What are the sponsorship limitations on family sponsors? Part 3: Sponsors charged or convicted of registrable offences

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 an individual having multiple sponsorships for numerous visa applicants.

Part 2 explains the limitation arising when a sponsor has been convicted of certain “relevant offences”.

The final part below covers the limitation arising when a sponsor has been charged or convicted of a registrable sexual offence, which is assessed differently to other types of offending conduct.

Which visas does this sponsorship limitation apply to?

This sponsorship limitation is relevant to the:

• Child (Subclass 101 and 802) visa;
• Dependent Child (Subclass 445) visa;
• Partner (Subclass 309/100) visa;
• Partner (Subclass 820/801) 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 charges or convictions.

When will this sponsorship limitation arise?

Minor visa applicants (MVAs) seeking to stay in Australia are protected from being sponsored by people with convictions for child sex offences or other serious offences indicating that the MVA may be at risk of harm.

It is very important to note, therefore, that this limitation only arises when the visa application includes an applicant (either primary or secondary) who is under the age of 18.

Sponsor convicted of a registrable offence

The sponsorship for all visa applicants included must be refused if the sponsor has been convicted of a registrable offence, unless:

• all visa applicants are 18 or over at the time of decision on the sponsorship application; or
• the conviction has been quashed or set aside.

Sponsor charged with a registrable offence

If the sponsor has been charged with a registrable offence, the sponsorship must similarly be refused, unless:

• all visa applicants are 18 or over at the time of decision on the sponsorship application; or
• the charge was withdrawn, dismissed or otherwise disposed of without the recording of a conviction.

Is there a waiver?

Despite the above, a sponsorship could still be approved if:

1. more than 5 years has elapsed since completion of the sponsor’s sentence;
2. the sponsor has not been charged with a registrable offence since the completion of their last sentence; and
3. there are compelling circumstances affecting the sponsor or the applicant.

“Compelling circumstances” is not defined in legislation, and so will be assessed on a case-by-case basis

Approval of sponsorship is discretionary even if compelling circumstances exist

Even if a decision-maker believes that compelling reasons exist to waive the sponsorship limitation, approving the sponsorship is still discretionary.

Ultimately, approving the sponsorship must be in the MVA’s best interests. Therefore, policy directs decision-makers to consider the following:

1. the protection of the MVA from serious criminal conduct;
   • the risk of the sponsor re-offending;
   • evidence of the sponsor’s rehabilitation (or failure to rehabilitate);
   • any arrangements in place to minimise the potential for the MVA to be harmed by the sponsor (eg. management plans put in place by child welfare authorities);
2. the ties the MVA has with Australia
   • the nature of the relationship between the MVA and sponsor and the effect that any separation would have on the MVA;
   • the MVA’s other relatives in Australia, particularly any Australian siblings, with whom the MVA has a meaningful relationship with;
   • the length of time the MVA has been in Australia.
3. Australia’s obligations under international law, such as
   • the Convention on the Rights of the Child; and
   • the Convention and Protocol Relating to the Status of Refugees.

Do you require further assistance?

If you are planning to apply for a Partner or Prospective Marriage visa which will include an MVA 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.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up-to-date information.