Partner Visa Sponsor With a Criminal Record

A partner visa sponsor criminal record is a criminal history held by the Australian citizen, permanent resident or eligible New Zealand citizen who sponsors a partner. The central message is reassuring: a partner visa sponsor criminal record does not stop most sponsorships. Only a narrow combination of offence type and sentence length can lead the Department of Home Affairs to refuse to approve the sponsor.

This guide explains how a partner visa sponsor criminal record is assessed under regulations 1.20KC and 1.20KD of the Migration Regulations 1994. It takes the reader through a four-step decision path. First, is there a recorded conviction at all? Second, is the offence a relevant offence or a non-relevant offence? Third, does the sponsor have a significant criminal record? Fourth, if both apply, is it still reasonable to approve the sponsorship? It then covers police checks, consent to disclose convictions, what the applicant is told, children in the application, the applicant's own character test, the genuine relationship assessment, overseas records, pending charges and preparation before lodgement.

The sponsor rules sit within the wider law on partner visa sponsorship limitations, which also covers sponsors who have sponsored partners before and sponsors who were themselves sponsored as partners. For an overview of every stage and subclass, the firm's complete guide to partner visas in Australia is the best starting point.

Can you sponsor a partner visa with a criminal record?

Yes. A person with a criminal record can sponsor a partner for a Subclass 820, Subclass 309 or Subclass 300 visa, and in most partner visa sponsor criminal record cases the record has no legal effect on the sponsorship at all.

Regulation 1.20KC(3) requires the Department to refuse to approve a sponsorship only where two conditions are both met. The sponsor must have been convicted of a "relevant offence", and the sponsor must have a "significant criminal record" in relation to that offence. Most criminal records meet neither condition. Many records involve no recorded conviction. Many involve offences outside the relevant offence list. Many involve fines, bonds, community orders or short sentences well under the 12 month threshold.

Even where both conditions are met, regulation 1.20KC(4) allows the Department to approve the sponsorship if it is reasonable to do so. The decision maker must have regard to the time since the sentence was completed, the best interests of any children of the sponsor or the applicant, and the length of the relationship.

The honest position is therefore this. A partner visa sponsor criminal record is a risk to be assessed, not an automatic bar. A sponsor with a serious violent history and a long prison sentence faces a real legal hurdle. A sponsor with an old drink driving conviction faces no hurdle under regulation 1.20KC. The difference lies in the detail of the record, and the detail is what a careful assessment examines. The firm's FAQ on whether you can get a partner visa if your sponsor has a criminal record gives a short answer, and this guide explains the full reasoning.

Partner visa sponsor criminal record or applicant criminal record: which rules apply?

A partner visa sponsor criminal record is assessed under the sponsorship limitation in regulations 1.20KC and 1.20KD, while the visa applicant's own criminal record is assessed under the character test in public interest criterion 4001 and section 501 of the Migration Act 1958.

These are two separate legal tests, and they are often confused. The applicant must pass the character requirement. The sponsor does not have to pass the character test at all. The sponsor only has to avoid the specific combination set out in regulation 1.20KC(3), or have the sponsorship approved under regulation 1.20KC(4).

The firm has published guides that deal mainly with the applicant's own record. The article on applying for a partner visa with a criminal record and the guide to using a partner visa lawyer for a criminal record explain how the applicant's convictions are assessed. The guide to partner visa character requirements sets out public interest criterion 4001 in more detail.

This article is about the sponsor's record. Where both partners have a criminal history, both sets of rules apply at the same time, and each must be assessed on its own terms. A partner visa sponsor criminal record and an applicant record can also interact in the genuine relationship assessment, which is discussed later in this guide.

Which visas does the partner visa sponsor criminal record rule cover?

The partner visa sponsor criminal record rule in regulation 1.20KC applies to applications for the Subclass 300 Prospective Marriage visa, the Subclass 309 Partner (Provisional) visa and the Subclass 820 Partner (Temporary) visa made on or after 18 November 2016.

The Department's procedural instruction confirms that regulation 1.20KC does not apply to the permanent Subclass 100 or Subclass 801 stage. The sponsor's record is assessed once, at the temporary stage. The firm's guide to the difference between Subclass 820 and Subclass 801 explains how the two stages fit together.

The regulation 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 with a history of violence. That purpose explains why the relevant offence list focuses on violence, harassment, weapons and exploitation rather than on dishonesty or drug offences.

When is the sponsor's record assessed?

Sponsorship approval is a time of decision criterion. It appears in clause 300.222 for the Subclass 300 visa, clause 309.222 for the Subclass 309 visa and clause 820.221 for the Subclass 820 visa. At the time of application, the criteria only require the applicant to be sponsored by an eligible sponsor.

This timing matters in every partner visa sponsor criminal record matter. The sponsor's police checks must normally be valid when the decision is made. Department policy allows a decision maker to rely on expired checks only where the delay was outside the parties' control and the expired checks show no relevant offence. The firm's guide on expired police checks for partner visas explains when updated checks are needed.

The commercial pages for each subclass, the Subclass 820 onshore partner visa, the Subclass 309 offshore partner visa and the Subclass 300 Prospective Marriage visa, set out the other criteria that must be met alongside sponsorship approval.

Step 1: Is there a recorded conviction at all?

The first question in any partner visa sponsor criminal record assessment is whether a court actually recorded a conviction, because regulation 1.20KC only operates on convictions, and many criminal records contain none.

The Department's policy defines a conviction for this purpose as the situation where, following a finding of guilt or a plea of guilty, the court has recorded a conviction. Several common outcomes fall outside that definition.

• Good behaviour bond without conviction. Where the court released the sponsor on a bond on the basis that no conviction would be recorded, the offence cannot be relied on or disclosed under regulation 1.20KC.
• Intervention program without conviction. Where the sponsor was ordered to take part in an intervention program on the basis that no conviction would be recorded, the same applies.
• Finding of guilt without conviction. Where a court found the sponsor guilty but did not proceed to a conviction, the policy says this is irrelevant to the sponsorship limitation and to the consent to disclose requirement.
• Charges only. A charge is not a conviction. Charges that were withdrawn, dismissed or ended in acquittal are not convictions. Charges that are still before a court are dealt with separately, under the policy on unresolved criminal matters discussed later.

The firm's FAQ on whether charges that did not lead to a conviction must be disclosed deals with the related disclosure questions on the forms.

Spent convictions

Spent convictions need care. A conviction that is spent under a Commonwealth, State or Territory spent convictions scheme is not automatically invisible for migration purposes, because those schemes contain exclusions that can apply to immigration assessments. A sponsor should not assume that an old conviction will be ignored. The safer course is to obtain the police check first, see exactly what it records, and get advice before answering any question. The firm's guide on spent convictions and partner visas explains the disclosure issues.

Where the sponsor has no recorded conviction at all, the Department cannot refuse to approve the sponsorship under regulation 1.20KC(3). That ends the partner visa sponsor criminal record analysis under this regulation, although the facts may still matter under regulation 1.20KB where children apply, or to the genuineness of the relationship.

Step 2: Is it a relevant offence or a non-relevant offence?

The second step in a partner visa sponsor criminal record assessment is to decide whether each conviction is for a "relevant offence" under regulation 1.20KC(2), because convictions for any other kind of offence cannot ground a refusal under regulation 1.20KC(3).

Regulation 1.20KC(2) defines a relevant offence as 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 list is closed. If an offence does not involve one of those matters, it is not a relevant offence. Department policy allows decision makers to use the Australian Bureau of Statistics offence classification to interpret offences, and to consult the Department's Partner Program Management section where a foreign offence uses unclear terms.

Offences that are usually not relevant offences

Many partner visa sponsor criminal record situations involve offences outside the list. Common examples include:

• drink driving, drug driving and most other traffic offences;
• drug possession, use and supply, unless the facts also involve weapons or violence;
• fraud, dishonesty and social security offences;
• theft, burglary without violence and property damage; and
• public order offences that do not involve violence, threats or intimidation.

The policy states expressly that where a sponsor has convictions for offences other than relevant offences, the Department cannot refuse to approve the sponsorship under regulation 1.20KC(3) and cannot disclose those convictions to the applicant under this policy. The guide on drink driving convictions and partner visas deals with that common example from the applicant's side.

Classification is not always obvious. A robbery may involve violence. A property damage offence may have been committed in a domestic setting with threats. An offence label from another country may not match an Australian category. The facts recorded in the court documents, not only the offence name, often decide whether a partner visa sponsor criminal record contains a relevant offence. The firm's article on what a domestic violence charge means for a partner visa explains why violence in a domestic setting is treated so seriously.

Where every conviction on the record is a non-relevant offence, the partner visa sponsor criminal record analysis under regulation 1.20KC ends here, in the sponsor's favour.

Step 3: Does the sponsor have a significant criminal record?

The third step is to decide whether the sponsor has a significant criminal record in relation to the relevant offence, because a partner visa sponsor criminal record with a relevant offence conviction but no significant criminal record cannot lead to refusal under regulation 1.20KC(3).

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

Regulation 1.20KD then deals with special cases. Subregulation (2) deals with concurrent sentences. The Department's policy gives the example that two sentences of 6 months served concurrently is a significant criminal record, because the terms are added together. Subregulation (3) deals with periodic detention, which counts where the days the sponsor must spend in detention total 12 months or more. Subregulation (4) deals with residential drug rehabilitation schemes and residential programs for the mentally ill, which count where the required participation totals 12 months or more. Subregulation (5) provides that a conviction that has been quashed or nullified, or a pardon where the person is taken never to have been convicted, is disregarded.

Suspended sentences and early release

Two points surprise many sponsors in a partner visa sponsor criminal record assessment. First, a suspended sentence counts. The policy states that a suspended sentence is a sentence to a term of imprisonment for this purpose, whether or not the person spent any time in prison. It is the sentence imposed that matters, not the time served. Second, a sentence of 12 months or more counts even if the sponsor was released early on parole.

These rules mean that a partner visa sponsor criminal record without any time in custody can still contain a significant criminal record. A sponsor who received a suspended sentence of 12 months for an assault has a significant criminal record for a relevant offence.

Relevant offence without a significant criminal record

Where the sponsor has a relevant offence conviction but no significant criminal record, the policy is clear that the Department cannot refuse to approve the sponsorship under regulation 1.20KC(3). This is the most common outcome where a partner visa sponsor criminal record includes a violence offence dealt with by a fine, a community order or a short sentence.

That conviction is not irrelevant, however. As a matter of policy, and with the sponsor's consent, the Department discloses relevant offence convictions to the applicant so that the applicant can make an informed decision about continuing with the application. That process is explained below.

Step 4: When is it reasonable to approve the sponsorship anyway?

Where a partner visa sponsor criminal record contains both a relevant offence conviction and a significant criminal record, regulation 1.20KC(4) still allows the Department to approve the sponsorship if it considers it reasonable to do so.

In a partner visa sponsor criminal record case at this step, the decision maker must have regard to three matters, although the list is not exhaustive:

• 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 of the primary visa applicant; and
• the length of the relationship between the sponsor and the primary visa applicant.

The Department's policy explains that "have regard" means the decision maker must consider each matter and show how it was considered. It does not mean each matter must be met or satisfied. The policy warns that it would be an error of law to refuse because one of the matters was "not met".

Time since the sentence was completed

In a partner visa sponsor criminal record case, a sponsor who completed a sentence many years ago, and has not reoffended, is in a stronger position than a sponsor with recent offending. Department policy says decision makers should be cautious about approving a sponsorship solely on the basis of elapsed time if less than 5 years have passed since the sentence was completed. That is a policy guideline, not a rule of law, and other factors can support approval within that period. Where the sponsor is still serving the sentence, the policy treats this factor as not relevant rather than as a reason for refusal. The firm's article on relationships during imprisonment and the FAQ on whether a partner visa is possible while a partner is in prison deal with that situation.

Best interests of children

For partner visa sponsor criminal record purposes, the children considered are the biological, adopted and step-children of the sponsor or the primary applicant. Department policy treats their best interests as a primary consideration, and the decision maker must consider them even where the sponsor does not raise them. Relevant matters include how long the child has lived with the sponsor, the care and support the sponsor gives, the sponsor's involvement in the child's upbringing, any court orders such as an apprehended violence order or custody orders, the child's integration in Australia and the effect of refusal on the child. Orders denying the sponsor contact with a child weigh against approval. The policy also recognises that the best interests of children are not the only consideration, and that a risk of harm to the applicant or the applicant's family may outweigh them. The firm's guide to stepchildren in partner visa applications explains how children are included.

Length of the relationship

A long relationship does not guarantee approval of a partner visa sponsor criminal record case, and a short one does not require refusal. Department 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 the nature and extent of the sponsor's history before the Department disclosed it, and the applicant's own reasons for wanting the sponsorship approved. The firm's article on commitment evidence explains how the history of a relationship is shown.

The interview before approval

If the decision maker is inclined to approve under regulation 1.20KC(4), Department policy is to interview the applicant before approving. The interview should preferably take place in person and without the sponsor present. Its purpose is to make sure the applicant is not being forced, coerced or intimidated, and, where the sponsor has consented, to disclose the sponsor's convictions for relevant offences. The firm's guides to partner visa interview questions and telephone interviews explain how Department interviews are run. A partner visa sponsor criminal record matter that reaches this stage should be prepared on the basis that the applicant will speak alone.

Tribunal decisions on a partner visa sponsor criminal record

The Administrative Review Tribunal, and before it the Administrative Appeals Tribunal, has reviewed refusals where the sponsor's criminal record was the central issue, and has sent some of those matters back to the Department for reconsideration.

Two examples, described only by the issues recorded, show the kinds of questions involved:

• 2107808 (Migration) [2024] AATA 4136 was a Subclass 309 matter. The issues recorded were sponsorship requirements, a conviction for a relevant offence with a suspended sentence, that a sponsorship may be approved if it is reasonable to do so, and remorse and no reoffending. The Tribunal remitted the matter.
• Naureen (Migration) [2024] ARTA 468 was a Subclass 309 matter. 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. The Tribunal remitted the matter.

These decisions show that the reasonableness discretion in regulation 1.20KC(4) is a real discretion that the Tribunal examines on the evidence before it. They do not predict the outcome of any other partner visa sponsor criminal record case. The firm's guide to the partner visa ART review process explains how that review works, and the FAQ on whether a visa will be granted if the Tribunal sends a case back explains what remittal means.

Police checks in a partner visa sponsor criminal record case

Under regulation 1.20KC(5), the Department may ask the sponsor to provide Australian and foreign police checks, and the request must be sent to the sponsor, not to the visa applicant.

Police checks are how the Department finds out about a partner visa sponsor criminal record in the first place. The Australian check is an Australian Federal Police National Police Check with the "Immigration/Citizenship" purpose. Department policy is to request it from any sponsor who has spent any time in Australia since turning 16. Presence is enough. Residence is not required. The firm's guide to the partner visa AFP police check explains how the check is obtained.

A foreign check may be requested for any country where the sponsor has lived for 12 months or more in total since the later of 10 years before the request or the sponsor's 16th birthday. The 12 months is cumulative. A foreign check in a language other than English needs an English translation. The firm's guide to overseas police certificates for partner visas explains how they are obtained from different countries.

Other points from the policy are important in a partner visa sponsor criminal record case:

• Female sponsors. Under policy, decision makers are not required to request police checks from female sponsors where there are no concerns about the sponsor's character. This is policy only. The legal power in regulation 1.20KC(5) applies to every sponsor.
• Representatives. The request goes to the sponsor directly, not through the applicant's representative, unless the sponsor has appointed one using Form 956 or Form 956A.
• Repeat requests. Checks can be requested more than once. Later requests are made where there is reason to believe the sponsor has a new relevant offence conviction or an outstanding charge.
• Electronic copies. Electronic copies are accepted. Originals or certified copies may be requested if a document is suspected to be bogus.

Reasonable time to provide checks

Regulation 1.20KC(6) allows the Department to refuse to approve the sponsorship if the sponsor does not provide requested checks within a reasonable time. Policy treats 28 days from the request as reasonable to provide the checks, or at least evidence that they have been requested, and recognises that more time may be appropriate. Where the sponsor shows the checks have been requested, decision makers should be flexible about extensions. Grounds for refusal arise where the period ends and the sponsor has not provided the checks, has not shown that the process was started, has not given a satisfactory explanation, and has not engaged with the Department at all. The FAQ on what to do if you cannot get a police certificate covers practical difficulties. Where a foreign check cannot be obtained, policy allows the sponsor to make a standard Commonwealth statutory declaration stating that they could not obtain the check, describing their efforts, and either stating that they have no convictions in that country or giving details of them.

A sponsor who ignores a police check request turns a manageable partner visa sponsor criminal record question into a refusal that has nothing to do with the record itself. The FAQ on what documents the sponsor needs to provide lists the usual sponsor documents.

Consent to disclose convictions on Form 40SP

The sponsor must consent to the Department disclosing convictions for relevant offences to the visa applicant, and that consent is itself a visa criterion for the Subclass 300, Subclass 309 and Subclass 820 visas.

The requirement appears in clauses 300.222(2), 309.222(2) and 820.221(4). The sponsorship form, Form 40SP, tells sponsors that police checks may be requested and asks the sponsor to give this consent. The firm's FAQ on what Form 40SP is explains the form more generally.

Department policy deals with three situations:

• Consent given. If the form shows consent, the Department does not need to ask again, however much time has passed.
• Consent expressly refused. If the sponsor expressly declines consent on the form, the relevant visa criterion cannot be met. The Department sends the applicant a section 57 letter saying the sponsor has not consented and the criterion cannot be satisfied. The details of the convictions are not put to the applicant.
• Form left silent. If the sponsor did not complete the consent question, the Department should not assume refusal. It sends the sponsor a "Request for consent to disclose convictions" letter. If the sponsor does not respond in time, the Department may find the criterion is not met.

This is a point many sponsors get wrong. A sponsor who wants to keep a partner visa sponsor criminal record private by refusing consent does not protect the application. Refusing consent defeats the visa, whatever the record contains. Consent only allows disclosure of convictions for relevant offences. It does not allow disclosure of non-relevant offences under this policy.

What is the applicant told about the sponsor's record?

What the applicant is told depends on which step of the partner visa sponsor criminal record analysis the case reaches, and the Department's policy deliberately limits what is disclosed.

• No conviction, or non-relevant offences only. Nothing is disclosed to the applicant under regulation 1.20KC.
• Relevant offence conviction, no significant criminal record. With the sponsor's consent, the Department discloses the relevant offence convictions to the applicant as a matter of policy, so the applicant can decide whether to continue. The policy says the purpose is not to force or coerce a decision either way.
• Refusal under regulation 1.20KC(3). The applicant receives a section 57 letter, but the reasons for non-approval, including the sponsor's convictions, are not put to the applicant in that letter or in the refusal notice.
• Approval under regulation 1.20KC(4). The applicant is usually interviewed and, with consent, told of the convictions before approval.

Where the Department considers that grounds exist under regulation 1.20KC(3), it must also invite the sponsor to comment on that adverse information. Sponsorship approval is part of the visa decision under section 65, not a separate decision, so the sponsor does not receive a separate notice of the outcome. If the sponsorship is not approved, the visa must be refused. The firm's guide to responding to a section 57 natural justice letter and its article on common adverse information examples in section 57 letters explain how these letters are answered.

The practical lesson is that the applicant should hear about a partner visa sponsor criminal record from the sponsor first, before the Department raises it. A history disclosed honestly between the couple is part of the context the decision maker considers under regulation 1.20KC(4)(c).

What if children are included in the application?

Where an applicant under 18 is included in the application, regulation 1.20KB can also apply, and Department policy says that regulation 1.20KB is considered first where grounds exist under both regulations.

Regulation 1.20KB deals with sponsors who have convictions for registrable offences, which broadly means child sexual offences, or who have outstanding charges for those offences. The sponsorship form asks the sponsor about convictions and unresolved charges for offences involving minors, and by signing the sponsorship undertaking the sponsor acknowledges that the Department may tell the applicant about convictions involving minors. A partner visa sponsor criminal record that includes an offence of this kind is assessed under a different and stricter framework from the one described above. The firm's guides on adding children to a partner visa and the FAQ on including your partner's children explain how children are included, and the sponsorship limitations page explains regulation 1.20KB in context.

Does the applicant still need to pass the character test?

Yes. The visa applicant must still satisfy public interest criterion 4001 and the character provisions in section 501, and that test is entirely separate from the partner visa sponsor criminal record assessment.

Public interest criterion 4001 and section 501 apply to the applicant, not to the sponsor. A sponsor with a long record does not make the applicant fail the character test. An applicant with a clean record does not cure a sponsor problem under regulation 1.20KC. The firm's guide to Form 80 for partner visas explains the applicant's character form, and the article on section 501 character concerns explains when the applicant's own record becomes a refusal issue.

A sponsor who is a permanent resident rather than a citizen should also remember that a criminal record can raise questions about the sponsor's own visa. That is a separate issue from the partner visa sponsor criminal record rules, but it can affect whether the sponsor remains eligible to sponsor at all. The FAQ on who can sponsor a partner visa explains sponsor eligibility.

Can a partner visa sponsor criminal record affect the genuine relationship assessment?

Yes. Even where regulation 1.20KC does not prevent approval, the facts behind a partner visa sponsor criminal record can be relevant to whether the relationship is genuine and continuing.

The Department assesses the relationship by looking at the financial aspects, the nature of the household, the social aspects and the nature of the commitment. A period in custody affects living arrangements. A protection order between the couple affects the household and commitment. Department policy on unresolved charges expressly says information about the case may be relevant to genuineness.

A criminal record does not have to weaken the relationship evidence. Where the applicant knew of the history, supported the sponsor through it and chose the relationship with full knowledge, that can support the commitment aspect. The relationship statement is each partner's own account, and where the history is relevant each partner should address it honestly in their own words. Form 888 statements from people who know the couple can confirm how the relationship continued. The guide to the genuine and continuing relationship test explains the legal test in full.

Where there is violence within the relationship, the position changes. Anyone in immediate danger should call 000. The firm's family violence partner visa page explains the provisions that allow some applicants to continue after the relationship ends because of family violence, and the FAQ on help when a sponsor is abusive explains the first steps.

Overseas convictions and a partner visa sponsor criminal record

Overseas convictions are assessed in the same way as Australian convictions, because regulation 1.20KC(2) expressly includes offences against the law of a foreign country.

The challenge is usually evidence rather than law. Foreign police checks may use offence names that do not match Australian categories. Sentences may be expressed differently. Court records may be hard to obtain or translate. Department policy recognises this and directs decision makers to seek internal advice where an overseas offence is unclear. In a partner visa sponsor criminal record case involving an overseas conviction, obtaining the court judgment and an accurate translation often makes the difference between a clear classification and an uncertain one. The firm's guide to partner visa overseas convictions explains these evidence problems from the applicant's side, and the same practical points apply to sponsors.

Pending charges against the sponsor

A sponsorship cannot be refused under regulation 1.20KC because a criminal matter for a relevant offence has not yet been finalised, according to paragraph 3.8.6 of the Department's procedural instruction.

The decision maker may ask about the case and the expected date of finalisation. Decisions should not be unreasonably delayed, but there is some scope to defer a decision if the charges are likely to be resolved soon. Information about the case may also be relevant to genuineness. If, apart from the pending matter, the sponsor already has a significant criminal record for a relevant offence, the sponsorship may be refused on that existing record. The firm's article on partner visas with pending charges explains this in detail, and the FAQ on a pending criminal charge gives the short answer.

The sentence that the criminal court imposes on the pending charge can decide the partner visa sponsor criminal record question. A sentence of 12 months or more, including a suspended sentence, for a relevant offence creates a significant criminal record. The sponsor's criminal lawyer should understand that consequence before any plea or sentencing submission.

What happens if the sponsorship is not approved?

If the sponsorship is not approved, the partner visa must be refused, and the refusal is generally reviewable by the Administrative Review Tribunal within strict time limits.

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. That time cannot be extended. For a Subclass 820 refusal, the applicant applies for review. For a Subclass 309 refusal, the visa applicant applies. For a Subclass 300 refusal, the sponsor applies. The firm's guides on the partner visa appeal deadline and who can lodge a partner visa appeal explain these rules, and the FAQ on challenging a refusal involving sponsorship limitations explains the review focus.

On review, the Tribunal considers the evidence at the time of its own decision. Updated police checks, sentencing remarks, evidence of rehabilitation and evidence about children can all be provided. The firm's partner visa refusals page, its visa refusals page and its guide to ART evidence in partner visa matters explain how review is prepared. Where the Tribunal makes a legal error, judicial review may be available.

Preparing a partner visa sponsor criminal record case before lodgement

The best time to deal with a partner visa sponsor criminal record is before the application is lodged, when the sponsor can obtain the full record, test it against each step of the analysis and prepare the evidence the Department will need.

A practical preparation sequence is:

• Obtain the police checks early. Get the Australian check and any foreign checks the sponsor is likely to be asked for, and read exactly what they record.
• Obtain the court documents. Collect court outcomes, sentencing remarks and any orders, so that conviction status and sentence length are clear.
• Classify each conviction. Decide whether each one is a recorded conviction, whether it is a relevant offence, and whether a significant criminal record exists.
• Tell the applicant. Make sure the applicant understands the history before the Department discloses it.
• Give consent on Form 40SP. Refusing consent defeats the application.
• Prepare reasonableness evidence where needed. Where both a relevant offence and a significant criminal record exist, gather evidence about time since the sentence, rehabilitation, children and the relationship.
• Keep the relationship evidence honest and current. Address the history where it is relevant, in the couple's own words.

The firm's partner visa application review before lodgement explains how an application is checked before it is lodged, and the article on when you need an immigration lawyer for a partner visa explains why sponsor history is one of the clearest reasons to seek advice first. A sponsor who already has a representative can obtain a partner visa second opinion.

Partner visa sponsor criminal record advice across Australia

My Migration Lawyers advises sponsors and applicants on a partner visa sponsor criminal record wherever they live, with consultations held by video.

The firm acts as partner visa lawyers for clients in Sydney, Parramatta, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra and Hobart. It also acts as immigration lawyers in Sydney, Melbourne and Brisbane. The FAQ on whether a lawyer can help where your sponsor has a criminal record explains the role in short form.

How My Migration Lawyers helps with a partner visa sponsor criminal record

My Migration Lawyers deals with complex partner visa matters, acts in many matters involving a partner visa sponsor criminal record, and is capable of handling these cases from the first assessment of the record through to Tribunal review.

The firm's work on a partner visa sponsor criminal record is specific to the problem:

• Reading the record properly. The firm reviews the police checks and court documents and identifies whether each entry is a recorded conviction, a finding of guilt without conviction, a charge or a spent matter.
• Applying the four steps. The firm advises whether each conviction is a relevant offence under regulation 1.20KC(2) and whether a significant criminal record exists under regulation 1.20KD, including suspended, concurrent and early release sentences.
• Police check strategy. The firm advises which Australian and foreign checks the sponsor is likely to need and how to respond to a police check request within a reasonable time.
• Consent and disclosure. The firm explains the consent requirement on Form 40SP and what the applicant will and will not be told.
• Reasonableness submissions. Where regulation 1.20KC(3) is engaged, the firm presents the sponsor's own evidence on time since sentence, rehabilitation, children and the relationship in the form regulation 1.20KC(4) requires.
• Children and character overlap. The firm advises where regulation 1.20KB, the applicant's character test or the genuine relationship assessment is also engaged.
• Review. Where a sponsorship is not approved and the visa is refused, the firm prepares the Tribunal application, evidence and submissions.

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

If you are a sponsor with a criminal record, or the partner of one, and want clear advice before lodging or responding to the Department, book a consultation. You can also call 1300 040 300.