Partner Visa Sponsorship Assessment

The partner visa sponsorship assessment is the part of a partner visa decision in which the Department of Home Affairs examines the Australian sponsor, not the visa applicant. The delegate checks who the sponsor is, where they live, how old they are, how many partners they have sponsored before, whether they have certain criminal convictions, and whether they consent to those convictions being disclosed. A sponsor who fails the partner visa sponsorship assessment can cause the whole visa application to be refused, even where the applicant meets every other requirement.

This article explains the full legal framework the delegate applies, regulation by regulation. It is written mainly for the Australian partner: the citizen, permanent resident or eligible New Zealand citizen who is sponsoring a spouse, de facto partner or fiancé under a Subclass 820 onshore partner visa, a Subclass 309 offshore partner visa or a Subclass 300 Prospective Marriage visa. It also explains why the partner visa sponsorship assessment is not a separate decision, how natural justice works when a delegate has concerns about the sponsor, and what the Tribunal has said in recent remitted decisions.

The police check mechanics are covered only briefly here, because they have their own article on partner visa police check requirements for sponsors and applicants. Timing of approval is also kept short. If you want the bigger picture first, start with the complete guide to Subclass 820 requirements, cost and processing and the overview of who can sponsor a partner visa.

What is the partner visa sponsorship assessment?

The partner visa sponsorship assessment is the delegate's decision on whether to approve the sponsor's online application called "Sponsorship for a Partner to Migrate to Australia (300, 309/100, 820/801)", also known as form 40SP. The sponsor lodges this form through ImmiAccount after the applicant has applied and given the sponsor the Transaction Reference Number (TRN) or application ID. The form links the sponsor to the visa application. If you are unsure what the form is, see the explainer on form 40SP for a partner visa.

The partner visa sponsorship assessment has several layers. Some are simple status checks. Others involve judgement and discretion. In order, the delegate looks at:

• Status. The sponsor must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
• Usual residence. A permanent resident or eligible New Zealand citizen must show that they usually live in Australia.
• Age. The sponsor must be 18 or older. If the partner is under 18, a parent or guardian sponsors instead.
• Reg 1.20J limits. The number of previous partner sponsorships, the five-year gap, and whether the sponsor was once sponsored as a partner.
• Reg 1.20KA. A limit on sponsors who hold a permanent Contributory Parent visa.
• Reg 1.20KB. Child protection rules where an applicant is under 18.
• Regs 1.20KC and 1.20KD. Relevant offences, significant criminal record and the discretion to approve anyway.
• Consent to disclose. The sponsor's written consent for the Department to tell the applicant about convictions for relevant offences.
• The relationship. The sponsor's evidence is a central part of the genuine and continuing relationship assessment.

Each layer is separate. A sponsor can pass the status and age checks and still fail the partner visa sponsorship assessment on the sponsorship limits or on character. That is why a careful review of the sponsor's history before lodgement matters as much as the applicant's evidence.

Who is assessed: only the sponsor, or the whole family?

The partner visa sponsorship assessment covers the sponsor, but the sponsorship itself must cover every applicant. Secondary applicants, such as the applicant's children, must be included in the sponsorship. The sponsorship must be approved and in force for them too. If you are adding children, read how to include children in a partner visa application and the guide to partner visa stepchildren, because the presence of a child under 18 changes which rules apply to the sponsor.

Why does the partner visa sponsorship assessment sit inside the visa decision?

The partner visa sponsorship assessment sits inside the visa decision because approval of the sponsorship is a criterion for the grant of the visa, not a stand-alone application with its own outcome. Department policy is clear: approval of a partner sponsorship is part of the section 65 visa decision. It is not a separate decision. No separate notice goes to the sponsor. Where the sponsorship is not approved, the visa must be refused.

This has three practical consequences for sponsors.

First, there is no separate "sponsorship refused" letter that the sponsor can challenge on its own. The Department tells the visa applicant its decision in writing. If you have been told the sponsorship was not approved, you are really dealing with a visa refusal. The short explainer on what happens if a partner's sponsorship is refused sets out the immediate steps.

Second, the law separates the time of application from the time of decision. At the time the visa application is made, the applicant only has to be "sponsored" by an Australian citizen, Australian permanent resident or eligible New Zealand citizen partner. The relevant clauses are cl 820.211, cl 309.213 and cl 300.213. Approval of the sponsorship is a time of decision criterion under cl 820.221(4)(a), cl 309.222(1) and cl 300.222(1). In the words of the Department's own instruction: "Although a sponsorship must be held at time of application, it is only at time of decision that the sponsorship must have been approved."

Third, because the partner visa sponsorship assessment is made at the time of decision, facts that change during processing matter. A five-year limit that was not met at lodgement may be met by the time the delegate decides. A sponsor's police certificate must still be valid when the delegate decides. A new conviction during processing can change the outcome. The timing of approval is covered in the companion article on processing, and the general picture is in partner visa processing times.

Is the sponsorship form required for a valid application?

No. The sponsorship form is not a Schedule 1 validity requirement for Subclass 820, Subclass 309 or Subclass 300. A valid visa application can be made without it. The exception is an onshore applicant to whom section 48 of the Migration Act applies, who must provide the completed form 40SP at the same time and place as making the application. If that applies to you, read about the section 48 bar and partner visas. Lodgement itself is covered in a separate article, so this one focuses on what happens after the sponsorship is lodged.

Is there a separate sponsorship approval at the second stage?

No. There is no separate partner visa sponsorship assessment for Subclass 801 or Subclass 100. The second-stage criteria "refer back to the sponsor who was approved as part of the process that resulted in the grant of the temporary visa". The sponsoring partner for Subclass 801 is the person specified in the Subclass 820 application, and for Subclass 100 the person specified in the Subclass 309 application. Regs 1.20KC and 1.20KB do not apply at the second stage. For what the permanent stage does involve, see Subclass 820 versus Subclass 801 and the partner visa two-stage process.

Who can be a sponsor: status and usual residence

The first step in the partner visa sponsorship assessment is status: the sponsor must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Department's website puts it simply: "We must approve your sponsorship." A temporary visa holder cannot sponsor a partner, however long they have lived in Australia. The explainer on whether a temporary visa holder can sponsor a partner deals with that question directly.

Australian citizens

An Australian citizen proves status with a passport or citizenship evidence and a birth certificate. The Department asks sponsors for a copy of their passport, a copy of their birth certificate and a photo of their face. For practical guidance, see how to prove your sponsor is an Australian citizen and what documents a sponsor needs to provide.

A citizen who lives overseas can still sponsor. The partner visa sponsorship assessment does not require a citizen to be living in Australia. The question of an Australian living overseas sponsoring a partner is mainly about relationship evidence and the subclass chosen, not about status.

Australian permanent residents and usual residence

A permanent resident sponsor must show that they "usually live in Australia". The Department looks at home, work, property or business, and family ties. A permanent resident who has spent long periods overseas should expect this part of the partner visa sponsorship assessment to be examined closely. If the sponsor's permanent visa is under threat, the position is more serious. In Vispo (Migration) [2023] AATA 694, the sponsor's permanent visa had been cancelled, and the Tribunal noted that a differently constituted Tribunal had set aside that cancellation. The matter was remitted. A sponsor facing cancellation should get advice on visa cancellations at once, because a sponsor without permanent status cannot pass the partner visa sponsorship assessment.

Former refugees who now hold permanent visas can sponsor if they meet the same rules. The specific issues are covered in can a former refugee sponsor a partner visa.

Eligible New Zealand citizens

An eligible New Zealand citizen is a New Zealand citizen who holds a protected Special Category Visa within the meaning of section 7 of the Social Security Act 1991 (reg 1.03). Most New Zealand citizens who arrived more recently do not meet this definition. They also need to show they usually live in Australia. New Zealand citizens who do not qualify may look at the Subclass 461 visa for their partner instead. See can a New Zealand citizen sponsor a partner visa and the Subclass 461 visa page.

How old must the sponsor be?

The sponsor must be 18 or older. If the sponsor's spouse is under 18, a parent or guardian of that partner sponsors instead. That parent or guardian must be 18 or over and an Australian citizen, Australian permanent resident or eligible New Zealand citizen. For de facto relationships, both partners must be 18 or older when the application is made. The age rules are explained further in partner visa age requirements and applying for a partner visa if you or your partner is under 18.

Where a parent or guardian sponsors, the partner visa sponsorship assessment is applied to that parent or guardian. Their sponsorship history, their character and their consent to disclose are what the delegate examines.

Age is also relevant in a second way. If any applicant is under 18, extra child protection rules apply to the sponsor under reg 1.20KB. That is discussed in Body B below.

The reg 1.20J sponsorship limits explained

The reg 1.20J limits are the most common reason a partner visa sponsorship assessment goes wrong for a sponsor with a previous relationship. Reg 1.20J applies to Subclass 300 applications and to Subclass 309 and Subclass 820 applications made on or after 1 July 2009. It contains three separate limits. The commercial page on partner visa sponsorship limitations and the article on when a sponsor cannot sponsor a partner visa give a wider overview. This section sets out exactly what the delegate applies.

The two-sponsorship lifetime limit

Under reg 1.20J(1)(a), a person can have at most two approved spouse, de facto, fiancé or interdependent sponsorships in a lifetime. A third partner sponsorship can only be approved with a waiver. In the partner visa sponsorship assessment, the delegate counts the sponsor's earlier approved sponsorships from the Department's own records, so a sponsor cannot avoid the limit by leaving an old relationship off the form. The FAQ on whether you can sponsor more than one partner covers the common questions.

The five-year gap after a previous sponsorship

Under reg 1.20J(1)(b), a new sponsorship cannot be approved until at least five years after the first visa application the sponsor sponsored was made. Two features of this rule are often misunderstood.

First, the five years run from the date of the earlier visa application to the date the current sponsorship is approved or refused. They do not run to the date the new application is lodged. The Department's own worked example describes a sponsor who was 4 years and 9 months past the earlier application at lodgement, and whose sponsorship was approved once five years had passed. This flows directly from approval being a time of decision criterion.

Second, only previous sponsorships that led to a visa grant count. A refused application does not count. A grant counts even if the person never travelled to Australia. Getting these dates right is the first task in any partner visa sponsorship assessment involving a previous partner.

The five-year rule for sponsors who were once sponsored

Under reg 1.20J(1)(c), a person who was themselves sponsored as a partner cannot have a partner sponsorship approved until five years after their own visa application was made. This catches many permanent residents and citizens who first came to Australia on a partner visa and later separated. For these sponsors, the partner visa sponsorship assessment turns on the date of their own earlier application, not the date their own visa was granted. The explainer on whether you can sponsor a partner if you were sponsored on a partner visa and the page on applying with a new partner after a previous one address this scenario.

How time passing changes the partner visa sponsorship assessment

Because the five years are measured to the date of decision, time can fix a reg 1.20J problem. The Tribunal has remitted several matters on this basis. In Promthong (Migration) [2024] AATA 2472, the prior sponsorship had been approved within five years of the time of the primary decision. In Rogers (Migration) [2020] AATA 4743, five years had not lapsed since the earlier visa application, but five years elapsed during the review process. Dang (Migration) [2024] AATA 137 involved an application made within five years of the previous sponsorship where five years had since passed. Each was remitted. The point for sponsors is that a partner visa sponsorship assessment problem under reg 1.20J(1)(b) or (c) is sometimes a timing problem, and timing can be managed. If you have been refused on this ground, read how to challenge a refusal involving sponsorship limitations.

What are compelling circumstances under reg 1.20J(2)?

Compelling circumstances are circumstances affecting the sponsor that are strong enough to justify approving the sponsorship even though a reg 1.20J limit applies. Reg 1.20J(2) allows the limit to be waived where there are compelling circumstances affecting the sponsor. This is the main discretion in the reg 1.20J part of the partner visa sponsorship assessment.

The Department's policy gives four examples:

• the applicant and sponsor have a dependent child together;
• the sponsor's previous partner has died;
• the sponsor's previous spouse abandoned the sponsor and children depend on the sponsor; and
• the new relationship is longstanding.

The list is not exhaustive. Policy says every case must be assessed against reg 1.20J(2) itself, not only against the examples. The FAQ on compelling and compassionate circumstances for a partner visa explains the concept in general. The articles on compelling reasons and length of relationship, compelling reasons and Australian citizen children and waiver evidence for compelling reasons go deeper on particular grounds.

The circumstances must affect the sponsor

The test is about the sponsor. This is why the waiver is described as part of the partner visa sponsorship assessment rather than the applicant's assessment. Hardship to the applicant may be relevant, but the regulation speaks of compelling circumstances affecting the sponsor. A waiver submission that only describes the applicant's position misses the point of this part of the partner visa sponsorship assessment.

What the Tribunal has said about compelling circumstances in the partner visa sponsorship assessment

Four recent remitted decisions show how the Tribunal approaches the waiver. Each is described only by its reported issue.

• In 2002289 (Migration) [2023] AATA 4513, a Subclass 820 matter, the sponsor had two previous sponsorships. The Tribunal considered whether compelling circumstances justified a waiver, and the reported issue refers to a longstanding registered relationship. The matter was remitted.
• In Mayu (Migration) [2021] AATA 2301, also a Subclass 820 matter, there were two previous sponsorships. The reported issue is compelling circumstances affecting the sponsor, and it records that a first husband left after obtaining permanent residency. The matter was remitted.
• In SEOL (Migration) [2023] AATA 4410, there were two previous sponsorships. The reported issue records that previous failed relationships are not themselves compelling circumstances. The matter was still remitted, which shows that the waiver depends on the full picture and not on the history of failed relationships alone.
• In ZHANG (Migration) [2024] ARTA 113, a Subclass 820 matter decided by the Administrative Review Tribunal, the reported issue refers to compelling circumstances, significant mental and physical health issues, and a long standing dependent relationship. The matter was remitted.

These decisions point in one direction. A strong waiver case under reg 1.20J(2) is built on evidence of the sponsor's actual situation: the length and depth of the current relationship, health and dependency, children, and how the earlier relationships ended. SEOL is a warning that the sponsor's past failed relationships do not, by themselves, carry the case. If your reasons were rejected, read why partner visa compelling reasons are not accepted and how the Tribunal assesses compelling reasons. The FAQ on whether a lawyer can help if your sponsor has sponsored a partner before explains the work involved.

What evidence supports a reg 1.20J(2) waiver?

The evidence should prove facts, not describe feelings. Useful material may include birth certificates of children, school and care records showing dependency, medical reports about the sponsor, evidence of how a previous relationship ended, and long-term relationship evidence. The couple's own account is given in the relationship statement and supported by Form 888 statements from people who know them. The guide to partner visa relationship statements and Form 888 witness statements explain the format. The point is to present the couple's own evidence in the form the partner visa sponsorship assessment requires.

Other status bars: Contributory Parent visas and the Woman at Risk visa

Two narrower bars also form part of the partner visa sponsorship assessment.

Reg 1.20KA: sponsors who hold a Contributory Parent visa

Under reg 1.20KA, a sponsor granted a permanent Contributory Parent visa (Subclass 143 or Subclass 864) on or after 1 July 2009 cannot sponsor a partner they were with at or before that grant until five years after the grant. A waiver is available only for compelling reasons that are not related to finances (reg 1.20KA(3)). A sponsor who arrived on a Contributory Parent visa should check this rule before the partner visa sponsorship assessment is reached. The Tribunal has remitted matters on this point. In Ly (Migration) [2022] AATA 409, the sponsor was a Contributory Parent visa holder and the parties had re-married in Australia. In Rahman (Migration) [2020] AATA 3380, the reported issue was that five years had lapsed from the grant of a permanent Contributory Parent visa. Both were remitted.

The Woman at Risk visa bar

A separate bar applies where the applicant entered on a Subclass 204 (Woman at Risk) visa. It sits in cl 820.211(2B), cl 309.212 and cl 300.212. This is an applicant-side rule, but sponsors should know it exists because it can stop a partner application regardless of the sponsor's own position.

Reg 1.20KB: the partner visa sponsorship assessment when an applicant is under 18

Reg 1.20KB adds a child protection layer to the partner visa sponsorship assessment whenever an applicant is under 18. It applies to Subclass 309, Subclass 820 and Subclass 300 applications made on or after 27 March 2010. It does not apply to Subclass 100.

The registrable offence bar

If the sponsor has a conviction for a registrable offence, the sponsorship of all applicants must be refused. A registrable offence is an offence of a type that could be listed on the Australian National Child Offenders Register. There are two exceptions. The bar does not apply if all applicants are 18 or over at the time of decision, or if the conviction is quashed (reg 1.20KB(3)).

A waiver is possible only if the sentence was completed more than five years before the sponsorship application, and the waiver is discretionary (reg 1.20KB(4) and (5)). This is the strictest rule in the partner visa sponsorship assessment, and a sponsor with any conviction involving a child should take advice before the application is lodged.

Unresolved charges

An unresolved charge for a registrable offence also bars approval, unless all applicants are 18 or over, or the charge is disposed of without a conviction (reg 1.20KB(2)). Sponsors with a pending charge should read can I get a partner visa if I have a pending criminal charge and take advice before the partner visa sponsorship assessment is reached.

Police checks and the self-declaration under reg 1.20KB

Sponsors who sponsor an applicant who is under 18 at the time of visa application in a Subclass 309, Subclass 820 or Subclass 300 application must provide police checks for reg 1.20KB purposes. The sponsorship can be refused if requested police checks are not provided within a reasonable time (reg 1.20KB(12)). The sponsor must also declare on the partner sponsorship whether they have ever been convicted of, or have a pending charge for, an offence relating to persons under 18. A false declaration is a serious matter in its own right, and it can damage the partner visa sponsorship assessment far more than an honest disclosure.

PIC 4016 and PIC 4018

Beyond reg 1.20KB, public interest criteria 4016 and 4018 deal with the best interests of a minor applicant. They cover the sponsor's other serious convictions. An unresolved charge against the sponsor for assault or violence, or for drug trafficking or manufacture, leads to deferral of the visa decision until the charge is dealt with. If both reg 1.20KB and reg 1.20KC grounds exist, reg 1.20KB is considered first. In other words, where children are involved, the partner visa sponsorship assessment looks at the child protection rules before it looks at the general criminal record rules. For the children's side of the application, see adding children to a partner visa and partner visa child custody and consent.

Regs 1.20KC and 1.20KD: relevant offences and significant criminal record

Regs 1.20KC and 1.20KD are the criminal record part of the partner visa sponsorship assessment for every partner sponsor, whether or not children are involved. Reg 1.20KC applies to Subclass 300, Subclass 309 and Subclass 820 applications made on or after 18 November 2016. It does not apply to Subclass 100 or Subclass 801. For a general overview of character issues on the sponsor's side, see can I get a partner visa if my sponsor has a criminal record.

What reg 1.20KC allows the Minister to do

Reg 1.20KC gives the decision maker three powers. The Minister may request Australian and foreign police checks from the sponsor (reg 1.20KC(5)). The Minister may refuse to approve the sponsorship if those checks are not provided within a reasonable time (reg 1.20KC(6)). And the Minister must refuse to approve the sponsorship if the sponsor was convicted of a relevant offence and has a significant criminal record for it (reg 1.20KC(3)), unless the Minister considers it reasonable to approve (reg 1.20KC(4)).

What is a relevant offence?

A relevant offence is an offence against Commonwealth, State, Territory or foreign law that involves any of the following (reg 1.20KC(2)):

• violence against a person, including murder, assault, sexual assault and threat of violence;
• harassment, molestation, intimidation or stalking;
• breach of an apprehended violence order or a similar order;
• firearms or other dangerous weapons;
• people smuggling;
• human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;
• attempting any of these offences; and
• aiding, abetting, counselling or procuring any of these offences.

Offences outside this list are not relevant offences. A drink driving conviction, for example, is not a relevant offence under reg 1.20KC unless it involves one of the listed elements, although it may matter elsewhere. Convictions for non-relevant offences cannot be used under reg 1.20KC(3) and cannot be disclosed. For the applicant's own character rules, which are different, see partner visa character requirements and partner visa drink driving convictions.

What is a significant criminal record?

Under reg 1.20KD(1), a person has a significant criminal record if they have been sentenced to death, to life imprisonment, to a term of imprisonment of 12 months or more, or to two or more terms totalling 12 months or more. Concurrent sentences, periodic detention and residential programmes are counted under reg 1.20KD(2) to (4). A suspended sentence of 12 months or more counts, because the test looks at the sentence imposed and not the time served. Quashed or nullified convictions, and pardons where the person is taken never to have been convicted, are disregarded under reg 1.20KD(5).

What counts as a conviction?

A conviction means a court recorded a conviction. Offences where no conviction was recorded, such as a good behaviour bond without conviction or a finding of guilt without conviction, cannot be relied on to refuse the sponsorship and cannot be disclosed. Unresolved charges cannot be the basis of refusal under reg 1.20KC, although the delegate may defer the decision briefly. The FAQ on disclosing charges that did not lead to a conviction and the article on partner visa spent convictions explain the disclosure side.

A relevant conviction without a significant criminal record

Where the sponsor's police checks show a conviction for a relevant offence but no significant criminal record, the sponsorship cannot be refused under reg 1.20KC(3). Policy is still to disclose that conviction to the applicant, with the sponsor's consent, so the applicant can decide whether to continue. A sponsor in this position passes the partner visa sponsorship assessment, but the applicant will learn of the conviction.

How does the reg 1.20KC(4) discretion work?

The reg 1.20KC(4) discretion allows the decision maker to approve the sponsorship even though the sponsor has a relevant conviction and a significant criminal record, where it is reasonable to do so. It is the most important discretion in the character part of the partner visa sponsorship assessment. The decision maker must have regard to three matters, and the list is not exhaustive:

• The length of time since the sponsor completed the sentence or sentences. Policy says delegates should be cautious about approving solely on time elapsed if less than five years have passed since the sentence was completed.
• The best interests of any children of the sponsor or of the primary applicant. Policy treats this as a primary consideration. It covers biological, adopted and step-children.
• The length of the relationship between the sponsor and the primary applicant.

Other matters may also be relevant, such as remorse, rehabilitation and the absence of reoffending. The FAQ on whether a lawyer can help with a partner visa if your sponsor has a criminal record and the article on partner visa criminal records explain how this evidence is gathered.

What the Tribunal has said about the reg 1.20KC(4) discretion

Three recent remitted decisions show the discretion in practice. Each is described only by its reported issue.

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

2107808 shows that a suspended sentence can still create a significant criminal record, and that remorse and the absence of reoffending are matters the Tribunal weighs. Naureen shows that a short relationship is not fatal where there is a reason the couple could not spend more time together. A partner visa sponsorship assessment under reg 1.20KC(4) is therefore an evidence exercise. It is not a box-ticking exercise.

The applicant interview before approval

If the delegate is inclined to approve under reg 1.20KC(4), policy is to interview the visa applicant before approving, preferably in person and without the sponsor present, and by phone if that is not possible. The purpose is to make sure the applicant is not forced, coerced or intimidated. Policy notes a particular risk where a controlling sponsor is also the applicant's authorised recipient. The convictions are disclosed to the applicant, with consent. Sponsors should understand that this interview is a protective step, not an accusation. Preparation for interviews generally is covered in can a lawyer prepare me for a partner visa interview.

Police checks and consent to disclose

Police checks are the evidence the Department uses to run the criminal record part of the partner visa sponsorship assessment, and consent to disclose is a legal criterion in its own right.

Police checks in brief

The Department's public website asks partner sponsors for a complete disclosure National Police Certificate issued by the Australian Federal Police, with the purpose "Immigration/Citizenship - Australia" under policy, and for overseas police certificates from every country where the sponsor spent a total of 12 months or more in the last 10 years since turning 16. Certificates are valid for 12 months. Policy guidance says delegates are not required to request checks from female sponsors where there are no character concerns, but the public website asks every sponsor to provide them, and preparing them is the prudent course. Under policy, the "reasonable time" to respond to a request is 28 days, with flexible extensions where the sponsor shows they have applied. The detailed mechanics are in partner visa AFP police checks, partner visa overseas police certificates and what to do if you cannot get a police certificate.

Consent to disclose convictions

The sponsor must give written consent for the Department to disclose any convictions for relevant offences to the visa applicant. This is a time of decision criterion under cl 300.222(2), cl 309.222(2) and cl 820.221(4). If the sponsor declines consent, the criterion cannot be met and the visa is refused, after a section 57 letter. If the sponsor is silent, the Department asks again by letter. Consent given on the sponsorship form does not need to be obtained again.

The practical lesson is simple. A sponsor with a relevant conviction cannot keep it from the applicant and still pass the partner visa sponsorship assessment. The couple should talk about the conviction honestly before lodgement. The Department's purpose is to make sure the applicant decides with full knowledge.

The sponsor's part in the genuine relationship assessment

The sponsor's evidence is a central part of the genuine and continuing relationship assessment, even though that test is formally a criterion for the applicant. The delegate must be satisfied that the couple have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and that they live together or do not live apart permanently. The sponsor's relationship history, migration history and credibility can all affect that finding. For the legal test, see the genuine and continuing relationship test explained and what mutual commitment to the exclusion of all others means.

In Nguyen (Migration) [2023] AATA 3868, a Subclass 309 matter, the reported issues were a genuine spousal relationship, the sponsor's migration history and credibility concerns, the sponsor's marital history, and financial aspects. The matter was remitted. The case shows that concerns about the sponsor can move into the relationship assessment itself. A sponsor's earlier marriages, earlier sponsorships or earlier visa history may be examined, and the couple should expect to address them directly. See partner visa previous relationship history.

Relationship evidence may include an interview with the applicant and/or the sponsor, Form 888 statements and information received from third parties. Form 888 witnesses may be contacted for further comment or interview. The sponsor should be ready to give consistent, accurate evidence about the relationship. The guides to partner visa interview questions, partner visa interview inconsistencies and what happens if an ex-partner sends a tip-off are useful here. The Department may also refuse the visa if the couple are found to be in a forced marriage.

Withdrawal by the sponsor

A sponsor can withdraw the sponsorship at any time before the Department decides the permanent Subclass 801 application, but cannot withdraw as sponsor for the Subclass 820 after it is granted. Withdrawal must be made in writing. Removing an online application from ImmiAccount does not withdraw it. Withdrawal is treated as evidence about the relationship, and it effectively ends the partner visa sponsorship assessment for a couple who have separated. See can my sponsor withdraw their sponsorship after I apply and, where violence is involved, the family violence partner visa page.

How the delegate records the partner visa sponsorship assessment and natural justice

The delegate records the partner visa sponsorship assessment as part of the visa decision record, because there is no separate sponsorship decision. In the Department's system, the reg 1.20KB status codes "Requirement outstanding", "Evidence requested" and "Evidence lodged" all prevent sponsorship approval until the evidence is accepted. If the Subclass 820 is refused, the delegate must also refuse the Subclass 801 as a separate recorded decision. The same applies to Subclass 309 and Subclass 100.

The section 57 invitation

Before a refusal based on the sponsor, the applicant receives a section 57 natural justice invitation to comment on adverse information. Under policy, the reasons and details of the sponsor's convictions are not put to the applicant in that letter. This means the applicant may be asked to comment without knowing everything, and the sponsor's input becomes essential. Read what a section 57 natural justice letter is, how to respond to a section 57 letter and the difference between a section 56 request and a section 57 letter. The article on responding to a section 57 letter for a partner visa gives a fuller walkthrough.

Section 56 requests

Requests for further information, such as police checks or evidence about a previous sponsorship, are often made under section 56. A missed request can lead to refusal, and an unanswered request for sponsor police checks is one of the simplest ways to fail the partner visa sponsorship assessment. The FAQ on what happens after a missed request for information explains the risk.

What happens if the partner visa sponsorship assessment fails?

If the partner visa sponsorship assessment fails, the visa is refused, and the next step is usually a merits review by the Administrative Review Tribunal. The application must be made within 28 days after notification, or 7 days if the applicant is in immigration detention. The deadline cannot be extended.

Who lodges depends on the subclass:

• Subclass 820 and Subclass 801 refused onshore: the visa applicant applies, and must be in Australia.
• Subclass 300 refused: the sponsor applies.
• Subclass 309 refused: the visa applicant applies in their own name, from anywhere.
• Subclass 100 refused while offshore: there is no review right.

The Tribunal decides the case afresh, and it looks at the facts at the time of its decision. That is why several of the reg 1.20J cases above were remitted after five years had passed during review. See who applies for review of an offshore refusal, the partner visa ART review process, Partner visa refusals and the general visa refusals page. If the deadline is close, go straight to urgent visa help.

How My Migration Lawyers helps with a partner visa sponsorship assessment

My Migration Lawyers acts for sponsors and applicants in many matters where the partner visa sponsorship assessment is the real issue in the case. The firm handles complex sponsor files: sponsors with two previous sponsorships, sponsors who were themselves sponsored within the last five years, sponsors with relevant convictions and significant criminal records, permanent residents who have spent long periods overseas, and families where an applicant is under 18.

On a partner visa sponsorship assessment matter, the firm's work is concrete. It checks the sponsor's status and usual residence evidence. It works out the exact reg 1.20J dates from the earlier visa applications and grants, and identifies when the five years will be met at the time of decision. It assesses whether reg 1.20KB, reg 1.20KC or PIC 4016 and PIC 4018 apply. It reviews the sponsor's criminal history against the list of relevant offences and the reg 1.20KD sentence rules. Where a waiver or the reg 1.20KC(4) discretion is needed, it gathers evidence on the three statutory matters and presents the couple's own account and evidence in the form the law requires. The relationship statement remains the couple's own evidence, reviewed and corrected by them. The lawyer decides the strategy. The firm also explains to the couple, plainly, what consent to disclose means before the sponsor signs it.

When a section 56 request or section 57 letter arrives, the firm prepares the response and manages the deadlines. When a refusal has already happened, it acts on the Tribunal review within the 28-day limit. The principal, Weiwei Zhang, oversees the firm's partner visa work. Consultations are by video Australia-wide and for sponsors overseas, from the firm's office at Level 1, 60 Martin Place, Sydney NSW 2000. Couples in other cities can start with Partner visa lawyers Melbourne, Partner visa lawyers Brisbane, Partner visa lawyers Perth or Partner visa lawyers Sydney, or see the firm's main partner visa lawyers page and the complex partner visa cases FAQ. No lawyer can promise an outcome, but a partner visa sponsorship assessment problem identified early gives the couple the most options.

Book a consultation with My Migration Lawyers to have the sponsor's history assessed before the Department reaches its decision. You can also call us on 1300 040 300.