Welcome to our Brave new World..
The Migration Amendment (Family Violence and Other Measures) Bill 2016 was passed yesterday and is awaiting Royal Assent.
That ACT when assented to, paves the way for regulations to require, amongst other things, a prior approval of a Sponsor BEFORE a valid application is lodged.
The purpose of the Bill is articulated as follows:
The purpose of the Migration Amendment (Family Violence and Other Measures) Bill 2016 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to introduce a sponsorship framework for the sponsored family visa program.
The proposed changes will:
• separate sponsorship assessment from the visa application process
• require the approval of persons as family sponsors before any relevant visa applications are made
• impose statutory obligations on persons who are or were approved as family sponsors and provide for enforceable sanctions if such obligations are not satisfied
• allow the Minister to refuse a sponsorship application and cancel and/or bar a family sponsor where inappropriate use of the program or serious offences are detected, especially those involving violence and
• improve the sharing of personal information between parties to the application and the program more generally.
Source:
But Wait there is more!
My experience tells me that applications for a spouse visa onshore can be "time sensitive". Thus an applicant may have a visa which is of limited duration or may be facing the cancellation of a visa, is going to be "under the gun".
By the way, the Department of Home Affairs (DOHA) hate Applicants onshore to apply for the 820/801 notwithstanding the facilitative amendments to the Regulations since 1996 and the Act since 2009.
The making of regulations which require a Sponsor to be pre-approved necessarily involves some diligent, hard working member of DOHA in a crack team, in a Centre of Excellence, to carefully consider the information in front of them, apply the regulation and at the same time, no doubt availing themselves of comprehensive policy guidance and input from the integrity unit and liaison with law enforcement to make a decision to approve or refuse the Sponsor.
Sounds perfectly reasonable doesn't it ?
Absolutely perfectly reasonable.
As long as the process can be done in a timely manner and there is no risk of a blow out and clients are not disadvantaged and in effect tipped into the Schedule 3, 820/801 (Compelling Circumstances, Waensila scenario); because the DOHA crack team etc..etc..takes too long to make a decision.
Predictive reasoning
Assuming that DOHA is tasked with this process of approval, what history of excellence can we refer to in order to gain some confidence about the efficiency and diligence of DOHA? The short answer is none. As we speak, there are still unresolved pre 17/4/2017 applications for 457 visas, SBS/Noms etc...off the back of an 80,000 applications on hand as at 17/4/17. There are over 120,000 unresolved applications for Citizenship. The Group 4 and Group 5 candidates had their Applications stalled for up to 5 Years until they were ceased and capped. The AAT has 80,000 unresolved applications for review on hand....It is on that basis that I predict that our clients and their sponsors are going to get locked into delay, procrastination and refusal driven by DHA.
What can be done about that?
Regulations should be formulated to incorporate the following:
1. The date of Application for the pre-approval of the Sponsor should be the Deemed date of the
spouse 820/801 application to avoid the Schedule 3 ( Waensila scenario) problem.
2. Where a sponsorship is refused it should be reviewable at the AAT and that the foreshadowed partner
should hold a substantive ministerial substituted visa until 35 days after the decision of the AAT.
3 In the event that DOHA fails to make a decision within 35 days there is a deemed grant of an approval
of the Sponsor.
So what are the chances of that?
Zip , Nada, Zero !
So what are you going to do about it?
(Pssst, it is unconstitutional!)