New character assessments for sponsors of partner and prospective marriage visas

As part of a number of reforms registered yesterday is the ability for the Department of Immigration and Border Protection (DIBP) to refuse to approve sponsorships for partner and prospective marriage visas should a sponsor have a significant criminal record for certain offences.

This will affect applications made on or after 18 November 2016 for:

• Prospective Marriage (subclass 300) visas,
• Partner (Provisional) (subclass 309) visas, and
• Partner (Temporary) (subclass 820) visas.

Sponsors, for these visas, are the Australian citizens, Australian permanent residents, and eligible New Zealand citizen partners of the primary visa applicant. These new provisions will allow the DIBP to more closely scrutinise the character of sponsors. Where necessary, they will be able to request a sponsor to provide police checks, and if the sponsor has a history relating to violent offending, or if no police checks are provided, the DIBP can refuse to approve the sponsorship. If the sponsorship is not approved, the corresponding visa application will be refused.

Broadly, a relevant offence will be of the nature of personal violence, intimidation, breaching restraining orders, firearm and dangerous weapon offences, people smuggling, human trafficking, and slavery offences. It will also apply to attempting, aiding, and abetting these offences. Should a sponsor have been sentenced to death, or a term or terms of imprisonment for a collective 12 months or more, they must be refused sponsorship approval. There are also specific rules relating to detention, pardons, and residential schemes.

There is, however, discretion to approve a sponsorship despite these offences, but this will depend on a number of factors including the length of time since the sentences were completed, the length of the relationship with the visa applicant, and the best interests of any children of the sponsor or the visa applicant. This list is not exhaustive.

Lastly, the DIBP will have the power to disclose these offences to the visa applicant, as the sponsor will most likely have no option but to provide their consent as part of their application.

These provisions are a welcome addition to existing provisions that prevent sponsors with convictions for child sex offences being able to sponsor partners or children. These will effectively assist in protecting partners from violence as much as the current provisions protect children from violence.

This will also likely reduce the instances of visa applications for permanent partner visas where the relationship has broken down on grounds of family violence, and continues with the government’s move to tighten immigration laws, while also giving power to exercise discretion where appropriate.