If a sponsor has successfully sponsored more than one applicant, or if the sponsor has previously sponsored an applicant in the past five years, then any new Partner visa may not be approved. Fortunately, these limitations can be waived, if there are compelling circumstances that affect the sponsor.
What are the visas that are affected by sponsorship limitations?
- Partner visa (subclass 820)
- Partner visa (subclass 801)
- Partner visa (subclass 309)
- Partner visa (subclass 100)
- Prospective Marriage visa (subclass 300)
Sponsorship Limitation: No more than 2 sponsorships
When considering sponsorship for a partner visa, it is important to understand that every visa grant that you have previously obtained counts as a sponsorship. Both permanent and temporary Partner visa options count as separate sponsorship, whilst two-stage partner visas count as one sponsorship. Unless there are compelling circumstances, a person is not able to sponsor an applicant, through a partner visa, if they have previously received visa grants for 2 partner sponsorships. This sponsorship limitation was put in place to limit serial sponsors that used partner visas to help individuals gain permanent residency in Australia.
According to the Department, earlier sponsorships count if:
- The visa was granted but the visa holder did not travel to Australia
- A fiancé visa was granted, the visa holder travelled to Australia, but the marriage did not take place.
- A partner visa where the visa was cancelled, before the spouse entered Australia.
- If you were granted a Partner visa on the grounds that your sponsor passed away, this sponsorship still counts.
Earlier Sponsorship does not count whereby:
- The visa application for the sponsorship was refused.
- You were sponsored as a spouse and then sponsored as a fiancé (this counts as just one sponsorship).
Sponsorship Limitation: 5-Year Limitation
The 5-year limitation has been put in place to prevent sponsors and applicants from abusing the Australia Immigration System. As Partner visas are only made available to genuine relationships, it is expected that 5 years is a reasonable timeframe for these relationships to develop. However, the 5-year limitation can be waived if there are ‘compelling circumstances’.
When does the 5-year limitation start and finish?
If the sponsor has nominated a second applicant for the partner visa, then the 5-year period is calculated from the date when the first visa application was made, to the date that the new application was made.
Examples of Compelling Circumstances:
You may still receive a Partner visa grant, despite the above sponsorship limitations, if there is evidence of compelling circumstances. These compelling circumstances must have a direct affect upon the interests of the sponsor and may include:
- The sponsor and applicant have a dependent child.
- The death of a previous partner.
- The new relationship has been longstanding.
- The previous spouse abandoned the sponsor and there are dependent children involved.
How are these circumstances assessed?
The Department assesses the circumstances and decides whether they are compelling by considering the following factors:
- The impact upon the sponsor if the sponsorship is not approved
- The importance and range of ties that the sponsor has in Australia, as well as the hardship that may be suffered by the sponsor if the sponsorship was not approved and they felt compelled to leave Australia to maintain their relationship.
What does the term, ‘compelling circumstances’ really mean?
In September 2019, a case that went through the Federal Circuit Court which took up the issue of what the term ‘compelling circumstances’ should be interpreted to mean.
According to Justice Crennan, the term ‘compelling’ has a wide, or broad meaning, that could possibly include legal, physical or moral necessity. It can also be interpreted to mean circumstances that so forceful that they are convincing.
For circumstances to be ‘compelling’, they do not necessarily have to be out of the person’s control.
In this particular case, the Tribunal’s consideration of the relationship between the sponsor and the applicant failed to properly consider the length and level of commitment between the two parties. The Judge found that the Tribunal’s consideration of whether there were ‘compelling circumstances’ was not satisfactory, describing the Tribunal’s assessment of the relationship as very ‘cursory’.
The Tribunal failed to refer to critical evidence, such as the longevity of the relationship, which had been maintained for a period of two years. Even though the couple were involuntarily separated from one another, as the applicant did not have a visa to remain in Australia, the evidence showed that they still maintained constant contact with one another through daily phone calls.
If you are looking to study, visit, work or migrate to Australia, Results Migration are the best in the field, with a team of experienced migration lawyers and registered migration agents that are available to guide you through this complex area of law. Call Results Migration on 1800 808 717 or email us on [email protected] and book your free consultation today!