Partner Visa Sponsor Character Requirements

The partner visa sponsor character requirements decide whether the Australian partner can be approved as a sponsor. If the sponsorship is not approved, the visa must be refused, however strong the relationship evidence is. The partner visa sponsor character requirements sit in Division 1.4B of the Migration Regulations 1994, mainly in regulations 1.20KB, 1.20KC and 1.20KD, and in the Schedule 2 criteria for the Subclass 820 partner visa, the Subclass 309 partner visa and the Subclass 300 prospective marriage visa.

Most sponsors never think about the partner visa sponsor character requirements until the Department asks for a police check. By then, the application is already lodged and the timing is out of the sponsor's control. This guide sets out every part of the test: police checks, the relevant offences list, the significant criminal record threshold, consent to disclosure, the separate rules for child applicants, unresolved charges, the discretion to approve, and what the applicant is and is not told.

It is the overview for the firm's series on sponsor criminal history. The detailed articles on sponsor police checks, a sponsor with a criminal record, the relevant offences under regulation 1.20KC and the significant criminal record test under regulation 1.20KD go deeper into each step. The commercial page on partner visa sponsorship limitations explains how My Migration Lawyers acts on these matters.

What are the partner visa sponsor character requirements?

The partner visa sponsor character requirements are the rules that allow, or require, the Department to refuse to approve a partner sponsorship because of the sponsor's criminal history. They apply to the sponsor alone, and they work through police checks, a defined list of relevant offences, a sentence threshold and a discretion to approve.

There is no single section of the Migration Act 1958 headed "sponsor character". The partner visa sponsor character requirements are spread across several provisions, and each one does a different job:

• Regulation 1.20KC lists the relevant offences, requires refusal of the sponsorship where the sponsor has a conviction for a relevant offence and a significant criminal record, allows approval despite that where it is reasonable, and gives the Department power to request police checks.
• Regulation 1.20KD defines a significant criminal record by reference to the sentence imposed.
• Regulation 1.20KB applies where an applicant under 18 is included in the application and the sponsor has a conviction or an unresolved charge for a registrable offence, which broadly means a child sex offence or another offence that would lead to registration as a child offender.
• Subclauses 820.221(4), 309.222(2) and 300.222(2) in Schedule 2 require the sponsor to consent to the Department disclosing convictions for relevant offences to each applicant.
• Subclause 820.221(5) and the equivalent provisions require a conviction to be disregarded where it has been quashed or otherwise nullified, or where the sponsor has been pardoned and is taken never to have been convicted.

The test is structured so that most convictions do not stop a sponsorship. A conviction for an offence that is not on the relevant offences list cannot be used under regulation 1.20KC. A conviction for a relevant offence without a significant criminal record cannot be used to refuse the sponsorship either, although it is disclosed to the applicant. Only the combination of a relevant offence and a significant criminal record requires refusal, and even then the Department may approve if it is reasonable to do so.

That structure is the most important thing a sponsor can understand about the partner visa sponsor character requirements. The question is rarely "does the sponsor have a record?". The real questions are which offence, whether a conviction was recorded, what sentence was imposed, how long ago the sentence ended, and who is included in the application. The firm's guide to partner visa sponsor eligibility and the wider article on partner visa sponsor requirements explain where these character rules sit beside the citizenship, residence and age rules.

Partner visa sponsor character requirements and the applicant's character test: what is the difference?

The partner visa sponsor character requirements assess the sponsor under Division 1.4B of the Migration Regulations 1994. The applicant's character is assessed separately under section 501 of the Migration Act 1958 and public interest criterion 4001. The two tests have different triggers, different thresholds and different consequences.

This distinction is widely misunderstood. Many couples assume that a "character test" applies to both partners in the same way. It does not.

The applicant's character test asks whether the visa applicant passes the character test in section 501. It covers matters such as a substantial criminal record, association with criminal conduct and conduct that raises a risk to the Australian community. If the applicant fails the test, the visa may be refused under section 501 or under public interest criterion 4001. The firm's guides to section 501 and partner visas, to partner visa character requirements for the applicant and to a partner visa character refusal cover that side of the law.

The partner visa sponsor character requirements ask a narrower question. They do not ask whether the sponsor is of good character in a general sense. They ask whether the sponsor has been convicted of an offence on a specific list, whether the sentence crossed a specific threshold, and whether it is nonetheless reasonable to approve the sponsorship. The purpose is protective. The Department's policy explains that regulation 1.20KC exists to protect visa applicants who may be at risk from a sponsor with a history of violence.

Three practical differences follow:

• Who is refused. If the applicant fails the character test, the applicant's visa is refused on character grounds. If the sponsor fails the partner visa sponsor character requirements, the sponsorship is not approved and the visa is refused because a time of decision criterion is not met. The applicant is not found to be of bad character.
• What is disclosed. A sponsor's convictions for relevant offences are disclosed to the applicant, with consent. The applicant's own record is not disclosed to the sponsor under these rules.
• What the refusal says. In a sponsorship refusal, the reasons for not approving the sponsorship are not put to the applicant in a natural justice letter and are not stated in the refusal notice.

A couple can face both tests at once. A sponsor may have a conviction for assault while the applicant has an overseas conviction of their own. Each must be assessed under its own rules. The firm's articles on a partner visa with a criminal record and the short answer on whether a partner visa can be granted with a criminal record deal with the applicant's position. This article deals with the partner visa sponsor character requirements only.

Which visas do the partner visa sponsor character requirements apply to?

The partner visa sponsor character requirements in regulations 1.20KC and 1.20KD apply to applications for the Subclass 820, Subclass 309 and Subclass 300 visas made on or after 18 November 2016. They do not apply to the permanent Subclass 801 or Subclass 100 stage.

Sponsorship is approved as part of the temporary stage decision. The approval is a time of decision criterion, which means it must be satisfied when the visa is decided, not just when it is lodged. The Department's policy states that approval of a partner sponsorship is a component of the decision under section 65 to grant or refuse the visa. It is not a separate decision, and no separate notice is sent to the sponsor.

The partner visa two-stage process explains why the sponsor assessment happens at the first stage. The article on sponsor police checks at the second stage explains what can still be asked of a sponsor once the temporary visa has been granted, and the guide to the sponsor at the second stage covers the sponsor's ongoing role.

Regulation 1.20KB has a wider and older history. It applies to Partner, Prospective Marriage and Child visa applications made on or after 27 March 2010 that include an applicant under 18. For partner visas, it covers the Subclass 820, Subclass 309 and Subclass 300 visas.

The sponsorship itself is made on Form 40SP or the online equivalent. The firm's guides to Form 40SP, the sponsor undertaking and when the sponsor must lodge explain the paperwork. The sponsorship form is where the sponsor answers questions about convictions involving minors and gives consent to disclosure, so the answers given there are the starting point of every partner visa sponsor character requirements assessment.

Police checks under the partner visa sponsor character requirements

Under regulation 1.20KC(5), the Department may ask the sponsor for an Australian police check and for a police check from any foreign country where the sponsor has lived for 12 months or more in total since the later of turning 16 or 10 years before the request. The request must go to the sponsor, not the applicant.

Police checks are the engine of the partner visa sponsor character requirements. Without them, the Department cannot know whether there is a relevant offence. The rules on police checks are detailed, and each point matters in practice.

The Australian check

The Department's policy is that a sponsor who has spent any time in Australia since turning 16 should be asked for an Australian Federal Police National Police Check. It does not matter whether the sponsor spent more or less than 12 months in Australia, or whether the sponsor was under 18 at the time. Policy says a sponsor who has never been in Australia since turning 16, such as a citizen by descent who has never travelled here, should not be asked for one. The firm's guides to the AFP police check for a partner visa and to a sponsor who is a citizen by descent explain both situations.

Foreign checks

A foreign police check may be requested for each country where the sponsor has lived for 12 months or more in total since the later of two dates: 10 years before the request, or the sponsor's 16th birthday. The 12 months are cumulative, so several shorter stays in one country can add up. A foreign check in a language other than English must come with an accurate English translation. The firm's guide to overseas police certificates explains how to obtain them, the article on partner visa evidence translation covers translations, and the short answer on what to do if a police certificate cannot be obtained deals with countries where checks are hard to get.

Female sponsors

Department policy says decision makers are not required to request police checks from female sponsors where there are no concerns about the sponsor's character. That is a policy position, not an exemption in the regulations. A female sponsor can still be asked. The guide to police checks for female sponsors explains when that happens.

The request goes to the sponsor

Regulation 1.20KC(5) requires the Department to ask the sponsor, not the applicant. Policy goes further: a request for further information sent to the applicant must not include a request for the sponsor's police check. Unless the sponsor has appointed a migration agent or authorised recipient using Form 956 or Form 956A, the request will go to the sponsor directly. A sponsor who does not check their own email can miss the request entirely.

Reasonable time and the 28-day policy

Regulation 1.20KC(6) allows the Department to refuse to approve the sponsorship if the sponsor does not provide the requested checks within a reasonable time. The regulation does not define a reasonable time. 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, especially for foreign checks. The articles on a sponsor police check that was not provided and on sponsorship delays explain what happens when the deadline slips.

Validity and further requests

Because sponsorship approval is a time of decision criterion, the Department may ask for new checks if earlier ones are out of date, or if it has reason to believe there is a new conviction or charge. The guide to expired police checks and the short answer on how long police certificates are valid explain the position. The general short answer on whether a partner visa needs a police check covers both sponsor and applicant checks.

Which offences count under the partner visa sponsor character requirements?

Only convictions for a "relevant offence" listed in regulation 1.20KC(2) count under the partner visa sponsor character requirements. The list covers offences of violence, harassment and stalking, breaches of apprehended violence orders and similar orders, firearms and dangerous weapons, people smuggling, human trafficking and slavery-like practices, and attempting or helping to commit any of them.

Regulation 1.20KC(2) applies to 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, issued under a law of a State, a Territory or a foreign country;
• 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.

The list is closed. A conviction for an offence outside it cannot be used to refuse the sponsorship under regulation 1.20KC and cannot be disclosed to the applicant under this policy. Department policy states this directly: where a sponsor has convictions only for offences that are not relevant offences, the decision maker cannot refuse the sponsorship under regulation 1.20KC(3) or disclose the convictions. For that reason, the first step in applying the partner visa sponsor character requirements is always to identify the exact offence on the court record.

This is the point sponsors most often get wrong in both directions. Some sponsors with a drink driving, fraud or drug possession conviction assume they cannot sponsor at all. Under the partner visa sponsor character requirements, those convictions are generally outside the list, unless the facts also involve violence, a weapon or another listed element. The firm's guide to a partner visa with a drink driving conviction explains how a common non-relevant offence is treated. Other sponsors assume an old assault or a breach of an order "does not matter any more". It may matter a great deal, because those offences are on the list.

Department policy allows decision makers to refer to the Australian and New Zealand Standard Offence Classification when deciding whether an offence falls within the list. Foreign police checks can describe offences in unfamiliar terms. Policy tells decision makers to seek advice from the Department's Partner Program Management Section where it is unclear whether a foreign offence is a relevant offence. The guide to partner visa overseas convictions explains how foreign records are read.

The offence-specific guides

Because each listed offence raises its own evidence issues, the firm has a dedicated article for the offences most often seen in practice. Each one applies the partner visa sponsor character requirements to that offence:

• a sponsor with a domestic violence conviction;
• a sponsor with an assault conviction;
• a sponsor with a stalking or harassment conviction; and
• a sponsor convicted of breaching an AVO.

A sponsor who is still facing a charge, rather than a conviction, should read the section on unresolved charges later in this guide, together with the article on a partner visa domestic violence charge. Where an intervention order exists between the couple, the guide to a partner visa with intervention orders is also relevant.

What is a significant criminal record for a partner visa sponsor?

A sponsor has a significant criminal record under regulation 1.20KD if, for the relevant offence, 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.

The significant criminal record threshold is the gate in the partner visa sponsor character requirements. A conviction for a relevant offence without a significant criminal record cannot ground a refusal under regulation 1.20KC(3). That is why the sentence imposed is often more important than the offence itself.

Several rules make the threshold easier to reach than many sponsors expect:

• Suspended sentences count. A suspended sentence is a sentence of imprisonment. What matters is the term imposed, not the time actually served.
• Early release does not reduce the sentence. A sponsor released on parole well before the end of a 12-month term still has a 12-month sentence.
• Concurrent terms can be added together. Department policy treats two 6-month sentences served concurrently as a significant criminal record.
• 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.

The opposite is also true. A fine, a community correction order without imprisonment or a good behaviour bond is not a term of imprisonment. A sponsor convicted of a relevant offence and fined has a conviction for a relevant offence, but not a significant criminal record. The Department cannot refuse that sponsorship under regulation 1.20KC(3), although it will disclose the conviction to the applicant if the sponsor consents. The firm's guide to a sponsor with a conviction but no jail time works through those cases.

Calculating the threshold correctly is one of the most technical steps in any partner visa sponsor character requirements assessment. Court outcome sheets often record several charges dealt with together, with sentences that are partly concurrent and partly cumulative. A sponsor who reads the outcome sheet without help can easily get the total wrong.

What counts as a conviction for the partner visa sponsor character requirements?

A conviction exists for the partner visa sponsor character requirements only where, after a plea of guilty or a finding of guilt, the court recorded a conviction. A finding of guilt without a conviction, or a bond or intervention program on the basis that no conviction is recorded, is not a conviction.

Department policy is precise on this point. A conviction can exist without a sentence, for example where a person is convicted and released on a good behaviour bond. On the other hand:

• a good behaviour bond, or an 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; and
• a charge that was withdrawn or dismissed is not a conviction.

Where a police check shows that the sponsor committed a relevant offence but no conviction was recorded, the Department cannot disclose the offence to the applicant or rely on it to refuse the sponsorship. The court outcome is therefore the most important single document in a partner visa sponsor character requirements assessment. The short answer on disclosing charges that did not lead to a conviction explains how such matters should still be answered on forms.

Quashed and pardoned convictions

A conviction must be disregarded where it has been quashed or otherwise nullified, or where the sponsor has been pardoned and the effect of the pardon is that the sponsor is taken never to have been convicted. Subclause 820.221(5) sets this out for the consent to disclose requirement in the Subclass 820 visa, and regulation 1.20KD(5) applies the same rule to the significant criminal record test. A successful appeal against a conviction can therefore change the whole analysis. In applying the partner visa sponsor character requirements, it is the current court record, not the original outcome, that counts.

Spent convictions and old records

A sponsor should never assume that an old matter will not appear or does not count. The rules about which convictions appear on a police check depend on the type of check, and the check required where a child is included in the application is a complete disclosure check. The guide to spent convictions in a partner visa explains what must be disclosed, and the article on undisclosed convictions explains why leaving a matter off a form can create a more serious problem than the conviction itself.

Does the sponsor have to consent to disclosure under the partner visa sponsor character requirements?

Yes. Paragraph 820.221(4)(b), subclause 309.222(2) and subclause 300.222(2) require the sponsor to consent to the Department disclosing to each applicant any conviction of the sponsor for a relevant offence. If the sponsor expressly declines, the criterion cannot be met and the visa will be refused.

Consent to disclosure is the part of the partner visa sponsor character requirements that most often surprises couples. It is usually given in the sponsorship form. Department policy deals with three situations:

• The sponsor consents. Consent does not need to be given again, however much time has passed since it was given.
• The sponsor expressly declines. Grounds to refuse the visa exist because the Schedule 2 criterion cannot be met. The Department sends the applicant a section 57 natural justice letter saying that the sponsor has not consented and the criterion cannot be satisfied. The details of the sponsor's convictions are not put to the applicant in that letter or in the refusal notice.
• The sponsor leaves the question unanswered. The Department must not assume refusal of consent. It sends the sponsor a "Request for consent to disclose convictions" letter. If the sponsor does not respond within the time given, the Department may find that the criterion is not met.

Consent only matters in practice where the sponsor actually has a conviction for a relevant offence. The disclosure requirement is triggered only by a recorded conviction for a relevant offence, not by a non-relevant offence and not by a matter where no conviction was recorded.

Where there is a relevant conviction, Department policy says that, with consent, the decision maker should disclose it to the applicant even where there is no significant criminal record. The purpose is to let the applicant make an informed decision about continuing. Policy states that it is not the Department's intention to force or coerce the applicant either way.

Some sponsors hesitate because the applicant does not know the full history. That is a serious decision, and declining consent ends the application. In practice, a sponsor affected by the partner visa sponsor character requirements 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 and the guide to partner visa sponsor documents show where consent fits.

Regulation 1.20KB: the partner visa sponsor character requirements when a child is included

Where an applicant under 18 is included in the partner visa application, regulation 1.20KB requires the sponsorship of all applicants to be refused if the sponsor has a conviction for a registrable offence, or an unresolved charge for one, unless every applicant is 18 or over at the time of decision or the conviction or charge has been set aside or disposed of without a recorded conviction.

Regulation 1.20KB is the strictest part of the partner visa sponsor character requirements, and it should be the first question in any partner visa sponsor character requirements assessment where a child is included. Its purpose, in the Department's words, is to protect minor visa applicants from being sponsored by people with convictions for child sex offences or other serious offences indicating that they might pose a significant risk to a child in their care.

A registrable offence is defined in regulation 1.20KB(13) by reference to the State and Territory child offender registration laws, such as the Child Protection (Offenders Registration) Act 2000 (NSW) and the Sex Offenders Registration Act 2004 (Vic), and includes an equivalent offence committed elsewhere. Policy describes these as offences of a type that could be listed on the Australian National Child Offenders Register.

The key features of regulation 1.20KB are:

• It applies to unresolved charges, not just convictions. Under regulation 1.20KB(2), a pending charge for a registrable offence requires refusal unless the charge is withdrawn, dismissed or otherwise disposed of without a conviction being recorded. Regulation 1.20KC has no equivalent rule.
• It refuses the sponsorship of every applicant. The bar is not limited to the child. It applies to all applicants included in the sponsorship, including the partner.
• It requires sponsor self-declaration. The sponsorship form asks the sponsor to declare convictions relating to persons under 18, including convictions now removed from official records, and pending charges.
• It requires a complete disclosure check. Policy requires a "Complete Disclosure - All recorded offences released" National Police Check, and foreign checks where relevant, where an applicant under 18 is included.
• The waiver is narrow. A sponsorship can be approved despite a registrable offence conviction only if the sentence, including parole or licence, was completed more than 5 years before the sponsorship application, there has been no later charge for a registrable offence that has not been disposed of without conviction, and there are compelling circumstances affecting the sponsor or applicant. Even then, approval must be consistent with the best interests of every minor applicant.
• Regulation 1.20KB is considered first. Where grounds exist under both regulation 1.20KB and regulation 1.20KC, policy directs that regulation 1.20KB is considered first.
• Policy requires disclosure. Where an applicant under 16 is included and the sponsor has a conviction or pending charge for a registrable offence, policy is to disclose that information to the applicant or the person with parental responsibility for the child.

Separately, public interest criteria in Schedule 4 require the Department to consider whether a sponsor's other serious criminal convictions give compelling reasons to believe that granting the visa would not be in a minor applicant's best interests. That assessment also forms part of the wider partner visa sponsor character requirements where children are involved.

Families with children should read the guides to adding children to a partner visa, stepchildren in a partner visa and the short answer on including a partner's children in a partner visa. Where the sponsor's history raises any child-related question, legal advice before lodgement is strongly recommended.

When can a sponsorship be approved despite the partner visa sponsor character requirements?

Under regulation 1.20KC(4), the Department may approve a sponsorship even where the sponsor has a conviction for a relevant offence and a significant criminal record, if it considers approval reasonable after having regard to the time since the sentence was completed, the best interests of any children of the sponsor or the primary applicant, and the length of the relationship.

This discretion is what makes the partner visa sponsor character requirements arguable. A significant criminal record does not end the case. It shifts the question to reasonableness.

Department policy is clear that "have regard to" 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". Policy says it would be an error of law for a decision maker to state or imply that a sponsorship was refused because one of the matters was "not met". The list is also not exhaustive. Other circumstances can be considered.

Time since the sentence was completed

Policy says discretion may weigh more in favour of a sponsor who completed a sentence ten years ago and has not offended since, compared with a sponsor with more recent offending. Decision makers are told to be cautious about approving on the basis of time alone where less than 5 years have passed since the sentence was completed, unless other circumstances weigh in favour. Where the sponsor is still serving the sentence, including a parole period, the time factor is not relevant because the sentence has not been completed. Where the offending is old, time is often the strongest factor in a partner visa sponsor character requirements case.

The best interests of children

The best interests of the sponsor's or the primary applicant's children, including biological, adopted and step children, are a primary consideration. Relevant matters include how long a child has lived with the sponsor, the care and support the sponsor provides, any relevant court orders, and the effect of a refusal on the child. Best interests are not the only consideration. Policy recognises that they can be outweighed, for example where approval may put the applicant or the applicant's family at risk of harm. The guide to children as compelling reasons in a partner visa explains how evidence about children is presented.

The length of the relationship

Policy directs decision makers to consider whether the couple were together when the offence was committed or 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 history for years is very different from a new relationship. The guides to long-term relationships and to a relationship during imprisonment are relevant here.

A reasonableness case under the partner visa sponsor character requirements is built on evidence: complete court records and sentencing remarks, evidence of rehabilitation such as completed programs and counselling, a clear record since the sentence, evidence about children, the applicant's own account of when and how they learned of the history, and Form 888 witness statements from people who know the couple. Each statement is the person's own account, which they review, correct and confirm as true.

Unresolved charges and the partner visa sponsor character requirements

A sponsorship cannot be refused under regulation 1.20KC because a charge for a relevant offence has not yet been finalised. The Department may ask for information about the case and may defer the decision if the charge is likely to be resolved soon, but a pending charge is not a conviction.

This is a different rule from regulation 1.20KB, where an unresolved charge for a registrable offence does require refusal when a child is included. For other relevant offences, Department policy says:

• the decision maker may ask for further information, at least to find out whether there is an expected date of finalisation;
• decision making should not be unreasonably delayed, but there is some scope to defer a decision if the charge is likely to be resolved in the near future;
• information about the case may also be relevant to whether the relationship is genuine; and
• if the sponsor already has a significant criminal record for an earlier relevant offence, the Department may refuse on the basis of that record regardless of the new charge.

The Department's child protection policy also says that where a sponsor has an unresolved charge involving assault or violence against a person, or the trafficking or manufacture of drugs, a decision to grant the visa should be deferred until the charge is withdrawn or dealt with by a court.

For a sponsor with a pending charge, the outcome in the criminal court will decide how the partner visa sponsor character requirements apply. Whether a conviction is recorded, and what sentence is imposed, can make the difference between a sponsorship the Department cannot refuse and one it must refuse unless approval is reasonable. Criminal lawyers sometimes do not know that a 12-month sentence, even suspended, crosses the regulation 1.20KD threshold. The guide to partner visa pending charges and the short answer on a partner visa with a pending criminal charge explain the timing.

What the applicant is told, and what is kept confidential

Under the partner visa sponsor character requirements, the applicant is told about the sponsor's convictions for relevant offences, with the sponsor's consent, so that the applicant can make an informed decision. The applicant is not told the reasons if the sponsorship is refused.

These two rules can seem inconsistent, but they serve the same protective purpose, and both apply in every partner visa sponsor character requirements case where a relevant conviction exists.

Disclosure and the interview

Where the decision maker is inclined to approve a sponsorship under regulation 1.20KC(4) despite a significant criminal record, Department policy is that the applicant should be interviewed before approval, preferably in person and without the sponsor present. The interview checks that the applicant is not being forced, coerced or intimidated, and discloses the sponsor's relevant offence convictions with consent. Policy also says the interview must not compromise the applicant's safety, for example if the sponsor were to believe the visa was refused because of what the applicant said. The firm's guides to partner visa interview questions, the sponsor interview and the short answer on whether there will be a spouse visa interview explain the format.

Reasons not disclosed on refusal

Where the sponsorship is refused under the partner visa sponsor character requirements, policy says the Department sends the applicant a section 57 natural justice letter before refusing the visa. The reasons for the failure to have the sponsorship approved must not be put to the applicant in that letter. For the same reason, they are not stated in the refusal notice. Where grounds exist under regulation 1.20KC(3), the Department invites the sponsor to comment before deciding, and that invitation is the sponsor's opportunity to put the reasonableness case.

The practical result is that an applicant can receive a section 57 letter, and then a refusal, that says only that the sponsorship was not approved. The applicant may not know why. The guides to the section 57 natural justice letter and to responding to a section 57 letter explain the process, and the short answer on what happens if a partner's sponsorship is refused gives the next steps. An applicant whose sponsor is abusive should read the page on family violence partner visa lawyers and the short answer on help with an abusive sponsor.

What happens if the partner visa sponsor character requirements are not met?

If the sponsorship is not approved, the visa must be refused, because sponsorship approval is a time of decision criterion for the Subclass 820, Subclass 309 and Subclass 300 visas. The refusal can be reviewed by the Administrative Review Tribunal if the application is made in time, so a refusal under the partner visa sponsor character requirements is not the end of the matter while the deadline is still open.

As at October 2026, the application for review 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 in their own name under section 338(9) and regulation 4.02(5)(raa). For a Subclass 300 refusal, the sponsor applies. The Tribunal application fee for these migration decisions is $3,580 as at October 2026, and a reduced fee of 50 per cent may be available on the ground of financial hardship. The guides to the partner visa appeal deadline, who applies for review of an offshore refusal, partner visa ART fees and the ART review process set out the steps.

The Tribunal reviews the decision afresh and can decide for itself whether it is reasonable to approve the sponsorship on the evidence before it. Published decisions show that the reasonableness question is genuinely open on review:

• 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, and a remittal means the matter goes back to the Department to be decided again. The guide to evidence at the ART and the short answer on challenging a refusal involving sponsorship limitations explain how these reviews are approached. The firm's partner visa refusal lawyers page, the visa refusals page and the page on urgent ART visa refusal applications are the starting points where the deadline is close.

How My Migration Lawyers assesses partner visa sponsor character requirements before lodgement

My Migration Lawyers assesses the partner visa sponsor character requirements before the application is lodged, so that the sponsor's history is understood, documented and addressed on the couple's terms rather than discovered by the Department. The firm deals with complex partner visa cases, acts in many matters where the sponsor has a criminal history, and is capable of handling these matters from the first assessment through to review. The firm's Principal Lawyer is Weiwei Zhang, and the firm's approach is set out on the about My Migration Lawyers page.

On a matter involving the partner visa sponsor character requirements, the firm:

• obtains and reads the sponsor's Australian and foreign police checks before lodgement, rather than waiting for a Department request under regulation 1.20KC(5);
• reads the court outcome for every matter to confirm whether a conviction was recorded, whether the offence is on the regulation 1.20KC(2) list, and whether any conviction has been quashed or pardoned;
• calculates whether the sentences meet the regulation 1.20KD threshold, including suspended, concurrent and periodic detention sentences;
• checks whether any applicant under 18 is included and, if so, whether regulation 1.20KB is engaged;
• advises the sponsor on consent to disclosure and on telling the applicant about the history before the Department does;
• advises on timing where a charge is still before a court;
• prepares the reasonableness submission under regulation 1.20KC(4), with the court records, rehabilitation evidence, evidence about children and each person's own reviewed statement;
• prepares the applicant for an interview conducted without the sponsor present; and
• responds to section 57 letters and invitations to comment, and acts on Tribunal review if the visa is refused.

The firm's sponsor risk assessment before lodgement explains that process in more detail, and the short answers on hiring a lawyer when a sponsor has a criminal record and getting help after a sponsorship refusal cover the most common questions. The firm acts for sponsors and applicants Australia-wide by video, through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. Couples who need to lodge quickly can read about urgent partner visa lodgement.

The partner visa sponsor character requirements are best dealt with before lodgement, not after a police check request or a refusal. Book a Consultation with My Migration Lawyers, or call 1300 040 300.