For many of the family category visas, a sponsorship application is needed from the Australian, permanent resident, or eligible New Zealand Citizen who is supporting their relative’s migration to Australia.
Sponsors are subject to various legislative requirements too, which if not met can put the connected visa application at risk of refusal.
Part 1 of this series described the limitation on one individual having multiple sponsorships for numerous visa applicants.
Part 2 below explains the limitation that arises under regulation 1.20KC of the Migration Regulatiosn 1994 (Cth) (Regulations), when a sponsor has been convicted of certain “relevant” offences.
This article does not cover sponsors who have been charged or convicted of registrable sexual offences, which is again subject to different legislation.
What visas does the r1.20KC sponsorship limitation apply to?
This sponsorship limitation is relevant to the:
- Partner (Subclass 309) visa;
- Partner (Subclass 820) visa; and
- Prospective Marriage (Subclass 300) visa.
Declarations and disclosure requirements
As part of the sponsorship and visa process, sponsors are required to provide the Department of Home Affairs with:
- an Australian National Police Check (Complete Disclosure – All recorded offences released); and/or
- foreign police clearances.
Department decision-makers have the legislative power to refuse a sponsorship if requested police checks are not provided.
It will usually be through these police checks and self-disclosed information that the Department identifies potentially relevant convictions.
When will this sponsorship limitation arise?
It is important to understand that not every conviction triggers the limitation, but it is of course important to carefully check.
In simplest terms, the sponsor’s conviction needs to be both:
- relevant; and
- significant
If the sponsor’s conviction is neither of these, or is one but not the other, the conviction is out-of-scope and this limitation is not enlivened.
What is a ‘relevant’ offence?
A relevant offence is one against a law of the Commonwealth, a State or Territory, or a foreign country that involves any of the following:
- violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
- the harassment, molestation, intimidation or stalking of a person;
- the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
- firearms or other dangerous weapons;
- people smuggling;
- human trafficking, slavery, or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;
- attempting to commit an offence involving any of the above-listed matters;
- aiding, abetting, counselling or procuring the commission of an offence involving any of the above-listed matters.
Evidently this sponsorship limitation arises in response to violent or aggressive conduct, aiming to protect the overseas national/visa applicant from potential harm. Convictions for other conduct such as driving offences or white-collar crime are unlikely to fall within the scope of ‘relevant’ offences listed above (although could, depending on the specifics of the case). In determining whether the conviction is relevant, the Department’s decision-maker may need to seek further information on what had occurred.
What is a ‘significant’ criminal record?
If the sponsor’s conviction is deemed ‘relevant’, the decision-maker then considers whether it is ‘significant’. Again, keeping in mind that both limbs must be met for the sponsorship limitation to apply.
“Significant criminal record” for the sake of this sponsorship limitation is defined in 1.20KD of the Regulations. It is conduct for which a sponsor was sentenced to:
- death;
- imprisonment for life;
- a term of imprisonment of 12+ months; or
- 2 or more terms of imprisonment, where the total of those terms is 12+ months.
What constitutes a term of imprisonment is not always straightforward. It can also include:
- suspended sentences;
- concurrent sentences;
- periodic detention; or
- residential schemes or programs.
Some more complex examples of a significant criminal record include:
- two sentences of 6 months served concurrently;
- periodic detention where the number of days the sponsor spent in detention equals 12+ months;
- being ordered to participate in a residential drug rehabilitation scheme or a residential program where the total number of days equals 12+ months; or
- sentence of 12+ months in prison but the sentence was suspended.
A sentence or time served which was later pardoned, quashed, or nullified does not count.
Is a waiver available?
Yes. If a sponsor’s conviction is affected by the limitation on approval, 1.20KC(4) of the Regulations ends on the note that the Minister may decide to approve the Sponsorship if it is reasonable to do so.
The Minister (or their delegate) is required to consider:
- The length of time that has passed since the sponsor completed the sentence for the relevant offence(s): For example, a sponsor who completed a sentence ten years ago and has not committed any offences or had any convictions since, may be assessed more positively compared to a person with more recent offending. The Department may be inclined to be satisfied that the former is less likely to be a threat to the visa applicant(s) as their more recent history does not indicate a pattern of violent or criminal behaviour.
- The best interests of any children of the sponsor and/or visa applicant: This is a primary consideration, especially in cases where the child is of both the sponsor and visa applicant, given the rule that generally a child’s best interest is to be with or have access to both parents. Of course, matters involving children must be considered carefully on a case-by-case basis
- The length of the relationship between the sponsor and the primary visa applicant: A long-term relationship in itself may not necessarily be sufficient, but the Department more wholistically considers whether the relationship existed when the sponsor committed the offence or served the sentence, and/or the visa applicant’s awareness of the nature and extent of their sponsor’s criminal history.
What about unresolved criminal matters?
A sponsorship cannot be refused based on criminal matters that are relevant but not yet finalised before the court.
Depending on the circumstances of the case, if the unresolved criminal matter could impact the sponsorship limitation, the Department may seek information about the case, at least to see if there is an expected date of finalisation. Decision-making should not be unreasonably delayed, but there is some scope to defer a decision if outstanding charges are likely to be resolved in the near future.
Do you require further assistance?
If you are planning to apply for a Partner or Prospective Marriage visa and are concerned that a sponsor’s past conviction may be detrimental, it is important to check and understand how to mitigate any risks before continuing. Our staff are well placed to assist with all issues regarding family-sponsored visas, including sponsorship limitations and waivers. Contact us by email at [email protected] or phone +61 3 9016 0484.
