Partner-Spouse Visa Update – New Sponsor Obligations and Processing Requirements Are Coming
The passing of the Migration Amendment (Family Violence and Other Measures) Bill. brings with it several significant changes to the processing of all partner-spouse and fiancé visa applications. The declared purpose of the changes is to bring about a reduction in the instances of partner and spousal abuse within the current visa structure. Towards this goal there is universal support. But, the changes, as always, have other effects.
The core change that the bill brings about is the creation of a separate Sponsor Application and Approval Process. Here, a sponsor will be required to demonstrate they are of suitable character (universal support on this aspect) and possibly have suitable means to support a spouse or defacto partner. The latter aspect occurs or seems to occur as the legislation imposes upon sponsors a further obligation:
“namely ‘paying prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or a former visa holder’
The legislative details of the changes are seen in the amendments below including the change made by the Senate on 27 November imposing the further obligations.
- [Item 10 of the Bill] inserts new subsections (2) and (3) into section 140AA [of the Migration Act] to set out the purposes of Division 3A, to the extent it applies in relation to the sponsored family visa program and to identify how these purposes are to be achieved.
- New subsection (2) provides that the purposes are:
(a) to strengthen the integrity of the program; and
(b) to place greater emphasis on the assessment of persons as family sponsors; and
(c) to improve the management of family violence in the delivery of the program.
- New subsection (3) provides that the purposes referred to in subsection (2) are to be achieved by establishing a framework that:
(a) requires the approval of persons as family sponsors before any relevant visa applications are made; and
(b) imposes obligations on persons who are or were approved family sponsors; and
(c) provides for sanctions if such obligations are not satisfied; and
(d) facilitates the sharing of personal information in accordance with this Division.
- A further obligation on family sponsors has been added, namely ‘paying prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or a former visa holder’;
What will all this mean in practice? Well, our considered opinion and one shared by respected members of the industry is that the creation of a separate Sponsor Approval process changes the whole visa process in general and especially impacts on applications made in Australia.
The why is quite apparent. Under the new rules, which we will see sometime in the new year, before a Spouse or Partner visa application can be lodged, the Sponsor will first need to be approved. This means that you’ll have to wait until the sponsorship is approved before you can lodge your visa application. How long this will take is unknown.
Now, while we are speculating, it is our view, and following the process seen in Employer Sponsored and Nominated visas for example, the sponsored person – the visa applicant – will likely be named in the Sponsor Approval process. So, if the plan is to bring your partner onshore and lodge in Australia, the Department will now your intention and this could well be grounds for refusing a visitor visa because you would fail the genuine temporary entrant requirement.
These are but two of the potential issues that we will be looking closely at once the final legislation is drafted and passed.
Of course, the issue of support now becomes quite important. As can be seen from the legislation as passed, the sponsor’s obligations to support the applicant have been increased and importantly, defined as existing even when the relationship finishes. The inclusion of the words ‘former visa holder’ appear to impose an infinite timeline for obligations of the sponsor. We will certainly need to see how this broad requirement will be framed into the sponsor obligations that we see in the new year.
What is clear however is that the onshore partner and spouse visa process will change in many ways. Hopefully we will see the reduction in domestic abuse but hopefully not impediments to genuine relationships.