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**Breaking News**Australian Government’s New Legislation to have a huge impact on Partner Visa applications.
What happened?
On 28 November 2018, the government approved the Migration Amendment (Family Violence and Other Measures) Bill. The new Act will eventually apply to all family sponsors, but will initially only apply to Partner Visas.
The Act requires all Partner Visa Sponsors to be approved by the Department of Home Affairs (DHA), before the associated Partner Visa application can be made. This means that in order to be granted a Partner visa a separate Sponsor application must be approved first.
It is unclear when the act will come into force. The new legislation must receive the Governor General’s Royal assent before commencement, and there will be an unknown amount of time between the commencement of the act and the commencement of new Regulations, which will give effect to the Act. The Regulations will prescribe the manner and requirements for Partner Visa Sponsor applications, and until these are published, the fine detail with respect to the requirements needed to become an approved sponsor are not known.
What are the changes?
Once the Act commences, and the necessary associated Migration Regulations are drafted, the changes are:
- Separate applications and assessment of the Partner Visa sponsor and the Partner Visa applicant.
- After the Partner Sponsor is approved, he/she will be subject to sponsorship obligations and the legislation provides for sanctions and penalties to be imposed if such obligations are not satisfied. Sanctions will include Partner Visa sponsorship cancellation as well as being barred as a sponsor.
What’s next?
The Australian government will draft new Migration Regulations which will prescribe the application process and what is required for approval of a Partner Visa Sponsor.
Whilst the new Act states that a Partner Visa application cannot be made before a Partner Visa sponsor is approved, it remains to be seen whether or not the new regulations will allow a Partner Visa application to be lodged at the same time the Sponsor application is made (as has always been the case with for example, the 457 visa and the new TSS visa). If not we anticipate there will be approximately a 12 week wait whilst the Partner Visa sponsor is approved, before the application for the actual Partner Visa can be made.
What does this mean for Partner Visa applicants?
This new legislation has huge implications for couples in Australia currently planning to lodge a Partner Visa application, particularly where the migrating partner’s visa is close to expiry, as there may be insufficient time left on the visa to allow the Partner Visa Sponsorship application to be approved before lodging the Partner Visa application. Where this occurs, the Partner Visa must be lodged when the applicant is outside of Australia, and they will be forced to remain outside of Australia until the Partner Visa is granted, unless he/she meets the criteria for another type of visa, such as a visitor visa. This would allow the applicant to return to Australia for a period during the processing of the Partner Visa application, and potentially allow them to remain in Australia on a subsequent bridging visa.
The legislation will also further delay the Partner Visa application process, which currently is often in excess of 20 months.
Having a separate Partner Visa Sponsor application also suggests that a new application fee will be applied to this application, making the already extremely expensive Partner Visa process even more expensive.
Why has the government passed the legislation?
The government cites the reason for the legislation to be the improvement of the management of family violence in the delivery of the family visa program, and the protection of visa applicants and vulnerable sponsors. The government has expressed concern in the past, and particularly through Minister Dutton that family violence has been a concern in the Partner Visa and other family visa programs, often resulting from an imbalance of power between the sponsor and the visa applicant, for example where visa applicants are dominated/abused by their sponsoring partners, or where vulnerable sponsors of forced into sponsoring Partner Visa applicants, via financial or other unsavory inducements.
Currently, sponsoring partners are required to provide police certificates as part of the Partner Visa application process, and sponsorships may be refused where the sponsor has a criminal record which includes family violence or child sex offences, or he/she refuses to disclose other criminal convictions. By introducing a new Sponsor application process there will be additional scrutiny of the sponsoring partner as the bill also provides for sharing of personal information between a range of (as yet unknown) parties associated with the family visa program. Time will tell which “parties” will be involved in the assessment scrutiny.
We are puzzled as to why the government has decided to require sponsors to be approved by separate application, when in reality appropriate checks were able to be made under the current model of Partner Visa Sponsorship, and if extra checks were required, they could have been added to the current process. Since the implementation of the requirement for police certificates and other character evidence for Partner Visa Sponsors, the Minister for Immigration has had the power to refuse Partner Visa Sponsorships, and has done so on numerous occasions.
I am thinking of lodging a Partner Visa application. What should I do?
It would be prudent for any couple in Australia currently considering lodging a partner visa application, to immediately seek advice from a Registered Migration Agent/Immigration Lawyer, with the intent of lodging the Partner Visa application as soon as possible, particularly where the migrating applicant’s visa has limited time left on it. If your visa has less than six months left to expiry, we suggest that you lodge your Partner Visa application without delay.
