The safety and security of immigrants and their dependent children is an issue of concern in many countries. In order to improve safety standards, the Australian Department of Immigration and Border Protection (DIBP) has introduced some new requirements for Australian Citizens and permanent residents supporting partner, spouse and prospective marriage visa applications. These requirements came into effect on 18 November 2016 and impact anyone lodging a partner or fiancée visa application. The new rules do not affect applications lodged before this date, even if the sponsor submits their sponsorship form 47SP to the DIBP later in the process. The intent of the new DIBP requirements is to ensure that people migrating to Australia under the partnership policy are safe in their new home country.
What are the new requirements for partner and spouse visa sponsors?
Effective 18 November 2016, the DIBP requires Australian sponsors wishing to bring a foreign fiancée, partner or spouse to Australia on an unmarried (de facto), spousal or prospective marriage visa to provide Australian and/or foreign police checks if they are requested to do so by the DIBP case worker as part of the application process. If the supporting partner has any “relevant offences” on their record, they must consent to the DIBP disclosing those convictions to the visa applicant. This is intended to allow them to make an informed decision about whether they want to pursue their visa application and move to Australia permanently.
What is a “Relevant Offence”?
Relevant offences are criminal offences committed in Australia or in any other country which involve violent crimes such as:
- Human trafficking, slavery, or similar practices, such as forced marriage, kidnapping, and unlawful confinement
- Violence (including assault, sexual assault, and murder) or the threat of violence
- The breach of an apprehended violence order or any similar order
- Harassment (including stalking, intimidation, and molestation)
- Crimes involving firearms and other dangerous weapons
- People smuggling
In addition to the crimes themselves, a relevant offence also includes any attempt to commit one of these crimes, or any attempt at aiding or abetting, counseling, or procurement of these crimes. However, if a sponsor has a previous conviction for a relevant offence which has subsequently been quashed or pardoned, this conviction does not count as a relevant offence, and is not disclosed to the visa applicant. It should be noted that a visa application is not automatically refused if an Australian sponsor has “relevant offence” convictions, unless they also have a significant criminal record.
What is a “Significant Criminal Record”?
This term denotes a criminal record where certain kinds of sentences have been given. These include:
- Imprisonment of 12 months or more
- Two or more terms of imprisonment, if the total is 12 months or more
- Life imprisonment
- Death
If a supporting partner has a significant criminal record involving relevant offences, the visa application is likely to be refused on character grounds, except in cases where refusal can be considered unreasonable. When making a final determination of eligibility, the DIBP considers factors such as how long ago the sponsor completed their sentence, whether any children are involved, and the length of the relationship between the applicant and the sponsor. If a partner visa application is refused due to the sponsor’s criminal record, the DIBP application fee is not refunded. If the sponsor refuses to provide police checks, or refuses consent to disclose their record of offences to the applicant, the DIBP will refuse the application. Depending on the situation, the DIBP might also refuse an application if the sponsor does not provide their police checks within a reasonable time frame.