The contents of this article are correct as at 19 November 2016.
From 18 November 2016, Australian citizen and permanent resident Sponsors of Partner Visa and Prospective Marriage Visa applications (“a partner visa”), are subject to character testing. In line with current Australian Government strategies to reduce family violence in the Australian community, the new provisions have been introduced to prevent Australians who have committed a relevant offence from being able to sponsor someone for a partner visa.
What are relevant offences?
Relevant offences are defined by the Migration legislation and include the following:
- Violence against a person, including murder, assault, sexual assault and the threat of violence
- Harassment, molestation, intimidation and stalking
- Breach of an apprehended violence order
- Possession of firearms and other dangerous weapons
- People smuggling, human trafficking, kidnapping and unlawful confinement
- Attempting to commit, or aiding and abetting the commission of, any of the above
What are the implications of having committed a relevant offence?
Sponsor must provide police checks when requested
A Sponsor who has committed a relevant offence must disclose this in their Sponsorship application form, submitted as part of the Partner Visa application. Such disclosure is likely to prompt Australian Immigration to request the Sponsor provide a police clearance certificate from each country where the Sponsor has resided for 12 months or more in the previous ten years. If the Sponsor does not provide the police checks within a reasonable period of time, as specified by Immigration, the application may be refused.
Sponsor must consent to Immigration disclosing offences to Visa Applicant
If the Sponsor has committed a relevant offence then they must consent to Immigration disclosing their criminal history to the Visa applicant. If the Sponsor refuses, or fails, to give their consent then the application must be refused.
Application refusal for significant criminal history
Even if the Sponsor complies with the request for police checks, and agrees to full disclosure of their criminal history to the Visa applicant, the application may still be refused, where the Sponsor has a significant criminal record. A Sponsor has a significant criminal record if they have committed a relevant offence and been sentenced to death, life imprisonment, or periods of imprisonment which amount to 12 months or more. The 12 month sentencing period is cumulative and is likely to apply whether or not the sentence was suspended.
The legislation does not require the refusal of the partner visa application in all circumstances where a Sponsor has a significant criminal record. The Minister maintains a discretion to approve the application where it is reasonable to do so. Examples of circumstances the Minister will take into consideration when deciding whether or not to refuse an application include, but are not limited to:
- The length of time since the Sponsor completed the sentence for the relevant offences
- The best interests of any children of the Sponsor and Visa applicant
- The length of the relationship between the Sponsor and Visa applicant
Assuming that the character assessment is made in line with other areas of Immigration law, the deciding factor will be the level of risk the Sponsor is deemed to pose to the Visa applicant and any children included in the application. If the Minister takes the view that there is a chance the Sponsor will re-offend, then they are likely to refuse the Sponsorship application and the Partner visa application will fail.
If you are an Australian intending to Sponsor a person on a partner visa application, or a Partner Visa applicant, and believe these new provisions may impact your application, please click this link to contact Visa Lawyers Australia.
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