Australian partner visas (including the onshore subclass 820/801, the offshore subclass 309/100 and the Prospective Marriage visa (subclass 300)) place two main limits on sponsors. First, a sponsor can generally sponsor no more than two partners in their lifetime. Second, there must be at least five years between sponsorships. In addition, a sponsor who was granted a partner visa in the last five years generally cannot sponsor a new partner. The Department of Home Affairs can waive these limits in compelling circumstances, particularly where the couple has a dependent child.

Legal framework

These limits are in regulation 1.20J of the Migration Regulations 1994 (Cth) and apply to partner and Prospective Marriage visa applications made under the Migration Act 1958 (Cth). They aim to prevent repeated sponsorship and the use of partner visas as a migration shortcut, and to protect applicants who may be vulnerable.

The three limits

The two-sponsorship cap

If a sponsor has already sponsored two or more partners or fiancé(e)s, they generally cannot sponsor a new partner.

The five-year gap

If a sponsor sponsored another partner or fiancé(e) in the five years before the new application is lodged, they generally cannot sponsor again.

The sponsor's own visa

If the sponsor was granted a visa as a partner or fiancé(e) in the five years before the new application is lodged, they generally cannot sponsor a new partner either.

Counting the five years

The five years are generally counted back from the date the new partner visa application is lodged, by reference to the lodgement date of the earlier sponsorship or the date the sponsor's own visa was granted. Because the calculation can depend on the facts (for example, if an earlier application was withdrawn or refused), check each date against the Department of Home Affairs records before lodging. If you are only a few months short, waiting to lodge is often safer than seeking a waiver. In the meantime, the applicant must hold another valid visa, and should check whether that visa has a condition that prevents a further application in Australia.

Waivers

The Minister or a delegate can decide not to apply these limits if there are compelling circumstances. Common examples include where the sponsor and applicant have a dependent child, where the earlier relationship ended because the partner died, or special circumstances such as family violence in the earlier relationship. The applicant must provide a detailed statement and evidence explaining why a waiver should be granted. A waiver is discretionary and is not guaranteed.

Other sponsor requirements

• The sponsor must be an Australian citizen, permanent resident or eligible New Zealand citizen, and generally must be 18 or over;
• if the application includes an applicant or dependent child under 18, the sponsor must provide police certificates, and sponsors with certain criminal convictions may not be approved;
• the sponsor must undertake to provide support and accommodation when the applicant first arrives in Australia.

Practical points

• Before lodging, check all of the sponsor's past sponsorships and visa grants, including any Prospective Marriage visa sponsorship from years ago;
• if in doubt, request the Department of Home Affairs records through a Freedom of Information application;
• Failing to truthfully disclose past sponsorships may be treated as giving false information, leading to a visa refusal and an exclusion period.;
• if the sponsor doesn't meet the requirements and has no strong grounds for a waiver, consider delaying the application or looking at other visa options.

Documents usually required

• Proof of the sponsor's identity and citizenship or permanent residence;
• proof that any earlier marriage or relationship has ended, such as a divorce certificate or death certificate;
• if seeking a waiver, children's birth certificates, care arrangements and other evidence of the compelling circumstances;
• evidence of the current relationship.

How we can help

Two of our lawyers are Accredited Specialists in Immigration Law (Law Institute of Victoria). We can check the sponsor's eligibility, assess whether a waiver may be available, prepare the waiver submission and the partner visa application, and, where divorce or arrangements for children are involved, work alongside our family law team. For more information, see Australian immigration law services.

Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.