When a Sponsor Cannot Sponsor a Partner Visa in Australia

When can a person not sponsor a partner visa in Australia?

A person cannot sponsor a partner visa where a sponsorship limitation in the Migration Regulations 1994 applies to them and no waiver is available. These limitations sit in Division 1.4B of the Regulations. They are separate from the relationship test. They can stop a partner visa even where the relationship is genuine, continuing and fully evidenced.

This surprises many couples. They spend months gathering joint bank statements, photographs and Form 888 statements, and they never think to check the sponsor. The sponsor is a criterion in their own right. Approval of the sponsorship is a time of decision criterion for each partner visa. For the Subclass 820 visa, subclause 820.221(4) requires the sponsorship to have been approved and to remain in force at the time the visa is decided. Subclause 309.222(1) does the same work for the Subclass 309 visa, and subclause 300.222 for the Subclass 300 prospective marriage visa. If the sponsorship is not approved, the visa criteria cannot be met and the application is refused.

Four limitations account for almost every blocked partner visa sponsorship:

• Regulation 1.20J, which caps the number of partner sponsorships a person may have and imposes a five year gap between them.
• Regulation 1.20KA, which stops certain Contributory Parent visa holders sponsoring a partner for five years after grant.
• Regulation 1.20KB, which deals with charges and convictions for registrable offences where a visa applicant is under 18.
• Regulation 1.20KC, which allows the Department to refuse a sponsorship where the sponsor has been convicted of a relevant offence and has a significant criminal record.

Before any of those limitations arise, the sponsor must be the right person. Under paragraphs 820.211(2)(c), 820.211(5)(f) and 820.211(6)(c), the applicant must be sponsored by their spouse or de facto partner, where that partner has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Where the Australian partner has not turned 18, the sponsor must be a parent or guardian of that partner who has turned 18 and holds one of those three statuses. Clause 309.213 applies the same rule to the Subclass 309 offshore partner visa.

The term eligible New Zealand citizen is narrower than most people assume. Regulation 1.03 defines it as a New Zealand citizen who is a protected Special Category Visa holder within the meaning of section 7 of the Social Security Act 1991. In practice that means a New Zealand citizen who was in Australia on 26 February 2001, or who met one of the related residence tests around that date. A New Zealand citizen who arrived later, and who has not become an Australian citizen or permanent resident, cannot sponsor a partner at all.

What is the regulation 1.20J sponsorship limitation?

Regulation 1.20J limits a person to two approved partner sponsorships in their lifetime, and requires at least five years to pass between them. It is the most common reason a partner visa sponsor is blocked, and it catches people who have done nothing wrong.

The Department's own instruction, Division 1.4B, describes the limitation as having three limbs. Each one operates independently. A sponsor only has to fall foul of one of them for the sponsorship to be refused, subject to the waiver discussed below. The purpose of the regulation is to prevent abuse of the partner visa program through repeated sponsorships, and that purpose shapes how the Department applies it.

Regulation 1.20J applies to applications for the Subclass 300 prospective marriage visa, and to Subclass 309 and Subclass 820 partner visas lodged on or after 1 July 2009. It also reaches back to spouse applications lodged from 1 November 1996 and to the old interdependency Subclass 310 and Subclass 826 visas. The version of regulation 1.20J in force when the current visa application was made is the version that applies. Our partner visa sponsorship limitations page sets out how this plays out for each subclass.

Two approved sponsorships is the lifetime maximum

Under regulation 1.20J(1)(a), a person may enter into at most two approved spouse, de facto partner, interdependent partner or prospective marriage sponsorships. A third is not available unless the waiver applies.

One point is commonly misunderstood. A sponsor of a two stage partner visa is counted once, not twice, even though the process results in the grant of two visas. There is no separate sponsorship approval process for the Subclass 100, Subclass 110, Subclass 801 and Subclass 814 visas. The permanent stage criteria refer back to the sponsor already approved for the temporary visa. So a sponsor who took a partner through the Subclass 820 and Subclass 801 pathway has used one sponsorship, not two.

Five years must pass between sponsorships

Under regulation 1.20J(1)(b), even where a person has one sponsorship left, they cannot have another partner sponsorship approved until at least five years after the first visa application was made. The five year rule and the two sponsorship cap are separate hurdles. A sponsor must clear both.

Sponsors who were themselves sponsored

Regulation 1.20J(1)(c) deals with the reverse situation. A person who was themselves sponsored as a spouse, de facto partner, fiance or interdependent partner cannot sponsor a partner under any of those categories until at least five years after their own visa application was made. Being sponsored does not use up one of the two sponsorships, but it does start a five year clock.

How is the five year period under regulation 1.20J calculated?

The five year period runs from the date the earlier visa application was made to the date the current sponsorship is approved or refused. It does not run from the date the earlier visa was granted, and it does not run from the date the earlier relationship ended.

This is the single most misunderstood part of the regulation, and getting it wrong costs couples years. Two dates matter, and neither of them is the obvious one. The start date is the date of the earlier visa application. Where the sponsor previously sponsored someone, the clock starts on the date that person's visa application was made. Where the sponsor was themselves sponsored, the clock starts on the date the sponsor's own visa application was made.

The end date is the date the current sponsorship is decided, not the date the current application is lodged. Approval of the sponsorship is a time of decision criterion. The sponsorship must exist when the visa application is lodged, but it only has to be approved at the time of decision. The Department's own worked example makes the point. A sponsor lodged a spouse application on 1 January 1994 and the visa was granted. That marriage broke down. The sponsor then lodged a Subclass 300 prospective marriage application on 1 October 1998, four years and nine months later. Processing took six months. By the decision date of 1 March 1999, five years had passed since the first application, so the sponsorship could be approved.

That example matters in practice. A sponsor who is a few months short of five years is not necessarily barred. Processing time may carry them over the line. A sponsor who is three years short is in a very different position and needs a waiver argument, or needs to wait. Working out which of those two positions a sponsor is in is the first thing a partner visa lawyer should do, before anything is lodged and before any charge is paid.

One further trap applies where the sponsor changes during processing. For applications made on or after 1 July 2009, the limitation is assessed against the sponsor at the time of decision, not the sponsor at the time of application. A change of sponsor triggers a fresh assessment.

Which previous sponsorships count under regulation 1.20J?

A previous sponsorship counts if it resulted in the grant of a visa. A sponsorship connected to a visa application that was refused does not count. What happened after the grant is irrelevant.

That rule produces outcomes that feel unfair, and it is applied strictly. The Department's instruction gives a series of examples. A sponsorship where the visa was granted but the person never travelled to Australia still counts. The critical factor is the grant of the visa, and nothing that follows changes it. A prospective marriage sponsorship where the visa was granted and the person travelled to Australia but the marriage never took place still counts.

Two examples catch sponsors who consider themselves blameless. Where the person sponsored was later granted a permanent partner visa under the family violence provisions, that sponsorship counts. The permanent visa was granted as a result of the original sponsorship for the temporary visa, even though the relationship had ended. Where the person sponsored was granted a partner visa because the sponsor had died, that sponsorship also counts, and the limitation then applies to the surviving partner. The Department's own instruction accepts that the second situation may be one where compelling circumstances exist.

There is also a distinction that works in a sponsor's favour. A person who was themselves sponsored as a spouse, and who later sponsors a fiance, has not used up their two sponsorships. Being sponsored is a separate consideration from the number of sponsorships a person may enter into. It still starts the five year clock under regulation 1.20J(1)(c), but it does not consume one of the two.

Finally, the fact that the visa applicant has been sponsored before is not relevant to regulation 1.20J at all. The regulation looks at the current sponsor, not the current applicant. A person who once held a Subclass 300 visa, did not marry that sponsor, returned home and later married someone else does not create a problem for the new sponsor.

When will the Department waive the regulation 1.20J limitation?

Regulation 1.20J(2) allows an officer to approve a sponsorship that would otherwise fail regulation 1.20J(1) if there are compelling circumstances affecting the sponsor. As a matter of law, every case must be assessed against the waiver, even where no submission is made.

That last point is worth stating plainly, because it is routinely missed. The waiver is not something the sponsor has to unlock. The decision maker is obliged to consider it in every case where the limitation bites. A sponsor who says nothing will still have the waiver considered, but on a file containing nothing to consider. That is why the submission matters.

Departmental policy lists circumstances that may be compelling, and the list is not exhaustive. They include where the applicant and the sponsor have a dependent child who is dependent on each of them, where the previous partner has died, where the previous spouse abandoned the sponsor leaving children who need care and support, and where the new relationship is longstanding.

Policy also identifies what a decision maker weighs. Every aspect of the sponsor's circumstances is relevant. Two aspects are singled out as potentially important. The first is the nature of the hardship or detriment the sponsor would suffer if the sponsorship were not approved. The second is the extent and importance of the sponsor's ties to Australia, and the hardship that would follow if the sponsor felt compelled to leave Australia to maintain the relationship.

One category of argument is treated with caution. Policy records claims by so called innocent sponsors, who say their intentions in the earlier relationship were genuine, that they were blameless in its failure, and that no immigration advantage was gained because the person they sponsored left Australia. Policy says it is open to decision makers to decide whether that situation meets the test of compelling circumstances. It is not an automatic waiver, and it should never be presented to the Department as though it were.

Can a sponsor be refused because of a charge involving a child?

Yes. Regulation 1.20KB requires the sponsorship to be refused where the sponsor has a conviction, or an unresolved charge, for a registrable offence and any applicant for the visa is under 18.

The purpose of the regulation is to protect minor visa applicants from being sponsored by people who might pose a significant risk to a child in their care. Subregulation 1.20KB(2) provides that the sponsorship must be refused for every applicant included in the sponsorship unless none of the applicants is under 18 at the time the sponsorship is decided, or the charge has been withdrawn, dismissed or otherwise disposed of without a conviction being recorded. Subregulation 1.20KB(7) applies the same rule where it is the sponsor's spouse or de facto partner who has been charged.

This is the reason police checks are requested. Where a sponsor is sponsoring an applicant who is under 18 at the time of application on a Subclass 300, Subclass 309 or Subclass 820 visa, the sponsor must provide a complete disclosure Australian National Police Check, and a foreign police check where one is required. Regulation 1.20KB(12) allows the sponsorship of every applicant to be refused where a requested police check is not provided within a reasonable time. Refusing to co-operate is therefore its own ground of refusal.

Regulations 1.20KB(4), (5), (9) and (10) give a discretion to approve the sponsorship despite the offending. That discretion only arises where the visa applicant is, or would be, under 18 when the visa decision is expected to be made. These are difficult applications and they are assessed by a specialist unit within the Department.

Can an ordinary criminal record stop a partner visa sponsorship?

Only where two conditions are both met. Under regulation 1.20KC the Department can refuse a sponsorship where the sponsor has been convicted of a relevant offence and has a significant criminal record in relation to that offence.

Neither condition alone is enough, and this is where a great deal of bad information circulates. Where a sponsor has no convictions, the sponsorship cannot be refused under subregulation 1.20KC(3). Where a sponsor has convictions but not for a relevant offence, the sponsorship cannot be refused under that regulation, and those convictions cannot be disclosed to the visa applicant. Where a sponsor has committed a relevant offence but no conviction was recorded, for example because of a good behaviour bond, the offence cannot be disclosed or relied on either.

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

Regulation 1.20KD then defines significant criminal record. A person has one if they have been sentenced to death, to imprisonment for life, to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment totalling 12 months or more. Concurrent sentences are added together, so two six month sentences served at the same time amount to a significant criminal record. A suspended sentence of 12 months or more counts, because it is the sentence that matters, not the time served.

Where both conditions are met, subregulation 1.20KC(4) allows the sponsorship to be approved anyway if the decision maker considers it reasonable. The decision maker must have regard to the length of time since the sentence was completed, the best interests of any children of the sponsor or the primary applicant, and the length of the relationship between the sponsor and the applicant. Policy cautions against approving a sponsorship on time alone where less than five years have passed since the sentence was completed. The sponsor must also be invited to comment on the adverse information before a refusal is made.

Two practical points follow. A criminal matter that has not been finalised in court cannot be used to refuse a sponsorship under regulation 1.20KC. And the partner visa criteria require the sponsor to have consented to the Department disclosing any conviction for a relevant offence to each applicant included in the sponsorship: see subclause 820.221(4)(b) for the Subclass 820 visa and subclause 309.222(2) for the Subclass 309 visa. A sponsor who declines that consent creates a problem with the visa criteria, not just with the sponsorship.

Which other sponsorship bars apply to partner visas?

Two further bars catch a small number of sponsors, and both are easy to miss because they have nothing to do with the sponsor's conduct.

The first is regulation 1.20KA. It prevents a person sponsoring a partner or fiance for five years from the day they were granted a permanent Contributory Parent visa, being the Subclass 143 or Subclass 864 visa, where they were granted that visa on or after 1 July 2009 and were in a spouse or de facto partner relationship with that person on or before the date of grant. The regulation exists to stop split applications, where one member of a couple applied for a Contributory Parent visa, claimed their partner was not migrating, and then sponsored that partner once permanent residence was obtained. Regulation 1.20KA(3) allows the limitation to be lifted where there were compelling reasons, other than reasons related to financial circumstances, for the partner not applying at the same time or withdrawing an application that was made. A major family illness or another significant non financial obligation may qualify, and evidence of the change in circumstances is expected.

The second is a preclusion specific to the Subclass 309 visa. Clause 309.212 prohibits a woman from sponsoring a male applicant where she was granted a Subclass 204 Woman at Risk visa within the five years immediately preceding the application, and where, on the date that visa was granted, the applicant was her former spouse or former de facto partner from whom she had been divorced or permanently separated, or was her spouse or de facto partner in a relationship that had not been declared to the Department. Subclause 820.211(2B) does similar work for the Subclass 820 visa. The purpose is to maintain the integrity of a visa reserved for women who lack the protection of a male relative and face victimisation, harassment or serious abuse because of their sex.

What happens if the sponsorship is not approved?

The visa application is refused. Approval of the sponsorship is a time of decision criterion, so a sponsorship that is not approved means the visa criteria cannot be met, and the delegate refuses the application.

That refusal is the decision that carries consequences, and it carries them for the applicant as well as the sponsor. An applicant who is onshore will usually be left holding a bridging visa that ends a short time after the refusal. Review of a refused partner visa runs to the Administrative Review Tribunal, and the time limit for applying is short and strictly applied. It cannot be extended for a good reason, sympathy or a late realisation. Our page on partner visa refusals explains the process and what the Tribunal can and cannot do.

There is a better option than being refused, and it is available only before the decision. Where a sponsorship limitation applies, the sponsor can put the waiver argument, the evidence and the supporting material before the Department while the application is still on foot. A waiver assessed on a properly prepared submission is a very different proposition to a waiver assessed on a blank file. Where the limitation is absolute, and no waiver is available, the honest advice is often to change the timing or the visa pathway rather than lodge and hope.

How My Migration Lawyers handles a blocked sponsorship

My Migration Lawyers treats the sponsor as a separate legal question from the relationship, and looks at the sponsor first.

On a matter where a sponsorship limitation may apply, the firm establishes the sponsor's full sponsorship history and the exact dates the regulation turns on, being the date of the earlier visa application and the likely decision date on the current one. It works out which limb of regulation 1.20J is engaged, whether the sponsorship is properly counted at all, and whether time alone will solve the problem. Where regulation 1.20KB or regulation 1.20KC is in play, the firm reviews the police checks, identifies whether an offence is in fact a relevant offence under subregulation 1.20KC(2), and whether the sentencing history meets the regulation 1.20KD definition of a significant criminal record. A great many sponsors worry about convictions that the regulations simply do not reach.

Where a waiver is needed, the firm prepares the submission under regulation 1.20J(2) or regulation 1.20KC(4) against the criteria the decision maker must consider, using the sponsor's own account and the sponsor's own documents. The submission sets out the hardship, the ties to Australia, the position of any children and the length of the relationship, and it is put to the Department before a decision is made rather than after a refusal.

The firm is led by Weiwei Zhang, Principal Lawyer, and acts for couples across Australia by video consultation. Advice is given plainly, including where the news is that the limitation cannot be overcome and the timing has to change. If a sponsorship limitation may affect you, you can request a consultation online and set out the dates and the history, and a lawyer will review the position before anything is lodged.