(d) an offence that would be a reportable offence under paragraph (c) if it were committed in a jurisdiction mentioned in that paragraph.
secondary applicant, for a visa, means an applicant seeking to satisfy the secondary criteria for the visa in relation to the primary applicant.
1.20KC Limitation on approval of sponsorship—prospective marriage and partner visas
Applications for which visas?
(1) This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:
(a) a Prospective Marriage (Temporary) (Class TO) visa;
(b) a Partner (Provisional) (Class UF) visa;
(c) a Partner (Temporary) (Class UK) visa.
Relevant offences
(2) 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:
(a) violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;
(b) the harassment, molestation, intimidation or stalking of a person;
(c) the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;
(d) firearms or other dangerous weapons;
(e) people smuggling;
(f) human trafficking, slavery or slavery‑like practices (including forced marriage), kidnapping or unlawful confinement;
(g) attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);
(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
(3) The Minister must refuse to approve the sponsorship of each applicant for the visa if:
(a) the sponsor has been convicted of a relevant offence or relevant offences; and
(b) the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).
(4) Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):
(a) the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;
(b) the best interests of the following:
(i) any children of the sponsor;
(ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;
(c) the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.
Police check
(5) To determine whether a sponsor has been convicted of a relevant offence, and whether the sponsor has a significant criminal record in relation to a relevant offence, the Minister may, on one or more occasions, request the sponsor to provide a police check relating to the sponsor from any, or all, of the following:
(a) a jurisdiction in Australia specified in the request;
(b) a foreign country, specified in the request, in which the sponsor has lived for a period, or a total period, of at least 12 months since the latest of the following dates:
(i) 10 years before the date of the request;
(ii) the date the sponsor turned 16.
(6) In addition to subregulation (3), the Minister may refuse to approve the sponsorship of each applicant for the visa if:
(a) the Minister has requested a police check from the sponsor under subregulation (5); and
(b) the sponsor does not provide the police check within a reasonable time.
1.20KD Prospective marriage and partner visas—definition of significant criminal record
(1) For the purposes of regulation 1.20KC, a sponsor has a significant criminal record in relation to a relevant offence or relevant offences if, for that offence or those offences:
(a) the sponsor has been sentenced to death; or
(b) the sponsor has been sentenced to imprisonment for life; or
(c) the sponsor has been sentenced to a term of imprisonment of 12 months or more; or
(d) the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Concurrent sentences
(2) For the purposes of subregulation (1), if a sponsor has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A sponsor is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of subregulation (1), the total of those terms is 6 months.
Periodic detention
(3) For the purposes of subregulation (1), if a sponsor has been sentenced to periodic detention, the sponsor’s term of imprisonment is taken to be equal to the number of days the sponsor is required under that sentence to spend in detention.
Residential schemes or programs
(4) For the purposes of subregulation (1), if a sponsor has been convicted of a relevant offence, and the court orders the sponsor to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the sponsor is taken to have been sentenced to a term of imprisonment equal to the number of days the sponsor is required to participate in the scheme or program.
Pardons etc.
(5) For the purposes of subregulation (1), a sentence imposed on a sponsor for a relevant offence, or the conviction of a sponsor for a relevant offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
1.20L Limitation on approval of sponsorship—Subclass 600 (Visitor) visas
(1) The Minister must not approve the sponsorship by a sponsor of an applicant for a Subclass 600 (Visitor) visa if:
(a) the sponsor has previously sponsored the applicant, or another applicant, for:
(i) a Subclass 600 (Visitor) visa; or
(ii) a Sponsored (Visitor) (Class UL) visa; and
(b) the visa mentioned in paragraph (a) was granted; and
(c) either:
(i) subject to subregulation (3)—the visa is still in effect; or
(ii) subject to subregulation (4)—each of the following applies:
(A) the visa has ceased to be in effect;
(B) the previous applicant did not comply with a condition of the visa;
(C) a period of 5 years has not passed since the grant of the visa.
(3) Despite subparagraph (1)(c)(i), the Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous applicant holds a Subclass 600 (Visitor) visa; and
(b) the Minister is satisfied that the applicant:
(i) is a member of the family unit of the previous applicant; and
(ii) is proposing to travel to Australia for the same purpose as the previous applicant.
(4) Despite subparagraph (1)(c)(ii), the Minister may approve the sponsorship by the sponsor of the applicant if:
(a) the previous applicant was the holder of a Subclass 600 (Visitor) visa; and
(b) the Minister has, at any time, determined in writing that he or she is satisfied that:
(i) the previous applicant did not comply with condition 8531; and
(ii) the previous applicant exceeded the period of stay permitted by the visa due to circumstances:
(A) beyond the previous applicant’s control; and
(B) that occurred after the previous applicant entered Australia as the holder of a visa mentioned in paragraph (a).
Note: Condition 8531 provides that the holder of a visa is not permitted to remain in Australia after the end of the period of stay permitted by that visa.
1.20LAA Limitation on sponsorships—parent, aged dependent relative, contributory parent, aged parent and contributory aged parent visas
(1) This regulation applies to the following visas:
(a) a Subclass 103 (Parent) visa;
(b) a Subclass 114 (Aged Dependent Relative) visa;
(c) a Subclass 143 (Contributory Parent) visa;
(d) a Subclass 173 (Contributory Parent (Temporary)) visa;
(e) a Subclass 804 (Aged Parent) visa;
(f) a Subclass 838 (Aged Dependent Relative) visa;
(g) a Subclass 864 (Contributory Aged Parent) visa;
(h) a Subclass 884 (Contributory Aged Parent (Temporary)) visa.
(2) The Minister must not approve a sponsorship for a subclass of visa to which this regulation applies if:
(a) the Minister is satisfied that the sponsor of the applicant for the visa is:
(i) a holder or former holder of a Subclass 802 (Child) visa whose application for that visa was supported by a letter of support from a State or Territory government welfare authority; or
(ii) a cohabitating spouse or de facto partner of that holder or former holder; or
(iii) a guardian of that holder or former holder; or
(iv) a guardian of a person who is a cohabitating spouse or de facto partner of that holder or former holder; or
(v) a community organisation; and
(b) the Minister is satisfied that the applicant for the visa is or was a parent of a holder or former holder of a Subclass 802 (Child) visa whose application for that visa was supported by a letter of support from a State or Territory government welfare authority.
(3) Despite subregulation (2), the Minister may approve a sponsorship for a subclass of visa mentioned in subregulation (1) if the Minister is satisfied that there are compelling circumstances affecting the sponsor or the applicant to justify the approval of the sponsorship of the applicant for the visa.
(4) In this regulation:
letter of support means a letter of support provided by a State or Territory government welfare authority that:
(a) supports a child’s application for permanent residency in Australia; and
(b) sets out:
(i) the circumstances leading to the involvement of the State or Territory government welfare authority in the welfare of the child; and
(ii) the State or Territory government welfare authority’s reasons for supporting the child’s application for permanent residency in Australia; and
(c) describes the nature of the State or Territory government welfare authority’s continued involvement in the welfare of the child; and
(d) shows the letterhead of the State or Territory government welfare authority; and
(e) is signed by a manager or director employed by a State or Territory government welfare authority.
Division 1.5—Special provisions relating to family violence
1.21 Interpretation
In this Division:
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non‑judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non‑judicially determined claims of family violence.
non‑judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b) a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
1.22 References to person having experienced or committed family violence
(1) A reference in these Regulations to a person having experienced family violence is a reference to a person being taken, under regulation 1.23, to have experienced family violence.
(2) A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.
1.23 When is a person taken to have experienced or committed family violence?
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have experienced family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note: Schedule 2 sets out which visas may be granted on the basis of a person having experienced family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have experienced family violence, and how those persons are related to the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is experienced and committed—injunction under Family Law Act 1975
(2) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is experienced and committed—court order
(4) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed—conviction
(6) The alleged victim is taken to have experienced family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a) convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b) recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed—non‑judicially determined claim of family violence
(8) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has experienced family violence; and
(b) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has experienced family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
(C) both the alleged perpetrator and the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
(iii) a member of the family unit of a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator who has made a combined application for a visa with the spouse, de facto partner or prospective spouse (as the case may be); and
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has experienced relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10) If an application for a visa includes a non‑judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has experienced relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has experienced the relevant family violence, the Minister must consider the application on that basis; and