Partner Visa Sponsor With a Conviction but No Jail Time

A partner visa sponsor conviction no jail case arises where the Australian sponsor was convicted of an offence but did not go to prison. The sentence might have been a fine, a bond, a community order or a suspended sentence. The partner visa sponsor conviction no jail question is whether that record can stop the sponsorship being approved for a Subclass 820, Subclass 309 or Subclass 300 visa.

The short answer is that "no jail" is not the legal test. The test in regulations 1.20KC and 1.20KD of the Migration Regulations 1994 looks at whether the offence is a "relevant offence", whether a conviction was recorded, and what sentence the court imposed. Time actually spent in custody is not the question. Some non-custodial outcomes leave the sponsorship safe from refusal under regulation 1.20KC(3). One of them, the suspended sentence, can create a significant criminal record even though the sponsor never went to prison.

This guide works through each type of sentence a court can impose without sending a person to jail, and explains how each is treated. It also explains the disclosure and consent rules, which still apply when the sentence was light, and what a sponsor who is currently before a criminal court should think about before sentencing. For the wider rules on who can and cannot sponsor, the firm's partner visa sponsorship limitations page sets out every limitation in Division 1.4B, and the complete guide to partner visas in Australia explains each subclass and stage.

Partner visa sponsor conviction no jail: the short answer

A sponsor with a conviction for a relevant offence and no term of imprisonment cannot be refused under regulation 1.20KC(3), because refusal under that subregulation requires both a conviction for a relevant offence and a significant criminal record in relation to it.

The Department's procedural instruction on regulations 1.20KC and 1.20KD (LEGEND document VM-5930) states the point directly. A delegate cannot refuse to approve a sponsorship for a sponsor who has only been convicted of a relevant offence but does not have a significant criminal record as defined in regulation 1.20KD. That is the core of every partner visa sponsor conviction no jail assessment.

There are four qualifications that matter in practice:

• A suspended sentence is imprisonment. If the court imposed a term of imprisonment and suspended it, the length of that term counts towards the 12 month threshold. "No jail" in the everyday sense does not mean no significant criminal record.
• Other custodial measures can count. Periodic detention and certain residential programs are counted under regulations 1.20KD(3) and 1.20KD(4), even though the person was not in a prison in the usual sense.
• Disclosure still applies. Even where refusal under regulation 1.20KC(3) is not available, the Department's policy is to disclose relevant offence convictions to the applicant, with the sponsor's written consent. The sponsor must consent, or the visa fails on a separate criterion.
• Other rules still apply. The facts of the conviction can still be relevant to whether the relationship is genuine, and a different rule, regulation 1.20KB, applies where a child under 18 is included and certain sexual offences are involved.

The guide to when a sponsor cannot sponsor a partner visa explains how these rules sit alongside the other sponsorship limitations, and the firm's question page on whether you can get a partner visa if your sponsor has a criminal record gives a short overview.

Which partner visas does the partner visa sponsor conviction no jail rule affect?

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 stage. The Department's policy confirms that regulation 1.20KC does not apply to the Subclass 100 visa associated with a Subclass 309 application, or to the Subclass 801 visa associated with a Subclass 820 application. The difference between Subclass 820 and Subclass 801 explains how the two stages relate. A partner visa sponsor conviction no jail issue is therefore assessed at the temporary or provisional stage.

The rules were introduced from 18 November 2016 as part of the Government's response to family violence. Their purpose is to protect visa applicants who may be at risk from a sponsor with a history of violent or similar offending. That purpose explains why the regulation focuses on particular kinds of offences, and why disclosure to the applicant is central even where refusal is not available. It is also why the partner visa sponsor conviction no jail question cannot be answered by looking at the penalty alone.

Approval of the sponsorship is a time of decision criterion. Clauses 300.222, 309.222 and 820.221 require the sponsorship to be approved when the visa is decided, while the time of application criteria only require the applicant to be sponsored. A conviction recorded after lodgement can therefore still be relevant, and a partner visa sponsor conviction no jail position must be assessed on the record as it stands at the time of decision. The pages on the Subclass 820 onshore partner visa, the Subclass 309 offshore partner visa and the Subclass 300 Prospective Marriage visa set out the other criteria for each visa.

What counts as a conviction in a partner visa sponsor conviction no jail case?

For regulations 1.20KC and 1.20KD, a conviction exists only where, following a finding of guilt or a plea of guilty for a relevant offence, the court has recorded a conviction.

This definition comes from the Department's policy and it is decisive in many partner visa sponsor conviction no jail cases. Many Australian courts can find a person guilty and then decide not to record a conviction. The policy says that situations where a court finds a person guilty without proceeding to a conviction are "irrelevant to the sponsorship limitations" and irrelevant to the consent to disclose requirements.

The policy also makes clear that a conviction does not need a sentence. It says that when a person is convicted, a sentence is usually imposed, but this is not always the case, and gives the example of a person released on a good behaviour bond. Regardless of whether any sentence was imposed, the consent to disclose requirement is triggered where a conviction is recorded for a relevant offence.

So the first question in any partner visa sponsor conviction no jail review is not "what was the penalty?" but "did the court record a conviction?". The answer is usually on the court outcome document and on the police check. Where the record is unclear, the court file or the sponsor's criminal lawyer can usually confirm it. The firm's article on partner visas and a criminal record explains the same distinction from the applicant's side, and the question page on disclosing charges that did not lead to a conviction explains why non-conviction outcomes are treated differently.

Why "no jail" is not the legal test

The legal test is whether the sponsor has a significant criminal record under regulation 1.20KD, and that depends on the sentence the court imposed, not on whether the sponsor actually went to prison.

Regulation 1.20KD(1) provides that a person has a significant criminal record in relation to a relevant offence if the person has been 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 where the total of those terms is 12 months or more. Regulations 1.20KD(2) to 1.20KD(5) then deal with concurrent sentences, periodic detention, residential schemes or programs, and pardons and quashed convictions.

Three features of that definition explain why the everyday idea of "no jail" can mislead:

• The sentence imposed is what counts. The policy states that a sentence of 12 months or more is a significant criminal record even if the person was released early and served less than 12 months.
• A suspended term is still a term. The policy states that it is the sentence that is critical, not the time, if any, served.
• Some non-prison detention counts. Periodic detention and certain residential programs are counted by the number of days the person was required to spend in detention or in the program.

This article does not repeat every scenario in the significant criminal record definition. The focus here is the partner visa sponsor conviction no jail situation: sentences that did not involve full-time custody. For sponsors who did serve time in prison, the firm's guide on a partner visa lawyer for a criminal record explains how those matters are approached, and the firm's partner visa lawyers page explains how the firm assists.

Does the offence have to be a relevant offence?

Yes. Regulation 1.20KC only operates on convictions for a "relevant offence" as defined in regulation 1.20KC(2), so a partner visa sponsor conviction no jail outcome for any other kind of offence cannot ground refusal under regulation 1.20KC(3).

A relevant offence is an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving any of these matters:

• 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 an offence involving any of those matters; and
• aiding, abetting, counselling or procuring the commission of an offence involving any of those matters.

The policy notes that delegates may refer to the Australian and New Zealand Standard Offence Classification published by the Australian Bureau of Statistics to interpret offences. Foreign offences can be described in unfamiliar terms, and the policy tells delegates to consult the Department's Partner Program Management section where it is unclear whether a foreign offence is a relevant offence. In a partner visa sponsor conviction no jail case based on a foreign conviction, an accurate English translation of the court record is often the starting point, and the firm's article on translating partner visa evidence explains the translation requirements.

Many common non-custodial convictions are not relevant offences. A fine for a drug possession offence, a property offence, a fraud offence or a drink driving offence does not engage regulation 1.20KC. The policy says that where a sponsor has convictions for offences other than relevant offences, delegates cannot refuse to approve the sponsorship under regulation 1.20KC(3) or disclose those convictions to the applicant. The firm's article on partner visas and a drink driving conviction explains that offence from the applicant's side.

On the other hand, many offences that commonly lead to non-custodial sentences are relevant offences. Common assault, breach of an apprehended violence order or intervention order, stalking or intimidation, and possession of a prohibited weapon are typical examples. These are the matters that most often produce a partner visa sponsor conviction no jail enquiry. The firm's articles on partner visas and intervention orders and on a partner visa domestic violence charge explain those overlapping issues.

How each non-custodial sentence is treated: partner visa sponsor conviction no jail outcomes

Each non-custodial sentence is treated according to two questions: whether a conviction was recorded, and whether the sentence was a term of imprisonment or one of the forms of detention counted by regulation 1.20KD.

The table below summarises the position for a conviction for a relevant offence. It is a guide only. The exact order made by the court always needs to be checked, because sentencing language differs between States, Territories and foreign countries.

Outcome for a relevant offenceConviction for 1.20KC?Significant criminal record?Disclosure to applicant with consent?Fine only, conviction recordedYesNoYesGood behaviour bond or recognisance, conviction recordedYesNoYesCommunity correction or community service order, conviction recordedYesNot on the text of 1.20KD (confirm order terms)YesConviction recorded, no penaltyYesNoYesSuspended sentence under 12 monthsYesNot alone, but counts towards the totalYesSuspended sentence of 12 months or moreYesYesYesPeriodic detention or residential program of 12 months or moreYesYesYesIntensive correction orderYesDepends on the order; advice neededYesFinding of guilt with no conviction recordedNoNoNo

The sections below explain each line in a partner visa sponsor conviction no jail context.

Fine only

A conviction for a relevant offence with a fine only does not create a significant criminal record, because a fine is not a sentence of imprisonment.

The sponsorship therefore cannot be refused under regulation 1.20KC(3) on the strength of that conviction. However, the conviction is still a conviction for a relevant offence. The consent to disclose requirement applies, and under policy the Department should disclose the conviction to the applicant, with the sponsor's written consent, so that the applicant can make an informed decision about continuing.

A partner visa sponsor conviction no jail case involving a fine for common assault is a typical example. The sponsorship is not at risk of refusal under regulation 1.20KC(3), but the applicant will learn of the conviction from the Department if the sponsor has consented, and the sponsor must consent for the visa to be granted. Couples are usually better served if the applicant already knows about the conviction from the sponsor before the Department raises it. Accurate disclosure matters on every form, and the firm's article on undisclosed convictions in partner visa applications explains how omissions are addressed.

Good behaviour bond or recognisance with a conviction recorded

A good behaviour bond or recognisance where the court recorded a conviction is a conviction for the purposes of regulation 1.20KC, but it is not a term of imprisonment and does not create a significant criminal record on its own.

The Department's policy uses this very example. It says that when a person is convicted, a sentence is usually imposed but not always, and that a person might be released on a good behaviour bond. It then says that, regardless of whether any sentence was imposed, the consent to disclose requirement is triggered where a conviction is recorded for a relevant offence.

The important contrast is with a bond imposed without a conviction. The policy gives the example of a sponsor who was given a good behaviour bond, or ordered to participate in an intervention program, on the basis that no conviction will be recorded as long as the sponsor complies. In that situation the Department cannot disclose the offence or rely on it to refuse. In a partner visa sponsor conviction no jail review, the words on the court order matter: "convicted and released on a bond" and "bond without conviction" lead to different results.

A bond that is attached to a suspended term of imprisonment is a different thing again. That is a suspended sentence, discussed below, and the length of the suspended term is what counts.

Community correction and community service orders

A community correction order or community service order that is imposed as a sentence in its own right, and not as a way of serving a term of imprisonment, is not one of the sentences listed in regulation 1.20KD and does not, on the text of that regulation, create a significant criminal record.

The names of these orders vary across Australia and overseas. Some jurisdictions use community correction orders, some use community service orders, and some use other names. What matters for a partner visa sponsor conviction no jail assessment is what the order actually is. An order requiring unpaid work or supervision in the community, imposed instead of imprisonment, is different from an order under which a term of imprisonment is served in the community. This is a common partner visa sponsor conviction no jail situation in which the name of the order alone causes confusion.

Where a conviction was recorded for a relevant offence, the consent to disclose requirement still applies, and the conviction will be disclosed to the applicant if the sponsor consents. If the order was later breached and the sponsor was resentenced, the resentencing outcome must be checked as well, because a later sentence of imprisonment can change the position entirely. Breach of an order can also involve a further conviction.

Conviction recorded with no penalty

A conviction recorded with no further penalty is still a conviction for a relevant offence, and it triggers the consent to disclose requirement, but it cannot create a significant criminal record.

Some courts can convict and discharge a person, or record a conviction without imposing any other penalty. The policy's statement that the consent requirement applies "regardless of whether any sentence was imposed" covers this situation. For the sponsor, the practical effect is the same as a fine: no refusal under regulation 1.20KC(3), but disclosure to the applicant with consent. This is one of the cleaner partner visa sponsor conviction no jail positions, provided the court record clearly shows that no other order was made.

Suspended sentences: the partner visa sponsor conviction no jail trap

A suspended sentence is a sentence of imprisonment, so a sponsor who received a suspended sentence of 12 months or more for a relevant offence has a significant criminal record even if they never spent a day in custody.

This is the most important point in the partner visa sponsor conviction no jail topic, and it is where sponsors are most often surprised. Paragraph 3.5.3 of the Department's procedural instruction states that a suspended sentence "amounts to a 'sentence to a term of imprisonment'" for the definition of significant criminal record in regulation 1.20KD. It explains that a suspended sentence generally refers to a case where a convicted person is sentenced to a term of imprisonment and the sentence is then suspended, usually on the person entering a recognisance to observe conditions such as good behaviour. It then says: "It is the sentence that is critical, not the time (if any) served."

The policy goes on to say that if the sponsor has been convicted of a relevant offence and has a significant criminal record, the Minister must refuse to approve the sponsorship under regulation 1.20KC(3) even if the sentence has been suspended, unless the Minister decides it is reasonable to approve the sponsorship under regulation 1.20KC(4).

Three practical consequences follow for a partner visa sponsor conviction no jail case involving a suspended sentence:

• Read the length of the term, not the outcome. A sponsor who describes the result as "a bond" may in fact have received a suspended term of imprisonment. The court record must be checked.
• Under 12 months is not automatically safe. A suspended term of less than 12 months does not create a significant criminal record on its own, but two or more terms of imprisonment can be added together, and suspended terms are terms of imprisonment.
• Reasonableness becomes the issue. Where the threshold is met, the question becomes whether it is reasonable to approve the sponsorship, having regard to the matters in regulation 1.20KC(4).

The Tribunal and suspended sentences: 2107808 [2024] AATA 4136

In 2107808 (Migration) [2024] AATA 4136, decided on 9 October 2024, a Subclass 309 matter, the Tribunal remitted the matter to the Department. The issues recorded for that decision were sponsorship requirements, a conviction for a relevant offence and a suspended sentence, that sponsorship may be approved if reasonable to do so, and remorse and no reoffending.

The decision illustrates that a suspended sentence for a relevant offence is treated within the significant criminal record framework, and that the reasonableness question in regulation 1.20KC(4) is a real, reviewable question. It does not predict the result of any other case. Every partner visa sponsor conviction no jail matter involving a suspended sentence depends on its own facts and evidence.

What regulation 1.20KC(4) asks

Where a suspended sentence creates a significant criminal record, the sponsorship may still be approved if the decision maker considers it reasonable, having regard to the matters in regulation 1.20KC(4).

Those matters include the length of time since the sponsor completed the sentence or sentences, the best interests of any children of the sponsor or of the primary applicant, and the length of the relationship between the sponsor and the primary applicant. The policy says that "have regard" means each matter must be considered, not that each must be met. It also says delegates should be cautious about approving solely on the basis of time where less than 5 years have passed since the sentence was completed, and that where a sentence is still being served the time factor is not relevant.

For the length of the relationship, the policy points to whether the couple were in a relationship when the offence was committed or the sentence served, whether the applicant knew of the sponsor's history before the Department disclosed it, and the applicant's reasons for asking that the sponsorship be approved. For children, the policy treats their best interests as a primary consideration, but not the only one: risk of harm to the applicant or the applicant's family may outweigh it. The policy treats children of the sponsor or the primary applicant as including biological, adopted and step children, and the firm's article on stepchildren in partner visa applications explains how stepchildren are treated more generally.

In a partner visa sponsor conviction no jail case that reaches this stage, the dates matter. A clear partner visa relationship timeline shows when the relationship began compared with the offence and the sentence, and partner visa relationship statements give each partner's own account, including the applicant's reasons for asking that the sponsorship be approved. The firm's guide to preparing evidence that a relationship is genuine and its article on Form 888 statements from people who know the couple explain the kind of evidence that commonly supports these submissions.

Where the decision maker is inclined to approve under regulation 1.20KC(4), the policy is to interview the applicant first, preferably in person and without the sponsor present, to check that the applicant is not being forced, coerced or intimidated, and to disclose the convictions with the sponsor's consent. The firm's guide to partner visa interview questions and the question page on whether there will be an interview for a spouse visa explain how interviews generally work.

Periodic detention and residential programs

Periodic detention and certain residential programs can create a significant criminal record without the sponsor ever being held in a prison full time, so they must be treated as part of any partner visa sponsor conviction no jail assessment.

Regulation 1.20KD(3) deals with periodic detention. The policy's table states that a sponsor sentenced to periodic detention, where the number of days the sponsor must spend in detention equals 12 months or more, has a significant criminal record. Periodic detention has been abolished or replaced in some Australian jurisdictions, but older sentences can still appear on a police check, and similar arrangements may exist in other countries.

Regulation 1.20KD(4) deals with residential schemes or programs. The policy's table states that a sponsor convicted of a relevant offence and ordered to participate in a residential drug rehabilitation scheme or a residential program for the mentally ill, where the total number of days the sponsor is required to participate equals 12 months or more, has a significant criminal record.

For both, the calculation looks at the days the sponsor was required to spend in detention or in the program. A sponsor who thinks of a residential rehabilitation order as treatment rather than punishment can be surprised to learn that it is counted. In a partner visa sponsor conviction no jail case, the full terms of the order must be obtained, including its length and any variation, because the short entry on a police check for a partner visa may not show them.

Intensive correction orders and other hybrid orders

An intensive correction order, and similar orders under which a sentence of imprisonment is served in the community, must be assessed on the terms of the particular order, and how a given order is characterised under regulation 1.20KD needs advice.

These orders sit between imprisonment and community-based sentences. In some jurisdictions, the court first decides that a term of imprisonment is appropriate and then orders that it be served by way of an intensive correction order in the community. In others, the structure is different. The name of the order alone does not answer the partner visa sponsor conviction no jail question.

The Department's procedural instruction does not address intensive correction orders by name. For that reason, this article does not state a rule about them. What can be said is that the relevant questions are what sentence the court imposed, whether the order is a term of imprisonment served in a particular way, what its length is, and whether the sponsor has other terms of imprisonment that might be added to it. The sentencing remarks, the formal order and the relevant sentencing legislation for that jurisdiction all need to be read together. Where the order was made overseas, a translation and an explanation of the foreign sentencing framework may also be needed. The firm's article on partner visas and overseas convictions explains how foreign records are approached.

Several convictions that add up

Two or more terms of imprisonment can be added together, so several short suspended sentences for relevant offences can reach the 12 month threshold even though no single sentence did.

Regulation 1.20KD(1) includes being sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. Regulation 1.20KD(2) deals with concurrent sentences. The policy's table gives a clear example: two sentences of 6 months, to be served concurrently, is a significant criminal record. In other words, the terms are totalled even though they ran at the same time.

This matters in partner visa sponsor conviction no jail cases where the sponsor has a history of several matters, each dealt with by a short suspended sentence. Each one may look minor. Added together, they may meet the definition. Fines, bonds and community orders do not add to the total, because they are not terms of imprisonment. A sponsor's full police history, and not only the most recent matter, should therefore be reviewed before anything is lodged. A partner visa sponsor conviction no jail history made up of several short suspended terms is one of the patterns most likely to be misjudged. The question page on what happens if a partner's sponsorship is refused explains the consequence for the visa.

Quashed or nullified convictions, and pardons where the person is taken never to have been convicted, are disregarded under regulation 1.20KD(5). A conviction that was set aside on appeal should therefore be documented with the appeal court's order. A sponsor who received a pardon should provide the instrument of pardon and evidence of its effect.

No significant criminal record: what the Department can and cannot do

Where the sponsor has a conviction for a relevant offence but no significant criminal record, the Department cannot refuse to approve the sponsorship under regulation 1.20KC(3), but it should, as a matter of policy and with the sponsor's written consent, disclose the conviction to the applicant.

Paragraph 3.5.4 of the procedural instruction sets this out. It says that the purpose of disclosure is to allow the applicant to make a more informed decision about continuing with the visa application. It recognises that an applicant might withdraw after learning of the sponsor's history, or might continue despite it. It also says that it is not the Department's intention to force or coerce the applicant one way or the other. The disclosure gives the applicant the chance to consider whether the information affects their decision to commit to the relationship and to migrate to Australia.

In practical terms, a partner visa sponsor conviction no jail case without a significant criminal record usually involves these steps:

• Police checks. The Department asks the sponsor for police checks and sees the conviction.
• Assessment. The delegate confirms that the offence is a relevant offence, that a conviction was recorded, and that there is no significant criminal record.
• Consent. The delegate checks whether the sponsor consented to disclosure on the sponsorship form, and if the sponsor was silent, asks for consent.
• Disclosure. With consent, the delegate tells the applicant about the conviction.
• Decision. The sponsorship cannot be refused under regulation 1.20KC(3), and the visa is decided on all the other criteria.

That does not make the conviction irrelevant to everything else. The policy on unresolved criminal matters notes that information about a sponsor's criminal case may be relevant to the genuineness of the relationship, depending on the circumstances. The firm's article on partner visa refusals for a non-genuine relationship explains how that assessment works.

Consent to disclose convictions in a partner visa sponsor conviction no jail case

The sponsor must consent to the Department disclosing convictions for relevant offences to each applicant, and if the sponsor refuses, the visa cannot be granted, even where the conviction itself could never have led to refusal under regulation 1.20KC(3).

This is a separate visa criterion in Schedule 2 of the Migration Regulations: subclause 300.222(2) for the Subclass 300, subclause 309.222(2) for the Subclass 309 and subclause 820.221(4) for the Subclass 820. It is a time of decision requirement. The policy explains three possibilities:

• The sponsor has consented on the sponsorship form. No further consent is needed before disclosure, however much time has passed since the consent was given.
• The sponsor has expressly declined. Grounds to refuse the visa exist because the relevant Schedule 2 criterion cannot be met. The delegate sends the applicant a section 57 natural justice letter saying that the sponsor has not consented and that the criterion cannot be satisfied. The details of the sponsor's convictions must not be put to the applicant in that letter or in the refusal notice.
• The sponsor was silent. The delegate should not assume refusal of consent. The sponsor is sent a "Request for consent to disclose convictions" letter. If the sponsor does not respond in the time requested, the delegate may find the criterion is not met and send the applicant a section 57 letter.

This is the point where many partner visa sponsor conviction no jail cases go wrong. A sponsor with a minor conviction for a relevant offence may feel that the conviction is private, old or embarrassing, and decline consent. The result is that a sponsorship which could not have been refused under regulation 1.20KC(3) leads to a refused visa anyway. The better course is usually for the sponsor to tell the applicant first, in their own words, and then give consent. The firm's guide to responding to a section 57 natural justice letter and the question page on what a section 57 natural justice letter is explain what happens if a letter does arrive.

Any request for consent is made to the sponsor directly, not to the applicant. Unless the sponsor has appointed a representative or authorised recipient using Form 956 or Form 956A, the Department will deal with the sponsor personally. A sponsor who wants the firm to act for them on the sponsorship issues needs to make that appointment separately from the applicant.

Non-conviction outcomes cannot be relied on or disclosed

Where a court found the sponsor guilty but did not record a conviction, or the matter was dealt with by diversion, the Department cannot rely on the offence to refuse the sponsorship and cannot disclose it to the applicant under the sponsorship rules.

The policy is explicit. Where a sponsor's police checks show that the sponsor committed a relevant offence but no conviction was recorded, the delegate "cannot disclose these offences or rely on them to refuse to approve the sponsorship". The examples given are a good behaviour bond or an intervention program on the basis that no conviction will be recorded if the sponsor complies. The policy also says that situations where a court finds a person guilty without proceeding to a conviction are irrelevant to the sponsorship limitations and to the consent to disclose requirements.

For a partner visa sponsor conviction no jail assessment, this creates a clear dividing line:

• No conviction recorded. Outside regulation 1.20KC entirely. No refusal under regulation 1.20KC(3) and no disclosure under the consent requirement.
• Conviction recorded, no imprisonment. Inside regulation 1.20KC for disclosure and consent, but no refusal under regulation 1.20KC(3).
• Conviction recorded, significant criminal record. Refusal required under regulation 1.20KC(3) unless approval is reasonable under regulation 1.20KC(4).

Charges that were withdrawn or dismissed, and acquittals, also involve no conviction. Charges that are still pending are dealt with separately below. The firm's question pages on whether a sponsor's criminal record stops a partner visa and on whether a lawyer can help when a sponsor has a criminal record summarise the position. The article on partner visas and spent convictions explains a related but separate disclosure question that often arises for older matters.

Court records that prove the sentence type

The best evidence of the sentence type is the court's own record of the outcome, supported by the sentencing remarks where they exist, because the partner visa sponsor conviction no jail position depends on exactly what the court ordered.

A police check usually shows the offence, the date and a short description of the outcome. That description can be abbreviated or unclear, particularly for older matters, foreign records and orders with several parts. Where the Department sees a relevant offence on a police check, the sponsor will be better placed if the court documents have already been obtained and reviewed. Useful documents usually include:

• The court outcome record or certificate of conviction. This shows whether a conviction was recorded and what sentence or order was made.
• The formal sentencing order. This shows the type of order, its length and its conditions, including whether a term of imprisonment was imposed and suspended.
• The sentencing remarks. Where the court gave reasons, these explain the sentence and often record matters such as remorse, rehabilitation and the circumstances of the offence.
• Evidence of completion. Confirmation that a bond, order or suspended sentence was completed without breach, which can matter both for the record and for the time factor in regulation 1.20KC(4).
• Appeal or annulment records. Any appeal court order varying the sentence or quashing the conviction.
• Translations. For foreign records, an accurate English translation, which the policy requires for foreign police checks in a language other than English.

These records are usually requested from the registry of the court that finalised the matter, or obtained through the criminal lawyer who acted at the time. Each court has its own process and timeframe, so they should be requested early. Where records cannot be obtained, a careful written explanation of the efforts made is better than silence.

How the records are presented also matters. A short, accurate covering explanation that identifies the offence, the court, the date, the sentence type and why the sentence does or does not meet the significant criminal record definition helps the delegate apply the law correctly. It is the sponsor's own history, presented accurately and supported by the documents. Where the sponsor gives a personal statement, it is the sponsor's own account, reviewed and corrected by the sponsor. The firm's guides on the AFP police check for partner visas and on overseas police certificates for partner visas explain how police checks are obtained.

A sponsor currently before the court: why sentence type matters before sentencing

A sponsor who is facing a relevant offence charge, or who has pleaded guilty and is awaiting sentence, should make sure the criminal lawyer understands the partner visa consequences of each sentencing option before sentence is imposed, because the choice between a non-conviction outcome, a community-based sentence and a suspended term of imprisonment can change the partner visa result.

The policy on unresolved criminal matters (paragraph 3.8.6) says that the sponsorship cannot be refused under regulation 1.20KC on the basis that a criminal matter for a relevant offence has not yet been finalised. A delegate may ask about the expected date of finalisation and has some scope to defer a decision if the charges are likely to be resolved soon, but decisions should not be unreasonably delayed. Each case turns on its facts. The firm's question page on pending criminal charges and partner visas explains the timing issues.

The outcome of the criminal matter is what determines the partner visa sponsor conviction no jail position. From a partner visa point of view only, the outcomes rank roughly as follows:

• No conviction recorded. Outside regulation 1.20KC for refusal and for disclosure.
• Conviction with a fine, bond or community-based order. No significant criminal record, but disclosure to the applicant with consent.
• Suspended term of imprisonment under 12 months. No significant criminal record on its own, but it is a term of imprisonment and can be added to other terms.
• Suspended term of 12 months or more. A significant criminal record, with refusal required unless approval is reasonable.

A criminal lawyer focused only on keeping the client out of custody may regard a suspended sentence as a good result. For a partner visa sponsor, a suspended sentence of 12 months can be a worse outcome than an unsuspended community-based sentence, because of how regulation 1.20KD counts it. The criminal court decides the sentence on criminal law principles, and the migration consequences are for the criminal lawyer to consider within those principles and the rules of that court. Migration advice does not replace criminal advice. It gives the criminal lawyer information needed to advise properly. With the sponsor's consent, early communication between the two lawyers is usually the most practical approach. The firm's article on urgent immigration lawyer advice explains what to prepare when a court date is close.

If a conviction is recorded after the partner visa application has been lodged, the applicant may need to notify the Department of the change, and the sponsor should expect a request for updated police checks. The policy allows subsequent requests where the delegate has reason to believe the sponsor has been convicted of a relevant offence, or has an outstanding charge for one, since the earlier check. The firm's article on Form 1022 for partner visas explains change of circumstances notifications.

Police checks the sponsor will be asked for

The Department can ask the sponsor, not the applicant, for an Australian police check and for police checks from any country where the sponsor has lived for 12 months or more since the later of 10 years before the request or turning 16.

Under regulation 1.20KC(5), the request goes to the sponsor. The Australian check is an Australian Federal Police National Police Check with the "Immigration/Citizenship Australia" purpose, and the policy is to request it where the sponsor has been present in Australia at any time since turning 16. Foreign periods are counted cumulatively. Under policy, the Department is not required to request police checks from female sponsors where there are no concerns about the sponsor's character, but the power applies to all sponsors.

Under regulation 1.20KC(6), the sponsorship may be refused if the checks are not provided within a reasonable time. Policy treats 28 days from the request as reasonable for providing the checks, or at least evidence that they have been requested, and says delegates should be flexible with extensions where a request has been made. A sponsor with a partner visa sponsor conviction no jail history sometimes delays providing checks because of the conviction. That is a serious mistake. A sponsorship that could not have been refused under regulation 1.20KC(3) can be refused under regulation 1.20KC(6) simply because the checks were not provided. The firm's article on expired police checks for partner visas, the question page on what a sponsor needs to provide and the question page on what to do if a police certificate cannot be obtained explain the practical side.

Other rules that still apply: genuineness, children and the applicant's own character

A partner visa sponsor conviction no jail outcome that passes regulation 1.20KC does not end every question, because the relationship must still be genuine, other sponsorship limitations may apply, and the applicant's own character is assessed separately.

Four related rules should be kept in mind:

• Genuineness. The facts behind a conviction, especially where the victim was the applicant or the conviction involved breach of a protection order, may be relevant to whether the relationship is genuine and continuing. The firm's family violence partner visa page explains the separate protections for applicants who have experienced family violence. Anyone in immediate danger should call 000.
• Regulation 1.20KB. Where a child under 18 is included in the application and the sponsor has a conviction or an unresolved charge for a registrable child sex offence, regulation 1.20KB applies and is considered first. The firm's article on adding children to a partner visa explains how children are included.
• The applicant's own character. Public interest criterion 4001 and section 501 apply to the applicant, not to the sponsor. The firm's guide to partner visa character requirements and its article on partner visas and section 501 explain the applicant's side.
• Accuracy. Information given to the Department must be accurate. The firm's article on refusals for false or misleading information explains why accuracy matters for every person involved.

If the visa is refused: review and Tribunal decisions

If a partner visa is refused because the sponsorship was not approved or because the sponsor did not consent to disclosure, the refusal is generally reviewable by the Administrative Review Tribunal, and the application for review must be made within 28 days after notification, or 7 days if the applicant is in immigration detention. That time cannot be extended.

Who applies depends on the visa. For a Subclass 820 refusal, the applicant applies. For a Subclass 309 refusal, the visa applicant applies. For a Subclass 300 refusal, the sponsor applies. The refusal notice will not usually state the sponsor's convictions as the reason, because the policy says the reasons for non-approval are not put to the applicant. In a partner visa sponsor conviction no jail case without a significant criminal record, a refusal is more likely to come from missing consent or missing police checks than from regulation 1.20KC(3), because refusal under that subregulation is not available without a significant criminal record. The question page on whether a lawyer can help with a sponsorship refusal explains the first steps. The firm's articles on who can lodge a partner visa appeal, the partner visa appeal deadline and the question page on who applies for review of an offshore spouse visa refusal explain the rules.

The Tribunal has remitted several sponsor conviction matters to the Department. Described only by the issues recorded:

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

These decisions show that the Tribunal considers the sentence type and the reasonableness factors on the evidence before it. They do not predict any other outcome. A remittal sends the matter back to the Department for a fresh decision; the question page on whether a visa will be granted if the Tribunal sends the case back explains what follows. The firm's partner visa refusals page, its visa refusals and Tribunal review page, the guide to the partner visa ART review process, the article on partner visa ART evidence and the question page on challenging a refusal involving sponsorship limitations explain the process. Where a Tribunal decision involves a legal error, judicial review may be available.

Partner visa sponsor conviction no jail advice across Australia

My Migration Lawyers advises sponsors and applicants on partner visa sponsor conviction no jail issues wherever they live, with consultations held by video.

The firm acts as partner visa lawyers in Sydney and Parramatta, Melbourne, Brisbane, Perth and Adelaide, and for clients on the Gold Coast, in Canberra and in Hobart. Couples who already have a representative can seek a partner visa second opinion, and the firm's partner visa questions centre answers many related questions.

How My Migration Lawyers helps with a partner visa sponsor conviction no jail case

My Migration Lawyers deals with complex sponsorship cases under regulations 1.20KC and 1.20KD, acts in many matters where a sponsor has a conviction but did not go to prison, and is capable of handling a partner visa sponsor conviction no jail case from the first review of the record through to Tribunal review.

The firm's work on this problem is specific:

• Reading the record. The firm reviews the sponsor's police checks and court documents to establish whether each offence is a relevant offence, whether a conviction was recorded, and exactly what sentence was imposed.
• Applying regulation 1.20KD. The firm advises whether a suspended sentence, periodic detention, a residential program or a combination of terms reaches the significant criminal record threshold, and identifies any order, such as an intensive correction order, whose terms need closer analysis.
• Consent and disclosure. The firm explains the consent to disclose requirement to the sponsor, so that consent is not refused by mistake and the applicant does not first hear about the conviction from the Department.
• Court records. The firm identifies the court documents and sentencing remarks needed and presents them with an accurate covering explanation.
• Reasonableness submissions. Where a significant criminal record exists, the firm prepares submissions and evidence on the matters in regulation 1.20KC(4), drawn from the clients' own accounts and documents.
• Working with the criminal lawyer. For a sponsor still before the court, the firm explains the partner visa consequences of each sentencing option to the criminal lawyer, with the sponsor's consent.
• Review. Where a visa is refused, the firm prepares the Tribunal application, evidence and submissions within the strict time limit.

The firm's Principal Lawyer, Weiwei Zhang, oversees its partner visa practice. More about the firm is on the about page and its home page.

If you are a sponsor with a conviction but no jail time, or you are being sponsored by someone with a partner visa sponsor conviction no jail history, book a consultation online. You can also call 1300 040 300.