For many of family category visas, a sponsorship application is needed from the Australian, permanent resident, or eligible New Zealand Citizen who is supporting their relative’s migration to Australia.
Sponsors are subject to various legislative requirements too, which if not met can put the connected visa application at risk of refusal.
For overseas nationals planning to migrate to Australia to live with their partner/sponsor, an important question is whether this sponsor had sponsored another person in the past, or became a permanent resident themselves through the Partner visa.
If this is the case, it is important to confirm whether they are subject to sponsorship limitations and if so, whether it could be waived.
Which visas do these limitations apply to?
The sponsorship limitations apply to:
When does the limitation arise?
Limitations on multiple sponsorships are outlined in Regulation 1.20J of the Migration Regulations 1994. To paraphrase:
- a person may be approved for only 2 sponsorships in their lifetime;
- if a person had sponsored a former partner, the new sponsorship cannot be approved until 5 years have passed since the former partner’s visa application was submitted; and
- a person who became a permanent resident through the Partner visa themselves cannot be approved as a sponsor until 5 years have passed since their own visa application was submitted.
It will often be clear whether the sponsorship limitations apply. Some less common examples of the sponsorship limitation arising include that, the:
- former partner’s visa was granted, but they did not travel to Australia;
- former partner’s visa was granted and then cancelled;
- sponsor’s own permanent Partner visa was approved on family violence grounds; pr
- sponsor’s own permanent Partner visa was approved because their sponsor died.
While these examples appear seemingly harsh, the statutory limitation is triggered because the previous sponsorship and visa were approved. What happened afterwards is irrelevant.
In the alternative, a past sponsorship where the connected visa application was refused will not be caught by the sponsorship limitations.
Can you waive the sponsorship limitation(s)?
Yes. Even if the sponsor is affected by a limitation, the sponsorship may be approved “if the Minister is satisfied that there are compelling circumstances affecting the sponsor”.
What are compelling circumstances?
What constitutes ‘compelling’ is not defined in migration law, and so claims are assessed on a case-by-case basis. Nonetheless it is generally understood that the threshold is high.
Some examples of “compelling circumstances affecting the interests of the sponsor” under policy include that the:
- visa applicant and their sponsor have a dependent child who is dependent on each of them;
- previous partner passed away;
- previous partner abandoned the sponsor, and there are children dependent on the sponsor requiring care and support; or
- new relationship is longstanding.
These examples are not exhaustive, and some general considerations are include the:
- hardship that the sponsor would suffer if the sponsorship were not approved; and
- extent and importance of the sponsor’s ties to Australia, and the hardship caused if the sponsorship were not approved and the sponsor felt compelled to leave Australia to maintain their relationship.
Do you require further assistance?
If you are planning to apply for a Partner or Prospective Marriage visa and are concerned that a previous relationship and sponsorship may be detrimental, it is important to check and understand how to mitigate any risks before continuing. Our staff are well placed to assist with all issues regarding family-sponsored visas, including sponsorship limitations and waivers. Contact us by email at [email protected] or phone +61 3 9016 0484.
