lodging a partner visa application is absolutely necessary.
How We Can Help
Sponsors who have relevant or registrable offences may have a particularly difficult time obtaining sponsorship approval for their partner. Sponsors affected by these provisions should seek the assistance of a registered migration agent or lawyer prior to lodging any application.
These are just a few of the issues that our Registered Migration Agents can assist with:
- Providing advice in relation to whether your convictions fall foul of the current rules.
- Advising on the VACCU process
- Formulating a strategy for bringing about a successful visa outcome.
Our Registered Migration Agents can analyse your circumstances, identify any areas of risk and discuss the most appropriate strategy to meet your goals.