The federal government has made it clear for at least two years that they want to ‘strengthen’ (toughen) partner visa rules. Recently we had a very public display of a group of criminals that had attempted to defraud the commonwealth with fake partner visa scams. The department is well aware of the risks inherent within the partner visa program, and want to crack down on the ease with which fraudsters seek to exploit our longstanding visa program for Australians to obtain visas for their partners. The changes affect partner visa sponsorship dramatically
On the 28th November 2018 both houses of the federal parliament passed a bill that will have a massive impact on Australians who seek to obtain visas for their partners. The Bill, titled ‘Migration Amendment (Family Violence and Other Measures) Bill 2016 sounds reasonable enough. One of the issues it seeks to address is preventing Australians from being approved as a sponsor for a partner visa where they have committed serious offences, especially those involving violence. Sounds reasonable enough.
But embedded into the legislation are a raft of other changes that will have a major impact on all partner visa applicants. Some of the other key changes will:
- separate sponsorship assessment from the visa application process
- require the approval of persons as family sponsors before any relevant visa applications are made
- impose statutory obligations on persons who are or were approved as family sponsors and provide for enforceable sanctions if such obligations are not satisfied
- allow the Minister to refuse a sponsorship application and cancel and/or bar a family sponsor where inappropriate use of the program or serious offences are detected, especially those involving violence and
- improve the sharing of personal information between parties to the application and the program more generally.
The first and second points are the critical aspects that will have major ramifications for all partner visa applicants. By separating and making obtaining sponsorship approval a prerequisite, we now can no longer control the application date of a partner visa application. Applicants must now wait until the sponsorship is approved, before they can lodge their visa application. What happens if you are in Australia and your visa is expiring in a week? Or a Month? Or 2 Months? What happens if the Department take longer than your visa has left?
We have seen this movie before and it doesn’t end well. What is likely to happen is that initially sponsorship applications will be dealt with reasonably quickly. Perhaps a few weeks or so. But eventually, and this will happen sooner for certain cohorts of applicants, the process will blow out just like every other program that has ever been implemented. We are likely going to see many people forced to either lodge a new visitor/other visa application onshore while awaiting the sponsorship application or leave Australia and be forced to lodge offshore, unless they can obtain a new visa to re-enter Australia (visitor visas may not be granted readily when a sponsorship application is in place in preparation for an onshore partner visa).
The onshore partner visa cohort often do not have the luxury of a great deal of time – student, visitor, working holiday or other visas are about to expire and the partner visa needs to be lodged, usually within weeks. Planning ahead was always a wise thing to do, but now it is critical.
What we need to think about
If you are planning to lodge a partner visa in Australia, careful planning is required. Assessing your eligibility for a sponsorship approval, and then lodging that application correctly and decision ready well ahead of time will be imperative to protect your right to remain in Australia as a partner visa applicant.
If for some reason sponsorship approval takes too long, a new onshore visa application will need to be thought through. This is where planning ahead can really help. As it is imperative that any new visa (such as a visitor visa) is approved, since a refusal of that next visa will result in the applicant almost certainly being required to demonstrate compelling reasons to waive what is known as ‘schedule 3’ requirements. Compelling reasons are a high bar and not present in most cases (generally they are looking for the impact on Australian children, serious health/accident, administrative malpractice or some other serious issue beyond control).
The bill has been passed but is now awaiting royal assent and proclamation. It could therefore be implemented at almost any time in the near future, and likely without any warning. To ensure your partner visa rights are protected, it is now more important than ever to obtain expert advice. Contact us today to book your consultation.