Specific regulations can limit your ability to sponsor a family member or partner for a visa in Australia. However, there are provisions in these regulations that allow for exceptions if there are compelling circumstances. Let’s delve deeper into these compelling circumstances and how they can affect the sponsorship process.
The inspiration for this article comes from one written by Kris Ahn, our principal lawyer and Accredited Specialist in Immigration Law.
Regulation 1.20J: Compelling Circumstances Affecting the Sponsor
Regulation 1.20J limits the number of partner sponsorships to two per lifetime, with at least five years between sponsorships. However, this limitation can be waived if compelling circumstances affect the sponsor.
Examples of Compelling Circumstances:
- Death of a Previous Partner: If your previous partner has passed away, this is a compelling reason to allow for a new sponsorship even if the five-year period has not elapsed.
- Abandonment: If your previous partner abandoned you and there are children involved who need care and support, this can be considered a compelling circumstance.
- Long-Standing New Relationship: This can be considered if your new relationship is long-standing and stable.
- Dependent Children: If dependent children are from the new relationship, their needs and well-being can also be a compelling reason to waive the sponsorship limitation.
Assessment Criteria:
- Hardship or Detriment: The nature and extent of the hardship or detriment the sponsor would suffer if the sponsorship is not approved.
- Ties to Australia: The importance of the sponsor’s ties to Australia and the impact on these ties if they are compelled to leave Australia to maintain their relationship.
Regulation 1.20KA: Compelling Reasons Affecting the Applicant
Regulation 1.20KA addresses split applications in the parent visa category, requiring a five-year wait before a Contributory Parent visa holder can sponsor their partner. Exceptions are allowed for compelling reasons affecting the applicant, excluding financial reasons.
Examples of Compelling Reasons:
- Family Illness: If the visa applicant could not migrate with the sponsor due to a prominent family illness or other significant obligations.
- Other Obligations: Significant personal or family obligations prevented the applicant from simultaneously applying for the visa as the sponsor.
Regulation 1.20KB: Compelling Circumstances Affecting Sponsor or Applicant
Regulation 1.20KB limits sponsorship by individuals with serious offences but allows for discretion if there are compelling circumstances and certain conditions are met.
Conditions for Waiver:
- Completion of Sentence: The sponsor or their spouse/de facto partner must have completed their sentence for the registrable offence more than five years before the application.
- No Subsequent Offences: No subsequent charges or convictions for similar offences must exist.
- Compelling Circumstances: Circumstances affecting either the sponsor or the applicant that justify the approval of the sponsorship despite the criminal record.
Legal Interpretation of Compelling Circumstances
The term “compelling circumstances” is not explicitly defined in the legislation, leaving it open to interpretation based on individual cases. However, several factors can influence the decision-making process:
- Nature of Hardship: The specific hardship resulting from not approving the sponsorship, such as emotional, financial, or social difficulties.
- Duration and Stability of Relationship: The length and stability of the relationship between the sponsor and the applicant.
- Impact on Children: The children’s best interests, particularly their welfare and stability.
- Ties to Australia: The strength of the sponsor’s ties to Australia and the impact on these ties if they were forced to leave the country.
Conclusion
Compelling circumstances provide a pathway for exceptions to sponsorship limitations, allowing for flexibility in situations where strict adherence to the rules would result in significant hardship or injustice. Understanding these provisions and how they apply can help sponsors and applicants navigate the complexities of the Australian visa sponsorship process more effectively.
For those considering sponsorship, gathering thorough evidence of any compelling circumstances and presenting a strong case to the Department of Home Affairs or the Tribunal is essential. Consulting with an immigration lawyer can also provide valuable guidance and increase the chances of a successful application.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
