Partner Visa Sponsor Convicted of Breaching an AVO

A partner visa sponsor breach of AVO conviction arises where the Australian partner who is sponsoring a Subclass 820, Subclass 309 or Subclass 300 visa has been convicted of breaching an apprehended violence order or a similar order. A partner visa sponsor breach of AVO conviction is a listed relevant offence under regulation 1.20KC(2)(c) of the Migration Regulations 1994, and it can stop the Department of Home Affairs from approving the sponsorship.

The conviction does not automatically end the application. The Department must refuse to approve the sponsorship only where the sponsor has been convicted of the relevant offence and also has a significant criminal record in relation to it. Even then, the Department may approve the sponsorship if it is reasonable to do so. This guide explains how a partner visa sponsor breach of AVO case is assessed, why the order itself is different from the breach offence, how the different state, territory and foreign orders are treated, and what evidence matters when the sponsorship has to be argued.

The live commercial page for this area is the firm's page on partner visa sponsorship limitations, which explains every sponsorship bar in the Migration Regulations. For the wider visa framework, the complete guide to partner visas in Australia sets out each subclass and stage.

Partner visa sponsor breach of AVO: can the sponsor still sponsor?

Yes. A sponsor convicted of breaching an apprehended violence order can still sponsor a partner visa unless the sponsor also has a significant criminal record for that offence and the Department decides it is not reasonable to approve the sponsorship.

Regulation 1.20KC works in three steps. First, the Department asks whether the sponsor has been convicted of a relevant offence. A breach of an apprehended violence order, or a similar order, is a relevant offence. Second, the Department asks whether the sponsor has a significant criminal record in relation to that offence, as defined in regulation 1.20KD. Third, if both are present, the Department must refuse to approve the sponsorship under regulation 1.20KC(3) unless it decides under regulation 1.20KC(4) that it is reasonable to approve it.

That structure means a partner visa sponsor breach of AVO conviction falls into one of three practical groups:

• Conviction with no significant criminal record. The Department cannot refuse the sponsorship under regulation 1.20KC(3). With the sponsor's consent, it discloses the partner visa sponsor breach of AVO conviction to the applicant.
• Conviction with a significant criminal record. The Department must refuse the sponsorship unless it decides approval is reasonable under regulation 1.20KC(4).
• No conviction recorded. Where the court found the offence proved but did not record a conviction, the matter cannot be relied on or disclosed under regulation 1.20KC.

The rules apply to applications for the Subclass 820 partner visa, the Subclass 309 partner visa and the Subclass 300 prospective marriage visa made on or after 18 November 2016. They do not apply to the permanent Subclass 100 or Subclass 801 stage. The article on the partner visa two-stage process explains why the sponsorship test sits at the temporary stage.

The wider guide on when a sponsor cannot sponsor a partner visa covers the other limitations, such as previous sponsorships and child-related offences. This article deals only with the partner visa sponsor breach of AVO question.

What does regulation 1.20KC(2)(c) say about breaching an AVO?

Regulation 1.20KC(2)(c) lists, as a relevant offence, an offence involving "the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country".

The full list of relevant offences in regulation 1.20KC(2) covers offences against a law of the Commonwealth, a State, a Territory or a foreign country involving:

• violence against a person, including murder, assault, sexual assault and the threat of violence;
• the harassment, molestation, intimidation or stalking of a person;
• the breach of an apprehended violence order, or a similar order;
• firearms or other dangerous weapons;
• people smuggling;
• human trafficking, slavery or slavery-like practices, including forced marriage, kidnapping or unlawful confinement;
• attempting to commit any of those offences; and
• aiding, abetting, counselling or procuring any of those offences.

Paragraph (c) is significant because it captures the breach itself. In a partner visa sponsor breach of AVO case, the Department does not need to find that the conduct was violent. The offence of breaching the order is enough to bring the conviction within regulation 1.20KC(2). Many breach convictions will also overlap with paragraph (a) or paragraph (b), for example where the breach involved a threat or intimidation, but paragraph (c) stands on its own.

The provision was introduced from 18 November 2016 as part of the Government's response to family violence. Its purpose is to protect visa applicants who may be at risk from a sponsor. That purpose shapes how decision makers approach a partner visa sponsor breach of AVO conviction, particularly where the protected person in the original order was a partner.

Department policy allows decision makers to refer to the Australian and New Zealand Standard Offence Classification when interpreting offences. The firm's guide to partner visa sponsor criminal records and the character rules explains how sponsor and applicant criminal issues differ, and the page on what happens when a partner sponsorship is refused gives a short answer to the most common question.

Is having an AVO the same as a conviction for a partner visa sponsor?

No. An apprehended violence order is a civil order made to protect a person, and having one made against a sponsor is not a criminal conviction. The relevant offence for a partner visa sponsor breach of AVO assessment is the criminal offence of breaching that order, and it only counts where a court has recorded a conviction.

This distinction is the most misunderstood point in the area. Many sponsors assume that because an order was made against them, they cannot sponsor a partner. That is not what regulation 1.20KC says. An order made by consent, an order made without admissions, or an order made after a contested hearing is still a civil order. It is not a conviction for a relevant offence.

The position changes when the person bound by the order does something the order prohibits. In every Australian State and Territory, contravening a protection order is a criminal offence. If the sponsor is charged with that offence, pleads guilty or is found guilty, and the court records a conviction, the sponsor now has a conviction for a relevant offence under regulation 1.20KC(2)(c). That is the partner visa sponsor breach of AVO conviction that the regulation targets.

Department policy defines "conviction" for this purpose. A conviction exists where, following a finding of guilt or a plea of guilty, the court has recorded a conviction. A sentence does not have to be imposed. A person can be convicted and released on a good behaviour bond. On the other hand:

• A good behaviour bond or intervention program on the basis that no conviction will be recorded is not a conviction.
• A finding of guilt without proceeding to conviction is not a conviction.
• A charge that was withdrawn or dismissed is not a conviction.

In those situations the Department cannot rely on the matter to refuse the sponsorship and cannot disclose it to the applicant under this policy. The court outcome sheet is therefore the most important document in any partner visa sponsor breach of AVO assessment. The firm's articles on disclosing charges where no conviction was recorded and on spent convictions in a partner visa explain related disclosure questions.

An order can still matter in other ways. A current order may be relevant to whether the relationship is genuine and continuing, to the best interests of children, and to the safety of the applicant. Those issues are discussed later in this guide. The point here is narrower. The order alone does not make the sponsor a person convicted of a relevant offence.

Which orders count as a "similar order" in each State and Territory?

A "similar order" is any protection order issued under a law of a State, a Territory or a foreign country that serves the same protective purpose as an apprehended violence order, whatever it is called locally.

The term "apprehended violence order" comes from New South Wales. Other jurisdictions use different names for orders that do the same job. The Department's own family violence policy lists names such as Apprehended Domestic Violence Order, Domestic Violence Order, Family Violence Intervention Order, Family Violence Order, Family Violence Restraining Order and Intervention Order. Common labels across Australia include:

• New South Wales: apprehended violence order (AVO), including the apprehended domestic violence order (ADVO) and the apprehended personal violence order (APVO).
• Victoria: family violence intervention order and personal safety intervention order.
• Queensland: domestic violence order (DVO), often called a protection order.
• Western Australia: family violence restraining order and violence restraining order.
• South Australia: intervention order.
• Tasmania: family violence order and restraint order.
• Australian Capital Territory: family violence order and personal protection order.
• Northern Territory: domestic violence order.

A conviction for breaching any of these orders is treated the same way under regulation 1.20KC(2)(c). A sponsor in Melbourne convicted of contravening a family violence intervention order, or a sponsor in Brisbane convicted of contravening a domestic violence order, is in the same legal position as a sponsor in Sydney convicted of breaching an ADVO. In each case the partner visa sponsor breach of AVO analysis applies.

An APVO is worth noting separately. An apprehended personal violence order usually protects someone who is not a family member, such as a neighbour or a former friend. A breach of an APVO is still a breach of an apprehended violence order. The fact that the dispute had nothing to do with a partner does not take the conviction outside paragraph (c), although it may be relevant to how serious the matter looks when the Department considers whether approval is reasonable.

The firm's article on partner visas with intervention orders looks at Victorian and South Australian orders from the applicant's side, and the article on what a partner visa domestic violence charge means explains how charges are treated before they are finalised.

Orders made under Commonwealth law

Paragraph (c) refers to orders issued under a law of a State, a Territory or a foreign country. It does not mention orders made under Commonwealth law, such as injunctions for personal protection under the Family Law Act 1975. Whether a breach of a family law injunction is itself a breach of a "similar order" is not settled in the Department's policy. Conduct of that kind may still fall within paragraph (a) or paragraph (b) where it involved violence, threats, harassment or intimidation, and it should be assessed carefully rather than assumed to be outside the partner visa sponsor breach of AVO rules.

Foreign protection orders

A conviction overseas for breaching a protection order issued under the law of a foreign country is also a relevant offence under regulation 1.20KC(2)(c). The regulation expressly extends to orders issued under a law of a foreign country and to offences against a law of a foreign country.

Foreign records raise practical problems. Other countries use different names for protective orders and different terminology for offences. Department policy recognises that it may be difficult for a decision maker to tell whether an offence listed on a foreign police check is a relevant offence, and tells decision makers to consult the Department's Partner Program Management section in those cases. In a partner visa sponsor breach of AVO case involving an overseas record, a certified English translation of the court record and, where needed, an explanation of how the foreign order and offence work under local law can be important.

A sponsor may be asked for a foreign police check for any country where the sponsor lived for 12 months or more, in total, since the later of turning 16 or 10 years before the request. The firm's guides to partner visa overseas police certificates and partner visa overseas convictions explain how those records are obtained and read. Where a certificate cannot be obtained, the short answer on what to do if a police certificate cannot be obtained is a useful starting point.

Does a breach by text message or social media count as a partner visa sponsor breach of AVO?

Yes. A conviction for breaching an apprehended violence order by sending a text message, making a phone call, posting on social media or contacting the protected person through a friend is still a conviction for a relevant offence under regulation 1.20KC(2)(c).

Many protection orders prohibit any contact with the protected person, or prohibit approaching them, or prohibit contact except through a lawyer. A sponsor who sends a single message in breach of a no-contact condition commits the offence of breaching the order, even if the message was polite and contained no threat. If a court records a conviction for that breach, the partner visa sponsor breach of AVO rules apply in full.

This surprises many sponsors. A common explanation is that the contact was harmless, was about the children, or was initiated by the protected person. Those facts can be important, but they do not take the conviction outside paragraph (c). Paragraph (c) is not limited to breaches involving violence. The regulation captures the breach because the order exists to protect a person, and disobeying it is treated as serious in itself.

The nature of the breach is still relevant at a later stage. When the Department considers whether it is reasonable to approve the sponsorship, a non-violent technical breach is likely to be viewed differently from a breach involving threats, attendance at the protected person's home or physical violence. In a partner visa sponsor breach of AVO case, the court documents that describe what actually happened can therefore be as important as the conviction itself. Those documents usually include:

• the charge sheet or court attendance notice describing the alleged breach;
• the police facts sheet, if the sponsor pleaded guilty on agreed facts;
• the sentencing remarks, if the magistrate or judge gave reasons;
• the court outcome or certificate of conviction showing the penalty; and
• a copy of the order that was breached, showing its conditions and the protected person.

A breach that also involved a threat, intimidation or stalking may be recorded as more than one offence. That can bring paragraphs (a) and (b) into the assessment as well. The firm's guides to the character requirements for partner visas and to when a partner visa sponsor has a criminal record explain how multiple offences are approached.

Does it matter who the AVO protected?

No, not for whether the conviction is a relevant offence. A partner visa sponsor breach of AVO conviction is a relevant offence whether the protected person was a former partner, the current applicant, a family member, a neighbour or a stranger. The identity of the protected person does matter, however, when the Department decides whether approval is reasonable and whether the relationship is genuine.

There are three common patterns in a partner visa sponsor breach of AVO matter.

The order protected a former partner

This is the most common situation. The sponsor was the subject of an order taken out by a previous partner, breached it, and was convicted. Years later, the sponsor is in a new relationship and wants to sponsor the new partner. The Department will look closely at the risk to the new applicant, because the purpose of regulation 1.20KC is to protect visa applicants from sponsors who have used violence or ignored protection orders in earlier relationships. The time since the sentence was completed, the conduct since then and the applicant's informed understanding of the history become central. The guide to how previous relationships affect a partner visa covers the wider history questions.

The order protected the current applicant

Sometimes the person protected by the order is the same person the sponsor now wants to sponsor. The couple separated, an order was made, the sponsor breached it, and the couple later reconciled. This is the most sensitive version of a partner visa sponsor breach of AVO case. The Department must consider whether the applicant is genuinely choosing to continue the relationship, or whether the applicant may be under pressure. Department policy specifically directs decision makers to consider whether the couple were together when the offence was committed and the applicant's reasons for continuing the relationship. The article on whether the relationship is genuine and continuing explains how separation and reconciliation are assessed.

The order protected someone outside the family

Where the order was an APVO or a personal safety order protecting a neighbour, workmate or acquaintance, the conviction is still a partner visa sponsor breach of AVO conviction for regulation 1.20KC purposes. The risk analysis may look different because the conduct did not occur within an intimate relationship. That does not mean the Department will ignore it. It means the evidence about what happened, and why, will shape how much weight the conviction carries.

When does a partner visa sponsor breach of AVO conviction become a significant criminal record?

A partner visa sponsor breach of AVO conviction becomes a significant criminal record only if the sentence for it meets the threshold in regulation 1.20KD: imprisonment for 12 months or more, two or more terms of imprisonment totalling 12 months or more, life imprisonment or death.

Regulation 1.20KD(1) defines a significant criminal record in relation to a relevant offence. The sponsor has a significant criminal record if, for that offence, the sponsor was sentenced to:

• death;
• imprisonment for life;
• a term of imprisonment of 12 months or more; or
• 2 or more terms of imprisonment where the total of those terms is 12 months or more.

Most breach offences are dealt with in the Local Court or Magistrates Court. Many result in a fine, a bond, a community-based order or a short term of imprisonment. Where the penalty for a partner visa sponsor breach of AVO conviction is a fine or a bond, there is no term of imprisonment, so the threshold in regulation 1.20KD is not met. The Department then cannot refuse the sponsorship under regulation 1.20KC(3), although the conviction may still be disclosed to the applicant with the sponsor's consent.

Several rules make the threshold easier to reach than many sponsors expect, and each should be checked in every partner visa sponsor breach of AVO assessment:

• Suspended sentences count. A suspended sentence is a sentence of imprisonment. It is the sentence imposed that matters, not the time actually served.
• Early release does not help. A sentence of 12 months or more counts even if the sponsor was released on parole well before the end of the term.
• Concurrent sentences can add up. Department policy treats two 6-month sentences served concurrently as a significant criminal record. A sponsor convicted of a breach and a related assault, each with a 6-month term, may reach the threshold.
• Periodic detention counts. Under regulation 1.20KD(3), days spent in periodic detention are added together, and a total of 12 months or more is a significant criminal record.
• Some residential programs count. Regulation 1.20KD(4) treats 12 months or more in a residential drug rehabilitation scheme or a residential program for the mentally ill, ordered by a court instead of imprisonment, as a significant criminal record.

Regulation 1.20KD(5) disregards convictions that have been quashed or nullified, and convictions for which the sponsor has been pardoned and is taken never to have been convicted. A successful appeal against a breach conviction can therefore change the analysis completely.

The firm's articles on partner visas and criminal records generally and on how a lawyer handles a partner visa with a criminal record discuss sentencing outcomes in more detail. A sponsor whose breach charge is still before the court should read the guide on partner visa pending charges, because the sentence imposed will decide whether the threshold is met.

What happens if there is no significant criminal record?

If a partner visa sponsor breach of AVO conviction does not come with a significant criminal record, the Department cannot refuse to approve the sponsorship under regulation 1.20KC(3). The conviction is still a relevant offence, so with the sponsor's consent the Department discloses it to the applicant, who can then decide whether to continue.

This is the position in many partner visa sponsor breach of AVO cases, because many breach convictions result in fines, bonds or community orders rather than imprisonment. It is not, however, the end of the matter. Three further issues remain.

First, the disclosure itself. The applicant will learn about the conviction from the Department if the applicant does not already know. For many couples this causes no difficulty, because the applicant has known about the history from early in the relationship. For others, disclosure is the first time the applicant hears about it. The Department wants the applicant to make an informed decision.

Second, genuineness. A conviction that cannot ground refusal under regulation 1.20KC(3) can still be relevant when the Department assesses whether the relationship is genuine and continuing. A current order, a recent breach involving the applicant or inconsistent accounts of the history may raise questions.

Third, any other sponsorship limitation. Regulation 1.20KB applies where children under 18 are included in the application and the sponsor has registrable offences or certain child-related charges or convictions. Where both regulation 1.20KB and regulation 1.20KC grounds exist, regulation 1.20KB is considered first. The firm's guide to the sponsorship limitations that apply to partner visa sponsors lists the full set of rules.

Does the sponsor have to consent to the conviction being disclosed?

Yes. The Schedule 2 criteria for each visa require the sponsor to consent to the Department disclosing convictions for relevant offences to each visa applicant. In a partner visa sponsor breach of AVO case, refusing that consent is fatal to the application.

The criteria are in subclause 300.222(2) for the Subclass 300 visa, subclause 309.222(2) for the Subclass 309 visa and subclause 820.221(4) for the Subclass 820 visa. The consent is usually given in the sponsorship form.

Department policy deals with three situations:

• The sponsor expressly declines consent on the form. The visa criterion cannot be met. The Department sends the applicant a section 57 natural justice letter before refusal, but the details of the convictions are not put to the applicant.
• The sponsor leaves the consent question unanswered. The Department gives the sponsor a chance to consent by sending a "Request for consent to disclose convictions" letter. If the sponsor does not respond, the Department can find that the criterion is not met.
• The sponsor consents. Consent given once does not need to be given again.

Some sponsors are reluctant to consent because the applicant does not know the full history. That is a decision the sponsor must make with full advice, because declining consent means the visa will be refused. In practice, a sponsor with a partner visa sponsor breach of AVO conviction is usually better placed telling the applicant directly, in their own words, before the Department does. The firm's short answer on the documents a sponsor must provide explains where consent fits in the sponsorship paperwork.

What police checks must a sponsor with a breach of AVO conviction provide?

The sponsor must provide an Australian Federal Police National Police Check and any required foreign police checks when the Department asks for them under regulation 1.20KC(5). The request goes to the sponsor, not the applicant.

The Australian check must be an AFP National Police Check obtained for the "Immigration/Citizenship Australia" purpose. It is requested if the sponsor has spent any time in Australia since turning 16. A foreign check is requested for any country where the sponsor lived for 12 months or more, in total, since the later of turning 16 or 10 years before the request. Foreign-language checks need an English translation. The firm's guide to the AFP police check for a partner visa and the short answer on whether a partner visa needs a police check explain the process.

Several practical points arise in a partner visa sponsor breach of AVO matter:

• Requests go to the sponsor. The Department sends the request to the sponsor, not through the applicant or the applicant's representative, unless the sponsor has appointed that representative using Form 956 or Form 956A.
• Policy allows 28 days. Regulation 1.20KC(6) refers to a reasonable time, which is not defined. Department policy treats 28 days from the request as reasonable to provide the checks, or at least evidence that they have been requested. More time may be appropriate, particularly for foreign checks.
• Checks must be valid at the time of decision. Sponsorship approval is a time of decision criterion. Where checks expire because of delays outside the parties' control, policy allows reliance on expired checks if they show no relevant offence. Where they do show a relevant offence, an updated check may be needed. The article on expired police checks in a partner visa covers this.
• Further checks can be requested. The Department can ask more than once, for example where it has reason to believe there is a new conviction or an outstanding charge.

The AFP check will show the breach conviction if a conviction was recorded and the conviction is disclosable. A sponsor should never assume that an old matter will not appear, and should never leave it out of the forms. The firm's guide to undisclosed convictions in a partner visa explains why non-disclosure creates a separate and often more serious problem.

The sponsor's character is separate from the applicant's

Regulation 1.20KC assesses the sponsor. The applicant's own character is assessed separately under public interest criterion 4001 and section 501 of the Migration Act 1958. A partner visa sponsor breach of AVO conviction is not a character issue for the applicant. The firm's guide to section 501 and partner visas explains the applicant-side test, and the separate FAQ on a partner visa where there is a domestic violence order against the applicant deals with an order made against the visa applicant rather than the sponsor.

When is it reasonable to approve a partner visa sponsor breach of AVO sponsorship?

It is reasonable to approve a partner visa sponsor breach of AVO sponsorship, despite a significant criminal record, where the Department is satisfied after considering the time since the sentence was completed, the best interests of any children and the length of the relationship, together with all the other circumstances, that approval is reasonable.

Regulation 1.20KC(4) allows the Minister to approve the sponsorship even though regulation 1.20KC(3) would otherwise require refusal. The decision maker must have regard to three matters:

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

"Have regard to" means the decision maker must consider each matter. It does not mean each one must be satisfied. A strong position on one factor can carry weight even where another factor is weak. In a partner visa sponsor breach of AVO case, the argument is built across all three factors and the wider circumstances.

Time since the sentence was completed

Department policy says decision makers should be cautious about approving a sponsorship solely on the basis of time where less than 5 years have passed since the sentence was completed. If the sponsor is still serving the sentence, including a suspended sentence or parole period, the time factor is not relevant because the sentence has not been completed. In a partner visa sponsor breach of AVO case, evidence of what the sponsor has done since the sentence ended, such as completing a behaviour change program, counselling or treatment, and having no further offences, gives the time factor substance.

The best interests of children

Policy says the best interests of children should be a primary consideration. Matters a decision maker may consider 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 such as an AVO or custody orders, the child's integration in Australia and the effect on the child of a refusal. The firm's guides to stepchildren in a partner visa and to children as compelling reasons in a partner visa explain how evidence about children is presented.

Best interests are not the only consideration. Policy recognises that other factors may outweigh them, for example where approval may put the applicant or the applicant's family at risk of harm.

The length of the relationship

On the relationship factor, policy directs the decision maker to consider whether the couple were together when the offence was committed or when the sentence was served, whether the applicant knew about the sponsor's history before the Department disclosed it, and the applicant's reasons for continuing the relationship. A long relationship in which the applicant has known the full history for years presents very differently from a new relationship where the applicant learns of the partner visa sponsor breach of AVO conviction only from the Department. The guide to long-term relationships in a partner visa is relevant here.

What if the AVO is still in force?

An order that is still in force does not itself create a conviction, but in a partner visa sponsor breach of AVO case a current order can weigh heavily against approval, particularly where it protects the applicant or a child, or denies the sponsor contact with a child.

Department policy gives a specific example: where court orders deny the sponsor residence with, or contact with, a child, it may not be in the child's best interests to approve the sponsorship, because the court has already considered the child's interests. A current order protecting a former partner and that partner's children may therefore count against a sponsor who relies on the best interests of those same children.

A current order protecting the applicant raises a sharper question. If an order prohibits the sponsor from contacting or living with the applicant, the Department will ask how the couple can be in a genuine and continuing relationship and living together, or not living separately and apart on a permanent basis. The firm's FAQ on court orders and family violence explains how orders are treated as evidence. Where an order is being varied or revoked by the court, the court documents should be provided so that the Department sees the current position, not an outdated one.

Will the Department interview the applicant?

Yes, in many cases. Department policy is that where a decision maker is inclined to approve the sponsorship under regulation 1.20KC(4), the applicant should be interviewed before approval, preferably in person and without the sponsor present.

The interview has two purposes. The first is to check that the applicant is not being forced, coerced or intimidated into the relationship or the application. The second is to disclose the sponsor's relevant offence convictions to the applicant, with the sponsor's consent, so that the applicant's decision to continue is an informed one.

For a partner visa sponsor breach of AVO case, the interview is often the most important event in the application. The applicant should understand the sponsor's history before the interview, should be ready to explain in their own words why they want to continue the relationship, and should know that the interview will be conducted away from the sponsor. The firm's guides to partner visa interview questions, to telephone interviews for partner visas and the short answer on what happens at a spouse visa interview explain the format.

What if the applicant took out an AVO against the sponsor?

Where the applicant has obtained an order against the sponsor because of family violence, the applicant may be able to continue towards permanent residence without the sponsor under the family violence provisions in Division 1.5 of the Migration Regulations 1994.

This is a different situation from a partner visa sponsor breach of AVO assessment. Regulation 1.20KC asks whether the Department should approve the sponsor. The family violence provisions protect an applicant whose relationship has ended because of violence by the sponsor, so the applicant does not have to stay in a violent relationship to keep the visa pathway. They are available in some circumstances to applicants for the permanent Subclass 801 and Subclass 100 stages, and the evidence rules in Division 1.5 apply. Anyone in immediate danger should call 000.

The firm's family violence partner visa lawyers page explains how these claims are prepared. Related guides cover family violence in a partner visa, the evidence needed for a family violence claim and family violence after separation. An applicant who needs help with an abusive sponsor can also read the short answer on help with an abusive sponsor.

What evidence supports a partner visa sponsor breach of AVO reasonableness case?

The strongest partner visa sponsor breach of AVO reasonableness case is built from complete court records, evidence of the sponsor's conduct since the sentence, evidence about any children, and the applicant's own informed account of the relationship.

The evidence usually falls into five groups.

Court and police records

• the AFP National Police Check and any foreign police checks;
• the order that was breached, and any variation or revocation;
• the charge, the police facts, the sentencing remarks and the court outcome;
• any appeal outcome, if the conviction or sentence was changed; and
• certified English translations of any foreign records.

Evidence of rehabilitation and conduct since

• completion of a behaviour change program, counselling or treatment, with letters from the provider;
• evidence of stable employment and community involvement;
• the absence of further charges or orders since the sentence ended; and
• the sponsor's own statement, accepting responsibility and explaining what has changed.

Evidence about children

• birth certificates, custody or parenting orders and evidence of contact arrangements;
• evidence of the sponsor's care, support and involvement in schooling and health decisions; and
• evidence of the effect a refusal would have on the children.

Evidence about the relationship

• the applicant's own statement explaining when and how the applicant learned of the history, and why the applicant wishes to continue;
• relationship evidence across the financial, household, social and commitment aspects; and
• Form 888 witness statements from people who know the couple.

Submissions

• a legal submission applying regulation 1.20KC(4) and Department policy to the facts, addressing each factor and any risk concern directly.

The applicant's statement is the applicant's own account. The applicant reviews it, corrects it and confirms it is true. Nothing in a partner visa sponsor breach of AVO case is helped by a statement the applicant does not recognise as their own. The firm's guides to relationship evidence for a partner visa and the partner visa relationship statement explain how that evidence is organised.

What happens if the sponsorship is refused?

If the sponsorship is not approved, the visa must be refused, because sponsorship approval is a time of decision criterion for the Subclass 300, Subclass 309 and Subclass 820 visas. Approval of the sponsorship is part of the visa decision under section 65, not a separate decision.

Before the visa is refused, the Department must give the applicant a section 57 natural justice letter. In a partner visa sponsor breach of AVO case, the reasons for not approving the sponsorship, being the sponsor's convictions, are not put to the applicant and are not stated in the refusal notice. Where grounds exist under regulation 1.20KC(3), the Department must invite the sponsor to comment before deciding. That invitation is the sponsor's opportunity to put the reasonableness case. The guides to the section 57 natural justice letter and to responding to a section 57 letter explain the process.

Review at the Administrative Review Tribunal

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 a Subclass 820 refusal, the applicant applies. For a Subclass 309 refusal, the visa applicant applies under regulation 4.02(5)(raa). For a Subclass 300 refusal, the sponsor applies. The firm's guides to the partner visa appeal deadline, who applies for review of an offshore refusal and the ART review process set out the steps.

The Tribunal considers the matter afresh and can decide for itself whether it is reasonable to approve the sponsorship. Several published Tribunal decisions have dealt with sponsors convicted of relevant offences:

• In 2107808 (Migration) [2024] AATA 4136, a Subclass 309 matter, the issues recorded were the sponsorship requirements, a conviction for a relevant offence and a suspended sentence, whether the sponsorship may be approved if reasonable to do so, and remorse and no reoffending. The Tribunal remitted the matter.
• In Ellis (Migration) [2024] AATA 3411, a Subclass 820 matter, the issues recorded were sponsorship approval, a sponsor convicted of a "relevant offence", a "significant criminal record" and whether it was reasonable to approve. The Tribunal remitted the matter.
• In Naureen (Migration) [2024] ARTA 468, a Subclass 309 matter, the issues recorded were whether it was reasonable to approve the sponsorship, the sponsor's significant criminal record, the time since last imprisonment and limited time spent together because of travel restrictions. The Tribunal sent the matter back to the Department.

Each case turns on its own facts. These decisions show that the reasonableness question is genuinely open on review and that evidence of remorse, the absence of reoffending and the passage of time can be considered. The firm's guide to evidence at the ART and the short answer on challenging a refusal based on sponsorship limitations explain how a partner visa sponsor breach of AVO refusal is approached on review. The firm's partner visa refusal lawyers page and the wider visa refusals page cover refusals generally.

How My Migration Lawyers helps with a partner visa sponsor breach of AVO

My Migration Lawyers deals with complex partner visa cases, acts in many matters where a sponsor has a criminal history under regulation 1.20KC, and is capable of handling a partner visa sponsor breach of AVO case from the first assessment through to review. The firm's Principal Lawyer is Weiwei Zhang, and the firm's approach is explained on the about My Migration Lawyers page.

On a partner visa sponsor breach of AVO matter, the firm:

• reads the court outcome, the order and the police checks to confirm whether a conviction was recorded and whether the offence falls within regulation 1.20KC(2)(c);
• calculates whether the sentence meets the significant criminal record threshold in regulation 1.20KD, including suspended, concurrent and periodic detention sentences;
• advises the sponsor on consent to disclose and on telling the applicant about the history before the Department does;
• manages the police check requests under regulation 1.20KC(5), including foreign checks and translations, so the reasonable time is not missed;
• prepares the reasonableness submission under regulation 1.20KC(4), addressing time since the sentence, the best interests of children and the length of the relationship;
• presents the sponsor's and the applicant's own accounts, which each of them reviews and corrects, together with Form 888 statements and rehabilitation evidence;
• prepares the applicant for an interview conducted without the sponsor present; and
• responds to section 57 letters and invitations to comment, and acts on review at the Administrative Review Tribunal if the visa is refused.

The firm acts for sponsors and applicants across Australia, including through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. Sponsors with a broader criminal history can read the short answer on hiring a lawyer for a sponsor with a criminal record, and those already facing a refusal can read about getting a lawyer after a sponsorship refusal.

A partner visa sponsor breach of AVO conviction should be assessed before the application is lodged, or as soon as the Department asks for police checks. Book a consultation with My Migration Lawyers, or call 1300 040 300.