Can a Lawyer Help With a Partner Visa If My Sponsor Has a Criminal Record?

Does a sponsor's criminal record matter for a partner visa?

A sponsor's criminal record matters for a partner visa because the sponsorship is assessed as part of the visa decision, and the regulations allow or require the Department to refuse to approve some sponsors. Where a sponsorship is not approved, the visa must be refused. Not every conviction is relevant, however, and a sponsor with only offences outside the defined categories cannot be refused under regulation 1.20KC. Our page on partner visa sponsorship limitations explains the wider sponsorship rules.

What is a relevant offence and a significant criminal record?

A relevant offence and a significant criminal record are defined terms in regulations 1.20KC and 1.20KD, and both must be present before regulation 1.20KC prevents approval of the sponsorship. A conviction for a relevant offence without a significant criminal record, or offences with no conviction recorded, cannot be relied on to refuse under that regulation. Because the definitions are technical, the court records should be checked against them before lodgement. Our article on partner visa sponsorship limitations explains how sponsor history is assessed.

Why must my sponsor consent to disclosure?

A sponsor must consent to the Department disclosing convictions for relevant offences to the applicant, because the law is designed to make sure the applicant knows about that history. If the sponsor declines consent, the relevant Schedule 2 criterion is not met and the visa cannot be granted. If the sponsor does not answer the question on the form, the Department should ask before reaching a decision.

What changes if children are included in the application?

Including an applicant under 18 changes the position because regulation 1.20KB then applies. The sponsor must provide Australian and, where relevant, overseas police checks, and a conviction or unresolved charge for a registrable offence, broadly offences against children, can require refusal of the sponsorship unless a waiver is available. Our article on partner visa character requirements explains the related public interest criteria.

Can my sponsor's record affect how my relationship is assessed?

A sponsor's record can affect how the relationship is assessed where it raises questions about family violence, periods in custody or the couple's living arrangements. Time the sponsor spent in prison does not by itself end a genuine relationship, but it should be explained with evidence of contact and support during that period. Our article on the partner visa when a partner is in prison covers that situation.

How does My Migration Lawyers deal with a sponsor's criminal record?

My Migration Lawyers reviews the sponsor's police checks and court documents against the definitions in regulations 1.20KB, 1.20KC and 1.20KD before the application is lodged, so the couple knows whether a discretion will be needed. Where it is, the firm prepares a submission on the time since the sentence ended, the length of the relationship and the interests of any children, and makes sure the consent to disclosure is properly given. Sponsors can raise their history confidentially with our partner visa lawyers or read about Weiwei Zhang, the firm's Principal Lawyer.