Partner Visa Sponsor Relevant Offences Under Regulation 1.20KC

Partner visa sponsor relevant offences are the specific categories of criminal offence listed in regulation 1.20KC(2) of the Migration Regulations 1994. When an Australian sponsor has been convicted of one of these offences, the Department of Home Affairs looks more closely at whether the sponsorship can be approved. Understanding the partner visa sponsor relevant offences is the first step for any sponsor with a criminal history, and for any applicant who has learned that their partner has one.

This guide explains each category of partner visa sponsor relevant offences, paragraph by paragraph, from (a) to (h). It explains which charges commonly fall inside each category, where the borderline cases sit, which offences are not relevant offences at all, how foreign convictions are treated, and what the consent to disclose requirement means. It is written for sponsors who are Australian citizens, Australian permanent residents or eligible New Zealand citizens, and for the partners they are sponsoring, whether onshore or offshore.

The most important point is this. A conviction for a relevant offence is a necessary step towards a refusal, but it is not enough by itself. The firm's page on partner visa sponsorship limitations explains how this rule sits alongside the other limits on who can sponsor, and the article on when a sponsor cannot sponsor a partner visa in Australia sets out the full set of sponsorship restrictions.

What are partner visa sponsor relevant offences?

Partner visa sponsor relevant offences are offences against a law of the Commonwealth, a State, a Territory or a foreign country that involve any of the matters listed in regulation 1.20KC(2). The regulation lists eight matters:

• (a) violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
• (b) the harassment, molestation, intimidation or stalking of a person;
• (c) the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
• (d) firearms or other dangerous weapons;
• (e) people smuggling;
• (f) human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;
• (g) attempting to commit an offence involving any of the listed matters;
• (h) aiding, abetting, counselling or procuring the commission of an offence involving any of the listed matters.

The Department's procedural instruction on regulations 1.20KC and 1.20KD states the point plainly: not all offences that appear on a police check come within the scope of regulation 1.20KC. Only offences involving the listed matters are partner visa sponsor relevant offences. Everything else on a sponsor's record is outside this particular rule, even if it may be relevant somewhere else.

The list reflects the purpose of the rule. Regulation 1.20KC was introduced from 18 November 2016 as part of the Government's response to family violence. The aim is to give the Department a way to protect people who are being sponsored to Australia by a partner with a history of serious violent or controlling offending. That purpose explains why the list focuses on violence, intimidation, protection order breaches, weapons, and exploitation offences, and why it leaves out offences such as drug possession or fraud.

For the broader picture of how a sponsor's history is assessed, the guide to a partner visa with a criminal record explains how the applicant's own record and the sponsor's record are treated under different rules. The short answer to whether a partner visa can be granted if the sponsor has a criminal record is also in the firm's FAQ centre.

Which partner visas do the partner visa sponsor relevant offences rules apply to?

The partner visa sponsor relevant offences rules apply to applications for the Subclass 300, Subclass 309 and Subclass 820 visas made on or after 18 November 2016. They do not apply to the permanent Subclass 100 or Subclass 801 stage.

In practice, this means the sponsorship assessment under regulation 1.20KC happens at the first stage:

• Subclass 820 Partner (Temporary) visa, lodged in Australia. The firm's page on the Subclass 820 visa explains the onshore pathway.
• Subclass 309 Partner (Provisional) visa, lodged outside Australia. The page on the Subclass 309 visa explains the offshore pathway.
• Subclass 300 Prospective Marriage visa, for a fiancé or fiancée. The page on the Subclass 300 visa explains this pathway.

The difference between the temporary and permanent stages is explained in the guide to Subclass 820 vs Subclass 801. For a full overview of every partner subclass, the complete guide to partner visas in Australia is the starting point.

Timing also matters. Approval of the sponsorship is a time of decision criterion (clauses 300.222, 309.222 and 820.221). The time of application criteria only require the applicant to be sponsored by an eligible person. This means the partner visa sponsor relevant offences question is assessed when the Department is ready to decide the visa, and the sponsor's police checks must be valid at that time. A conviction recorded after lodgement but before the decision can therefore still be relevant. Anyone checking who can sponsor a partner visa should keep in mind that eligibility to sponsor at lodgement is not the end of the assessment.

Why a relevant offence alone is not enough to refuse a sponsorship

A conviction for one of the partner visa sponsor relevant offences does not, by itself, allow the Department to refuse the sponsorship. Regulation 1.20KC(3) requires two things together: the sponsor has been convicted of a relevant offence, and the sponsor has a significant criminal record in relation to that offence.

A significant criminal record is defined in regulation 1.20KD. In summary, it covers a sentence of death, imprisonment for life, a term of imprisonment of 12 months or more, or two or more terms of imprisonment that total 12 months or more. A suspended sentence of imprisonment counts, because it is the sentence imposed that matters, not the time actually served. Regulation 1.20KD also deals with concurrent sentences, periodic detention, residential programs, and quashed or pardoned convictions.

The Department's instruction is explicit. A delegate cannot refuse to approve a sponsorship for a sponsor who has been convicted of a relevant offence but does not have a significant criminal record. A sponsor whose only conviction for one of the partner visa sponsor relevant offences resulted in a fine, a community based order or a short sentence below the threshold cannot be refused under regulation 1.20KC(3) on that basis.

Even where both elements are present, regulation 1.20KC(4) allows the sponsorship to be approved if it is reasonable to do so. The decision maker must have regard to the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or the primary applicant, and the length of the relationship. These are matters to consider, not boxes that must each be ticked.

So the structure is:

• Is the offence one of the partner visa sponsor relevant offences? If not, regulation 1.20KC(3) cannot apply to it.
• Was a conviction recorded? If not, the offence cannot be relied on or disclosed.
• Is there a significant criminal record in relation to that offence? If not, refusal under regulation 1.20KC(3) is not available, although the conviction may be disclosed to the applicant with the sponsor's consent.
• If there is, is it nevertheless reasonable to approve the sponsorship under regulation 1.20KC(4)?

This article focuses on step 1, because every partner visa sponsor relevant offences analysis starts with classification. If the offence is outside the list, the rest of the analysis under this regulation never begins.

The applicant's own criminal history is a separate question. Public interest criterion 4001 and section 501 of the Migration Act 1958 apply to the visa applicant, not to the sponsor. The guides to partner visa character requirements and partner visa section 501 character concerns explain the applicant side.

Paragraph (a): violence against a person

Paragraph (a) covers any offence involving violence against a person, and the regulation expressly includes murder, assault, sexual assault and the threat of violence. The words "without limitation" make clear that these are examples, not a complete list.

This is the broadest category of partner visa sponsor relevant offences. Charges that commonly fall inside it include:

• common assault, assault occasioning actual bodily harm, and assault causing grievous or serious harm;
• wounding and causing injury, however described in the relevant State or Territory;
• murder, manslaughter and attempted murder;
• sexual assault, indecent assault and other sexual offences involving violence or lack of consent;
• domestic or family violence offences, where the underlying offence is an assault or a threat;
• threats to kill, threats to inflict harm, and other offences built on the threat of violence;
• robbery and armed robbery, where violence or the threat of violence is an element.

Domestic violence is a common context in which partner visa sponsor relevant offences arise. A sponsor convicted of assaulting a former partner, for example, has a conviction that falls squarely within paragraph (a). The guide to a partner visa domestic violence charge explains the related charge stage.

Borderline questions under paragraph (a)

Some offences sit closer to the edge of paragraph (a), and they are questions for advice rather than certainties:

• Resisting or assaulting police. Police officers are persons, so an assault on police is likely to involve violence against a person. Whether a charge of resisting arrest without any physical force involves violence is a question that depends on the facts.
• Affray and public order offences. Some public order offences require the use or threat of violence. Others, such as offensive language, do not. The elements of the specific charge matter.
• Dangerous driving causing death or injury. These offences cause harm to a person, but they are not usually described as violence. Whether they involve "violence against a person" in this sense is a genuinely open question.
• Property damage during a domestic incident. Damaging property is not violence against a person. Where the damage was used to frighten a partner, the question may shift to paragraph (b), intimidation.

The firm's page for family violence partner visa lawyers explains how family violence is treated across the partner visa program more generally.

Paragraph (b): harassment, molestation, intimidation or stalking

Paragraph (b) covers any offence involving the harassment, molestation, intimidation or stalking of a person. These offences do not need physical violence. They capture conduct that controls, frightens or follows another person.

Charges that commonly fall inside this category of partner visa sponsor relevant offences include:

• stalking, however named in the relevant State or Territory;
• intimidation offences, including intimidation in a domestic relationship;
• using a carriage service to menace, harass or cause offence, where the facts involve harassment of a person;
• harassment offences under State or Territory law;
• offences involving repeated unwanted contact, monitoring or following;
• molestation, which in this context generally refers to persistent interference with a person rather than only sexual conduct.

This category matters because modern family violence often involves coercive and controlling conduct rather than physical injury. A sponsor convicted of stalking a former partner, or of sending threatening messages, may have a conviction for one of the partner visa sponsor relevant offences even though no one was physically hurt. The FAQ on whether emotional, financial or psychological abuse can count as family violence explains the related concept in the family violence provisions.

Borderline questions under paragraph (b)

Borderline questions here usually turn on whether the offence was directed at a person:

• Online offences. An offence of using a carriage service in an offensive way may or may not involve harassment of a person, depending on what was said and to whom.
• Nuisance calls. Repeated calls to a business may be a different matter from repeated calls to a former partner.
• Breach of bail conditions. A bail breach is not, by itself, harassment or a breach of a protection order. If the bail condition was a no contact condition protecting a person, the facts behind the breach may still be relevant.

Paragraph (c): breach of an AVO or similar order

Paragraph (c) covers any offence involving the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country.

Different Australian jurisdictions use different names for these orders. Apprehended violence orders, domestic violence orders, intervention orders, family violence orders, violence restraining orders and protection orders are all forms of order that protect a person from another person. A conviction for contravening any of them is likely to be among the partner visa sponsor relevant offences under paragraph (c). Foreign protection orders are also included, because the paragraph refers to orders issued under the law of a foreign country.

The guide to a partner visa with intervention orders explains how orders themselves are treated, and the FAQ on getting a partner visa if there is a domestic violence order against you answers a related question for applicants.

Three points are important here:

• The order itself is not an offence. An AVO or similar order is a civil order. Having an order made against a sponsor is not a conviction. Paragraph (c) is about a conviction for breaching the order.
• The breach does not need to involve violence. Many breaches involve contact, messages or approaching a protected person. The breach itself is the relevant matter.
• The orders may matter elsewhere. Even where there is no conviction, a protection order may be relevant to the best interests of children under regulation 1.20KC(4), or to how the Department views the relationship.

Borderline questions under paragraph (c)

The phrase "a similar order, issued under a law of a State, a Territory or a foreign country" raises questions that call for advice:

• Whether an injunction or order made under Commonwealth family law is "a similar order" within paragraph (c), given that the paragraph names State, Territory and foreign law, is an open question.
• Whether a bail condition requiring no contact is "a similar order" is also a question for advice. One view is that a bail condition is a different kind of order, but the conduct behind the breach may fall within paragraph (b).

Applicants who are being sponsored by a partner with a history of protection orders, and who feel unsafe, should read the FAQ on what to do if a sponsor is abusive while you are on a partner visa and the guide to partner visa family violence options. Anyone in immediate danger should call 000.

Paragraph (d): firearms or other dangerous weapons

Paragraph (d) covers any offence involving firearms or other dangerous weapons. It is not limited to offences where a weapon was used to hurt someone.

Charges that commonly fall inside this category of partner visa sponsor relevant offences include:

• possessing an unregistered or unlicensed firearm;
• possessing a prohibited weapon, such as certain knives, batons, knuckledusters or other weapons prohibited under State or Territory law;
• carrying a knife or other weapon in a public place without lawful excuse;
• using, discharging or brandishing a firearm or weapon;
• armed robbery and assault with a weapon, which will also fall within paragraph (a);
• supplying or trafficking firearms or weapons.

The wording "involving firearms or other dangerous weapons" is broad. On its plain words, it is not confined to violent use. A firearms licensing offence may therefore be among the partner visa sponsor relevant offences even though no person was threatened. That has practical consequences. A sponsor who works in a rural area and was convicted years ago of a firearm storage offence may be surprised to learn that it is treated as relevant. Whether that conviction can lead to a refusal still depends on whether there is a significant criminal record in relation to it, and for a storage offence that may be less likely.

Borderline questions under paragraph (d)

The main borderline questions are:

• Administrative firearms offences. Whether a pure paperwork or storage offence "involves firearms" in the sense the regulation intends is a question for advice. The plain words suggest it does.
• Everyday objects. Whether an item such as a tool or a bottle is a "dangerous weapon" can depend on how it was used and how the offence was framed.
• Imitation firearms. Offences involving imitation firearms may or may not fall within paragraph (d), depending on how the law of that jurisdiction defines them.

Paragraph (e): people smuggling

Paragraph (e) covers any offence involving people smuggling. People smuggling generally means organising or facilitating the unlawful entry of people into a country, often for payment.

Both Australian and foreign people smuggling offences are covered, because the regulation applies to offences against the law of the Commonwealth, a State, a Territory or a foreign country. This category is less common in partner visa matters than violence or protection order breaches, but it is included because people smuggling is closely linked to exploitation and risk of harm.

This category of partner visa sponsor relevant offences raises a terminology issue. Some countries use offence names that combine smuggling, illegal border crossing and document fraud. A sponsor convicted overseas of an offence connected with border crossing may need advice on whether the conviction involved people smuggling, or a different matter such as using a false document for their own travel. The second scenario is not obviously within paragraph (e).

Paragraph (f): human trafficking, slavery, forced marriage, kidnapping and unlawful confinement

Paragraph (f) covers any offence involving human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement.

This is a group of offences that all involve taking control of another person's freedom. Charges that commonly fall inside this category of partner visa sponsor relevant offences include:

• human trafficking and offences related to trafficking in persons;
• slavery, servitude, forced labour and deceptive recruiting, which are slavery-like practices;
• forced marriage, which the regulation names expressly;
• kidnapping and abduction;
• false imprisonment, deprivation of liberty and unlawful detention, however named in the relevant jurisdiction.

Forced marriage is named expressly because of its obvious connection to partner visas. A partner visa program that allowed a person convicted of forcing someone into marriage to sponsor a new spouse without close scrutiny would undermine its own purpose. The guide to a partner visa refused in an arranged marriage explains the important difference between an arranged marriage, which is lawful, and a forced marriage, which is not.

Unlawful confinement is also significant in family violence settings. A sponsor convicted of preventing a partner from leaving a home, for example, may have a conviction for one of the partner visa sponsor relevant offences under paragraph (f), as well as under paragraph (a) if force or threats were used.

Borderline questions under paragraph (f)

Questions for advice include:

• Parental child abduction. Offences involving taking a child in breach of custody arrangements may be described as abduction or kidnapping in some jurisdictions. Whether they involve "kidnapping" in the sense of paragraph (f) depends on the offence and the facts.
• Labour exploitation. Some workplace offences relate to underpayment rather than forced labour. Underpayment alone is not a slavery-like practice, but the line can be harder to see where threats or control of documents were involved.

Paragraphs (g) and (h): attempts and accessories

Paragraphs (g) and (h) extend the list of partner visa sponsor relevant offences to people who tried to commit a listed offence, or who helped someone else commit one.

Paragraph (g) covers attempting to commit an offence involving any of the listed matters. An attempted murder, an attempted assault or an attempted kidnapping is therefore treated in the same way as the completed offence for the purpose of classification.

Paragraph (h) covers aiding, abetting, counselling or procuring the commission of an offence involving any of the listed matters. These are the traditional forms of accessorial liability:

• aiding means helping someone commit the offence;
• abetting means encouraging the offence at the time it is committed;
• counselling means advising or urging someone to commit the offence;
• procuring means bringing about the commission of the offence.

The effect is that a sponsor who did not personally commit the violence, but was convicted as an accessory, may still have a conviction for one of the partner visa sponsor relevant offences. Whether there is a significant criminal record in relation to that conviction is a separate question. Conspiracy and incitement are not named in paragraphs (g) or (h). Whether a conspiracy conviction "involves" one of the listed matters is a question for advice, and the answer may depend on the underlying conduct.

What does "involving" mean for partner visa sponsor relevant offences?

The word "involving" means the question is whether the offence involves one of the listed matters, not whether the offence carries a particular name. The conduct behind the conviction can therefore be as important as the offence title on a police certificate.

This point is easily misunderstood. Some sponsors assume that because their conviction is not called "assault" or "stalking", it cannot be among the partner visa sponsor relevant offences. That is not how the regulation is written. An offence called "intimidation" may involve the threat of violence. An offence called "contravene a protection order" may involve stalking. An offence called "unlawful entry" may have been committed in circumstances involving violence against a person.

The reverse is also true. An offence that sounds serious may not involve any of the listed matters. A charge described in general terms, such as "public mischief" or "causing a disturbance", may or may not involve the threat of violence, depending on its elements and facts.

In practice, the analysis of partner visa sponsor relevant offences usually involves:

• identifying the exact offence, the statute and the section under which the conviction was recorded;
• looking at the elements of that offence, meaning what the prosecution had to prove;
• reviewing the facts as found by the court or set out in the agreed facts or sentencing remarks;
• asking whether the offence, as committed, involved any of the matters in paragraphs (a) to (h).

Court documents are therefore important. Sentencing remarks, the statement of facts and the court record show what the conviction actually involved. The guide to completing Form 80 for a partner visa explains how criminal history is described in the Department's forms, although the sponsor's assessment under regulation 1.20KC is driven by the sponsor's police checks.

Offences that are not partner visa sponsor relevant offences

Offences that do not involve any of the matters in regulation 1.20KC(2) are not partner visa sponsor relevant offences, and a conviction for them cannot ground a refusal of the sponsorship under regulation 1.20KC(3). The Department's instruction also says such convictions cannot be disclosed to the visa applicant under this policy.

Common examples of offences that are usually outside the list include:

• drug offences, such as possession, use, cultivation and supply of prohibited drugs, unless a weapon or violence was involved;
• fraud and dishonesty offences, such as fraud, obtaining property by deception and forgery;
• theft and property offences, such as stealing, shoplifting, receiving stolen goods and break and enter without violence;
• drink driving and drug driving;
• traffic offences, such as speeding, driving while disqualified or driving unlicensed;
• property damage without violence, such as graffiti or malicious damage that did not involve threats to a person;
• regulatory offences, such as tax, licensing or workplace offences that do not involve exploitation of a person.

The guide to a partner visa drink driving conviction explains how drink driving is treated as a character question for the applicant. Where the conviction belongs to the sponsor, drink driving is not one of the partner visa sponsor relevant offences.

Why non-relevant offences can still matter

An offence that is not among the partner visa sponsor relevant offences is not irrelevant to every part of the application. It is simply outside regulation 1.20KC(3). Other provisions can still apply:

• Regulation 1.20KB. Where an applicant under 18 is included in the application, regulation 1.20KB limits sponsorship where the sponsor has a conviction or an unresolved charge for a registrable offence, which includes child sex offences. Where both regulation 1.20KB and regulation 1.20KC grounds exist, the Department considers regulation 1.20KB first. The guide to adding children to a partner visa explains the child applicant side.
• The genuine relationship assessment. The circumstances of an offence, such as a fraud committed jointly by the couple, can sometimes be relevant to whether the relationship is genuine and continuing. The guide to the genuine and continuing relationship test explains that assessment.
• Mixed offending. A drug supply conviction where a weapon was found, or a theft that involved threats, may involve a listed matter even though the main offence is outside the list.

Foreign convictions and different offence names

Foreign convictions can be partner visa sponsor relevant offences, because regulation 1.20KC(2) covers offences against the law of a foreign country. The difficulty is that foreign legal systems often use different terms from Australian law.

The Department's instruction recognises this. It notes that some countries use different terminology from that used in an Australian National Police Check, so it may be difficult to decide whether an offence on a foreign police check is a relevant offence. Where that happens, delegates are advised to consult the Department's Partner Program Management section.

The instruction also says delegates may refer to the Australian and New Zealand Standard Offence Classification published by the Australian Bureau of Statistics when interpreting offences across Australia and New Zealand. It is an interpretive aid, not part of the regulation.

For sponsors with foreign records, this creates both risk and opportunity:

• Risk. A foreign offence with an unfamiliar name may be classified as one of the partner visa sponsor relevant offences if its elements involve violence, intimidation or one of the other listed matters.
• Opportunity. A foreign offence that sounds alarming in translation may, on proper analysis, involve none of the listed matters. A careful explanation, supported by the foreign judgment, the statute and an accurate English translation, can make a real difference to how the record is understood.

Foreign police certificates in a language other than English must be accompanied by an accurate English translation. The guides to partner visa overseas police certificates and partner visa overseas convictions explain the practical issues with foreign records. Where a sponsor genuinely cannot obtain a foreign police check, the Department's policy is that the sponsor may be asked to make a standard Commonwealth statutory declaration stating that they have been unable to obtain the check, describing the efforts made, and either stating that they have no convictions in that country or giving details of all convictions there. The FAQ on what to do if a police certificate cannot be obtained covers the general position.

Convictions, non-conviction outcomes and quashed convictions

Only a recorded conviction for one of the partner visa sponsor relevant offences counts under regulation 1.20KC. The Department's instruction says a conviction means that, following a finding of guilt or a plea of guilty, the court has recorded a conviction.

This distinction is often decisive. Australian courts can deal with an offence without recording a conviction. The instruction gives examples:

• a good behaviour bond on the basis that no conviction will be recorded if the sponsor complies;
• an order to participate in an intervention program on the basis that no conviction will be recorded if the sponsor completes it;
• a finding of guilt without proceeding to a conviction.

Where a sponsor's police check shows a relevant offence but no conviction was recorded, the Department cannot rely on that offence to refuse the sponsorship, and cannot disclose it to the applicant under this policy. The instruction describes findings of guilt without conviction as irrelevant both to the sponsorship limitation and to the consent to disclose requirement.

The FAQ on whether charges that did not lead to a conviction must be disclosed deals with the applicant's own disclosure obligations, which are different. The guide to partner visa spent convictions explains another area where the label on a record and its legal effect can differ.

Quashed convictions and pardons are also treated specially. For the significant criminal record test, regulation 1.20KD(5) provides that a sentence is disregarded if the conviction has been quashed or otherwise nullified, or if the sponsor has been pardoned and the effect of the pardon is that the sponsor is taken never to have been convicted.

When a conviction is recorded, a sentence is usually imposed, but not always. The instruction notes that a person can be convicted and released on a good behaviour bond. The consent to disclose requirement is triggered by the recorded conviction for one of the partner visa sponsor relevant offences, whether or not any sentence was imposed.

Consent to disclose partner visa sponsor relevant offences

The sponsor must consent to the Department disclosing any conviction for a relevant offence to each visa applicant. This is a Schedule 2 criterion for the Subclass 300, Subclass 309 and Subclass 820 visas (clauses 300.222(2), 309.222(2) and 820.221(4)), and it must be met at the time of decision.

The consent appears in the sponsorship form. How the Department handles it depends on what the sponsor did:

• The sponsor consented. The Department does not need to ask again, whatever period of time has passed since the consent was given.
• The sponsor expressly declined. The visa criterion cannot be met. The Department sends the applicant a section 57 natural justice letter saying that the sponsor has not consented to disclosure of convictions for relevant offences and that 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 left the consent question blank. The Department should not assume refusal of consent. It gives the sponsor an opportunity to consent using a "Request for consent to disclose convictions" letter. If the sponsor does not respond in the time given, the Department may find the criterion is not met and invite the applicant to comment.

A sponsor who declines consent should understand that the result is likely to be a refusal of the visa, not a quiet approval. Declining consent does not keep the partner visa sponsor relevant offences hidden while the application continues. It ends the application's prospects on that criterion.

What disclosure means in practice

Where the sponsor has a conviction for one of the partner visa sponsor relevant offences but no significant criminal record, the Department cannot refuse the sponsorship under regulation 1.20KC(3). As a matter of policy, and with the sponsor's written consent, the Department should still disclose the conviction to the applicant, so the applicant can make an informed decision about continuing. The instruction says this is not intended to force or coerce the applicant either way.

Where the Department is inclined to approve a sponsorship under regulation 1.20KC(4) despite a significant criminal record, its policy is to interview the applicant before approving, preferably in person and without the sponsor present. The purpose is to check that the applicant is not being forced, coerced or intimidated, and to disclose the convictions where the sponsor has consented. The guide to the partner visa telephone interview explains how Department interviews generally work.

For sponsors, the practical advice is simple. Being open with a partner about a past conviction for one of the partner visa sponsor relevant offences, before the Department raises it, is usually better for the relationship and for the application. The instruction lists, as a relationship factor under regulation 1.20KC(4), whether the applicant knew about the criminal history before the Department disclosed it.

How the Department finds out: sponsor police checks

The Department identifies partner visa sponsor relevant offences mainly through police checks requested from the sponsor under regulation 1.20KC(5). The request must go to the sponsor, not the applicant, and not through the applicant's migration agent or authorised recipient unless the sponsor has appointed them.

In summary:

• Australian check. Policy requires an Australian Federal Police National Police Check with the "Immigration/Citizenship Australia" purpose. It is requested if the sponsor has spent any time in Australia since turning 16. The guide to the partner visa AFP police check explains the process.
• Foreign checks. A check can 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 turning 16.
• Female sponsors. Under policy, delegates are not required to request police checks from female sponsors where there are no concerns about the sponsor's character. This is policy, not law, and the power applies to all sponsors.
• Representation. A sponsor who wants a representative to deal with the Department on the request can appoint one using the forms explained in the guide to Form 956 and Form 956A.

Police checks must be valid at the time of decision, although policy allows reliance on expired checks in some circumstances where the delay was outside the parties' control and the expired checks show no relevant offence. The guide to partner visa expired police checks explains when updates are needed. Under policy, 28 days from the request is generally treated as a reasonable time to provide the checks, or at least evidence that they have been requested. The FAQ on what documents the sponsor needs to provide gives the broader list.

Pending charges for a relevant offence

A sponsorship cannot be refused under regulation 1.20KC because a charge for one of the partner visa sponsor relevant offences has not yet been finalised. The regulation is triggered by convictions, not charges.

The Department's instruction allows a delegate to ask about the case, at least to find out the expected date of finalisation. There is some scope to defer a decision if outstanding charges are likely to be resolved soon, but decision making should not be unreasonably delayed. Information about the case may also be relevant to whether the relationship is genuine, depending on the circumstances. If the sponsor already has a significant criminal record for an earlier relevant offence, that existing record can be relied on regardless of the pending matter.

This makes the criminal case and the partner visa closely connected. A plea, a sentencing submission or a decision about whether to seek a non-conviction outcome can determine whether there will be a recorded conviction for one of the partner visa sponsor relevant offences at all, and whether the sentence crosses the significant criminal record threshold. The FAQ on a partner visa with a pending criminal charge explains the applicant's side of the same issue.

What happens if the sponsorship is not approved?

If the sponsorship is not approved, the visa must be refused. Approval of the sponsorship is part of the decision under section 65 of the Migration Act 1958 to grant or refuse the visa. It is not a separate decision, and no separate notice is sent to the sponsor.

Before a refusal, the following steps usually occur:

• The sponsor is invited to comment. If the delegate considers that grounds exist under regulation 1.20KC(3), the sponsor must be invited to comment on that adverse information. This is the most important opportunity to address the classification of the offence, the sentence, and the factors in regulation 1.20KC(4).
• The applicant receives a section 57 letter. The applicant is told that the sponsorship has not been approved and is invited to comment. The reasons for the non-approval, being the sponsor's convictions, are not put to the applicant in that letter or stated in the refusal notice. The guide to responding to a section 57 natural justice letter for a partner visa and the FAQ on what a section 57 letter is explain that process.

A refusal can usually be reviewed by the Administrative Review Tribunal. The application for review must be made within 28 days after notification of the decision, or 7 days if the person is in immigration detention, and that time cannot be extended. The rules on who must lodge the review application differ between the subclasses, as the FAQ on who must apply for review of an offshore refusal explains. The guide to the partner visa ART review process explains what happens next, and the FAQ on what happens if a partner's sponsorship is refused gives a short answer.

On review, the Tribunal considers the matter afresh. Recent Tribunal decisions show the issues that arise. In 2107808 (Migration) [2024] AATA 4136, a Subclass 309 matter, the recorded issues were sponsorship requirements, a conviction on a relevant offence and a suspended sentence, that sponsorship may be approved if reasonable to do so, and remorse and no reoffending. The Tribunal remitted the matter to the Department. In Ellis (Migration) [2024] AATA 3411, a Subclass 820 matter, the recorded issues were sponsorship approval, a sponsor convicted of a "relevant offence", "significant criminal record", and whether it was reasonable to approve. The Tribunal sent the matter back to the Department. A remittal is not a visa grant, as the FAQ on whether a Tribunal remittal means the visa will be granted explains.

The FAQ on how to challenge a refusal involving sponsorship limitations and the firm's partner visa refusals page explain the review options in more detail.

Practical steps for sponsors with partner visa sponsor relevant offences

A sponsor who has, or may have, a conviction for one of the partner visa sponsor relevant offences should take the following steps before lodgement, or as soon as the issue arises:

• Obtain the full record. Get a current Australian police check and any foreign police checks that may be requested, with accurate English translations.
• Obtain the court documents. Sentencing remarks, the statement of facts and the court record show what the conviction actually involved and what sentence was imposed.
• Classify each conviction. Work through paragraphs (a) to (h) for each offence. Identify which convictions are partner visa sponsor relevant offences, which are not, and which are borderline.
• Check whether a conviction was recorded. Confirm whether each matter ended in a recorded conviction or a non-conviction outcome.
• Check the sentence. Determine whether there is a significant criminal record in relation to any relevant offence, including any suspended sentence.
• Consider the consent question. Understand that declining consent to disclosure will prevent the visa criterion being met.
• Talk to the partner. The applicant's awareness of the history is a factor the Department considers.
• Prepare the regulation 1.20KC(4) material early. Where a significant criminal record exists, gather evidence about the time since the sentence was completed, rehabilitation, the children involved and the relationship.
• Report changes. If new charges or convictions arise during processing, take advice on how they should be raised with the Department. The guide to Form 1022 for a partner visa explains how changes are generally reported.

An application review before lodgement is a practical way to identify these issues before the Department does. The guide to the partner visa lawyer for a criminal record explains what that work involves, and the FAQ on whether a lawyer can help if the sponsor has a criminal record answers the question directly.

How My Migration Lawyers helps with partner visa sponsor relevant offences

My Migration Lawyers advises sponsors and applicants where partner visa sponsor relevant offences are an issue, from first classification of the record through to the Department's assessment and, where needed, review by the Administrative Review Tribunal. The firm deals with complex partner visa cases, acts in many matters involving sponsor criminal history under regulations 1.20KC and 1.20KD, and is capable of handling the legal and evidentiary work these cases require. The guide to what a complex partner visa lawyer does explains the approach.

On partner visa sponsor relevant offences, the firm's work includes:

• reviewing the sponsor's Australian and foreign police checks and court documents, and classifying each conviction against paragraphs (a) to (h) of regulation 1.20KC(2);
• identifying offences that are not relevant offences, and explaining why they cannot ground a refusal under regulation 1.20KC(3);
• analysing foreign convictions with different offence names, using the foreign judgment, statute and translation to establish what the offence actually involved;
• confirming whether each matter ended in a recorded conviction, a non-conviction outcome, a quashed conviction or a pardon;
• assessing whether a significant criminal record exists in relation to any relevant offence;
• advising the sponsor on the consent to disclose requirement and its consequences;
• preparing the sponsor's response to an invitation to comment, presenting the sponsor's own account and evidence on the matters in regulation 1.20KC(4) in the form the law requires;
• responding to section 57 letters and acting on Administrative Review Tribunal applications where a sponsorship has not been approved.

The firm's work is led by Weiwei Zhang, Principal Lawyer. More about the practice is on the About page and the main partner visa lawyers page. Consultations are by video, so the firm advises sponsors and applicants across Australia and overseas, including clients of the partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta. The guide to a partner visa lawyer consultation explains what to bring, and more answers are in the partner visa questions centre.

If you are a sponsor with a conviction that may be one of the partner visa sponsor relevant offences, or an applicant whose sponsor has a criminal history, book a consultation with My Migration Lawyers before you lodge or respond to the Department. You can also call 1300 040 300.