2016 was a difficult period for the Partner visa caseload with a number of applicants going more than 12 months without an update on their lodged applications. New applicants are forced to deal with the costly Partner Visa Application Charges of $6865 for primary applicants.
In addition, news that increased government involvement in the sponsorship process is likely to cause consternation while we wait for draft legislation to appear. Clearly domestic violence is a source of great concern for all Australians however the government’s proposal to refuse visa applications where as sponsor has previous convictions for domestic violence raise questions about the appropriate degree of government involvement in the life of the family and the right of adults to make determinations about their own lives.
In positive news, the case of Waensila has lead a requirement for more flexible consideration of the circumstances affecting couples who lodge applications where one partner is unlawful and what constitutes ‘compelling’ circumstances.
Timeframes
Partner visa applications remain on an increasing long processing timeframe. Onshore provisional applications (Subclass 820) are currently taking 12-18 months from time of lodgement. Offshore Provisional applications vary depending on the post with most quoting 6-12 month, although the firm’s practical experience shows that more than 12 months is equally possible. Permanent Partner visas are currently taking a full 2 years’ post approval of the Provisional stage.
DIBP is taking steps to streamline processing through the adoption of a global case management’ system which enables allocation of cases to various offices based on workload. However, the long processing times are likely to remain given demand exceeds supply for places in the Family stream under the current Migration programme.
Character requirements for Sponsors
From November 2016, new requirements were introduced whereby sponsors for Partner and Prospective Partner visas must provide the Department of Home Affairs with character checks from police authorities. The amendments enable the Department to refuse sponsorship applications where the sponsor has a significant criminal record. Sponsors must also agree to the Department disclosing any convictions. Failure to agree to these disclosures will lead to the sponsorship being refused.
The laws are intended to reduce instances of family violence and foreshadow the introduction of similar character checks in all family visas as well as greater powers for the Minister to refuse Australian citizen’s the ability to sponsor family members on visas.
Change to ‘compelling circumstances’ under Schedule 3
People who do not hold a substantive visa (i.e., the person holds a bridging visa or is unlawfully in Australia) when applying for an Onshore Partner visa must meet additional requirements (under Schedule 3 of the Migration Regulations). These criteria require the applicant to demonstrate ‘compelling and compassionate’ circumstances at the time of application, unless the Minister is satisfied there are compelling reasons not to do so. The ‘compelling and compassionate’ requirements are a high bar and it is often preferable to argue that the Minster should exercise discretion not to apply this requirement based on ‘compelling reasons’.
The Department previously made this more difficult by enforcing a very high standard when interpreting ‘compelling and compassionate’ and adopting a restrictive interpretation which meant that only circumstances at the time of application could be taken into consideration. This interpretation has been found to be beyond the scope of the regulations and therefore incorrect in the March 2016 decision, Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (‘Waensila‘).
In Waensila the Full Court of the Federal Court found that the Minister’s discretion to consider what constitutes compelling reasons was not restricted to the time of the application only. This broader interpretation requires the decision maker to consider circumstances which have developed since the original application was made, such as the length of the relationship or the birth of children to the couple. The new interpretation will benefit a number applicants would previously have failed to meet the ‘compelling’ reasons test.
