New sponsorship rules for Partner visa arrived in 2019. The changes significantly affects Partner visa applicants and their sponsors.
Our senior immigration lawyer looks at the changes and what they mean to you.
This article will discuss:
- the rules for sponsoring your partner as they currently stand;
- how sponsorship fits into the Partner visa application process;
- the new rules that will begin mid-2019; and
- how the new rules will affect you.
Sponsorship for Australian Partner Visas
First, we will look at the sponsorship rules. This how, at the time of writing, they currently stand for Partner visa applications.
To sponsor your girlfriend or wife for an Australian Partner visa you must be an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.
You must also meet character requirements. So, you must not have any serious criminal convictions. These are convictions of 12 months jail or more.
Further sponsorship limitations mean that you can only sponsor two Partner visa applicants in a lifetime.
And finally, there must be at least 5 years since the last time you sponsored someone for a Partner visa. These 5 years runs from the date of the last application. Not the last decision.
These rules apply to all of the Partner visa options: Fiance visa, De facto visa and Partner visa 309 and 820.
Current Partner Visa Application Process
Until now, after submitting the Partner visa application, the Department would normally sit on the application for a few months before it came before a case officer.
Then the sponsor would be requested to provide police check. One from every country they have lived in for more than a year.
If there was nothing of concern, then the application would continue to be processed.
When a serious matter was discovered on the police check, the sponsor then had to respond. They got the chance to plead their case. To explain why, despite their serious criminal history, they were still an appropriate sponsor.
The Immigration department could consider the circumstances. So, for example, if the criminal activity was a long time ago and there has been no recent offending, the sponsorship could still be approved.
If the sponsor was not able to show good reasons to prevent the sponsorship refusal – then the whole visa application was also refused.
New 2019 Sponsorship Rules
In mid-2019 new rules about Partner visa sponsorship begin. Despite all the hype, the new rules are essentially the same. Its just the order of events that has changed.
Now, the sponsorship requires approval prior to lodging the Partner visa application. In this way, the new rules prevent couples lodging Partner visa applications unless the sponsor has already been approved.
One big advantage for the couple is financial. They cannot pay the Visa Application Charge only to find out that they never had a chance to get the visa.
For years the Department of Home Affairs has made a fortune out of accepting visa applications and providing no refund. Even withdrawing an application gets you no refund!
It seems that the new sponsorship rules provide some legislative barrier. They prevent couples lodging a doomed Partner visa application. One that cannot succeed because of sponsorship concerns.
For sponsors who have a serious matter on their check, the outcome is no different. They are still allowed to plead their case.
They will get the chance to explain why they should be approved. Why they can still sponsor for a Partner visa. Its just that now they find out before making a huge financial committment.
How New Sponsorship Rules Affect You
Couple with applications already lodged are not covered by the new sponsorship rules.
This means, if you have already applied for a Partner visa – its business as usual. Your application will proceed under the old rules.
One of the ways the new sponsorhsip rules will affect couples is through Bridging visas. It is now not so simple to lodge a Partner visa on the last day of your Visitor visa and be assured of geting a Bridging Visa A.
Trouble getting Bridging Visa A
A Bridging Visa is a kind of visa that allows you to stay in Australia while you wait for another visa. So, for example if you hold a Visitor visa, then you apply for a Partner visa – in Australia – you automatically get a Bridging visa.
The bridging visa lets you wait in Australia for the Partner visa. If you applied while your visitor visa is active – you get a Bridging visa A. This is the best kind of Bridging visa because it lets you work.
So a Bridging visa A lets you stay in Australia and work for the two years you need to wait until you get your Partner visa. It is definitely a nice visa to get!
Under the new sponsorship rules, the application for sponsorship is not treated as a visa application. So there is no bridging visa granted with it.
This means that you have to get the sponsorship approved, then make your Partner visa application to get the Bridging visa granted. Doing things in this order is bound to lead to people who are late lodging their Partner visa applications.
Immigration have given no indication how long it will take to get a sponsorship approved. But if current processing times for Partner visa applications are any indication it will takes months.
It is definitely possible that people who apply to have their sponsorship approved under the new system will not receive a decision before their visitor visa runs out.
This means that any people will miss out on Bridging Visa A. More importantly, however, it means that many people will not meet schedule three requirements for onshore applications.
Trouble with Schedule 3
OK, now forgive me if this gets complicated but it is important. Understanding schedule 3 can be the difference between approval of your application and refusal.
When you lodge an onshore application, schedule three requires you to have a valid visa. So, you must hold a visa to apply for a new visa.
If you do not have a visa at time of application get ready for a whole new world of pain!
Immigration will gladly accept your application and the Visa application charge. The about six months later you will receive a natural justice letter.
The letter will say:
when you lodged your Partner visa application you did not meet the requirements of schedule 3 – you didn’t hold a visa. So now we will refuse your application – with no refund possible – unless you give us a good reason why you did this.
The thing is, no matter what you say – there is almost no reason that will satisfy them. I have seen people with medical complications, pregnancy, custody issues, serious injuries – all refused. These reasons, it would appear, are never enough.
So what has this got to do with the new sponsorship requirements?
Under the new sponsorship rules, you apply to immigration to get your sponsorship approved first. This is however, not a visa application so there is no Bridging visa.
This means that many, many, couples will run out of time on their current visa before Immigration approve their sponsorship and they can go ahead and lodge their Partner visa application.
All of these couples will receive a visa refusal and lose their money. So, I would say that now it is even more important than ever if you are planning on lodging a Partner visa in Australia that you talk to a lawyer.
The consequences of schedule three refusal don’t stop there though. Remember those other sponsorship limitations.
Sponsorship Limitations and the New Rules
Sponsors are limited to two sponsorships in a life time and 5 years must separate each sponsorship.
For those who have receive a schedule 3 refusal, sponsorship limitations mean that they are prevented from lodging a new application for 5 years!
Imagine if this is your wife or husband we are talking about. You lodge a partner visa – pay a huge application fee, then six months later you’re told the Partner visa is refused and told to kiss your money goodbye.
Then the cherry on the cake arrives. You are now also barred for 5 years. And here’s the rub, immigration will again accept your application and your application fee. Again, about six months later you will receive another notice saying:
your are not eligible to sponsor your wife or husband because 5 years has not gone by since you last sponsorship – but thanks for the application fee – its non-refundable.
It doesn’t matter that its your wife, and that she has to go back to her home country without you – possibly taking your children with her. Immigration don’t care. You didn’t meet the rules – so you lose.
Hopefully it is sinking in how important schedule 3 is! And how the new sponsorship rules for Partner visas mean that couples must beware.
The new rules increase the reason to make an application where schedule three comes into play.
How to avoid sponsorship problems
With the new rules for sponsorship coming into play mid-2019, it has become more imporatant than ever to get professional help to make your Partner visa application.
I have written a comprehensive guide on how to get a visa after immigration refused.
A lawyer can help you avoid all the pitfalls. Even if you have already made a mistake a good lawyer – a specialist immigration lawyer – can make your problems go away.
Get a free assessment now to find out if you qualify to sponsor your girlfriend or wife for an Australian visa.
