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New Regulations Relating to Family Violence
The Department of Immigration and Border Protection has adopted new regulations which will give the Department authority to refuse applications for sponsorship of temporary partner visa applications in circumstances where the proposed sponsor has been convicted of an offence involving family violence, or of other “relevant offences”.
The new regulations have been introduced through the Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016 and are scheduled to come into force on 18 November 2016.
Here is a link to the Explanatory Statement.
Here are the principal features of the new regulations:
A new regulation 1.20KC is being added to the Migration Regulations.
Regulation 1.20KC will apply to applications for approval of Prospective Marriage visa applications (Subclass 300); Partner (Provisional) visa applications (Subclass 309); and Partner (Temporary) visa applications (Subclass 820).
Regulation 1.20KC(3) makes it mandatory for the Department to refuse a sponsorship application for these visa s if the proposed sponsor has been convicted of a “relevant offence or offences” listed in subregulation 1.20KC(2), or if the sponsor has a “significant criminal record” in relation to the offences as defined under new regulation 1.20KD.
The offences that are described in subregulation 1.20KC(2) as “relevant offences”, for which being convicted or having a significant criminal record will result in sponsorship approval, include offences against the laws of the Commonwealth, a State, a Territory, or a foreign country, involving:
a) violence against a person, including murder, assault, sexual assault and the threat of violence;
b) harassment, molestation, intimidation or stalking of a person;
c) breach of an apprehended violence order or similar order;
d) offences involving firearms or other dangerous weapons;
e) people smuggling;
f) human trafficking, slavery or slavery-like practices including forced marriage, kidnapping and unlawful confinement;
g) attempting to commit any of the offences listed above; or
h) aiding, abetting, counseling, or procuring any of the offences.
New regulation 1.20KD defines the term “significant criminal record” in terms that are identical to the definition of “substantial criminal record” in section 501(7) of the Migration Act.
Namely, a person will be considered to have a substantial criminal record under regulation 1.20KD if he or she has been:
a) sentenced to death;
b) sentenced to imprisonment for life;
c) has been sentenced to a term of imprisonment of 12 months or more; or
d) has been sentenced to 2 or more terms of imprisonment
in relation to a “relevant offence” as defined under regulation 1.20KC(2).
Interestingly, despite the fact that new subregulation 1.20KC(3) makes it mandatory for the Minister to refuse sponsorship approval for a partner visa if the proposed sponsor has either been convicted of a “relevant offence” or has a substantial criminal record” in relation to a relevant offence, new subregulation 1.20KC(4) gives the Department discretion to approve a sponsorship notwithstanding the proposed sponsor’s record in relation to the “relevant offences”.
In other words, new subregulation 1.20KC(4) “carves out” an exception which allows the Department to approve a sponsorship application even if the applicant has committed “relevant offences”.
The factors that the Department is required to consider in determining whether to allow an “exception” are specified in subregulation 1.20(4) and include:
a) the length of time that has elapsed since the proposed sponsor has completed the sentence(s) for the relevant offence(s);
b) the best interests of the children of the proposed sponsor or of the main visa applicant; and
c) the length of the relationship between the sponsor and the main applicant.
It is interesting to note that the Department is not required to have regard to the well-being, safety or welfare of the main applicant when considering whether to grant an exception.
In my view this is a glaring omission, and it is literally incomprehensible to me why the regulations do not require the Department to take such a factor into account. How could this possibly have been left out??????
Another feature of the new regulations is that they give the Department the authority to request the sponsor to provide police checks from Australian jurisdictions and from foreign countries where the sponsor has lived for a total period of at least 12 months either since turning 16 years of age or within the 10 year period before the request for the police check is made – see new subregulation 1.20KD(5).
Additionally, new subregulation 1.20KC(6) empowers the Department to refuse to grant a sponsorship application if a police check has been requested and it is not provided within a reasonable time.
A further feature of the new regulations is the addition of new subclauses to Parts 300, 309 and 820 of Schedule 2 - respectively subclauses 300.222(2) and (3), subclauses 309.222(2) and (3) and 820.221(4).
These subclauses are worded identically in each of these Parts of Schedule 2.
The new subclauses all make it a criterion for the grant of the visa that the sponsor must have consented to the disclosure by the Department of any convictions that the sponsor has had for a “relevant offence”.
However, the new subclauses also effectively provide that there is no requirement for the proposed sponsor to consent to disclosure by the Department of offences if convictions recorded against the sponsor have been quashed or otherwise nullified or if the sponsor has been pardoned and the legal effect of the pardon is that the sponsor is taken never to have been convicted of the offence.
The clear intention of these new regulations is to protect prospective visa applicants and their children from unknowingly coming to Australia under the sponsorship of a person who has a history of offences involving family or other violence, and then being subject to the risk of violence at the hands of that person.
Speaking for myself, I can only say that I think that this is a wise and appropriate reform to thee Migration Regulations, and if anything, is long overdue.
What do you think?
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Comments
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Thursday, 15 September 2016
Thanks for your as-always thoughtful comment Bea!
My view of these amendments is coloured in part by just having had a conference yesterday with a client who married her sponsor overseas, came to Australia on a Subclass 309 provisional partner visa only to discover her husband was abusive. This is probably a "classic" pattern, but he wrote to DIBP advising that he was withdrawing his sponsorship, DIBP refused the Subclass 100 on the basis that it was not satisfied that the relationship was genuine and the Tribunal affirmed. The consequence is that this applicant is left high and dry and stranded without much in the way of viable visa pathways to remain in Australia. In my view a very harsh and unfortunate circumstance. At least the disclosure provisions of the new regulations would enable a visa applicant to know if their sponsor has a history of family or other violence. I suspect that many people who come to Australia on the basis of a spousal relationship do not have any real feeling for the fact that the Subclass 309 is only provisional and that DIBP may re-visit whether the married relationship is genuine. At least the disclosure provision would give some degree of warning to the potentially unwary. -
Friday, 16 September 2016Absolutely! what you've described is a significant issue - however, I still believe that people should be able to negotiate relationships for themselves. The department already places financial conditions and limitations on sponsors. It also places conditions on visa applicants in terms of character and health. Now it's extending those conditions on pre-existing situations which may not have anything to do with THIS particular relationship but can affect its outcome on both the relationship AND the application.
People do come in on provisional visas as a safeguard for the Australian government (and the sponsor, oddly enough in the context of this new changes) that if the relationship isn't genuine it won't go onto a permanent visa. The safeguard for violent sponsors on unsuspecting (or confused) partners is also there as is the safeguard for applicants who are parents of Australian children or whose genuine partners have dearly departed Most current practices indicates the Department is putting other safeguards, such as making sure there was a relationship whilst the domestic violence happened so that the claim is not used to gain residency (!) and this is often hard to evidence if the applicant is vulnerable, coupled with lack of info and links to the community, with a sponsor who is not vulnerable and has the upper hand (pardon the pun...). Things are complicated enough and I *wonder* if this new regulation has a lot more to do with the number of partner visa applications, establishing potential visa cancellations down the track (step this way, please) and not having to bother with the follow up process that is a FV claim. The disclosure provision may provide some degree of warning to those applicants who are active involved in their applications, speak English and are on top of things - others won't even get to that first base of being actively involved... and THAT's a problem. it is not an equitable nor a financially accessible process and it's made more inequitable through expediency. it will give potential sponsors a certain degree of 'fear' and so 'love' will now have other connotations... and it requires of us a level of understanding, empathy and skill to run these matters when they go pear-shaped wihch are not readily available through CPD, unless you're professionally supervised, which is what I often find with newly registered agents that I continuously support on stuff like this - RMAs have to be competent in all sorts of areas, not just the Migration Act and THAT presents additional dilemmas which will, no doubt, form part of this on-going conversation. Bea
Immigration blog
Thanks for this Michael, and congrats. I am not sure about the intention of these changes and would say that it’s not THAT simple and, as with all things, caveats have to be put in place because we're dealing with human beings, not chairs.
Human nature being what it is, some sponsors will inevitably have previous records or unfortunate backgrounds and surely their actions cannot be restricted or be themselves written off by a piece of commonwealth legislation with pre-existing and enforceable conditions about starting a new relationship with an overseas person (and 'overseas person' is the operative word here...).
This reminds me of when the regulation to limit the number of partner sponsorship came about in the 1990s, to ensure that sponsors (mostly men) would not be able to serially sponsor partners (mostly women) to Australia when the previous relationship didn't work – a design to end the exploitation of partners by their sponsors but , as always, there must be some exceptions to the rule as ‘one size’ does not and cannot always ‘fit all’.
No other law currently encroaches on those who are free to marry whoever and however many times they want in Australia (by virtue of being residents and/or citizens of OZ), regardless of previous criminal activities, some of which may impact on their ability to holding public office or under corporations law, etc, but not on whether they can marry or enter into a relationship.
This only is enlivened once it involved an overseas national by the Migration Act, which limits the number of sponsorships in a lifetime, establishes a time limit on when to sponsor, often impinging on people’s fundamental rights.
As our domestic criminal justice system deals with violent offenders, it should not be the Department of Border protection to pre-empt whether someone is likely to commit family violence based on previous records or behaviours that may suggest an overseas national has to be protected from a potentially violent sponsor, just in case, and it seems that the caveat on exceptions deals with that, somewhat.
But there needs to be a balance, as it's not just about the sponsor, it is the right of the applicant who may have had a long term relationship and/or have children with the sponsor and, in that context, the right to be in Australia and in that relationship, (thus your comment about the glaring omission).
It also gets around the issues of identifying previous records of non-Australian born residents who can now be brought under scrutiny the moment they decide to become sponsors, quite nicely...
This feels to me like another extension to the ‘nanny’ nature of Immigration law in Australia, which goes beyond looking after the safety, health and welfare of partner visa applicants - if that was the case, then DBP would tread lightly and not doggedly pursue the establishment of an existing relationship before it can consider whether FV took place in a partner relationship that's broken down pending a visa grant... FV is still FV, whether during or after but for the expediency of regulating non-Australians, this is now the norm and yet another way of controlling processes, curtailing numbers, encroaching on people's life arrangements/aspirations lives and impacting significantly on vulnerable people's (and often their children's) future.
So, if you are now 30 and unfortunate enough to have been an unruly teenager, earning yourself an AVO for hitting your sister and clashing with the police, getting a suspended sentence or good behaviour bond (whether or not on a s10), then think twice about sponsoring the person you met on your last trip to where-ever, with whom you fell in love and you now want to join with in Oz to have lots of kids (or not…) That will cut out a lot of those pesky people out there, won’t it? and override many of the fundamental rights we take for granted.
I will say that I am looking at this through a combination of my previous role as a not for profit RMA (early 1990s) and social worker, where the lines of DV in Migrant families (often under sponsorships) were often blurred and things were never (and still are not) black and white.
It's not an easy subject and the continuing moving of the goal posts on partner visas, as a way of 'improving things' makes it hard to discuss it in any great detail other than 'does the client meet the new requirements' and complain among ourselves about yet another change (for whatever reason)... I hope we can keep the conversation going about this stuff, as you do, Michael, whether we agree to disagree and make sure that we do our bit to make it work for the right reasons and raise issues where it doesn’t quite work the way it's apparently meant to. Cheers, Bea