Partner Visa Sponsor With an Assault Conviction

A partner visa sponsor assault conviction is a conviction for assault recorded against the Australian citizen, permanent resident or eligible New Zealand citizen who is sponsoring a partner for a Subclass 820, Subclass 309 or Subclass 300 visa. A partner visa sponsor assault conviction brings the sponsorship within regulation 1.20KC of the Migration Regulations 1994, because assault is expressly listed as a relevant offence. Whether the conviction actually puts the visa at risk depends on the sentence imposed, how long ago it was completed and the wider circumstances of the sponsor, the applicant and any children.

This guide is written for sponsors whose assault conviction has nothing to do with a partner or family member. Typical examples are a fight outside a hotel or nightclub, an incident at a sporting match, a confrontation at work, a road rage incident, or an assault committed as a teenager or young adult. These situations are common, and many sponsors assume that because the victim was a stranger, the conviction does not matter for a partner visa. That assumption is wrong. Regulation 1.20KC does not ask who the victim was. It asks whether the offence involved violence against a person.

The live commercial page on partner visa sponsorship limitations explains every limit that can apply to a sponsor. This article focuses only on the partner visa sponsor assault conviction issue: what the law says, how the Department of Home Affairs assesses it, what evidence helps, and what a sponsor should do before the application is lodged. For an overview of the visa pathways themselves, the firm's complete guide to partner visas in Australia explains each subclass and stage.

Does a partner visa sponsor assault conviction stop the sponsorship?

No. A partner visa sponsor assault conviction does not, on its own, prevent the Department from approving the sponsorship. Refusal is required only where the sponsor has been convicted of a relevant offence and also has a significant criminal record in relation to that offence.

The test has two steps. The first step asks whether the sponsor has been convicted of a relevant offence. Assault satisfies that step. The second step asks whether the sponsor has a significant criminal record, as defined in regulation 1.20KD, in relation to that relevant offence. If the answer to both questions is yes, regulation 1.20KC(3) says the Minister must refuse to approve the sponsorship. Regulation 1.20KC(4) then allows the Minister to approve the sponsorship anyway if it is reasonable to do so.

The result is that a partner visa sponsor assault conviction falls into one of three practical categories:

• A conviction without a significant criminal record. The sponsorship cannot be refused under regulation 1.20KC(3). With the sponsor's consent, the conviction is disclosed to the applicant so that the applicant can make an informed decision.
• A conviction with a significant criminal record. The sponsorship must be refused unless the decision maker is satisfied that it is reasonable to approve it under regulation 1.20KC(4).
• A finding of guilt with no conviction recorded. The matter cannot be relied on under regulation 1.20KC and cannot be disclosed under this policy.

The broader framework is explained in the firm's article on sponsorship limitations for partner visas and the question page on whether a sponsor with a criminal record can sponsor a partner visa. In a partner visa sponsor assault conviction case, the work lies in identifying which of these three categories applies and preparing the evidence that fits it.

Which partner visas are affected by a sponsor assault conviction?

Regulation 1.20KC applies to applications made on or after 18 November 2016 for the Subclass 300 Prospective Marriage visa, the Subclass 309 Partner (Provisional) visa and the Subclass 820 Partner (Temporary) visa. It does not apply to the permanent Subclass 100 or Subclass 801 stage.

That means a partner visa sponsor assault conviction is assessed when the temporary or provisional visa is decided. The requirement that the sponsorship be approved is a time of decision criterion in clauses 300.222, 309.222 and 820.221. At the time of application, the applicant only needs to be sponsored by an eligible sponsor. The pages on the Subclass 820 partner visa, the Subclass 309 partner visa and the Subclass 300 Prospective Marriage visa explain where the sponsorship criterion sits in each pathway.

Because the assessment is made at the time of decision, the sponsor's police checks must be valid when the decision is made. The firm's guide to temporary and permanent partner visas explains why the first stage is where the sponsorship assessment matters most, and the article comparing the Subclass 820 and Subclass 801 stages explains what happens at the second stage. A sponsor who is also considering where the applicant should apply from can read the guide to onshore and offshore partner visas, because the same partner visa sponsor assault conviction rules apply to both.

Is assault a relevant offence under regulation 1.20KC?

Yes. Regulation 1.20KC(2)(a) defines a relevant offence to include an offence involving "violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence".

Assault is therefore named in the regulation itself. A decision maker does not need to interpret whether an assault conviction is a relevant offence. It plainly is. The words "without limitation" also mean that the listed examples are not the only offences involving violence. Other offences can fall within paragraph (a) if they involve violence against a person.

Several other paragraphs of regulation 1.20KC(2) can also be engaged by a single incident. An assault with a knife, bottle or other weapon may also involve paragraph (d), which covers offences involving firearms or other dangerous weapons. A threat made during a confrontation may involve the "threat of violence" in paragraph (a), or intimidation under paragraph (b). An attempt to assault, or helping another person commit an assault, is covered by paragraphs (g) and (h). The firm's article on the character requirements for a partner visa explains how these provisions differ from the character test that applies to the applicant.

The location of the offence does not matter. Regulation 1.20KC(2) covers offences against the law of the Commonwealth, a State, a Territory or a foreign country. A partner visa sponsor assault conviction from Queensland, from New South Wales or from another country is treated the same way under the regulation.

What types of assault convictions count for a partner visa sponsor?

Every type of assault conviction counts as a relevant offence, from common assault through to the most serious forms of assault causing injury. What changes between them is usually the sentence, and the sentence is what decides whether there is a significant criminal record.

Each Australian State and Territory has its own criminal law, and the names of offences differ between them. In general terms, assault offences fall into these broad grades:

• Common assault. An assault that causes no injury or only trivial harm, and in some jurisdictions an act that causes a person to fear immediate violence. Common assault is often dealt with in a local or magistrates court.
• Assault causing bodily harm or injury. An assault that causes an injury that interferes with health or comfort, such as bruising, cuts or a broken nose. Some jurisdictions call this assault occasioning actual bodily harm. Others use different words.
• Wounding. An assault that breaks the skin. Wounding offences are generally more serious than assault causing bodily harm.
• Grievous bodily harm or serious harm. An assault causing very serious injury, such as permanent injury or injury that endangers life. These offences are usually dealt with in a higher court.
• Aggravated assaults. Assaults that the law treats more seriously because of the circumstances, such as an assault on a police officer, an assault while in company, an assault on a worker such as a transport or hospital worker, or an assault involving a weapon.

This article deliberately does not state maximum penalties, because they differ between jurisdictions and change over time. What matters for a partner visa sponsor assault conviction is not the maximum penalty for the offence but the sentence the court actually imposed. A sponsor convicted of a serious offence may have received a sentence well below the threshold, while a sponsor convicted of common assault may have received a term of imprisonment that reaches it.

Public order offences need care. Offences such as affray or fighting in public are often charged after a pub or street fight. Whether a particular conviction of that kind is a relevant offence depends on its legal elements and on whether it involved violence or the threat of violence against a person. Where the label on a police check is unclear, the delegate may consider the Australian and New Zealand Standard Offence Classification published by the Australian Bureau of Statistics. The firm's article on partner visa criminal records explains how offence labels are read in practice.

Are assaults outside the home treated differently from domestic violence?

No. Regulation 1.20KC does not distinguish between violence against a stranger and violence against a family member. A partner visa sponsor assault conviction for a fight with a stranger is a relevant offence in exactly the same way as an assault on a partner.

The regulation was introduced from 18 November 2016 as part of the Government's response to family violence, and much of the policy is written with the safety of the visa applicant in mind. That history explains why some sponsors believe the regulation is only about domestic violence. The text of the regulation is wider. It covers any offence involving violence against a person.

The difference between a stranger assault and a domestic assault usually appears later, when the decision maker considers whether it is reasonable to approve the sponsorship and when the applicant decides whether to continue. A sponsor whose only conviction arose from a one-off incident with a stranger many years ago may be able to show that the offending does not indicate any risk to the applicant. A domestic violence conviction raises different and more direct concerns, which are discussed in the firm's article on partner visa domestic violence charges and on the family violence partner visa page.

Common scenarios that produce a partner visa sponsor assault conviction outside the home include:

• A fight at a pub, club or party. These often involve alcohol, several people and charges of common assault or affray.
• An incident at a sporting event. This may involve players, spectators or security staff.
• A workplace confrontation. This may involve a co-worker, a customer or a member of the public.
• A road rage incident. These sometimes involve a weapon or a vehicle, which can raise paragraph (d) as well.
• An assault on police or security staff during an arrest or removal. These are often aggravated offences with heavier sentences.
• An assault committed in youth. This is discussed separately below because youth offending raises particular questions.

Each of these is a relevant offence once a conviction is recorded. The question that follows is always the same: what sentence did the court impose?

When does a partner visa sponsor assault conviction become a significant criminal record?

A partner visa sponsor assault conviction becomes a significant criminal record when the sponsor was sentenced to death, to imprisonment for life, to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment totalling 12 months or more.

That is the definition in regulation 1.20KD(1). Several rules in regulation 1.20KD and the Department's policy affect how it applies to assault sentences:

• A suspended sentence counts. A suspended sentence is a sentence to a term of imprisonment for the purpose of regulation 1.20KD. It is the sentence imposed that matters, not the time actually served.
• Early release does not help. A sentence of 12 months or more is a significant criminal record even if the sponsor was released before serving 12 months.
• Concurrent sentences can be added together. The Department's policy table states that two sentences of 6 months each, served concurrently, is a significant criminal record.
• Periodic detention and residential programs. These are counted by the number of days the sponsor is required to spend in detention or in the program.
• Quashed convictions and pardons. A conviction that has been quashed or nullified, or a pardon that means the sponsor is taken never to have been convicted, is disregarded.

The full detail of the definition sits in the firm's guide to partner visa character requirements and the page on who can sponsor a partner visa. For a partner visa sponsor assault conviction, the practical point is that the court record must be read carefully. A sentence described informally as "a bond" may in fact be a suspended term of imprisonment, and a sponsor who served no time in custody may still have a significant criminal record.

The sentence imposed for each assault charge matters, as does the way the court ordered the terms to be served. Where a sponsor was sentenced for several assault charges arising from one incident, the total of those terms may reach 12 months. The firm's question page on the documents a sponsor needs for a partner visa explains how sentencing documents fit into the sponsor's material, and the AFP police check guide for partner visas explains what the national police check will show.

What if no conviction was recorded for the assault?

If the court found the sponsor guilty of assault but did not record a conviction, there is no partner visa sponsor assault conviction for the purposes of regulation 1.20KC. The Department cannot rely on the matter to refuse the sponsorship and cannot disclose it to the applicant under this policy.

The Department's policy defines a conviction as the situation where, after a finding of guilt or a plea of guilty, the court has recorded a conviction. Courts in every Australian jurisdiction have powers to deal with an offence without recording a conviction, for example by releasing the offender on a good behaviour bond or by ordering participation in a program on the basis that no conviction will be recorded if the offender complies. The policy states that a finding of guilt without a conviction is irrelevant to the sponsorship limitation and irrelevant to the consent to disclose requirement.

This distinction is one of the most important in any partner visa sponsor assault conviction assessment. Many people who were dealt with for a first assault offence received a non-conviction order and never realised that this was different from a conviction. Others believe they have no conviction when the court in fact recorded one together with a bond. The only reliable way to know is to obtain the court record.

A finding of guilt without conviction may still need to be disclosed in other contexts. If the sponsor is also asked about their history in other forms, or if the applicant's own character is in issue, different rules apply. The firm's question page on disclosing charges that ended without a conviction explains the general position, and the article on undisclosed convictions in a partner visa explains why inaccurate answers can be more damaging than the offence itself.

What if the assault charge has not been finalised?

A partner visa sponsor assault conviction does not exist until the court records a conviction, so an assault charge that is still before the court cannot be the basis for refusing the sponsorship under regulation 1.20KC.

The Department's policy at paragraph 3.8.6 says the sponsorship cannot be refused under regulation 1.20KC because a criminal matter has not yet been finalised. The decision maker may ask about the expected date of finalisation and may defer the decision for a short time if the charge is likely to be resolved soon. The policy also notes that information about the case may be relevant to whether the relationship is genuine. Decision making should not be unreasonably delayed.

A sponsor facing an assault charge while a partner visa is being prepared should obtain advice before any plea or sentencing submissions are made, because the sentence will decide whether a significant criminal record arises. A partner visa sponsor assault conviction that is still only a charge should therefore be managed with both the criminal case and the migration case in view. The firm's question page on a partner visa with a pending criminal charge explains the timing issues that follow.

Does an old assault conviction still matter for a partner visa?

Yes. Regulation 1.20KC contains no time limit, so an old partner visa sponsor assault conviction is still a relevant offence. Age matters instead when the decision maker considers whether it is reasonable to approve the sponsorship, through the factor in regulation 1.20KC(4)(a): the length of time since the sponsor completed the sentence or sentences for the relevant offence.

The Department's policy explains how this factor works. Discretion to approve the sponsorship may weigh more in favour of a sponsor who completed a sentence ten years ago and has not offended since than a sponsor with more recent offending, because the older history does not indicate a pattern of violent or criminal behaviour. The policy then gives a caution. Decision makers should be cautious about approving a sponsorship solely because of the time that has passed if fewer than 5 years have passed since the sentence was completed. Five years may not be enough to give a clear indication of the likelihood of reoffending, unless other circumstances also favour approval.

Three points follow for a partner visa sponsor assault conviction:

• The clock runs from completion of the sentence. The relevant date is when the sponsor completed the sentence, not the date of the offence or the date of conviction. For a suspended sentence or a sentence followed by parole, the date of completion needs to be worked out carefully from the court and corrections records.
• Fewer than 5 years is not a bar. The policy is a caution against relying on time alone. A sponsor whose sentence ended three years ago can still ask the decision maker to approve the sponsorship if other factors favour approval.
• A sentence still being served makes this factor irrelevant. The policy says that where the sponsor is still serving a sentence, the decision maker should record that paragraph 1.20KC(4)(a) is not relevant because the sentence has not been completed.

The Tribunal decision in Naureen (Migration) [2024] ARTA 468, a Subclass 309 matter decided on 3 December 2024, illustrates the issue. The recorded issues were whether it was reasonable to approve the sponsorship, the sponsor's significant criminal record, the elapse of time since the sponsor's last imprisonment, and the limited time the couple had spent together because of travel restrictions. The Tribunal remitted the matter to the Department. The case shows that the time since the last sentence is weighed together with the other circumstances, not in isolation. The firm's guide to the partner visa review process at the Tribunal explains what remittal means, and the question page on what happens after the Tribunal remits a partner visa explains the next step.

A sponsor with an old conviction should also consider whether the conviction is a spent conviction under a spent convictions scheme. Spent conviction laws have exceptions, and a sponsor should not assume that a spent conviction can be left out of migration paperwork. The firm's article on spent convictions and partner visas explains why this question needs advice in each case.

How is an assault committed in youth treated?

An assault committed when the sponsor was a child or a young adult is a relevant offence if a conviction was recorded. A partner visa sponsor assault conviction from youth is assessed under the same regulation, but the outcome of the youth court proceedings and the time that has passed since then often make a significant difference.

Several features of youth offending matter in a partner visa sponsor assault conviction assessment, and each should be checked against the youth court record:

• Whether a conviction was recorded. Courts dealing with young offenders often have wide powers to deal with a matter without recording a conviction. If no conviction was recorded, regulation 1.20KC cannot be relied on.
• The type of order made. Youth detention orders, community orders and other youth sentencing options do not always map neatly onto a "term of imprisonment". Whether a particular youth order counts towards a significant criminal record depends on the terms of the order and needs careful analysis.
• The time since the sentence was completed. Offending in youth is often many years in the past by the time a person sponsors a partner, which can weigh strongly under paragraph 1.20KC(4)(a).
• The pattern since then. A single incident at age 17 followed by many years without any offending tells a different story from a series of convictions continuing into adulthood.

The Department's policy on police checks also recognises the age of 16 as a dividing line. An Australian national police check is requested where the sponsor has spent any time in Australia since turning 16. Foreign police checks are requested for countries where the sponsor lived for 12 months or more since the later of their 16th birthday or 10 years before the request. A sponsor whose youth offending occurred overseas more than 10 years ago may therefore not be asked for a check from that country. That does not change whether a conviction exists, and the sponsor's answers in the sponsorship form must still be accurate.

How are overseas assault convictions assessed?

An overseas assault conviction is a relevant offence because regulation 1.20KC(2) expressly covers offences against the law of a foreign country. A partner visa sponsor assault conviction recorded overseas is assessed in the same way as one recorded in Australia.

The practical difficulty is terminology. The Department's policy recognises that some countries use different terms from those used in an Australian national police check, which can make it hard to tell whether an offence listed on a foreign police check is a relevant offence. Where that happens, delegates are advised to consult the Department's Partner Program Management section. Foreign courts may describe an assault as "causing hurt", "battery", "bodily injury", "physical injury", "hooliganism" or by a section number of a penal code. Some of these offences clearly involve violence against a person. Others may not.

Foreign sentences raise the same issue in a partner visa sponsor assault conviction from overseas. A foreign court may impose a sentence that has no direct Australian equivalent, such as a corrective labour order, a conditional sentence or a probation period. Whether that is a "term of imprisonment" for regulation 1.20KD depends on what the order actually required. A careful translation and, where needed, a copy of the relevant foreign provision help the decision maker reach the correct view.

The police check rules for foreign countries are set out in regulation 1.20KC(5)(b). The sponsor may be asked for a police check from each country where they lived for 12 months or more, in total, since the later of 10 years before the request or turning 16. Foreign police checks in a language other than English must be accompanied by an accurate English translation. The firm's articles on overseas police certificates for partner visas, on overseas convictions and partner visas and on translating partner visa evidence explain the documents required.

Where a sponsor cannot obtain a foreign police check, the policy follows the Department's penal checking process and asks the sponsor to sign a standard Commonwealth statutory declaration stating that they cannot obtain the check, describing the efforts made, and either stating that they have no convictions in that country or giving details of all convictions there. A partner visa sponsor assault conviction in that country must be disclosed in that declaration. The question page on what to do if a police certificate cannot be obtained explains the general process, and the article on expired police checks explains why timing matters.

When is it reasonable to approve a sponsor with an assault conviction?

It is reasonable to approve the sponsorship where, having regard to all the circumstances, the decision maker is satisfied that approval is appropriate despite the sponsor's conviction and significant criminal record. Regulation 1.20KC(4) requires the decision maker to have regard to three listed matters, and the list is not closed.

The three listed matters are:

• The length of time since the sponsor completed the sentence or sentences for the relevant offence. This is discussed above.
• The best interests of any children of the sponsor or of the primary applicant, including biological, adopted and step-children.
• The length of the relationship between the sponsor and the primary applicant.

The policy explains that "have regard" means the decision maker must consider each matter and show how it was considered. It does not mean each matter must be "met" or "satisfied". The policy says it would be an error of law for a decision maker to state or imply that the sponsorship was refused because one of the matters was not met. In a partner visa sponsor assault conviction case, a decision record that treats the factors as a checklist may therefore contain an error that can be raised on review.

The best interests of children

The Department's policy treats the best interests of affected children as a primary consideration. Relevant matters include how long the child has lived with the sponsor, the care and support the sponsor provides, the sponsor's involvement in the child's upbringing, any relevant court orders, the child's integration in Australia and the effect of a refusal on the child. Court orders that deny the sponsor contact with a child weigh against approval. The best interests of children are not the only consideration, and the policy says a risk of harm to the applicant or family members may outweigh them. The firm's articles on stepchildren in partner visa applications, on compelling reasons involving children and on child custody and consent explain how children's circumstances are evidenced.

The length and nature of the relationship

The policy says a long relationship is not automatically enough, and a short relationship is not a reason to refuse. The decision maker considers whether the couple were in a relationship when the offence was committed or the sentence was served, whether the applicant knew about the sponsor's criminal history before the Department disclosed it, and the applicant's own reasons for wanting the sponsorship approved. For a partner visa sponsor assault conviction that predates the relationship by many years, and that the applicant has known about from the start, these factors can carry real weight. The firm's guides to building a partner visa relationship timeline, the minimum relationship length for a partner visa and proving a genuine and continuing relationship explain the relationship evidence that supports this factor. Where travel restrictions or work kept the couple apart, as in the issues recorded in Naureen, the article on living apart for work during a partner visa explains how periods apart are explained.

Remorse and no reoffending

The Tribunal decision in 2107808 (Migration) [2024] AATA 4136, a Subclass 309 matter decided on 9 October 2024, records the issues as sponsorship requirements, a conviction for a relevant offence and a suspended sentence, that the sponsorship may be approved if it is reasonable to do so, and remorse and no reoffending. The Tribunal remitted the matter to the Department. The case illustrates that remorse and the absence of any later offending are matters a decision maker can weigh when deciding whether it is reasonable to approve a sponsor with a significant criminal record, including where the significant criminal record arises from a suspended sentence. The firm's article for a partner visa lawyer on criminal record issues explains how these matters are presented.

What rehabilitation evidence helps a partner visa sponsor assault conviction case?

Rehabilitation evidence helps by showing the decision maker that the assault was not part of a continuing pattern and that the sponsor does not present a risk to the applicant or any child. In a partner visa sponsor assault conviction case where the sponsor has a significant criminal record, this evidence is usually the core of the submission that it is reasonable to approve the sponsorship under regulation 1.20KC(4).

The three matters listed in regulation 1.20KC(4) are not a closed list. The decision maker must have regard to them, but may also consider any other circumstance that bears on whether approval is reasonable. The issues recorded in 2107808 (Migration) [2024] AATA 4136, which included remorse and no reoffending, show that matters of this kind can be weighed. Rehabilitation evidence does not replace the listed factors. It gives them context. Time since the sentence ended means more when it is supported by evidence of what the sponsor has done with that time.

The most useful rehabilitation evidence in a partner visa sponsor assault conviction matter is specific, independent and recent. General praise from friends carries little weight. Evidence from people who know about the conviction and can speak to the sponsor's conduct since then carries much more.

Supporting statements as Form 888 statements

Supporting statements from people who know the sponsor well are usually given as Form 888 statements. A Form 888 statement is the Department's form for a statement by an Australian citizen or permanent resident supporting a partner visa application. The firm's guides to Form 888 witness statements, to who can sign a Form 888 and to what a Form 888 should say explain the formal requirements.

In a partner visa sponsor assault conviction matter, the most helpful statements usually come from people who:

• know about the conviction and say so expressly;
• have known the sponsor for a long period, ideally both before and after the offence;
• have seen the sponsor in situations that would test their temper or self-control, such as at work, in sport or within the family; and
• can describe the sponsor's relationship with the applicant and any children from their own observation.

A statement that does not mention the conviction may be given little weight, because the decision maker cannot tell whether the witness knows the history. Each witness should write from their own knowledge, in their own words. The question page on how many Form 888 statements are needed explains the usual number for the relationship evidence. Statements addressing the conviction are in addition to that.

Employment and community evidence

Stable employment is objective evidence that the sponsor has built a settled life since the offence, and it is one of the most common forms of evidence in a partner visa sponsor assault conviction submission. A letter from an employer confirming the period of employment, the sponsor's role and any positions of trust or responsibility is useful. Where the original assault was a workplace incident, evidence that the sponsor has worked without incident for a long period since then is particularly relevant. Evidence of volunteering, coaching, community or religious involvement can also help, as long as it is genuine and verifiable.

Where the sponsor has changed jobs or work patterns during processing, the article on a change of employment during a partner visa explains what should be updated.

Counselling, anger management and alcohol programs

Many assaults outside the home involve alcohol, anger or both, and a partner visa sponsor assault conviction from a pub or street fight often reflects that. Evidence that the sponsor completed counselling, an anger management course, a men's behaviour program or an alcohol or drug program is relevant, particularly where the program was completed voluntarily or continued after any court requirement ended. A letter from the counsellor or provider confirming attendance and completion is more persuasive than a certificate alone. Where the program was court ordered, the sponsor should say so honestly. A program completed as part of a sentence still shows engagement, but it is not evidence of voluntary change.

No reoffending and the sponsor's own statement

An updated police check showing no further convictions is the clearest evidence of no reoffending. The sponsor's own statement should explain what happened, accept responsibility without minimising the offence, describe what has changed and explain why the applicant and any children are safe. The sponsor reviews and corrects their own statement. A statement that blames the victim, disputes the facts the court accepted, or describes a serious assault as "a scuffle" usually damages the case. Remorse is shown by accuracy and insight, not by strong language.

Why must the sponsor consent to disclose an assault conviction?

The sponsor must consent because the Schedule 2 criteria for the Subclass 300, Subclass 309 and Subclass 820 visas, in clauses 300.222(2), 309.222(2) and 820.221(4), require the sponsor to consent to the Department disclosing any conviction for a relevant offence to each visa applicant. An assault conviction is a relevant offence, so consent is required in every partner visa sponsor assault conviction case.

The consent question appears in the sponsorship form. The question page on Form 40SP for partner visas explains the form itself. The Department's policy then deals with three situations:

• The sponsor gives consent. Consent given once does not need to be given again.
• The sponsor expressly declines. The visa criterion cannot be met. The applicant is sent a natural justice letter under section 57, and the details of the convictions are not put to the applicant.
• The sponsor does not answer the question. The sponsor is given a chance to consent through a "Request for consent to disclose convictions" letter. If the sponsor does not respond, the decision maker may find the criterion is not met.

Consent matters even where there is no significant criminal record. A sponsor with a short sentence for common assault cannot be refused under regulation 1.20KC(3), but the visa still fails if the sponsor refuses consent. In practice, a sponsor who declines consent ends the application. A sponsor who is reluctant to have an old conviction disclosed should understand this before lodging.

What does the applicant need to know about the sponsor's assault conviction?

The applicant needs to know that the conviction exists, because the Department will disclose it with the sponsor's consent and because the applicant's own knowledge is relevant to the decision. A partner visa sponsor assault conviction is far easier to manage when the applicant has been told about it by the sponsor, early and accurately, than when the applicant first learns of it from the Department.

The policy on the length of the relationship, discussed above, asks whether the applicant knew about the sponsor's criminal history before the Department disclosed it and what the applicant's reasons are for wanting the sponsorship approved. An applicant who has known about a stranger assault from early in the relationship, has discussed it with the sponsor and still wishes to proceed gives the decision maker useful evidence. The applicant's own statement can address this in the applicant's own words.

Where the decision maker is inclined to approve under regulation 1.20KC(4), the policy is to interview the applicant before approving. The interview is preferably in person and without the sponsor present. Its purpose is to make sure the applicant is not being forced, coerced or intimidated into continuing, and, with the sponsor's consent, to disclose the convictions. A partner visa sponsor assault conviction case should be prepared on the basis that this interview may happen. The firm's guides to partner visa interview questions and to the partner visa telephone interview, and the question page on preparing for a spouse visa interview, explain what to expect.

The applicant should also understand that the decision is about the sponsorship, not about the applicant's conduct. Where the sponsorship is approved, the applicant still has to meet every other criterion for the visa.

How do police checks work for a sponsor with an assault conviction?

Police checks are requested from the sponsor under regulation 1.20KC(5), not from the applicant. In a partner visa sponsor assault conviction case, the police checks are how the Department confirms the conviction and the sentence, so they should be obtained early and read carefully before the application is lodged.

The key rules are:

• Australian police check. An Australian Federal Police National Police Check, with the purpose "Immigration/Citizenship Australia", is requested if the sponsor has spent any time in Australia since turning 16.
• Foreign police checks. A check is requested from each country where the sponsor lived for 12 months or more in total since the later of turning 16 or 10 years before the request.
• Who receives the request. The request goes to the sponsor directly, not through the applicant's representative, unless the sponsor has appointed that person using Form 956 or Form 956A. The firm's guide to Form 956 and Form 956A explains the appointment.
• Validity. The checks must be valid at the time of decision. The question pages on police checks for partner visas and on how long police certificates remain valid explain the timing.

Under policy, decision makers are not required to request police checks from female sponsors where there are no concerns about the sponsor's character. That is policy, not law, and the power in regulation 1.20KC(5) applies to all sponsors. A female sponsor with an assault conviction should prepare on the basis that the conviction will be considered.

Regulation 1.20KC(6) allows refusal where the sponsor does not provide the checks within a reasonable time. Policy treats 28 days from the request as reasonable to provide the checks or at least evidence that they have been requested, and decision makers should be flexible where evidence of a request is given. Grounds to refuse arise where the sponsor provides nothing, gives no satisfactory explanation or does not engage. The Tribunal decision in Manalo (Migration) [2024] AATA 1927, a Subclass 820 matter, records issues including the sponsorship form and other requested material not being provided to the Department. The Tribunal remitted the matter. The firm's articles on section 56 requests for information and on extensions to a section 56 request explain how to respond on time.

Does a sponsor's assault conviction affect the applicant's own character test?

No. The sponsor's partner visa sponsor assault conviction is assessed under regulation 1.20KC, which applies only to the sponsor. The applicant's own character is assessed separately under public interest criterion 4001 and section 501 of the Migration Act 1958, which apply to the applicant and not to the sponsor.

The two tests use different language and different thresholds, so a partner visa sponsor assault conviction should never be described as a character test issue for the applicant. Regulation 1.20KD defines a "significant criminal record" for sponsors. Section 501 uses a "substantial criminal record" test for visa applicants. A sponsor's conviction does not make the applicant fail the character test. Equally, an applicant with their own conviction cannot rely on the sponsor's clean record. Where both partners have a history, each issue must be addressed under its own provision.

The applicant may be asked to complete Form 80, which asks about the applicant's own history. The firm's guides to Form 80 for a partner visa and to section 501 and partner visas, and the article on partner visa character refusals, explain the applicant's side. Accurate answers matter on both sides. The article on public interest criterion 4020 explains the consequences of false or misleading information given by an applicant.

Why obtain court records before lodging a partner visa with a sponsor assault conviction?

Court records should be obtained before lodging because the outcome of a partner visa sponsor assault conviction assessment turns on details that a police check often does not show clearly: whether a conviction was recorded, the exact sentence imposed, whether it was suspended, how multiple terms were ordered to be served and when the sentence was completed.

Without those records, the sponsor cannot reliably answer the questions in the sponsorship form, cannot work out whether there is a significant criminal record, and cannot calculate the time since the sentence was completed. A sponsor who guesses risks giving the Department an inaccurate account, which damages credibility at exactly the point where the decision maker is assessing whether it is reasonable to approve the sponsorship.

The documents usually needed in a partner visa sponsor assault conviction matter are:

• The court outcome or certificate of conviction for each assault charge, showing whether a conviction was recorded and the sentence imposed.
• The sentencing remarks, where the court gave them. These often describe the circumstances of the offence, the court's view of remorse and prospects of rehabilitation, and any mitigating factors.
• The police facts or statement of facts accepted by the court.
• Evidence of completion of the sentence, such as a letter from corrective services confirming the end of parole, a community order or a suspended sentence period.
• Any appeal outcome, where the sentence or conviction was changed on appeal.
• For overseas convictions, the foreign court judgment, an accurate English translation and, where helpful, the text of the foreign offence provision.

Obtaining these records takes time, particularly for old or overseas matters. Starting early also allows the sponsor to correct any misunderstanding about their own history before anything is lodged. The articles on partner visa application mistakes and on providing evidence after lodgement explain why the order of steps matters. If new information arises while the application is being processed, the guide to Form 1022 change of circumstances explains how changes are notified.

What happens if the sponsorship is refused because of an assault conviction?

If the sponsorship is not approved, the visa must be refused, because sponsorship approval is a criterion for the Subclass 300, Subclass 309 and Subclass 820 visas. There is no separate sponsorship decision and no separate notice to the sponsor. The non-approval forms part of the decision on the visa application under section 65.

Before any refusal, two steps are required in a partner visa sponsor assault conviction case. Where grounds exist under regulation 1.20KC(3), the decision maker must invite the sponsor to comment. The applicant receives a natural justice letter under section 57, but the reasons for non-approval, namely the sponsor's convictions, are not put to the applicant and are not stated in the refusal notice. The firm's articles on the section 57 natural justice letter and on section 57 adverse information, and the question page on responding to a section 57 letter, explain how to respond. The invitation to the sponsor is often the last opportunity to put rehabilitation evidence before the Department.

A refusal can be reviewed by the Administrative Review Tribunal. The application must be made within 28 days after notification of the decision, or 7 days if the applicant is in immigration detention, and the time cannot be extended. For the Subclass 820 visa, the applicant applies. For the Subclass 309 visa, the visa applicant applies. For the Subclass 300 visa, the sponsor applies. The articles on the partner visa appeal deadline and on who can lodge a partner visa appeal, and the question pages on a partner sponsorship refusal and on challenging a refusal based on sponsorship limitations, explain the process.

On review, the Tribunal considers the matter afresh and can consider new evidence. Ellis (Migration) [2024] AATA 3411, a Subclass 820 matter decided on 26 August 2024, records the issues as sponsorship approval, a sponsor convicted of a "relevant offence", "significant criminal record" and whether it was reasonable to approve. The Tribunal remitted the matter to the Department. The firm's pages on partner visa refusals and visa refusals, and the article on partner visa ART appeal lawyers, explain how a review is prepared.

How My Migration Lawyers helps with a partner visa sponsor assault conviction

My Migration Lawyers helps sponsors and applicants prepare a partner visa sponsor assault conviction case so that the Department has the accurate legal picture and the evidence it needs to decide whether the sponsorship should be approved. The firm deals with complex partner visa cases, acts in many sponsorship limitation matters involving a sponsor's criminal history, and is capable of handling a partner visa sponsor assault conviction from the first assessment through to review.

The work is led by Weiwei Zhang, Principal Lawyer. More about the firm is on the about My Migration Lawyers page and the partner visa lawyers page. In a partner visa sponsor assault conviction matter, the firm:

• reads the court records and sentencing documents to identify whether a conviction was recorded, what sentence was imposed and whether regulation 1.20KD is engaged;
• calculates the date the sentence was completed and assesses where the case sits against the 5-year policy caution;
• analyses overseas convictions and foreign offence terminology against regulation 1.20KC(2);
• advises the sponsor on consent to disclose, the police check requests and the timing of lodgement;
• presents the sponsor's own account and the rehabilitation evidence, including Form 888 statements, employment evidence and program completion letters, in the form the law requires, with the sponsor and witnesses reviewing and correcting their own statements;
• prepares written submissions addressing each matter in regulation 1.20KC(4), including the best interests of any children and the length of the relationship;
• responds to section 56 requests, invitations to comment and section 57 letters; and
• acts on review at the Administrative Review Tribunal where a refusal has been made and the review period is still open.

Sponsors throughout Australia are assisted, including through the firm's partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. The question pages on a lawyer for a sponsor with a criminal record and on a lawyer for a sponsorship refusal explain when advice is most useful, and the article on complex partner visa cases explains how difficult matters are handled. Further questions are answered in the partner visa FAQ centre.

A partner visa sponsor assault conviction is best assessed before the application is lodged, while every option remains open. Book a consultation with My Migration Lawyers to have the court records, sentence and evidence reviewed, or call 1300 040 300.