12 Oct New Migration Regulations to counter Family Violence
Scheduled to come into force on the 18th of November 2016, the introduction of new regulations to the ‘Migration Legislation Amendment (2016 Measures No.3) Regulation 2016’ will give the Department of Immigration and Border Protection the authority to refuse applications for sponsorship of temporary partner visas where the proposed sponsor has been convicted of an offence involving family violence or other “relevant offences”.
The new family violence regulation can be found online on the Federal Register of Legislation website, following is an excerpt:
1.20KC Limitation on approval of sponsorship—prospective marriage and partner visas
Applications for which visas?
- This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:
- a Prospective Marriage (Temporary) (Class TO) visa;
- a Partner (Provisional) (Class UF) visa;
- a Partner (Temporary) (Class UK) visa.
- This regulation applies in relation to an offence (a relevant offence) against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:
- violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
- the harassment, molestation, intimidation or stalking of a person;
- the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
- firearms or other dangerous weapons;
- people smuggling;
- human trafficking, slavery or slavery‑like practices (including forced marriage), kidnapping or unlawful confinement;
- attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);
- aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).
Sponsor has significant criminal record in relation to relevant offence
- The Minister must refuse to approve the sponsorship of each applicant for the visa if:
- the sponsor has been convicted of a relevant offence or relevant offences; and
- the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).
The migrationalliance.com.au author Michael Arch critically points out the clause in sub-regulation 4 “Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so”. Michael Arch states: “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”.