Partner Visa Character Requirements

What are the partner visa character requirements?

The partner visa character requirements are the legal tests that decide whether a person's criminal history, conduct or associations stop them from being granted an Australian partner visa. The partner visa character requirements apply to the Subclass 820 and Subclass 801 visas lodged in Australia, the Subclass 309 and Subclass 100 visas lodged outside Australia, and the Subclass 300 Prospective Marriage visa. They are found in section 501 of the Migration Act 1958 and in public interest criterion (PIC) 4001 in Schedule 4 to the Migration Regulations 1994.

In practice, most couples meet the partner visa character requirements without difficulty. The applicant provides police certificates from Australia and from each country where they have lived for a substantial period, answers the character questions in the application form honestly, and completes Form 80 if the Department asks for it. Where the record is clear and the answers are accurate, character is rarely the issue that decides the case.

The picture changes where there is a conviction, a pending charge, a protection order, an overstay, a deportation or anything else the application asks about. Then the partner visa character requirements become a central part of the case. They also become a test of the applicant's honesty, because the Department compares what the applicant declares with what police certificates, its own systems and other agencies show.

This article is written for couples who want to get this right before and during processing. It explains who must meet the partner visa character requirements, what the Department checks, how police certificates and Form 80 work, why full disclosure matters, and how sponsor checks operate. For a full overview of the partner visa process, see the complete partner visa guide. Couples who already know there is a record should speak with experienced partner visa lawyers before anything is lodged.

The short answer for applicants with a record

Yes, a person with a criminal record can still be granted a partner visa in many cases. The law does not say that any conviction means refusal. It says the decision maker may refuse a visa if the person does not pass the character test, and it gives the decision maker a discretion. How that discretion is exercised depends on the nature and seriousness of the conduct, how long ago it happened, what the person has done since, the strength of the family ties in Australia and the interests of any children. Weighing those factors is where the partner visa character requirements become a matter of evidence and judgement, and where an experienced partner visa lawyer adds the most value.

What the law does not allow is concealment. A person who hides a record can be refused even if the record itself would not have stopped the visa. That is the single most important point in this article, and it is the point most often misunderstood. Under the partner visa character requirements, honesty is assessed as closely as the record itself.

PIC 4001 and section 501 in plain English

PIC 4001 is the public interest criterion that links every partner visa to the character test in section 501 of the Migration Act 1958. In plain terms, PIC 4001 is satisfied if the applicant passes the character test, or if the Minister has decided not to refuse the visa even though the applicant does not pass it. The partner visa character requirements therefore work in two steps. First, does the person pass the character test? Second, if they do not, should the visa be refused anyway? That two step structure is the starting point for any assessment of the partner visa character requirements.

Section 501(6) sets out the character test itself. Section 501(1) gives the Minister, and delegates of the Minister, the power to refuse a visa if the person does not satisfy the Minister that they pass the character test. Section 501(3) gives the Minister a separate personal power with fewer procedural protections. Policy guidance in the Department's procedures manual confirms that where an applicant may not pass the character test in section 501(6), the case is referred to a specialist area within the Department for assessment before a decision is made.

The visa criteria tie these provisions to each partner visa. For the Subclass 820 visa, clause 820.223 requires the primary applicant to satisfy PIC 4001, 4002, 4003, 4004, 4007 and 4009, and PIC 4019 if they had turned 18 at the time of application. Clause 820.226 adds PIC 4020, the integrity criterion, and PIC 4021, the passport criterion. Equivalent clauses apply to the Subclass 309 visa, the Subclass 801 visa, the Subclass 100 visa and the Subclass 300 visa.

The character test grounds in section 501(6)

A person does not pass the character test if one of the grounds in section 501(6) applies to them. The grounds include:

• having a substantial criminal record, as defined in section 501(7), which includes a sentence to a term of imprisonment of 12 months or more, or two or more terms of imprisonment that total 12 months or more;
• having, or having had, an association with a person, group or organisation that the Minister reasonably suspects has been or is involved in criminal conduct;
• past and present criminal conduct or general conduct that shows the person is not of good character;
• a risk that, if allowed to enter or remain in Australia, the person would engage in criminal conduct, harass or stalk another person, vilify a segment of the community or represent a danger to the community;
• having been convicted of, or found guilty of, sexually based offences involving a child, even where no conviction was recorded;
• certain adverse security assessments and Interpol notices.

The substantial criminal record ground is objective. Either the sentence meets the definition or it does not. A suspended sentence of 12 months still counts as a sentence to a term of imprisonment. The conduct grounds are different. They require judgement, and they are where careful evidence about rehabilitation, the passage of time and present circumstances makes the most difference.

Other character-related criteria in a partner visa

PIC 4001 is not the only criterion that touches character. PIC 4002 deals with security assessments by the Australian Security Intelligence Organisation. PIC 4003 deals with foreign policy interests and weapons of mass destruction concerns. PIC 4004 deals with outstanding debts to the Commonwealth, which is why the application asks about debts to the Australian Government. PIC 4020 deals with bogus documents and false or misleading information. Together these criteria form the full set of partner visa character requirements that a decision maker must work through before grant.

Most couples will never have an issue under PIC 4002 or PIC 4003. PIC 4004 is more common than people expect, particularly for applicants who previously held visas and left debts behind. PIC 4020 is the criterion that turns a disclosure problem into a refusal, and it is dealt with in detail below. Failures under these criteria are among the common reasons partner visas get refused.

Who must meet the partner visa character requirements?

The partner visa character requirements must be met by the primary applicant and by every member of the family unit, whether or not that family member is coming to Australia. This is the "one fails, all fail" structure that runs through every partner visa subclass. The partner visa character requirements apply in the same way whether the couple are married or in a de facto relationship.

The primary applicant

The primary applicant is the person being sponsored. They must satisfy PIC 4001 at the time of decision for the first stage visa, and again at the second stage. The fact that a Subclass 820 visa was granted does not mean the character test is finished. The Department's policy for the Subclass 801 visa confirms that the applicant must provide current police clearances again for any country where they have lived for a cumulative period of 12 months or more since the Subclass 820 visa was granted.

Family members, including those not migrating

Under subclause 820.224(1), the primary applicant cannot be granted a Subclass 820 visa unless each member of the family unit who is also an applicant satisfies PIC 4001 and the other listed criteria. Under subclause 820.224(1A), each member of the family unit who is not an applicant must also satisfy PIC 4001, 4002, 4003 and 4004. The same pattern appears in subclauses 309.228(1) and (2) for the Subclass 309 visa, subclauses 300.226(1) and (2) for the Subclass 300 visa, and subclauses 801.224 and 100.224 at the permanent stage.

This catches many couples by surprise. An adult child of the applicant who is staying overseas can still be asked for police certificates. If that family member does not meet the character requirements, the primary applicant's visa can be refused. Couples applying for a Subclass 820 partner visa should list every member of the family unit accurately from the start, because leaving someone off the form creates its own disclosure problem.

Children are treated by age. The Department's Form 80 is completed by applicants aged 16 or over when the processing office asks for it, and police certificates are generally requested for people who have lived in a country for 12 months or more since turning 16. A young child will not normally be asked for police certificates, but a teenager who turns 16 or 17 during a long processing period may be asked for them before decision. Our guide to Subclass 820 processing explains why the partner visa character requirements may need to be revisited while an application is waiting.

The sponsor

The sponsor does not have to satisfy PIC 4001, because the sponsor is not applying for a visa. However, the sponsor faces separate checks under the sponsorship limitation rules in Division 1.4B of the Migration Regulations 1994. Those rules can stop a sponsorship being approved, and if the sponsorship is not approved, the visa must be refused. The sponsor checks are covered later in this article and in our guide to partner visa sponsorship limitations.

Partner visa character requirements at each stage

The partner visa character requirements apply at every stage of the partner visa process, not only once. That is because the character criteria are time of decision criteria for both the temporary and the permanent visa. Our article on how long an onshore Subclass 820 application takes explains the stages in more detail.

For onshore applicants, the Subclass 820 visa is assessed first and the Subclass 801 visa is assessed later. Our guide to Subclass 820 versus Subclass 801 explains the two stages. At the second stage, the Department's policy allows delegates to rely on the earlier character assessment in most cases, but it requires new police certificates for any country where the applicant has lived for 12 months or more since the first stage grant, and for family members who have reached the age at which character checks apply since that grant.

For offshore applicants, the same pattern applies to the Subclass 309 visa and the later Subclass 100 visa. A person who moves to Australia on a Subclass 309 visa and lives here for more than 12 months will usually need a new Australian police check before the Subclass 100 visa is decided.

For Prospective Marriage applicants, the Subclass 300 visa has its own character criteria in clause 300.223. After the marriage, the person applies for the Subclass 820 visa in Australia and the character criteria apply again.

The practical lesson is that the partner visa character requirements follow the applicant through a long process. A clean record at lodgement is not the end of the matter. A new charge, a new protection order or a new conviction during processing changes the answers in the application and must be dealt with. Couples who lodged on their own and now realise there is a character issue can still hire an immigration lawyer after lodgement.

Police certificates for a partner visa

Police certificates are the main evidence the Department uses to decide whether an applicant meets the partner visa character requirements. Policy guidance describes penal checks as part of the procedure for establishing whether an applicant satisfies PIC 4001. Without them, the Department cannot complete the character assessment, and a person who refuses to obtain them can be refused. Getting the certificates right is the first practical step in meeting the partner visa character requirements.

Australian National Police Check

Anyone who has spent a substantial period in Australia since turning 16 should expect to provide an Australian Federal Police National Police Check. Departmental policy for sponsor checks describes the required certificate as an "Immigration/Citizenship - Australia" National Police Check, applied for through the Australian Federal Police, and states that this is consistent with the certificate visa applicants provide to meet the relevant public interest criterion. The same policy describes the required Australian check as a "Complete Disclosure - All recorded offences released" check for a person who has spent a total of 12 months or more in Australia since turning 16.

A common mistake is to lodge a state police check or an employment check instead. Those certificates are issued for a different purpose and may not release every recorded offence. The Department needs the immigration purpose National Police Check, and lodging the wrong one simply delays the case. For an onshore applicant who arrived on a visitor visa and has now been in Australia for over a year, the Australian check is essential. For those applicants, the partner visa character requirements include the Australian check as well as the overseas certificates. Our guide to moving from a tourist visa to a partner visa explains the other issues those applicants face.

Overseas police certificates

An overseas police certificate is generally needed from each country where the person has spent a total of 12 months or more in the last 10 years since turning 16. That is how departmental policy describes the requirement for sponsors and their partners, and the Department applies a comparable residence test to visa applicants. The 12 months is a total, not a single continuous stay. A person who spent three separate periods of five months in one country has spent 15 months there and will usually need that country's certificate.

Applicants often forget countries where they studied, worked on a temporary contract or lived with family for a year. The address history in Form 80 covers the last 10 years with no gaps, so a missing certificate is usually obvious to the case officer when the forms are compared. The safest approach is to build the residence history first, then work out which certificates are needed, rather than the other way around. Building that history is the most reliable way to make sure the partner visa character requirements are met in full. Our partner visa document checklist and the Subclass 820 evidence checklist show where police certificates sit among the other documents.

Certificates that are not in English need an accurate English translation. The translation should be complete, including any notes, stamps or endorsements on the original, because a missing endorsement can look like concealment.

When to obtain police certificates and how long they last

Police certificates are generally treated as valid for 12 months. Departmental policy for the Subclass 801 and Subclass 100 stages describes the required penal clearance as "current" and "generally valid for 12 months". Timing therefore matters. A certificate obtained too early can expire before the Department is ready to decide, and the applicant will be asked for a new one.

There are two common approaches. Some applicants obtain all certificates before lodgement so the application is decision ready. Others lodge first and provide certificates when the Department asks, usually through an ImmiAccount request. For applicants who need help with the portal, see our guide on how to create an ImmiAccount. The right approach depends on the processing stream, how quickly each country issues certificates, and whether there is anything on the record that needs explanation. Where there is a record, it is usually better to know exactly what each certificate says before lodging, so the application and the explanation can be prepared together.

When the Department asks for police certificates, the request will usually set a timeframe. Our guide to a section 56 request for more information explains how those requests work. Ignoring a request is not an option. A decision can be made on the information already held.

Countries where certificates are hard to get

Some countries do not issue police certificates to people who are not physically present, require personal attendance at a police station, take many months, or do not issue certificates at all. Departmental procedures recognise that there are cases where there is no procedure for obtaining a certificate, and they set out what the case officer should do in those cases.

The practical rule is to keep evidence of every attempt. That means application receipts, emails with the issuing authority, embassy correspondence and any written refusal to issue. If a certificate genuinely cannot be obtained, the Department needs to see why, and it may accept other evidence or make its own enquiries. What the Department will not accept is an applicant who simply does not try. Under the partner visa character requirements, a missing certificate with no evidence of effort is treated very differently from a certificate that genuinely cannot be issued. Departmental policy for sponsors expressly distinguishes between a person who provides evidence that they have requested a check and a person who provides neither the check nor evidence of a request.

The character questions in the application and Form 80

Every partner visa application asks a set of character questions, and the answers are one of the most important parts of the partner visa character requirements. The questions are not limited to convictions. They are broad, they cover every person included in the application, and they ask about conduct in any country.

What the character questions actually ask

The Department's character questions, as they appear in the character section of Form 80 and in the equivalent questions in the online application, ask whether the applicant or any other person included in the application has ever:

• been charged with any offence that is currently awaiting legal action;
• been convicted of an offence in any country, including any conviction which is now removed from official records;
• been charged or convicted of family or domestic violence offences or similar related offences;
• been the subject of a domestic or family violence order, or any other order of a tribunal, court or similar authority, for the personal protection of another person;
• been the subject of an arrest warrant or Interpol notice;
• been found guilty of a sexually based offence involving a child, including where no conviction was recorded;
• been named on a sex offender register;
• been acquitted of an offence on the grounds of unsoundness of mind or found by a court not fit to plead;
• been involved in activities that represent a risk to national security, or charged with genocide, war crimes or other crimes of serious international concern;
• been associated with a person, group or organisation involved in criminal conduct, or with an organisation engaged in violence;
• served in a military force, police force, militia or intelligence agency, or undergone military or weapons training;
• been involved in people smuggling or people trafficking;
• been removed, deported or excluded from any country, including Australia;
• overstayed a visa in any country, including Australia; or
• had any outstanding debts to the Australian Government or any public authority in Australia.

Several of these questions go well beyond a criminal conviction. An apprehended violence order where the applicant was the respondent must be declared, even if no criminal charge followed. A past overstay in Australia must be declared, even if it was years ago and the person left voluntarily. Military service must be declared, even if it was compulsory national service. Form 80 asks for court documents, such as sentencing remarks or court transcripts, for any matter declared. It also asks for copies of any declared orders, but only where the applicant is the respondent or subject of the order, not where the applicant is the person protected by it.

Form 80 and why the Department asks for it

Form 80, titled "Personal particulars for assessment including character assessment", is completed in English by applicants aged 16 or over when the office processing the application asks for it. Our detailed Form 80 guide explains each part. For the partner visa character requirements, the key parts are the address history for the last 10 years with no gaps, international travel in the last 10 years, the character questions, military service, employment with intelligence or security agencies, visa refusals, deportations and citizenship refusals.

Form 80 is often where inconsistencies appear. A person who said in the application that they had never been refused a visa, and then lists a visa refusal in Form 80, has created a problem that did not need to exist. A travel history that does not match passport stamps, or an address history with unexplained gaps, invites questions. Every answer in Form 80 should be checked against the application, the passport, the police certificates and the relationship statement before it is signed. The Department may also ask for Form 1563, a statement of character, in some cases. Witnesses who complete a Form 888 supporting statement should also not contradict anything declared under the partner visa character requirements.

Why full disclosure matters: PIC 4020 and section 109

Full disclosure matters because a false answer to a character question can lead to refusal under PIC 4020 even where the underlying record would not have stopped the visa. This is the part of the partner visa character requirements that causes the most avoidable refusals.

How non-disclosure becomes a PIC 4020 refusal

PIC 4020(1) requires that there is no evidence the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application, or a visa held in the 12 months before the application. The Department's own policy uses a character scenario to explain it. An applicant answers "no" to the question whether any applicant has ever been convicted of an offence in any country. Departmental systems show a previous conviction. That is false or misleading information in relation to the assessment of PIC 4001. If the applicant cannot explain it, the visa can be refused under PIC 4020(1).

The policy then makes the critical point plainly: it is not about the actual conviction, or whether the applicant would have passed the character test. It is about the fact that the decision maker was not able to make an informed decision. In other words, an applicant with a minor, old conviction who hides it can be refused, while an applicant with the same conviction who discloses it fully might have been granted.

A PIC 4020 refusal also has a lasting effect. Where a person is refused a visa because they gave bogus documents or false or misleading information, PIC 4020(2) generally prevents grant of a further visa that requires PIC 4020 for three years. That period can be waived only in compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Department must give the applicant a chance to comment before refusing, usually through a section 57 natural justice letter.

There is one important protection. The Full Federal Court has held that PIC 4020 requires "purposeful falsity". The Department's policy accepts that an application cannot be refused under PIC 4020 where the applicant can explain an innocent mistake. However, the onus is on the applicant to explain it, and an explanation that arrives only after the Department has found the record is much weaker than an accurate answer given at the start. Many Subclass 820 refusals involving the partner visa character requirements begin with a disclosure failure rather than with the offence itself.

Section 109 cancellation after grant

Disclosure obligations do not end when the visa is granted. Section 101 of the Migration Act 1958 requires a non-citizen to complete their application so that all questions are answered and no incorrect answers are given. Section 104 requires them to tell the Department in writing, as soon as practicable, if circumstances change so that an answer becomes incorrect. Section 105 requires them to notify the Department if they become aware that an earlier answer was incorrect. If those obligations are not complied with, section 109 allows the Minister to cancel the visa after a notice process. Our guide to visa cancellations explains how that process works.

This is why non-disclosure is a risk that follows a person for years. A Subclass 820 holder who hid a conviction may be granted the temporary visa and then face cancellation when the conviction surfaces at the Subclass 801 stage, or even after permanent residence is granted. Section 104 also means that a new charge during processing is not something to mention later. It must be reported, usually through Form 1022 for a change of circumstances.

Do spent convictions need to be disclosed?

Yes. Spent convictions must be disclosed in a partner visa application. This is one of the most common misunderstandings about the partner visa character requirements, and it causes real harm.

Australia has a Commonwealth spent convictions scheme in the Crimes Act 1914. Under that scheme, a conviction for a less serious offence can become "spent" after a waiting period, generally 10 years from the date of conviction or 5 years for a juvenile offender, provided the person was not sentenced to imprisonment for more than 30 months. Once a conviction is spent, a person can usually lawfully say they have no conviction for most purposes. States and territories have their own schemes as well.

The scheme contains an exclusion for decisions made under the Migration Act 1958 and the Australian Citizenship Act 2007. The Office of the Australian Information Commissioner describes that exclusion in its guidance on criminal records. The character questions are drafted to match it: they ask about any conviction in any country "including any conviction which is now removed from official records". An applicant who answers "no" because a conviction is spent, expunged, sealed or not shown on a recent certificate has given an incorrect answer.

The same applies to convictions overseas. Many countries have rehabilitation or record clearing laws. A police certificate from that country may show nothing. The question in the application is still about whether the person has ever been convicted, not whether the certificate shows it. If there is any doubt about whether an old matter resulted in a conviction, the court records should be obtained and reviewed before the form is completed. Applicants who already lodged with an incorrect answer should get a second opinion from an immigration lawyer about correcting it under section 105, because the partner visa character requirements are assessed on the whole file.

Common disclosure mistakes under the partner visa character requirements

The most common mistakes under the partner visa character requirements are not about serious crime. They are about people answering a narrower question than the one asked.

The first mistake is treating drink driving and other traffic offences as something other than a criminal conviction. In most Australian jurisdictions, drink driving and some other serious traffic matters are criminal offences dealt with in court. If a conviction was recorded, it must be declared under the partner visa character requirements, even if the penalty was only a fine and a licence suspension.

The second mistake is assuming that "no conviction recorded" means nothing to declare. For most questions that may be correct, but the question about sexually based offences involving a child expressly includes findings of guilt where no conviction was recorded, and the question about pending charges covers matters where there has been no finding at all. The answer depends on the exact wording of each question.

The third mistake is forgetting protection orders. A person who was the respondent to an apprehended violence order, intervention order or domestic violence order must declare it under the specific question about orders for the personal protection of another person. Couples sometimes leave these out because the order involved a former partner and seems irrelevant to the current relationship. It is not irrelevant to the form. An applicant who is experiencing violence in the current relationship is in a different position altogether, and should read our guide to relationship breakdown and the family violence rules.

The fourth mistake is relying on the police certificate instead of memory and records. A clear certificate does not answer the question for the applicant. Certificates differ in what they release, and overseas records may have been cleared.

The fifth mistake is inconsistency between people. The applicant, the sponsor and their witnesses may each describe the same events. If a relationship statement mentions a court appearance and the character question says "no", the case officer will notice. The same care used when preparing evidence of a genuine relationship should be applied to character disclosures.

The sixth mistake is leaving family members off the application to avoid their character checks. That creates false information about the family unit and can affect the applicant's own visa and any future sponsorship of that family member. Couples deciding whether to manage this alone should read our comparison of a partner visa lawyer and a DIY application, because errors under the partner visa character requirements are difficult to undo.

When is the character test triggered?

The character test is triggered when the Department has information suggesting that an applicant may not pass the test in section 501(6). That information can come from a police certificate, the applicant's own answers, Form 80, the Department's own systems, other Australian or overseas agencies, an interview, or a tip-off. Departmental guidance lists sources such as adverse information on police clearance certificates, self-declaration in the visa application, departmental system checks, new aliases, fingerprint matches, integrity reports and interviews.

Not every disclosure triggers a full character assessment. A minor matter many years ago, fully disclosed and supported by court records, may be considered and accepted without further action. A sentence of imprisonment of 12 months or more is different, because it objectively engages the substantial criminal record ground. Conduct involving violence, particularly family violence, or offences against children, will almost always lead to closer scrutiny under the partner visa character requirements. The more serious the matter, the more the outcome depends on the quality of the evidence put forward.

When the character test is engaged, the decision maker must consider whether to refuse under section 501. Decisions under section 501 are guided by a Ministerial Direction made under section 499 of the Migration Act 1958. The current direction, Direction No. 110, sets out the considerations decision makers must weigh. Among other things, it treats violent and sexual crimes very seriously, and it treats crimes of a violent nature against women or children very seriously regardless of the sentence imposed. It also requires decision makers to weigh the strength, nature and duration of ties to Australia and the best interests of minor children affected by the decision. For partner visa applicants, the relationship with an Australian partner is often the strongest tie, which is why relationship evidence and character evidence must be prepared together when the partner visa character requirements are in issue.

What a character notice looks like

A character notice is a letter from the Department telling the applicant that it is considering refusing the visa on character grounds and inviting a response. It is commonly called a notice of intention to consider refusal. The letter usually identifies the ground of the character test the Department believes applies, attaches or describes the information relied on, such as police certificates and court records, explains the factors the decision maker will consider, and sets a short period to respond.

The time to respond is short and strictly applied. It runs from the date the notice is taken to have been received, which depends on how it was sent. The response must start the day the notice arrives. The response is the applicant's opportunity to show that the character test is not failed, or that even if it is, the discretion should be exercised in their favour. That means evidence, not just a personal letter: sentencing remarks, completion of court orders, rehabilitation programs, employment references, evidence of the relationship and family ties, statements from people in the community and evidence about the impact on any children.

A sponsor or applicant who receives a character notice should seek legal advice immediately. Our separate guides deal with what happens after a refusal, but the notice stage is where the most can still be done. A well prepared response is often the last real opportunity to show that the partner visa character requirements are met. Couples who need urgent help can read about urgent immigration lawyer advice.

Sponsor checks: sponsorship limitations and protection of children

Sponsors are checked too, and a sponsor's criminal history can stop a partner visa even where the applicant has a clear record. These checks sit alongside the partner visa character requirements for applicants and are found in Division 1.4B of the Migration Regulations 1994. Our commercial page on sponsorship limitations explains how My Migration Lawyers deals with these issues.

Regulation 1.20KB: protection of children

Regulation 1.20KB protects applicants under 18. If a sponsor, or the sponsor's partner, has been convicted of a registrable offence, or has an unresolved charge for one, and the application includes an applicant who is under 18 at the time of decision, the sponsorship must generally be refused for all applicants. A registrable offence is broadly an offence that would require registration on a child sex offender register. The rule does not apply if every applicant is 18 or over at the time of decision. A waiver may be considered only in limited circumstances, including that more than 5 years have passed since the sentence was completed. Departmental policy also allows sponsorship to be refused if the sponsor, or the sponsor's partner, does not provide a requested police check within a reasonable time.

Regulations 1.20KC and 1.20KD: violence and other relevant offences

Regulation 1.20KC applies to sponsors of Subclass 300, Subclass 309 and Subclass 820 applicants. It allows the Department to refuse to approve a sponsorship where the sponsor has been convicted of a relevant offence and has a significant criminal record in relation to that offence. Relevant offences are offences involving violence against a person, harassment, molestation, intimidation or stalking, breach of an apprehended violence order or similar order, firearms or other dangerous weapons, people smuggling, human trafficking, slavery or forced marriage, kidnapping or unlawful confinement, and attempts or complicity in those offences.

Regulation 1.20KD defines a significant criminal record. It includes a sentence of 12 months or more imprisonment, or two or more terms totalling 12 months or more. A suspended sentence counts, because it is the sentence that matters, not the time actually served. Even where both elements are met, the sponsorship may still be approved if the decision maker considers it reasonable, having regard to matters such as the time since the sentence was completed, the best interests of any children and the length of the relationship. Departmental policy also confirms that an unresolved charge cannot be the basis for refusal under regulation 1.20KC, although it may lead the Department to defer its decision.

The assessment is made at the time of decision, and the sponsor's police checks must be valid at that time. The Department generally requests checks directly from the sponsor, not through the applicant's representative, unless the sponsor has appointed their own representative using Form 956.

Consent to disclose the sponsor's convictions

The sponsor must also consent to the Department disclosing any convictions for relevant offences to the applicant. This is a time of decision criterion in clause 820.221 for the Subclass 820 visa, clause 309.222 for the Subclass 309 visa and clause 300.222 for the Subclass 300 visa. If the sponsor expressly declines consent, the criterion cannot be met and the visa can be refused after the applicant is invited to comment. The purpose of the rule is to protect applicants, who are entitled to know if the person sponsoring them has a history of violence. A sponsor who is unsure about any of this should get advice before signing the sponsorship form. Sponsor checks are a distinct part of the partner visa character requirements in the broad sense, and sponsors often do not realise they apply. Our blog on partner visa sponsorship limitations covers the related limits on the number of sponsorships.

Where the relationship has ended because of family violence and the applicant relies on the family violence provisions, departmental policy states that a police certificate is not required from the former sponsor. Applicants in that situation should read about the partner visa family violence provisions.

Charges, new offences and changes during processing

A new charge or conviction during processing must be reported to the Department, and it can change the outcome of the application. Partner visa processing can take a long time, and life does not stop while the application is pending. Section 104 of the Migration Act 1958 requires the applicant to tell the Department in writing, as soon as practicable, when an answer in the application becomes incorrect.

A pending charge creates a particular problem. The applicant is presumed innocent, and the charge may be withdrawn or dismissed. But the character questions ask directly about charges awaiting legal action, and the decision maker may wait for the outcome before deciding. Departmental policy for some sponsor and applicant checks expressly allows a decision to be deferred until a charge is resolved. The partner visa character requirements are not met by staying silent and hoping the matter is finished before the Department notices.

Applicants on a bridging visa should also understand that a criminal charge can lead to separate action on the bridging visa itself. Our guides to Bridging visa A and to bridging visas in Australia explain how bridging visas work while a partner visa is pending. Applicants who need to travel should read about Bridging visa B, and those concerned about work conditions should read about Subclass 820 work rights on a bridging visa.

How to prepare a partner visa if the applicant has a record

An applicant with a record should prepare the character evidence before lodging, not after the Department asks for it. Applicants with a record who want to meet the partner visa character requirements should follow a clear order of steps. An immigration lawyer consultation before lodgement is the best time to work through them.

First, obtain the full record. That means every relevant police certificate, plus court records for every matter, including the charge sheet, the outcome, any sentencing remarks and proof that any sentence, bond or order was completed. Records from overseas courts may take months.

Second, map the record against the questions. Each question in the application and Form 80 should be answered against the actual record, not against memory. Where a matter is unclear, the records decide the answer.

Third, prepare a written explanation that addresses the partner visa character requirements directly. A short, factual and honest account of each matter, taking responsibility where appropriate, is far more persuasive than a minimising account that the court records contradict.

Fourth, gather rehabilitation and present circumstances evidence. Completed programs, stable employment, community involvement, references from people who know about the record, and evidence of the relationship and the family's life in Australia all matter if the character test is engaged. The same discipline used for partner visa relationship evidence applies here.

Fifth, consider the whole application. A character issue does not exist in isolation. An applicant who also has an immigration history, such as a past overstay or a visa refusal, may face Schedule 3 criteria or section 48 issues that need to be addressed in the same application. Where Schedule 3 applies, a Schedule 3 waiver argument may need to be run alongside the partner visa character requirements, and applicants with a no further stay condition 8503 face further limits.

Sixth, consider timing. In some cases it is better to wait until a pending matter is finalised before lodging. In others, waiting creates a worse problem, such as the expiry of a substantive visa. That judgement depends on the full facts and should be made with legal advice. Done well, this preparation means the Department receives a complete picture of the partner visa character requirements in one place, rather than piece by piece.

If a character refusal happens

If a partner visa is refused on character grounds, the options depend on who made the decision and under which power. Some decisions can be reviewed by the Administrative Review Tribunal, and some can only be challenged in the courts. A visa appeal lawyer should review the decision record at once. The time limits for review are short and strictly applied, and they run from the date the decision is notified. Anyone who has received a refusal should act immediately. Our pages on partner visa refusals, visa refusals, partner visa appeal options, ART review and judicial review explain the pathways. This article focuses on meeting the partner visa character requirements before that point is reached.

How My Migration Lawyers handles partner visa character requirements

My Migration Lawyers prepares partner visa applications where character is a real issue, and the firm acts in many matters where the applicant, a family member or the sponsor has a criminal record, a protection order, an overstay or another history the Department will examine. These cases are often complex. The firm is capable of handling them because the work starts with the record itself, not with the forms. Meeting the partner visa character requirements in a difficult case is careful legal work, and My Migration Lawyers treats it that way from the first meeting.

On a matter involving partner visa character requirements, My Migration Lawyers typically:

• obtains and reviews every police certificate and court record before any character question is answered;
• builds a 10 year residence and travel history to identify every country that requires a certificate, and plans the timing so certificates are current when the Department is ready to decide;
• checks each character question in the application and in Form 80 against the actual records, for the applicant and every member of the family unit;
• prepares a clear written account of each matter, presented in the form the law requires and supported by court documents and rehabilitation evidence;
• reviews the sponsor's position under regulations 1.20KB, 1.20KC and 1.20KD before the sponsorship is lodged;
• reports changes of circumstances, such as a new charge, promptly and in writing; and
• responds to any section 56 request, section 57 letter or character notice with a full legal submission and evidence.

The work is supervised by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our approach to partner visa matters. The firm assists clients across Australia, including through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, the Gold Coast, Hobart and Parramatta. Readers comparing firms can also see our guides to the best partner visa lawyer in Australia, the best partner visa lawyer in Perth, the best partner visa lawyer in Adelaide, the best partner visa lawyer in Sydney, Melbourne and Brisbane.

If there is anything in your history, or your partner's, that the partner visa character requirements might reach, the right time to deal with it is before the application is lodged. Book a Consultation with My Migration Lawyers to have the record reviewed and a plan prepared.

You can also call My Migration Lawyers on 1300 040 300.