To qualify for a partner visa to Australia, one requirement that must be met in the most common scenario is that you must be sponsored by your de facto partner or spouse. With this comes several sponsorship requirements. Partner visa sponsorship limitations or sponsorship bars, as they are commonly referred to, also apply in certain circumstances.
In this article, we take a closer look at what is meant by the sponsorship bar for partner visas, as well as further guidance provided in immigration sponsorship policy in applying the sponsorship bar provisions. We also explore a real-life case study of a married couple who applied for a partner visa on the basis of their genuine married relationship and who encountered a problem, as the sponsor had previously sponsored two other partners for a partner visa.
Unbeknownst to them, there is a limitation contained in Regulation 1.20J of the Migration provisions that provides for a maximum of two sponsorships for any Australian who seeks to sponsor a partner for a partner visa.
It is also important to be aware that this provision contains a waiver power, that is, if there are compelling circumstances affecting the sponsor, then the limitation can be waived.
Let us start our discussion by examining the partner visa sponsorship bar and what it actually means.
Partner Visa Sponsorship Bar
Prospective sponsors are prevented from being approved to sponsor an applicant for a Partner or Prospective Marriage Visa through the operation of limitations or what is referred to as the sponsorship bar that applies in certain circumstances.
One type of partner sponsorship bar (which affected Aaron and Nelly’s partner visa application) applies where there have been previous partner or prospective marriage visa sponsorships, as described below.
Previous Partner Or Prospective Marriage Visa Sponsorships
Firstly, you may sponsor a maximum of two people for a Partner or Prospective Marriage Visa over your lifetime.
If you have previously sponsored another partner or prospective spouse, you must wait at least five years since the date when you lodged your previous sponsorship application, before you can sponsor your current partner.
If your partner has been granted a partner or prospective marriage visa themselves, they can sponsor you only after five years have passed since they lodged their own visa application.
This partner visa sponsorship bar may be waived if compelling circumstances exist affecting the sponsor.
How Is The Five Year Period Calculated?
According to immigration sponsorship policy, the relevant date for the sposorship bar is the date of the original visa application.
Immigration sponsorship policy states that if a sponsor has sponsored another person, the five year period between the first sponsorship and the current sponsorship is calculated from the date on which the first visa application was made to the date of approval or refusal of the current sponsorship.
Further, if the sponsor has been sponsored, the five year period is calculated from the date the sponsor’s own visa application was made to the date of approval or refusal of the current sponsorship under immigration sponsorship policy.
Immigration sponsorship policy also makes clear that the approval or refusal of the sponsorship is a time of decision criteria. Although a sponsorship must be held at time of application, it is only at time of decision that the sponsorship must have been approved.
When Does The Waiver Of The Sponsorship Bar Apply?
The Regulations allow the Department to approve a sponsorship that would otherwise fail to meet the requirements of Regulation 1.20J if there are ‘compelling circumstances’ affecting the sponsor.
Under immigration sponsorship policy, compelling circumstances affecting the interests of the sponsor include the following:
- the applicant and their sponsor have a dependent child who is dependent on each of them;
- the death of the previous partner;
- the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support; or
- the new relationship is longstanding.
Immigration sponsorship policy points out that the above is not an exhaustive list and that when deciding whether to exercise the sponsorship bar waiver, the Department must keep in mind that the purpose of the sponsorship bar is to prevent abuse of the partner and prospective marriage visa provisions.
Further, immigration sponsorship policy notes that every aspect of the sponsor’s circumstances is relevant to the existence of compelling circumstances and that although no definitive list can be provided, some general aspects that may be important are as follows:
- the nature of the hardship or detriment that would be suffered by the sponsor if the sponsorship were not approved; and
- the extent and importance of the ties the sponsor has to Australia, and the consequent hardship or detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
Be mindful that there are a series of sponsorship bars that apply in certain circumstances, in addition to the previous partner or prospective marriage visa sponsorship bar discussed above. We recommend that you refer to our Partner Visa Sponsor Requirements article for a detailed outline of the partner visa sponsorship bars that may apply.
Let’s now take a closer look at Aaron and Nelly’s story.
Aaron And Nelly’s Sponsorship Bar Example
The sponsor (Aaron) and his wife (Nelly) had lodged their partner visa application and were shocked to receive a refusal notice shortly after. The case officer had refused their partner visa on two grounds:
- there was insufficient evidence to show they were in a genuine married relationship; and
- the sponsor was barred from sponsoring further partners as he has already had two sponsorships approved previously.
Aaron and Nelly came to PAX Migration Australia for advice on what to do. They were understandably distraught.
How PAX Migration Australia Assisted Aaron And Nelly
We went through their relationship history in detail in our initial consultation. We learned about how they met, each of their families, how they live today, and where their relationship is headed. We did some research to determine what the legal options were.
In short, the task at hand was to:
- demonstrate that they were a genuine married couple; and
- demonstrate that there was sufficient compelling circumstances to justify a waiver of the sponsorship limitation.
Lodgement of Tribunal Review Application
First things first – we lodged the appeal of the visa refusal at the AAT – this is a very important step as missing the 21 day deadline is fatal to any prospects of appealing the decision.
Collation Of Supporting Evidence
We spent the next few months gathering our arsenal of evidence – of the genuine relationship as well as, most importantly, compelling circumstances affecting Aaron.
Through spending time talking with the applicant and sponsor, we determined what the best arguments were and went about building out the evidence.
The sponsor would suffer great hardship if the visa was not granted. He would have to move away from Australia. He has three children – the youngest of which is under ten years old and dependent on him as well as his ex wife. If the sponsor had to leave Australia, the sponsor’s relationship with his children would become non existent – he would suffer great mental health stress.
We ordered an expert medical opinion from a clinical psychologist. We sourced historical evidence of mental health stress suffered by the sponsor. We obtained statutory declarations from family attesting to the compelling circumstances of the case. We drew the Tribunal’s attention to the history of the sponsor’s sponsorship; how he had been abandoned by his previous partner, and how he is careful with who he enters relationships with but had suffered misfortune in prior relationships. We demonstrated the bona fides of those previous relationships and argued that he has not sought to exploit Australia’s migration laws.
We cited policy published by the Department of Home Affairs consistent with these arguments indicating the visa should be granted on those grounds. We cited case law, namely Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 (19 May 2005), where the court, endorsing the view of Moore J in the court below, stated:
‘But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J1) should be waived’
and, having presented circumstances that clearly are so powerful, the Tribunal should remit the application.
Tribunal Hearing
A few months after lodging our written submissions, we received an invitation to attend a hearing. We prepared the applicant and the sponsor for questions that the Tribunal will be likely to ask of them. We gathered witnesses to be called if necessary.
On the day of the hearing, the Tribunal member proceeded to conduct an interview of the sponsor and applicant separately. But as a result of the excellent written submissions lodged, he did not feel the need to obtain testimony from witnesses and actually proceeded to provide a favourable oral judgement!
The applicant and sponsor walked in that day feeling nervous about what the future might be, they walked out feeling relieved and excited about their future in Australia.
They are now living their lives as a happy family in Adelaide, South Australia, and we are very proud to have played our part in keeping the family together in Australia.
Get Migration Help From A Professional
The take away message from Aaron and Kelly’s case is the impartance of having a full understanding of the migration provisions to give yourself the best chance of achieving a successful outcome on your application. Neither Aaron nor Nelly were aware of the existence of the partner visa sponsorship bar, and thought they had done everything right to be granted a partner visa. But as you can see, this was not the case. A registered migration agent, like PAX Migration Australia, have the knowledge, skills and experience to advise you of all the requirements that apply to your particular circumstances, so that you get it right the first time, and lessen your chances of having your visa application refused.
Join our many happy clients, just like Aaron and Kelly, who are living their dream in Australia. We are here to help you achieve your migration goals!
What Do Our Clients Say About PAX Migration Australia?
See what our clients have had to say about us by reading their reviews and testimonals.
We have also been rated the top agent in South Australia! See below to find out more.
Adelaide PAX Migration wins ThreeBestRated® Award 2020 for Best Migration Agent
We truly achieve results for our clients, as demonstrated in Aaron and Nelly’s example. The above reviews, testimonials and ratings are testament to that.
PAX Migration Australia Is Here To Help
Our team of registered migration agents are waiting for your call to help you to achieve your migration goals in Australia. To learn more about why you should consider speaking with PAX Migration Australia, and why seeking professional assistance and advice from a migration agent can be beneficial in achieving a positive outcome on your migration matter, please see the following articles:
Selecting a migration agent in Australia
Should I use a migration agent or immigration lawyer for my application?
Get More Information About Partner Visa Sponsorship
For further information on partner visa sponsorship including the sponsorship bar, we recommend that you refer to the following articles:
Partner Visa Sponsor Requirements
Get More Information About The Partner Visa
To learn more about applying for a partner visa, including the eligibility requirements and evidentiary requirements, we recommend that you refer to the following articles.
Partner Visa Sponsor Requirements
What are the requirements for a spouse visa in Australia
How to bring your wife to Australia on a genuine partner visa
Top 5 reasons why partner visas are refused
How to be approved as a partner visa sponsor?
Bridging visas for partner visa applicants
What evidence should I provide?
What case officers look for in a partner visa application?
Overview – Partner Visa Australia
Are you eligible to apply for a de facto partner visa in Australia
A Detailed Guide on De Facto Visa Application
Register your de facto relationship in South Australia
Overview of Onshore Australian Partner Visa Schedule 3
Why partner visa applications are so tough
Partner Visa Application Process
Marrying An Australian To Get Residency
Wife Visa Australia Requirements
Evidence Of Genuine And Continuing Relationship
Subscribe to our newsletter for regular updates and additional information.
Contact us to book a no-obligation consultation to find out more about the sponsorship bar and immigration sponsorship policy.
We also recommend that you refer to our articles on articles on the Partner Visa Changes and Australia Partner Visa Changes for a detailed discussion of the changes that have been proposed to partner visas, which could have very significant implications for partner visa applicants in the future. This demonstrates the importance being armed with the latest and most up-to-date information when engaging in this process, to give yourself the best chance of achieving a successful outcome on your application.
* * * * * * * * * * * *
Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a visa in Australia, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. As we have noted in this article, there are several terms that are defined in the migration provisions. And there are also certain limitations that may apply, as demonstrated in Aaron and Nelly’s case, for example, who were unaware of the sponsorship bar and its application to their circumstances.
Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on applying for a visa to Australia, and to join our many happy clients, like Aaron and Nelly, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas, including partner visas, and who can advise you on the requirements that must be met to qualify for visa grant, including the sponsorship bar and immigration sponsorship policy that may apply to your circumstances. Contact us for a no obligation discussion on how we may be able to assist you to achieve your migration goals in Australia.
