Spouse and partner visa applications will soon be effected by new laws requiring sponsors to go through a pre-approval process before a visa application can be lodged, and imposing ongoing legal obligations on sponsors.
Update: see the update here
The new laws will commence by 11 June 2019 at the latest. The government has the power to set an earlier commencement date by making a Proclamation.
Edit: it was recently announced that these laws would come into effect on 17 April 2019, but this did not happen. Instead the government announced that “Further regulation and system changes are required”.
If you know someone who may be effected, please pass this information on.
What is Happening?
The new laws will impose:
- Sponsor Pre-approval Process – intending sponsors will have to be approved before a visa application can be lodged. Practically, that means lodging a form and documents, then waiting for the government to assess and reply. This gives rise to concerns including:
- There is no indication of how long the sponsor assessment process will take. This could be a roadblock to people needing to apply quickly. People in Australia on a visa that will expire soon could be significantly disadvantaged.
- Applying for partner residency late (after a visa has expired) reduces the chance of success substantially. The potential delay of sponsor pre-approval could force people to reconsider their options.
- If a sponsor is declined and wishes to appeal, it would seem that no visa application would be possible prior to an appeal being won.
- Sponsor Obligations – various obligations will be imposed on sponsors as a part of the pre-approval process. The obligations will include
- Paying for certain medical, hospital, aged care and health-related expenses
- Rules about keeping records of certain information and giving information to the government when required
- Requirements to notify the government of changes in circumstances
The government is yet to publish Regulations giving the details of which health costs will be covered by the obligations, what information will need to be kept and handed over, and what changes in circumstances will trigger an obligation to inform the government. In a work-visa context the government allows 28 days for notifications, so it is likely a similar time limit will apply to family sponsors.
- Penalties – sponsors who do not keep all their obligations could be sanctioned by the government. It is not known what penalties will apply to those sponsoring a spouse or partner.
A similar scheme exists for work-sponsorships at present. The penalties for work-sponsorship breaches range from written warnings, to investigations and audits, show-cause notices, civil penalties and in extreme cases there may be criminal liability.
The Migration Act 1958 (section 140M) allows the government to cancel sponsorships. At present these rules apply to the sponsors of various work-visas. In that context, if a sponsorship is cancelled, all work visas under that sponsorship are lost. Individual workers can keep their visa only if they can promptly find a new work-sponsor. If those provisions will apply to family sponsors, the implications could be far reaching.
Who is Effected?
These visa applications are likely to be effected:
- Subclass 820 Partner visa temporary
- Subclass 801 Partner visa permanent
- Subclass 309 Partner migrant provisional
- Subclass 100 Partner migrant permanent
- Subclass 300 Prospective Marriage visas (also knows as Fiancé visas)
- Subclass 461 New Zealander Citizen Family Relationship visa temporary
It is possible that the government may extend this scheme in the future to cover other kinds of family sponsorships as well, including parents, children, carers, orphan relatives and remaining relatives.
Senator Sterling Griff commented that:
This bill will ensure character checks of the sponsor are conducted before the visa application can be made and that the findings are shared with the person they are sponsoring, so, importantly, they are aware of what they’re getting into…
In terms of safeguards, it’s important to bear in mind that the minister will have the discretion to refuse sponsorship applications in limited circumstances only. Those circumstances will include cases where the sponsor has convictions for sexual abuse or violence against children. This type of offending is especially heinous, and visa applicants ought to be entitled to know if their sponsors have offended.
More information about the new laws for sponsoring spouses and partners is likely to become available over the next 3 months.
The law itself is difficult to read because it is presented as a series of amendments to the existing Migration Act 1958. You can see it here: https://www.legislation.gov.au/Details/C2018A00162