Partner Visa Sponsor With a Stalking or Harassment Conviction

A partner visa sponsor stalking conviction is a conviction recorded against the Australian sponsor for an offence involving stalking, harassment, molestation or intimidation of a person. A partner visa sponsor stalking conviction is a "relevant offence" under regulation 1.20KC of the Migration Regulations 1994, and it can affect whether the Department of Home Affairs approves the sponsorship for a Subclass 300, Subclass 309 or Subclass 820 visa.

This guide explains how a partner visa sponsor stalking conviction is assessed. It covers which offences fall within the harassment and stalking category, how online conduct is treated, how foreign convictions are classified, when the Department must refuse the sponsorship, why the significant criminal record threshold usually decides the matter, how the conviction is disclosed to the applicant, the interview the Department may hold with the applicant, and the factors that decide whether approval is reasonable. It is written for sponsors who have this history and for applicants who have learned about it.

The legal starting point sits in the firm's page on partner visa sponsorship limitations, which sets out every rule that can prevent an Australian citizen, permanent resident or eligible New Zealand citizen from sponsoring a partner. The wider rules on who may sponsor are explained in the firm's article on when a sponsor cannot sponsor a partner visa in Australia and in the answer to who can sponsor a partner visa.

Is a stalking conviction a relevant offence for partner visa sponsorship?

Yes. A stalking conviction is a relevant offence for partner visa sponsorship, because regulation 1.20KC(2)(b) lists offences involving "the harassment, molestation, intimidation or stalking of a person" as relevant offences.

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 a list of matters. The list includes violence against a person, breach of an apprehended violence order or similar order, firearms and dangerous weapons, people smuggling, human trafficking, slavery, forced marriage, kidnapping and unlawful confinement. It also includes attempting to commit, and aiding, abetting, counselling or procuring, any of those offences. Paragraph (b) is the paragraph that captures a partner visa sponsor stalking conviction.

Paragraph (b) is separate from paragraph (a), which covers violence against a person. That separation matters. A partner visa sponsor stalking conviction is a relevant offence even if the sponsor never touched or threatened to hurt anyone. Repeated unwanted contact, following, watching a person's home, or sending messages intended to frighten can be enough, if the court recorded a conviction for an offence involving that conduct.

Regulation 1.20KC was introduced from 18 November 2016 as part of the Government's response to family violence. It 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 that date. It does not apply at the permanent Subclass 100 or Subclass 801 stage. The firm's guide to the Subclass 820 and Subclass 801 stages explains how the two stages relate.

The firm's guides to the Subclass 820 onshore partner visa, the Subclass 309 offshore partner visa and the Subclass 300 Prospective Marriage visa set out where sponsorship approval sits among the other criteria. The complete guide to partner visas in Australia gives the full picture.

What counts as stalking, harassment, molestation or intimidation?

An offence counts for regulation 1.20KC(2)(b) if it is an offence "involving" the harassment, molestation, intimidation or stalking of a person, so the question is what the offence involved, not what the offence is called.

This is the most important point in classifying a partner visa sponsor stalking conviction. Australian States and Territories each have their own criminal laws, and offence names differ. Some jurisdictions have a separate stalking offence. Others combine stalking and intimidation in one offence. Some deal with this conduct through offences about threats, offensive behaviour, or causing fear. The regulation does not require the offence to be called "stalking". It requires that the offence involved one of the listed matters.

The four words in paragraph (b) are broad:

• Stalking usually describes a course of conduct, such as following a person, loitering near their home or workplace, watching them, or contacting them repeatedly, with the intention of causing fear or harm.
• Harassment describes conduct that is persistent and unwanted, and that distresses or torments the person on the receiving end.
• Intimidation describes conduct intended to cause fear, including fear of injury, fear for property or fear for another person's safety.
• Molestation is an older legal term, used in some jurisdictions and in some foreign laws, for interfering with or pestering a person. It is not limited to sexual conduct.

The Department's procedural instruction tells decision makers that they may refer to the Australian and New Zealand Standard Offence Classification published by the Australian Bureau of Statistics when interpreting offences. That classification groups offences by the conduct involved, which helps a decision maker decide whether an offence with an unfamiliar name falls within a partner visa sponsor stalking conviction.

Because the test turns on what the offence involved, the court documents matter. The charge sheet, the police facts and the sentencing remarks can show whether an offence such as "offensive behaviour" or "threatening conduct" involved harassment or intimidation of a particular person. A sponsor who is unsure whether a conviction falls within paragraph (b) should obtain those documents before the sponsorship is lodged. The firm's article on the partner visa with a criminal record explains how criminal history documents are gathered and presented.

Classification also matters for convictions that fall outside the list. The Department's policy says that convictions for offences that are not relevant offences cannot be used to refuse the sponsorship under regulation 1.20KC(3), and are not disclosed to the applicant under this policy. A drug, fraud, property or drink driving conviction is not a partner visa sponsor stalking conviction, even if it appears on the same police check.

Online stalking and technology-facilitated harassment

Online stalking and technology-facilitated harassment can produce a partner visa sponsor stalking conviction, because regulation 1.20KC(2)(b) looks at whether the offence involved harassment, intimidation or stalking, not at the method used.

Much modern stalking happens through phones and the internet. Conduct of this kind includes repeated unwanted messages, threats sent by text or social media, tracking a person's location through a phone or device, monitoring their accounts, creating accounts to contact them after being blocked, and publishing material to frighten or humiliate them.

Commonwealth criminal law contains an offence of using a carriage service, such as a telephone, internet or messaging service, in a way that reasonable persons would regard as menacing, harassing or offensive. Many State and Territory stalking offences also expressly cover contact by electronic means and the use of tracking technology. A conviction under any of these laws can be a partner visa sponsor stalking conviction if the conduct involved harassment, intimidation or stalking of a person.

Two practical points follow:

• An offence described as "misuse of a carriage service" needs care. The offence can cover conduct that is menacing, harassing or offensive. Where the conduct was menacing or harassing towards a person, it is likely to fall within paragraph (b). Where it was offensive but not directed at harassing anyone, the classification may be arguable. The police facts usually decide this.
• Online conduct is often directed at a former partner. In a partner visa sponsor stalking conviction case, that fact may matter later, when the Department weighs whether approval is reasonable, as explained below.

Online conduct can also raise wider questions about family violence. The Department recognises that family violence includes more than physical harm, and the answer to whether emotional, financial or psychological abuse can count as family violence explains how controlling conduct is treated in partner visa matters.

Foreign stalking and harassment convictions

A conviction in another country can be a partner visa sponsor stalking conviction, because regulation 1.20KC(2) expressly includes offences against the law of a foreign country.

Foreign convictions usually come to light through foreign police checks. Under regulation 1.20KC(5)(b), the Department may ask the sponsor for a police check from any foreign country in which the sponsor has lived for a total of 12 months or more since the later of 10 years before the request or the sponsor's 16th birthday. The 12 months can be made up of several shorter periods. A foreign check that is not in English must come with an accurate English translation. The firm's guides to overseas police certificates and partner visa evidence translation explain how these documents are obtained and presented.

Foreign offence names are often unfamiliar. A foreign law may use terms such as "molestation", "disturbing the peace of a person", "threatening behaviour", "persecution" or "insult", and the scope of those offences may be wider or narrower than any Australian offence. The Department's procedural instruction acknowledges that some countries use terminology different from the Australian national police check, which can make it difficult to decide whether a foreign offence is a relevant offence. In that situation, decision makers are told to consult the Department's Partner Program Management section. That step is common where a foreign partner visa sponsor stalking conviction uses an unfamiliar offence name.

For a sponsor, this means a foreign partner visa sponsor stalking conviction should be explained before the Department has to guess. Useful material includes:

• the foreign police check and its certified English translation;
• the court judgment or record, translated, showing the facts and the penalty;
• where available, the text of the foreign offence provision, translated; and
• an explanation of how the offence would be described under Australian law.

The firm's article on partner visa overseas convictions discusses foreign criminal records more generally. 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. The answer on what to do if a police certificate cannot be obtained covers the general position.

Australian convictions are found through the Australian Federal Police National Police Check with the "Immigration/Citizenship Australia" purpose. The firm's guide to the partner visa AFP police check explains how that check is ordered, and the answer on whether a police check is needed for a partner visa explains how checks are used for applicants and sponsors.

Does a partner visa sponsor stalking conviction mean the sponsorship will be refused?

No. A partner visa sponsor stalking conviction alone does not require the Department to refuse the sponsorship. Under regulation 1.20KC(3), refusal is mandatory only if the sponsor has been convicted of a relevant offence and also has a significant criminal record in relation to that offence.

Both elements must be present. The Department's procedural instruction says plainly that a decision maker 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. That is often the decisive point in a partner visa sponsor stalking conviction case.

Regulation 1.20KD(1) says a person has a significant criminal record in relation to a relevant offence if they have been sentenced to:

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

The detail of regulation 1.20KD, including concurrent sentences, periodic detention, residential programs, pardons and quashed convictions, is covered in the firm's separate guides on the significant criminal record and on convictions without jail time. Three points are essential for a partner visa sponsor stalking conviction:

• A suspended sentence counts. The Department's policy states that a suspended sentence is a sentence to a term of imprisonment for regulation 1.20KD. It is the sentence imposed that matters, not the time served.
• Early release does not help. A sentence of 12 months or more counts even if the sponsor was released before serving 12 months.
• Several short sentences can be added together. The policy gives the example that two sentences of 6 months served concurrently is a significant criminal record.

Where both elements exist, the Department must refuse unless it decides that approval is reasonable under regulation 1.20KC(4). Before refusing on that basis, the decision maker must invite the sponsor to comment. The comment stage is where the sponsor's evidence about time, children and the relationship is put forward. The answer on what happens if a partner's sponsorship is refused explains the effect of a refusal on the visa.

Why stalking sentences often fall below the threshold

Stalking, harassment and intimidation convictions often result in sentences below 12 months of imprisonment, which is why the significant criminal record threshold often decides a partner visa sponsor stalking conviction matter.

Many of these matters are dealt with in the lower courts, where a first offence without physical injury may result in a fine, a good behaviour order, a community-based order or a short sentence. Courts also deal with stalking alongside a protection order, and the protection order may be seen as the main safeguard. The result is that many sponsors with a partner visa sponsor stalking conviction have a relevant offence but no significant criminal record.

That does not make the conviction irrelevant. It changes how the conviction is used. Without a significant criminal record, the conviction cannot ground refusal under regulation 1.20KC(3), but it can still be disclosed to the applicant, with the sponsor's consent, as explained below. Where there were several convictions, or the stalking was sentenced together with an assault or a breach of an order, the terms of imprisonment may add up to 12 months or more, and the sentencing documents must be read closely.

Convictions, findings of guilt and unresolved charges

Only a recorded conviction can be a partner visa sponsor stalking conviction for regulation 1.20KC. A finding of guilt without a conviction, or a bond or intervention program on the basis that no conviction is recorded, cannot be relied on or disclosed under this policy.

The procedural instruction defines a conviction as the situation where, after a finding of guilt or a plea of guilty, the court has recorded a conviction. A sentence is usually imposed, but not always. A sponsor may be convicted and released on a bond, and that is still a conviction. On the other hand, where a court finds the sponsor guilty but does not proceed to a conviction, the policy says the matter is irrelevant to the sponsorship limitations and to the consent to disclose requirement.

This distinction should be checked against the court record, not memory. Many sponsors are unsure whether a conviction was recorded. A court outcome sheet or certificate of conviction usually answers the question. The answer on whether charges that did not lead to a conviction must be disclosed explains how non-conviction outcomes are treated for the applicant's own forms, which follow different rules.

Unresolved stalking charges are treated separately. The Department's policy at paragraph 3.8.6 says that a sponsorship cannot be refused under regulation 1.20KC because a criminal matter for a relevant offence has not been finalised. The decision maker 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. Information about the case may also be relevant to whether the relationship is genuine. The answer on a partner visa with a pending criminal charge and the firm's article on a partner visa domestic violence charge discuss pending matters further.

The applicant's own character is a different question. The character requirement in public interest criterion 4001 and section 501 apply to the visa applicant, not to the sponsor. The firm's guides to partner visa character requirements and partner visa section 501 explain the applicant side.

Disclosure of a partner visa sponsor stalking conviction to the applicant

A partner visa sponsor stalking conviction can be disclosed to the visa applicant, and the sponsor's consent to that disclosure is a legal requirement for the visa, not a choice without consequences.

The Schedule 2 criteria for each visa require the sponsor to consent to the Department disclosing convictions for relevant offences to each applicant. The provisions are subclause 300.222(2) for the Subclass 300 visa, subclause 309.222(2) for the Subclass 309 visa and subclause 820.221(4) for the Subclass 820 visa. The sponsorship form asks for that consent. The answer on what documents the sponsor needs to provide lists the sponsor's paperwork.

The policy covers three situations:

• The sponsor consents. No further consent is needed before disclosure, however much time has passed since the form was signed.
• The sponsor expressly declines. The relevant time of decision criterion cannot be met. The Department 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 convictions are not put to the applicant in that letter or in the refusal notice.
• The sponsor is silent. The decision maker must not assume the sponsor refuses. The sponsor is sent a "Request for consent to disclose convictions" letter. If the sponsor does not respond within the requested time, the decision maker may find the criterion is not met and send the applicant a section 57 letter.

This means a sponsor cannot keep a partner visa sponsor stalking conviction hidden and still obtain the visa. A sponsor who refuses consent ends the application. The firm's guides to responding to a section 57 natural justice letter and to common adverse information in section 57 letters explain how those letters work. The answers on providing new evidence in a section 57 response and on getting more time to respond to a section 57 letter deal with practical questions.

Where the sponsor has no significant criminal record, policy says the decision maker should disclose the conviction to the applicant, with the sponsor's express written consent, so the applicant can make a more informed decision about continuing. The policy says the purpose is not to force or coerce the applicant either way. Some applicants withdraw. Others continue. In both cases, the Department can be satisfied that it has informed the applicant, as far as possible, about the potential risks. The same approach applies to a partner visa sponsor stalking conviction that sits below the significant criminal record threshold.

Why disclosure matters when the applicant may be the target of controlling behaviour

Disclosure of a partner visa sponsor stalking conviction matters most where the applicant may be the target of controlling behaviour, because stalking and harassment are forms of control, and the applicant may not know the sponsor's history.

Regulation 1.20KC was designed for this situation. A sponsor's offending may have been directed at a former partner. An applicant overseas, or newly arrived in Australia, may know very little about the sponsor's past. The policy notes that this is particularly so for offshore applications, where the sponsor and applicant are generally apart during processing.

The Department's procedural instruction also recognises a specific risk: a controlling or abusive sponsor may be the applicant's authorised recipient. If so, correspondence from the Department may reach the sponsor first, and any response may be one the sponsor prepared to serve their own interest. The instruction identifies this as one reason the Department may want to speak to the applicant directly.

For the applicant, a disclosed partner visa sponsor stalking conviction is information to consider carefully, with independent advice if needed. An applicant should ask:

• What was the conduct, and who was the victim?
• When did it happen, and has there been any further offending?
• Does the sponsor's behaviour now show any of the same patterns, such as monitoring messages, controlling money, or restricting contact with friends and family?
• Does the applicant have their own access to their ImmiAccount, documents and correspondence?

An applicant who wants their own representative can appoint one. Form 956 appoints a migration agent or lawyer, and Form 956A appoints an authorised recipient. The firm's guide to Form 956 and Form 956A explains the forms. Applicants who are worried about their safety in the relationship will find the answer on what to do if a sponsor is abusive during a partner visa useful. Anyone in immediate danger should call 000.

Where an onshore relationship ends because of family violence by the sponsor, the family violence provisions in Division 1.5 of the Migration Regulations may allow the applicant to continue towards permanent residence. The firm's family violence partner visa page and its guide to partner visa family violence options explain those provisions.

The applicant interview when the sponsor has a relevant conviction

If the Department is inclined to approve the sponsorship of a sponsor with a partner visa sponsor stalking conviction and a significant criminal record, its policy is to interview the applicant before approving it and to disclose the conviction, if the sponsor has consented.

The procedural instruction says there is no requirement to interview the applicant if the sponsorship is refused. The interview is used when the decision maker is leaning towards approval under regulation 1.20KC(4). Its stated purpose is to ensure, as far as possible, that the applicant is not being forced, coerced or intimidated into proceeding with the application.

The policy describes how the interview should be held:

• In person where possible. A face to face interview is preferred, because it gives the applicant a safe, non-confrontational and confidential setting.
• Without the sponsor present. The applicant should be able to speak freely about the sponsor's criminal history and any fears.
• By telephone if necessary. If an in-person interview is not possible or appropriate, a telephone interview may be held, with care to confirm the applicant's identity and that the applicant is not being coerced.
• With attention to safety. The decision maker should make sure the interview does not compromise the applicant's safety, for example if the sponsor later blamed the applicant for a refusal.

For a partner visa sponsor stalking conviction, this interview carries particular weight. Stalking and harassment offences are about control and fear. A decision maker will want to hear from the applicant directly, without the sponsor shaping the answers. The applicant should answer honestly and in their own words. No one should tell the applicant what to say. The firm's guides to partner visa interview questions and partner visa telephone interviews, and the answer on whether there will be an interview for a spouse visa, explain how interviews generally run.

Where the applicant decides not to continue, the application can be withdrawn, and the sponsor can also withdraw sponsorship. The answers on whether a sponsor can withdraw sponsorship and on what happens if a couple breaks up during the process explain the consequences, and the firm's article on partner visa relationship breakdown covers the options in more detail.

How the Department decides if approving the sponsor is reasonable

Where a sponsor has a partner visa sponsor stalking conviction and a significant criminal record, regulation 1.20KC(4) allows the Department to approve the sponsorship if it considers approval reasonable, having regard to the time since the sentence was completed, the best interests of any children, and the length of the relationship.

The regulation requires the decision maker to "have regard" to those matters. The procedural instruction explains that this means the decision maker must consider each matter and show in the decision how it was considered. It does not mean each matter must be "met". The policy says it would be an error of law for a decision maker to say that a sponsorship was refused because one of these matters was "not met" or "not satisfied". The list is also not closed, so other relevant matters can be put forward.

Time since the sentence was completed

The first factor is the length of time since the sponsor completed the sentence for the relevant offence. Policy says discretion may weigh more in favour of a sponsor who completed a sentence long ago and has not offended since, compared with a sponsor whose offending is recent.

The policy also says decision makers should be cautious about approving a sponsorship solely on the basis of time if less than 5 years have passed since the sentence was completed. That is a policy guideline, not a rule. Other circumstances can support approval within 5 years. Where the sponsor is still serving the sentence, for example a suspended sentence or a period of parole, the policy says this factor is considered but found not relevant because the sentence has not been completed.

For a partner visa sponsor stalking conviction, evidence about time should show more than the passing of years. It should show the absence of further offending, compliance with any orders, and any treatment or programs completed, supported by documents.

Whether the victim was a former partner, and the length of the relationship

The third factor is the length of the relationship between the sponsor and the primary applicant. The policy says a long relationship should not be treated as enough on its own, and a short relationship should not lead to refusal as a matter of course.

The policy directs attention to several aspects of the relationship:

• whether the sponsor and applicant were in a spouse or de facto relationship when the offence was committed or the sentence was received or served;
• whether the applicant knew the nature and extent of the sponsor's criminal history before the Department disclosed it; and
• the applicant's reasons for why the sponsorship should be approved.

In a partner visa sponsor stalking conviction case, the identity of the victim is often central. Where the victim was a former partner, the conduct occurred within an intimate relationship, which is the same kind of relationship the visa depends on. A decision maker is likely to look closely at whether the conduct shows a pattern that could repeat with the applicant. Where the victim was a stranger, a neighbour or a work colleague, the risk to the applicant may be assessed differently. Neither situation decides the matter on its own. The facts in the sentencing remarks, the time that has passed and the evidence of change all matter.

A long, stable current relationship, in which the applicant knew the history from the start and has made an informed choice, will usually be presented differently from a new relationship where the applicant learned of the conviction from the Department. The applicant's own account, in their own words, is important here. The firm's guides to the partner visa relationship statement, to Form 888 statements, to commitment evidence and to the genuine and continuing relationship test explain how relationship evidence is presented.

The best interests of children

The second factor is the best interests of any children of the sponsor or of the primary applicant, including biological, adopted and step-children. Policy says those interests are a primary consideration.

Matters the policy lists include how long the child has lived with the sponsor, the care and support the sponsor provides, the sponsor's involvement in the child's upbringing, any Australian or foreign court orders such as an apprehended violence order or custody orders, the child's integration in Australia, and the effect on the child of a refusal. Court orders denying the sponsor contact with a child weigh against approval. The policy also says the best interests of children are not the only consideration and may be outweighed, for example where approval may put the applicant or the applicant's family at risk of harm from an abusive sponsor. In a partner visa sponsor stalking conviction matter where the victim was the parent of a child, any family court or protection order involving that child should be provided with the submission. The firm's guides to stepchildren in partner visa applications and non-migrating children explain how children are treated in the application.

AVOs alongside a partner visa sponsor stalking conviction

An apprehended violence order or similar protection order often sits alongside a partner visa sponsor stalking conviction, and the order can be relevant even though making an order is not itself a conviction.

Three points are worth separating:

• The order itself. A protection order is usually a civil order. Having an order made against the sponsor is not a conviction for a relevant offence.
• A breach of the order. A conviction for breaching an apprehended violence order or similar order is a separate relevant offence under regulation 1.20KC(2)(c). The firm's separate guide on a sponsor convicted of breaching an AVO covers that offence.
• The order as evidence. Policy lists court orders such as an apprehended violence order as matters relevant to the best interests of children. An order protecting the former partner, or a child, may also be relevant to the risk assessment under regulation 1.20KC(4).

The firm's guide to partner visas with intervention orders and the answer on a partner visa where there is a domestic violence order explain how protection orders are treated more generally.

Police checks for a sponsor with a stalking conviction

The Department identifies a partner visa sponsor stalking conviction mainly through police checks requested from the sponsor under regulation 1.20KC(5), and the request must be sent to the sponsor, not the applicant.

Policy is that a sponsor who has spent any time in Australia since turning 16 should be asked for an Australian Federal Police National Police Check. Foreign checks are requested for countries where the sponsor has lived for 12 months or more in the relevant period. The request goes to the sponsor directly, and not through the applicant's representative or authorised recipient unless the sponsor has appointed them.

Under policy, 28 days from the request is treated as a reasonable time to provide the checks or, at least, evidence that they have been requested. More time may be given. If the sponsor provides nothing, gives no satisfactory explanation and does not engage, the Department may refuse to approve the sponsorship under regulation 1.20KC(6). A sponsor with a partner visa sponsor stalking conviction should never delay a check in the hope that the conviction will not be noticed. Delay creates a second ground for refusal. Police checks must be valid at the time of decision, and the firm's guide to expired police checks explains when they need updating.

What happens if the visa is refused because of the sponsorship

If the sponsorship is not approved because of a partner visa sponsor stalking conviction, the visa must be refused, and the refusal can usually be reviewed by the Administrative Review Tribunal.

Sponsorship approval is part of the visa decision under section 65, not a separate decision. The sponsor receives no separate notice. Before refusing, the Department sends the applicant a section 57 letter, but policy says the reasons for non-approval, including the sponsor's convictions, are not put to the applicant in that letter or in the refusal notice. An applicant may therefore receive a refusal that does not explain the sponsor's history. For that reason, an applicant refused in a partner visa sponsor stalking conviction case should obtain advice promptly, well within the review period.

The application for review must be made within 28 days after notification of the decision, or 7 days if the applicant is in immigration detention, and the time cannot be extended. For a Subclass 820 refusal, the applicant applies. For a Subclass 309 refusal, the visa applicant applies. For a Subclass 300 refusal, the sponsor applies. The firm's pages on partner visa refusals and visa refusals and Tribunal review, and its guides to the partner visa refusal letter, the ART review process, ART hearings and ART evidence, explain the process. The answers on challenging a refusal involving sponsorship limitations and on whether a review can continue after separation deal with common questions.

The Tribunal reviews the decision again on the evidence before it. Several recent decisions show the kinds of sponsorship issues the Tribunal has considered. These are not stalking cases and are 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 with a suspended sentence, that sponsorship may be approved if reasonable, 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.
• 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 since the last imprisonment, and limited time together because of travel restrictions.

These decisions show that the reasonableness question under regulation 1.20KC(4) is reviewed on the evidence. They do not predict the outcome of any other partner visa sponsor stalking conviction matter. Where a Tribunal decision involves a legal error, judicial review may be available, as the guide to partner visa judicial review explains.

Practical steps for a partner visa sponsor stalking conviction

The practical steps are to obtain the court records, classify the offence, check the sentence against the significant criminal record threshold, deal with consent to disclosure honestly, and prepare evidence on each regulation 1.20KC(4) factor before the Department asks.

• Get the court documents. Obtain the certificate of conviction, the charge sheet, the police facts and the sentencing remarks for each partner visa sponsor stalking conviction.
• Classify each offence. Decide whether it involved harassment, molestation, intimidation or stalking, and whether any other relevant offence was dealt with at the same time.
• Check the sentence. Work out whether any term of imprisonment, including a suspended sentence, alone or added to others, reaches 12 months.
• Talk about disclosure. The sponsor should understand that consent to disclosure is required, and the couple should discuss the history openly before the Department does.
• Obtain the police checks early. Order the Australian check and any foreign checks, with translations.
• Prepare the evidence. Gather documents about time since the sentence, rehabilitation, children and the relationship.
• Protect the applicant's independence. Make sure the applicant has their own access to correspondence and can seek independent advice.

The firm's application review before lodgement and its article on what makes a complex partner visa explain how files of this kind are prepared. The firm's guide for a partner visa lawyer for a criminal record and the answer on whether a lawyer can help if a sponsor has a criminal record describe the role of advice in these matters, and the answer on whether a partner visa is possible if the sponsor has a criminal record gives the short version.

The firm advises sponsors and applicants across Australia by video, acting as partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide.

How My Migration Lawyers helps with a partner visa sponsor stalking conviction

My Migration Lawyers deals with complex partner visa matters, acts in many matters where the sponsor has a conviction for a relevant offence, and is capable of handling a partner visa sponsor stalking conviction from first assessment through to Tribunal review.

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

• Classifying the conviction. The firm reads the court record and police facts to advise whether each offence involved harassment, molestation, intimidation or stalking under regulation 1.20KC(2)(b), including online offences and foreign convictions.
• Testing the sentence. The firm checks every sentence, including suspended and concurrent sentences, against the significant criminal record definition in regulation 1.20KD.
• Advising on consent and disclosure. The firm explains to the sponsor what consent to disclosure means and what follows if consent is refused.
• Managing police checks. The firm advises on which Australian and foreign checks are needed and helps the sponsor respond within a reasonable time.
• Preparing the reasonableness submission. Where regulation 1.20KC(3) is engaged, the firm prepares the response to the invitation to comment, presenting the sponsor's own evidence on time since the sentence, rehabilitation, children and the relationship.
• Advising applicants independently. Where the firm acts for an applicant, it advises the applicant on their own position, including their options if they do not wish to continue.
• Review. Where the 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 the firm's partner visa lawyers page.

If you are a sponsor with a partner visa sponsor stalking conviction, or an applicant whose sponsor has this history, book a consultation online. You can also call 1300 040 300.