CHANGES TO FAMILY STREAM VISAS 2016 Sanmati Verma, Clothier Anderson Immigration Lawyers Accredited Specialist in Immigration Law, MARN 1276020

OVERVIEW OF CHANGES Changes to the definition of ‘member of the family unit’ - Migration Legislation Amendment Regulation (No 4 of 2016) Addition of two new ‘sponsorship limitation’ provisions - Migration Legislation Amendment Regulation (No 3 of 2016) with effect from 10 September 2016 Expansion of the existing sponsorship approval process under the Temporary Work visa scheme, to include sponsors for Family stream visas - Migration Amendment (Family Violence and Other Measures) Bill 2016

Migration Legislation Amendment Regulation (No 4 of 2016). Three key changes were made to the definition of ‘member of the family unit’ being: To place an age limit of 23 on child applicants who can be included in the family unit (except where that child is incapacitated from work); To specifically exclude from the definition dependent relatives of the family head; and To simplify the ‘concessions’ in the definition, applying to members of the family unit in ‘two stage’ visa applications, which were previously contained at subregulations 1.12(3) to (12)

‘Member of the Family Unit’ – Reg 1.12 Previous Definition New Definition (Application made on/after 19 November 2016)   (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is: (a)  a spouse or de facto partner of the family head; or (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or  (e)  a relative of the family head or of a spouse or de facto partner of the family head who: (i)  does not have a spouse or de facto partner; and (ii)  is usually resident in the family head's household; and (iii)  is dependent on the family head. General rule (2)  A person is a member of the family unit of another person (the family head) if the person: (a)  is a spouse or de facto partner of the family head; or (b)  is a child  or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and: (i)  has not turned 18; or (ii)  has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or (iii)  has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or (c)  is a dependent child of a person who meets the conditions in paragraph (b). **NB: ‘Dependent Child’ – Reg 1.03 of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who: (a)  has not turned 18; or (b)  has turned 18 and: (i)  is dependent on that person; or (ii)  is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions. **NB – Reg 1.05A(1)(b) – Dependent (1)  Subject to subregulation (2), a person (the first person ) is dependent on another person if: … (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

SPONSORSHIP LIMITATIONS - Part 1, Div 1.4B, Migration Regulations Reg 1.20J – Partner/Prospective Marriage Sponsorship Reg 1.20K – Remaining Relative visas   Minister must not approve sponsorship unless: Not more than 1 person granted visa on basis of sponsorship as spouse/de facto; or Not more than 1 person granted visa on family violence grounds, having been sponsored by the sponsor; If more than 1 person granted visa in those circumstances – 5 years passed since date of application for the visa; If sponsor was granted Partner/Prospective Marriage visa – then 5 years have passed since date of application Minister must not grant a Remaining Relative visa if: Sponsored by a person who was granted Remaining Relative visa; or Sponsored by a person who has previously sponsored another applicant for Remaining Relative visa (and visa granted); Sponsored by spouse/de facto partner of an Australian relative who was granted a Remaining Relative visa; Sponsored by spouse/de facto partner of an Australian relative who has sponsored another applicant for a Remaining Relative visa; Sponsored by the spouse/de facto partner of an Australian relative, who has sponsored another relative of that Australian relative for a Remaining Relative visa. Reg 1.20KA – Partner/Prospective Marriage Sponsorship – Contributory Parent holders Applies to Contributory Parent (143) or Contributory Aged Parent (864) visa holders – where visa granted after 1 July 2009 – seeking to sponsor applicant for Partner/Prospective Marriage visa Minister must not approve sponsorship until 5 years after the Parent visa grant, unless: Applicant had compelling reasons (other than financial) for not applying for visa at the same time; or Applicant applied with the sponsor, but withdrew the application for compelling reasons (other than financial)

SPONSORSHIP LIMITATIONS - Part 1, Div 1.4B, Migration Regulations Reg 1.20KB – Child/Partner/Prospective Marriage – ‘Registrable Offence’ (Inserted by Select Legislative Instrument 2010, No. 50 – with effect from 27 March 2010)   Applies to applications for Partner/Prospective Marriage/Child visas  Sponsor Charged with Registrable Offence Minister must refuse application of all applicants where sponsor charged with registrable offence, unless: No applicant under 18 at TOD Charge withdrawn/dismissed Minister must refuse application of all applicants where sponsor convicted with registrable offence, unless: Conviction quashed/set aside Minister may approve sponsorship if: Sentence completed more than 5 years before TOA Sponsor has not been charged with registrable offence since that time; and Compelling circumstances affecting the sponsor or applicant. Sponsor since charged with registrable offence but withdrawn/dismissed; and  Spouse or De Facto Partner Charged/Convicted of Registrable Offence (7) [Child visas] Minister must refuse sponsorship if spouse/de facto partner of sponsor charged with registrable offence unless Charge dismissed (8) [Child visas] Minister must refuse sponsorship if spouse/de facto partner of sponsor charged with registrable offence unless … Evidence of Charge or Conviction (11) Minister may request sponsor, or spouse/de facto of sponsor, to provide a police check from Australia/a country where person has lived for 12 months (12) In addition to matters above – Minister may refuse to approve sponsorship where Minister has requested a police check and not provided within a reasonable time ‘Registrable offence’ – An offence that is registrable within the meaning of any of the following acts; Child Protection (Offenders Registration) Act 2000 (NSW); Sex Offenders Registration Act 2004 (Vic); Child Sex Offenders Registration Act 2006 (SA); Crimes (Child Sex Offenders) Act 2005 (ACT) Or a crime that would have been registrable had it been committed in the jurisdictions mentioned above EG (Sex Offenders Registration Act 2004 (Vic)): Where a person is convicted of: ‘Class 1 Offence’ – incl. sexual penetration of child; sexual abuse of child; sexual intercourse/activity/abuse of child overseas) ‘Class 2 Offence’ – incl indecent act with child under 16; grooming of child under 16; administration of drugs to a child; abduction or detention of a child; production/possession of child pornography) Or where a registration order is made by the Court in sentencing for another offence – where ‘after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons of the community.’

NEW SPONSORSHIP LIMITATIONS – Reg 1.20KC, 1.20KD (10 September 2016) Reg 1.20KC Limitation on approval of sponsorship--prospective marriage and partner visas – ‘Relevant Offences’ 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.

NEW SPONSORSHIP LIMITATIONS – Reg 1.20KC, 1.20KD (10 September 2016) Reg 1.20KD – 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. 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

Migration Amendment (Family Violence and Other Measures) Bill 2016 Briefly summarised, the Bill attempts to expand the scope of Division 3A, Part 2 of the Act, which currently sets out the process for approval of Temporary Work sponsors – and create a parallel process for the approval of sponsors for family visas. Like sponsorship under the 457 Scheme, it is anticipated that the process of approval of family sponsors will be separate, and antecedent to, the lodgement of a visa by an individual applicant. If the sponsorship is refused, the visa application cannot be made. At the same time, the amendments expand existing enabling provisions in the Act, to allow for Regulations to: Prescribe criteria for the approval of family sponsors; Set out obligations for family sponsors; Prescribe conditions in which the approval of family sponsorship may be cancelled, or the sponsor barred from further approval; and Set out sanctions for breach of family sponsorship obligations.

Migration Amendment (Family Violence and Other Measures) Bill 2016 – Key Provisions S5(1) – Definitions approved sponsor means: (a) an approved family sponsor; or (b) an approved work sponsor.   approved family sponsor means a person: (a) who has been approved under section 140E as a family sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and (b) whose approval has not been cancelled under section 140M, 11 or otherwise ceased to have effect under section 140G, in 12 relation to that class. 140AA – Div 3A – Purposes Add: (2) The purposes of this Division, to the extent it applies in relation to 19 the sponsored family visa program, are: (a) to strengthen the integrity of the program; and (b) to place greater emphasis on the assessment of persons as family sponsors; and (c) to improve the management of family violence in the delivery of the program. (3) The purposes referred to in subsection (2) are to be achieved by establishing a framework that: (a) requires the approval of persons as family sponsors before any relevant visa applications are made; and (b) imposes obligations on persons who are or were approved family sponsors; and (c) provides for sanctions if such obligations are not satisfied; and (d) facilitates the sharing of personal information in accordance 6 with this Division. 140E – Minister to approve work and family sponsors (1A) The Minister must approve a person as a family sponsor in relation to one or more classes prescribed for the purposes of subsection (2) if prescribed criteria are satisfied. (2) The regulations must prescribe classes in relation to which a person may be approved as a work sponsor or family sponsor. OTHER AMENDMENTS: 140E – Minister to approve work and family sponsors 140F – Approval Process – Work and Family sponsors 140G – Terms of Approval – Work and Family sponsors 140HA – Sponsorship Obligations – Minister’s Responsibility to ensure that Regulations made 140K – Sanctions for failing to satisfy sponsorship obligations 140L – Regulations may prescribe circumstances in which sponsorship may be barred or sponsor’s approval cancelled 140M – Cancelling approval as a sponsor or barring a sponsor 140N – Process for cancelling or barring approval as sponsor 140O – Waiving a bar

“Such measures could lead to claims that the Australian government is arbitrarily interfering with families, in breach of its international obligations. It could also lead to claims that the Australian government is interfering with relationships between Australians and their overseas partners in a way it would not interfere in a relationship between two Australians.” - Department of Immigration and Citizenship, Submission to Australian Law Reform Commission inquiry, Family Violence and Commonwealth Laws— Improving Legal Frameworks, 2011