Sponsorship

20.110 As noted earlier, all applicants for a partner visa must be sponsored by an Australian citizen or permanent resident. Currently, there are no separate provisions in the Migration Regulations under which an Australian citizen or permanent resident must apply, and be approved, as a sponsor for a partner visa. Rather, a citizen or permanent resident applies to be a sponsor by filling out a sponsorship application form, which is then submitted to DIAC along with the partner visa application.^[90] This means that the ‘sponsorship approval is dealt with as part of the visa approval process, treating the sponsor and the visa applicants essentially as joint parties to the same application’.

20.111 There are limitations on sponsorship. The Migration Regulations provide that subject to certain exceptions, a person cannot sponsor more than two persons in a lifetime, for partner visas, and such sponsorships must occur at least five years apart.^[91] However, the Minister for Immigration and Citizenship may exercise his or her discretion to waive the limitation and approve the sponsorship where there are compelling circumstances affecting the sponsor.^[92]

20.112 Time for Action acknowledged that:

Women who are sponsored by Australian citizens and residents are particularly vulnerable to abuse due to the threat of deportation. In the late 1980s and early 1990s, domestic violence practitioners became concerned about the number of repeat or serial sponsors who abused the women and then triggered their deportation. Predominantly, the concern related to the abuse of Filipino women by serial sponsors, although more recently concerns have increased about women sponsored from other countries such as Russia, Thailand, Indonesia and Fiji.^[93]

20.113 In Equality Before the Law, the ALRC expressed similar concerns about serial sponsors and recommended that where a prospective sponsor’s record showed past violence or previous sponsorships, information should be drawn to the attention of the applicant by a DIAC officer at an interview. The ALRC also recommended that the information must be provided in a culturally and linguistically appropriate manner and the interviewer must be satisfied that the applicant understands the nature of the information provided.^[94]

Requirements for sponsorship of a child

20.114 Legislative changes to the Migration Regulations that took effect from 27 March 2010 inserted a new sponsorship limitation for child, partner and prospective marriage visas.^[95] The new regulations now provide that the Minister for Immigration and Citizenship must refuse sponsorships where a child is included in a visa and the sponsor has a conviction or outstanding charge for a ‘registrable offence’.^[96] For a child visa, the sponsor’s partner or spouse must also be free of a conviction or outstanding charge for a ‘registrable offence’. A ‘registrable offence’ is defined within the meaning of state and territory legislation dealing with registrable or reportable offences.^[97]

20.115 The Migration Regulations also gives power to the Minister for Immigration and Citizenship to request that a sponsor, or the sponsor’s partner, submit to a police check, and to refuse sponsorship if the police check is not provided.^[98] Police checks can be obtained from the Australian Federal Police.^[99]

20.116 In the Migration Issues Paper, the ALRC asked whether sponsors for partner visas should—in a manner similar to the requirement for child sponsorships—be required to submit to a police check in relation to past family violence convictions or protection orders, and whether such information should be disclosed to a prospective visa applicant.^[100] The ALRC highlighted that this requirement would be aimed at protecting the safety of prospective partners who may not be aware of a sponsor’s past history of violence, and allowing them to make informed choices about pursuing the relationship. The ALRC emphasised that, in including such a requirement, a number of issues would need to be addressed, including: affording procedural fairness to the sponsor; avoiding discrimination on the basis of previous convictions; and privacy concerns.^[101]

Submissions and consultations

20.117 The majority of stakeholders who responded to this question supported the need for sponsors to submit to a police check in relation to past family violence convictions or protection orders when making an application for sponsorship. However, stakeholders were divided on how this information should be used, and whether or not such information should be disclosed to the potential visa applicant. In consultations, some stakeholders also expressed concern about procedural fairness to the sponsor; privacy; and discrimination on the basis of prior conviction; and how such issues would be resolved in practice.

20.118 Good Shepherd Australia New Zealand submitted that:

Current Australian policy requires an immigrant to have a clear criminal background check, psychological report and character test. Professionals in Australia working with domestic violence victims ask why the sponsoring men are not required to reciprocally undergo the same checks and send the information to their potential partners. Both sponsors and partners deserve complete explanations of the rights and expectations in marriage in Australia, legal definitions and consequences of forced and servile marriage, trafficking, family violence and other related crimes.^[102]

20.119 Those stakeholders that supported the requirement for sponsors to submit to a police check and for such information to be disclosed to the prospective applicant, stressed that having such information was vital to the safety of the applicant.^[103] For example, Domestic Violence Victoria and others in a joint submission submitted that:

This is a critical and urgent area of reform. It is a significant inequity that an applicant is required to undergo rigorous character and police checks whereas sponsors do not receive the same level of scrutiny. This checking process should be an essential safeguard for potential victims of family violence, and the absence of such a process is a significant gap that allows users to manipulate the immigration system to perpetrate violence against women.^[104]

20.120 Stakeholders that opposed the police check and disclosure questioned the utility of a police check, and whether the provision of such information would be beneficial to the prospective visa applicant.^[105] For example, the IARC submitted that the current Australian Federal Police certificate does not provide information on AVOs against the person. Therefore, an obligation to submit a police check only reveals the sponsor’s past conviction:

The balance between protecting victims of family violence and allowing adults to make their own considered choice is a delicate pursuit. While Australian residents and citizens are not required to declare their family violence records before cohabitating with their respective spouses, it may be questionable why the law should treat these people differently when their counterparts are foreign nationals.^[106]

20.121 RAILS expressed similar concerns in relation to whether a police check could provide all the relevant information to the prospective visa applicant:

Consideration would need to be given to people who may not have a criminal record but have perpetrated acts of violence in the past, particularly against previously sponsored partners. In these cases the person may be subject to a Magistrates Court (Protection Order or Apprehended Violence Order) which may or may not necessarily appear on the AFP certificate as it is a civil offence. Consideration should be given as to how the Migration Act could be informed of these matters.^[107]

20.122 The Law Institute of Victoria argued that the provision of information may induce a false sense of security for prospective visa applicants, because prior convictions may not be ‘an accurate predictor of future family violence being perpetrated by the sponsor’, and therefore ‘the proposal might provide some false sense of security to applicants about the likelihood of experiencing family violence without a proper basis’.^[108]

Alternative options for reform

20.123 As an alternative to the provision of information to a prospective visa applicant based on a police check, Visa Lawyers Australia submitted that the separation of sponsorship applications and visa applications into distinct legal provisions warrants consideration:

While approval sponsorship would remain a criterion for the grant of the visa, distinct legal provisions dealing solely with family violence sponsorship applications would allow DIAC to treat the sponsor as a client distinct from the visa applicant. This in turn would assist DIAC in discussing character concerns (or any other issue that goes to the eligibility of the sponsor) with the sponsor confidentially, and without the risk of disclosure to the visa applicant. Where it is evident that a sponsor has a violent past, DIAC could be given the power to refuse sponsorship on the basis that the sponsor is not of good character. Such a decision, giving reasons for the decision, would need to be sent to the sponsor only, and a separate decision sent to the sponsor that the sponsorship has been refused.^[109]

20.124 The IARC was hesitant in precluding a person from being a sponsor on the basis of past family violence because it may be ‘overly intrusive’. Therefore, it was argued that better education and information dissemination to the prospective visa applicant may provide a more measured approach:

If the law intends to protect those who are less able to protect themselves due to lack of knowledge then we submit that the legislative change should include a mandatory education component, which would enable individual visa applicants to be aware of relevant facts, facilitating them in making their own decisions and dealing with potential consequences.^[110]

ALRC’s views

20.125 The ALRC reiterates its view expressed in Equality Before the Law, that the ‘Australian government has a special responsibility to immigrant women who are particularly vulnerable to abuse and the consequences of abuse’ and therefore should ‘assist them to exercise their right to a fully informed choice in marrying’.^[111] The issue in this context is whether such assistance should involve disclosure of the sponsor’s past history of family violence to a prospective visa applicant.

20.126 The ALRC agrees that requiring DIAC to disclose a sponsor’s past history of family violence would be problematic. Having regard to the overall objective of improving safety, the ALRC shares concerns expressed by stakeholders that a police check may not provide all the relevant information in relation to a sponsor’s history of violence, and therefore, is unlikely to provide an accurate reflection as to any future likelihood of family violence. In any event, the ALRC considers that the issues of procedural fairness to the alleged perpetrator, privacy and discrimination may outweigh any potential gains from disclosure to the applicant.

20.127 The ALRC considers that the current safeguards surrounding serial sponsorship—a limit of no more than two sponsored in a lifetime and a five year period between sponsorships—already provides some measure of protection for victims of family violence. However, it remains important for prospective visa applicants to have knowledge about the family violence exception, and services available to them in Australia in order to protect their safety. The ALRC makes proposals below in relation to information dissemination, in particular, that appropriate information should be given to a visa applicant before, and after, they have entered Australia.

20.128 Nonetheless, the ALRC is interested in stakeholder views about the merits of making sponsorship a separate criterion for the grant of partner visas as outlined in the submission by Visa Lawyers Australia. As noted, this would separate the approval of the sponsorship from other requirements for a partner visa, and allow DIAC to deal with the sponsor separately. In particular, it would allow for criteria to be created around the approval of sponsorship, and allow for merits review in the event of refusal. This process can be achieved without the provision of a sponsor’s past history to the applicant.