Since 2016, there has been a significant piece of legislation before Australia’s parliament, which has a consequential impact on Parent and Partner applicants. The Migration Amendment (Family Violence and Other Measures) Bill 2016 has been passed by the Senate on 28 November 2018 which is the final step before the Bill will become law. We anticipate this to happen, probably within the next week.
Here’s how the Bill will affect people planning to lodge a Partner visa:
Currently, a partner visa application is lodged and paid for first, and then the associated sponsorship from the partner follows as a separate & second application. When the new law commences, it will be mandatory for the Sponsor to be approved in advance of a partner visa application being lodged. Sponsor approval involves character checks and police clearances from any country where the sponsor has lived for more than a year. The sort of character matters which may require further departmental consideration prior to approval of a sponsor would be, amongst others: violent offences, paedophilia and other sexual offences. Moreover, any such offences would have to be declared to the visa applicant as part of the new process.
Should a sponsorship be refused under the new law, it will not be possible for the visa applicant to lodge a Partner visa.
While the vast majority of our clients will not be affected by this, as their Australian partner does not have anything of these types of serious offences on their police record, we can envisage the new process becoming a potential timing issue for people who wish to lodge an onshore partner visa. It will take additional time to obtain sponsor police clearances and go through the required sponsorship process, prior to being able to lodge a Partner visa. Therefore, it could adversely affect someone whose visa is expiring and who wishes to lodge a Partner visa quickly to remain lawful.
The Department of Home Affairs does not yet have any idea of how long the clearance process will take for sponsors; as with all character checks, this is dependent on a range of variables.
The Bill also paves the way for the introduction of the long-awaited Temporary Parent Visa. This will be a five year visa, which does not require the Balance of Family test to be met. Parents of Australian permanent residents or citizens will be able to apply for this visa, which can be extended once, to allow a total maximum stay of 10 years.
Our understanding is that work will not be permitted on this visa, and the applicants will need to hold private health insurance.
We have many clients waiting anxiously for news of this Visa, and we are pleased to see this initiative coming closer to fruition. As soon as full details are available, we will be compiling a fact sheet to send to interested people.
In an announcement, Minister Coleman announced that the visa would become available in the first half of 2019.
The unknown issue is the following though: will this have any impact on the current Parent Visas – the 103 (Non-Contributory), 173 and 143 (Contributory) and the 804 (Aged Parent Non-Contributory) and 884 and 864 (Aged Parent – Contributory) Visas? We know that the Government has already once closed the Non-Contributory visas to new applicants – this happened a few years ago and was overturned by a disallowance motion in the Senate. Will the Government move again to close off these visa classes, now that a reasonable alternative will exist for parents who wish to spend time with their Australian children?