The less common complications with a partner visa application

Less common issues

Complex visa history

If you've had a visa refusal or cancellation in the past, it's crucial to understand why this happened. For Partner Visas, the Department of Home Affairs will scrutinise your past visa history, especially if there were issues related to character, false information, or non-compliance with visa conditions. You'll need to address these issues directly in your application.

⚠️Tip: Provide a detailed explanation and supporting documents that show how your situation has changed or why those issues are no longer relevant.

Section 48 bar

If you are in Australia and have had a visa refused or cancelled since your last entry, you may be subject to a Section 48 bar, which limits your ability to apply for certain visas while in Australia. However, Partner Visas are one of the exemptions to this rule, meaning you can still apply onshore.

This does not mean you will receive necessarily receive a visa grant when you have been previously refused a visa. If you were holding a substantive visa (such as a working holiday visa, student visa or visitor visa) at the time of the visa refusal, you're most likely safe to proceed with the partner visa application.

If you were holding a bridging visa or were unlawful at the time of the visa refusal or cancellation, you will need to satisfy schedule 3 criteria i.e. you must show that you must not have become an unlawful non-citizen (i.e., someone without a valid visa) or a non-substantive visa holder (i.e. bridging visa holder) for more than 28 days at any point since last entering Australia, that circumstances beyond your control occurred to cause you to be that way, unless compelling circumstances apply. We discuss the schedule 3 waiver application in this blog article.

Health and character issues

Applicants must meet health and character requirements. Medical conditions or certain criminal records might lead to visa refusal. Police checks from every country where the applicant has lived for a total of 12 months or more in the past ten years are required.

Sponsorship

Your Aussie partner must sponsor you and meet character requirements. Be careful here – certain past offenses can disqualify someone from sponsoring. You must be in Australia when you apply and when the visa is granted, which can get tricky if you need to travel. Ideally, you should hold a substantive visa when applying. If not, you'll need to tackle the dreaded Schedule 3 criteria (we get to that hornets' nest in this blog article).

Here's a breakdown of the common issues with sponsorship.

Sponsorship limitations (1) - previous sponsorships

Sponsors who have previously sponsored partners may be subject to limitations on further sponsorships.

Sponsors must meet the following requirements:

1. A sponsor must not have sponsored more than two other persons as a spouse, de facto partner, or prospective spouse.
2. There must be at least 5 years between sponsorships.
3. If the sponsor was themselves sponsored as a spouse, de facto partner, or prospective spouse, at least 5 years must have passed since their own visa application.

Otherwise, a sponsorship limitation will apply and the partner visa application fails. The Minister has discretion to waive these requirements if there are compelling circumstances affecting the sponsor.

What qualifies as compelling is highly subjective, and ultimately up to the discretion of the case delegate. Each case is unique, and objective facts should be presented to the application in a systematic manner. When seeking a waiver for an additional sponsorship under these circumstances, the visa applicant and sponsor should provide thorough and detailed explanations, along with relevant supporting documentation.

How do we calculate the 5-year period for the purposes of checking if a sponsorship limitation applies?

The 5-year period is calculated from the date of making the first visa application to the date of approval/refusal of the current sponsorship. Specifically:

1. If a sponsor has previously sponsored another partner, the 5-year period is calculated from the date on which the first visa application (300 or 820 or 309 visa) was made to the date of approval/refusal of the current sponsorship.
2. If the sponsor has been sponsored themselves, the 5-year period is calculated from the date the sponsor's own visa application was made to the date of approval/refusal of the current sponsorship.

The key points are:

• The start date is when the previous visa application was lodged, not when it was granted.
• The end date is when the current sponsorship is decided, not when the current application is lodged.

Now, let's look at some examples:

Example 1: Multiple Sponsorships

John, an Australian citizen, sponsored Sarah for a partner visa in 2010. The relationship ended, and John sponsored Maria for a partner visa in 2016. Now, in 2023, John wants to sponsor Sophia.

Analysis: John can sponsor Sophia because:

• He has only sponsored two people previously (within the limit).
• More than 5 years have passed since his last sponsorship (2016 to 2023).

Example 2: Recent Sponsorship

Emma, a permanent resident, sponsored Tom for a partner visa in 2020. Their relationship ended, and Emma wants to sponsor Alex in 2023.

Analysis: Emma cannot sponsor Alex yet unless compelling circumstances affecting the sponsor apply because:

• Less than 5 years have passed since her last sponsorship.
• She would need to wait until 2025 to be eligible to sponsor again.

Example 3: Previously Sponsored Person

Michael was granted a partner visa in 2019 after being sponsored by his Australian partner. Their relationship ended, and Michael, now a permanent resident, wants to sponsor Lisa in 2022.

Analysis: Michael cannot sponsor Lisa yet because:

• Less than 5 years have passed since he was granted his own partner visa.
• He would need to wait until 2024 to be eligible to sponsor.

Example 4: Compelling Circumstances

Jake sponsored his first partner in 2015 and a second partner in 2021. In 2023, he meets his new partner Meem, who is from a war-torn country and has their Australian child with a life-threatening condition requiring treatment only available in Australia.

Analysis: While Jake has reached his sponsorship limit and less than 5 years have passed since his last sponsorship, he could argue compelling circumstances due to Meem and his Australian child's situation. The Minister might consider waiving the limitations.

Example 5: Calculating the 5-year Period

David sponsored his first partner for a visa application lodged on 1 July 2015. The visa was granted on 1 July 2016. David now wants to sponsor a new partner and lodges a sponsorship application on 1 June 2020.

Analysis: The 5-year period is calculated from the date of the first visa application (1 July 2015), instead of the grant date. The Department would assess David's eligibility to sponsor when deciding on his sponsorship, which might be several months after the June 2020 lodgement. If the decision is made after 1 July 2020, David would be eligible to sponsor again.

Preparing a waiver application - compelling circumstances affecting the sponsor

Waiver of the above restrictions on sponsorship period and numbers is possible in the event there are compelling circumstances affecting the sponsor.

The sponsor must provide detailed evidence and submissions to demonstrate compelling circumstances that justify waiving the limitations.

Common compelling circumstances that may justify a waiver include:

1. The sponsor and applicant have a child together, or there is a dependent child

2. The previous spouse/partner of the sponsor died

3. The previous spouse abandoned the sponsor and there are children requiring care and support

4. The new relationship is longstanding (e.g. over 2 years)

The Department will assess all aspects of the sponsor's circumstances to determine if they are sufficiently compelling to warrant a waiver. Factors considered include:

1. The nature and extent of hardship if the sponsorship is not approved

2. The sponsor's ties to Australia and impact if they had to leave to maintain the relationship overseas

3. The genuineness and length of the current relationship

4. Any special/compassionate circumstances

The onus is on the sponsor to provide strong evidence to demonstrate compelling circumstances. Simply having a genuine relationship is not enough on its own.

If seeking a waiver of the 5-year limitation between sponsorships, the sponsor should explain:

1. Why they are seeking to sponsor again within 5 years

2. What has changed in their circumstances

3. Why this sponsorship should be approved as an exception

For waivers of the 2-partner limit, the sponsor needs to comprehensively explain the circumstances of previous relationships/sponsorships and why an additional sponsorship is justified.

The decision-maker has discretion to determine if the circumstances presented are sufficiently compelling to justify waiving the limitations. There is no exhaustive list of what constitutes compelling circumstances. Please also note that these relate specifically to the sponsorship limitation waiver. If you need to prove compelling and compassionate circumstances as a visa applicant, we discuss it in detail in this blog post.

Key Points for Waiver Requests:

1. Provide extensive supporting evidence

2. Focus on demonstrating hardship and exceptional circumstances

3. Explain in detail why the limitations should not apply in this case

4. Address all relevant factors - don't just focus on the current relationship

5. Consider obtaining professional assistance to prepare comprehensive submissions

Sponsorship limitations (2) - previous criminal history

There are also character requirements for sponsors, including disclosure of any criminal records. If an Australian sponsor for a partner visa has a criminal history, it can impact their ability to sponsor their partner. However, there are steps they can take to address this issue and potentially waive the sponsorship limitation.

The sponsor should fully disclose their criminal history in the sponsorship application. Concealing information can lead to a visa refusal or cancellation.

Preparing a waiver application - previous criminal history

The sponsor can provide context for their criminal history, explaining the circumstances, how long ago the offenses occurred, and any mitigating factors. Including character references from respected community members or professionals can also be beneficial.

Demonstrating rehabilitation since the time of the offenses is crucial. This can include undertaking counseling or rehabilitation programs, abstaining from substances (if related to the offenses), and engaging in community service or other positive activities.