Partner visa sponsorships

20.72 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—provides a measure of protection for victims of family violence.[88] The ALRC makes no recommendations to amend the sponsorship requirements in light of the difficulties in implementing a separate sponsorship criterion without breaching Australia’s international obligations, and adequate framing of procedural fairness and privacy obligations to the sponsor.

20.73 As noted above, 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.[89] 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’.[90]

20.74 In the Discussion Paper, the ALRC asked whether there was a need to amend the Migration Act and Migration Regulations to provide for a separate and reviewable criterion for the grant of a visa.[91] It was envisaged that such a reform may provide a framework in which to assess the character of the sponsor. Parallels were drawn with the requirements for sponsorship of a child, whereby a sponsor must undergo a character assessment, and the sponsorship must be refused for people who have a conviction or have committed a registrable offence.[92]

The problematic nature of regulating sponsorship

20.75 Stakeholders considered the introduction of a separate criterion for sponsorship in partner visas to be problematic.[93] DIAC submitted that:

Such measures could lead to claims that the Australian Government is arbitrarily interfering with families, in breach of its international obligations. It could also lead to claims that the Australian government is interfering with relationships between Australians and their overseas partners in a way it would not interfere in a relationship between two Australians.[94]

20.76 The LIV argued that ‘issues of procedural fairness to the alleged perpetrator, privacy and discrimination outweigh any potential gains from disclosure to the applicant’.[95]

20.77 On the other hand, some stakeholders supported having a separate criterion for sponsorship, ‘as it would prevent many potential victims from being sponsored initially’.[96] There were concerns that despite the current limitations on sponsorships, ‘there are a number of ways to subvert the existing protections such as marrying within the newly arrived migrant sector/community as opposed to re-sponsoring from outside Australia’.[97] The Refugee and Immigration Legal Service (RAILS) stated that

sponsors should submit to a police check in relation to past family violence convictions or protection orders when making an application to sponsor a spouse/de facto partner and that there be a discretionary power for the decision maker to refuse approval of the sponsorship on that basis.[98]

20.78 DIAC noted that there may be a ‘risk that Australian sponsors could be disadvantaged by previous conduct that occurred a long time ago’.[99]

20.79 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’.[100] Rather than instituting a separate criterion for sponsorship, the ALRC considers that the safety of victims of family violence can be promoted through targeted education and information dissemination.

[88] See Migration Regulations 1994 (Cth) reg 1.20J.

[89] Department of Immigration and Citizenship, Form SP 40—Sponsorship for a Partner to Migrate to Australia 2011 .

[90] Visa Lawyers Australia, Submission CFV 76.

[91] Australian Law Reform Commission, Family Violence and Commonwealth Laws, Discussion Paper 76 (2011), Question 20–6.

[92] See Migration Amendment Regulations (No. 2) 2010 (Cth); Migration Regulations 1994 (Cth) reg 1.20KB(13) defines ‘registrable offence’ as a registrable offence within the meaning of, or an offence that would be registrable under the following Acts if it were committed in that jurisdiction: Child Protection (Offenders Registration) Act 2000 (NSW); Sex Offenders Registration Act 2006 (SA); Crimes (Child Sex Offenders) Act 2005 (ACT). An offence is a reportable offence within the meaning of the following Acts: the Child Protection (Offender Reporting) Act 2004 (Qld); Community Protection (Offender Reporting) Act 2004 (WA); Community Protection (Offender Reporting) Act 2005 (Tas); Child Protection (Offender Reporting and Registration) Act (NT).

[93] Law Institute of Victoria, Submission CFV 157; Townsville Community Legal Service, Submission
CFV 151; DIAC, Submission CFV 121.

[94] DIAC, Submission CFV 121.

[95] Law Institute of Victoria, Submission CFV 157.

[96] Migration Institute of Australia, Submission CFV 148. See also, National Legal Aid, Submission
CFV 164; RAILS, Submission CFV 160.

[97] Townsville Community Legal Service, Submission CFV 151.

[98] RAILS, Submission CFV 160.

[99] DIAC, Submission CFV 121.

[100] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), 231.