Do you know about the sponsorship limitation for Spouse, Partner, and Prospective Marriage visas?  You can only have sponsored two approved spouses, de facto partners or fiancés? Further to this, you cannot have another sponsorship (whether you were sponsor or are sponsoring) approved under any of the Partner of Prospective Marriage visas for 5 years after the first visa application was made. If you were the sponsored or nominated partner, the same applies, and you cannot sponsor or nominate another spouse, de facto partner, fiancé or interdependent partner until 5 years after your own visa application was made. Under compelling circumstances, this limitation may be waived.

Visas affected by the sponsorship limitation:

  • Partner visa (subclass 820)
  • Partner visa (subclass 801)
  • Partner visa (subclass 309)
  • Partner visa (subclass 100)
  • Prospective Marriage visa (subclass 300)

 

Two sponsorships

When considering if the sponsorship counts, the grant matters. It does not matter whether it is a permanent or temporary visa. Two stage partner visas are counted as one sponsorship. Remember, this considers the number of partners you sponsor.

When this sponsorship limitation law was introduced by parliament it was only designed to limit serial sponsors and when those people sponsored gained their permanent residency. A subsequent amendment to the law sometime later implemented to bring temporary residency grants to count towards the maximum of 2 and for the 5 year limitation rule. We believe that this subsequent amendment went against the spirit of the initial legislation and overall the department is hesitant to strictly count the grant of a temporary residency visa.

However the department will always tell you over the phone and on their web site that a temporary residency granted to the previous sponsored individuals counts but this can be challenged.

The department will tell you that your earlier sponsorship counts if..

  • Your sponsorship where the visa was granted but the holder did not travel to Australia – the grant of the visa counts
  • A fiance sponsorship where the visa was granted, the applicant travelled to Australia, but the marriage did not occur
  • A spouse sponsorship where the visa was cancelled prior to the spouse entering Australia
  • If you were sponsored and granted your visa on the grounds of family violence, and your relationship with your sponsor has ceased, this sponsorship counts
  • If you were granted a Partner visa based on your sponsor having passed away, this sponsorship counts

 

Your earlier sponsorship does not count if..

  • A sponsorship where the connected visa application was refused
  • You were sponsored as a spouse and then sponsored a fiance – this does not count as two sponsorships
  • You were granted a Prospective Marriage visa (subclass 300), travelled to Australia but did not marry your sponsor, and later marries another person and applies for a Partner visa

 

5 Years

The 5 year limitation affects you whether you were sponsored or are sponsoring. 5 years may seem like a long time, but this helps prevent abuse of the system. 5 years is fairly reasonable if the relationships have been genuine, as these visas are only made available to serious relationships. Waivers exist for those with extenuating circumstances. If you have an earlier sponsorship and a new partner and are keen to make a new application, you will want to know how to calculate the 5 years.

If the sponsor has sponsored/nominated another person, the 5 year period is calculated from the date on which the first visa application was made to the date a decision is made on the new application.

If the sponsor was sponsored or nominated, the 5 year period is calculated from the date their visa application was made to the date a decision is made on the new application.

Because the critical date is the date the sponsorship decision is made, this can be tricky. This means you do not need to wait for 5 years before you start your new application, but if the decision is made before the 5 years are up, then you will face the limitation.

Here is an example:

An Australian citizen sponsored a spouse and this application was made on 1 June 2013. The marriage has since broken down and the Australian citizen has met a new partner whom he wants to sponsor for a Partner visa. The application is lodged on 1 July 2017. It takes a year and the decision is made on 1 July 2018. 1 July 2018 has surpassed the 5 years, the application is not subject to the limitation and is granted.

The Department of Home Affairs (DOHA) assesses each application on a case by case basis and the time it may take to make a decision on your file may differ from the standard. The current processing times are as follows:

  • Partner visa (subclass 820) – 90% of applications processed in 24 months
  • Partner visa (subclass 801) – 90% of applications processed in 23 months
  • Partner visa (subclass 309) – 90% of applications processed in 15 months
  • Partner visa (subclass 100) – 90% of applications processed in 23 months
  • Prospective Marriage visa (subclass 300) – 90% of applications processed in 23 months

Please check the DOHA website for updated processing times.

 

Compelling circumstances

You may still have sponsorship approved despite the above limitations if there are compelling circumstances. These circumstances must affect the interests of the sponsor. Such circumstances include but are not limited to:

  • The applicant and their sponsor have a dependent child who is dependent on each of them
  • The death of a previous partner
  • The previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support
  • The new relationship is long standing

How the Department of Home Affairs assesses the circumstances are based on the following factors:

  • The nature of the hardship or detriment that would be suffered by the sponsor if the sponsorship were not approved
  • The extent and importance  of the ties the sponsor has to Australia and the consequential hardship or detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant

Are you concerned that you may be affected by this limitation? It can be confusing depending on the circumstances around which your previous sponsorship may be counted. We strongly recommend as always, to have a sit down with an experienced professional just to set things straight.

Read: An Introduction to Partner Visas

Read: Prospective Marriage Visa (Subclass 300)

Read: 4 Main Aspects of the Relationship