IMMIGRATION NEWS AILS logo small                
21st August 2011
Volume 199

 Subscribe To Our Newsletter

In This Issue
Partner Visa - Part 2 - Sponsorship Limitations
Readers' Comments
Dear students, 


Welcome to the latest edition of IMMIGRATION NEWS and to the new subscribers. This free service is brought to you by Australian Immigration Law Services. You can subscribe by using the link on the right hand side or by visiting our web site. Please feel free to forward this email to any of your friends.
Today we cover part 2 of our Partner Visa special with a focus upon the limitations that apply to sponsors of these visa classes.

Partner Visa - Part 2

Sponsorship Limitations 

Does DIAC have the right to limit the ability sponsor your partner?

As mentioned in our last newsletter about the partner visa, you need to choose carefully who you are going to sponsor for there is a limitation on your ability to sponsor again.


There is a specific regulation relating to sponsorship limitations, Reg1.20J - Limitation on approval of sponsorships-spouse, partner, prospective marriage and interdependency visas.


It`s not written in simple English, so let me just spell it out in simple terms.


This regulation applied to those who are applying to be a sponsor to DIAC using one of the following visas;


Partner (Provisional) 309 Visa

Prospective Marriage (Temporary) 300 Visa

Extended Eligibility (Temporary) 445 Visa

Partner (Temporary) 820 Visa


It is important not to confuse the limitation rules with any other visa class. There are two important things you must know;



If you had made an application to be a sponsor for one of these visa classes, irrespective if the application you made was approved or whether the person you sponsored had their visa granted, you may not apply for sponsorship approval again until a five year period has lapsed.


This 5 year period begins from the date that previous sponsorship application had been lodged, meaning the day you gave the form to DIAC to be assessed.



If you had been sponsored by one of these visa classes but the relationship has since ended, you also have a five year period where you cannot sponsor your own new partner. This period starts from the date your original partner put in an application to sponsor you.


A few examples to help clarify this;



Jim sponsored his fiancée Jing from China to migrate to Australia. He put in the forms on the 21st August 2009 to the DIAC office in China. Jing was granted the visa and moved to Australia and lived with Jim. Unfortunately the relationship did not work out and Jing returned to China before she actually married Jim. Jim may not be able to sponsor again until the 21st August 2014. It did not matter that Jing did not obtain her permanent visa or in fact that they did not marry.



Joanne married her Australian husband and applied for the onshore partner visa on the 12 January 2008. Her permanent residency was granted in March of 2010. Sadly, the relationship ended soon after. Joanne has a new defacto partner now who she wants to sponsor. She asked DIAC if her partner could apply and was told of the 5 year rule where she may not sponsor until the 12th January 2013, five years from the date her original partner put in application to sponsor her.



Rookie applied three months ago on the 21st May 2011 for his fiancée from England to come to Australia so she could marry him here. However this weeks she called him on the phone in June and told him she wanted to end the relationship as she found some else. Rookie has since moved on, and fallen in love and wants to sponsor his new fiancée who is in Thailand. He lodged his application in Bangkok but received a letter that may not be able to sponsor again until the 21st May 2016, five years from the date of his first sponsorship application. It does not matter that his first application was cancelled.


The Waiver


You will notice that I used the word "may" in all of these examples. This is because the Regulation 1.20J has a provision where this 5 year rule may be waived in favour of the sponsor. As you can expect DIAC is not going to waive their magic wand every time they are asked to do so for they are trying to keep the integrity of the migration program and stop those who are trying to abuse the system.


It is a very grey area indeed if one has to go with your hat in your hand and beg DIAC to waive the 5 year limitation. You may end up like Frodo wandering the marshes looking for Mount Doom, feeling that all is lost and hopeless. However DIAC`s holy text provides us with some clue if your relationship can be saved once your partner finds out you can`t sponsor for a few years.


DIAC`s Procedural Advice Manual (PAM) writes;


Regulation 1.20J(2) allows officers to approve a sponsorship that would otherwise fail to  meet regulation 1.20J(1) requirements if there are 'compelling circumstances' affecting  the sponsor. As a matter of law, all cases must be assessed against the provisions of regulation 1.20J(2)


Compelling circumstances affecting the interests of the sponsor

Under policy, compelling circumstances affecting the interests of the sponsor include instances where;

*the applicant and their sponsor have a dependent child who is dependent on each of them or

*the death of the previous partner or;

*the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support, or

*the relationship is longstanding (more than 2 years)


These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.


Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. While no definitive list can be given, some general aspects that may be particularly important are:


the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not improved.

the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/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.


There have recently been a number of claims relating to so called "innocent sponsors". These sponsors claim that their intentions towards the original relationship were genuine, that they were blameless in the failure of the relationship and that because of this, the waiver should be exercised. In some of these cases, the person they sponsored/nominated has left Australia and no immigration "advantage" was gained. The sponsors claim that they would be unreasonably disadvantaged if the waiver was not exercised as their new relationship is clearly genuine.


It is open to decision makers to decide whether this situation would meet the criteria of compelling circumstances. However, this would depend on the individual circumstances of each case such as whether it is possible to establish the bona fides of the original relationship or whether the first sponsorship was "careless" (sponsored with the expectation that if things didn't work out, they would be free to try again). While the first relationship may not necessarily be bogus, this scenario may still represent a misuse of the migration provisions.


You can see by these PAM guidelines issued for case officers, the quicksand had been set waiting for the unsuspecting sponsor to be sucked down into the depths of despair. With many years of experience, when a sponsor comes to my office learning they cannot sponsor again for a number of years, I`m making sure they don`t make a dash for my office window.


Once I have a chance to give them hope it may be possible to waiver the limitation at least it gives them some hope that life is worth living but I have to warn them that it is not an easy process and there is no guarantee of success. Really it is a hope that I shouldn`t have to give them for it should be up to DIAC to prove that a sponsor has misused the right to sponsor, not the other way around.


Replies to Readers' Comments                        
We have received some comments on last week's newsletter.  Due to space considerations some of them have been edited. 


Hi Karl


Hope you are well.


Quick question: what happened to the Partner Visa part 2 for the newsletter?


Recently I've come across this solicitor who is thinking about filing an action against the DIAC in legal court. Do you think there is an possibility of coopereation between you two?


As one of the Group 5 applicants you know I'm doing everything I can to fight the DIAC.


All the best


Kind regards




Kevin you will find that there is a growing interest in waging a legal fight about the time GSM applicants are waiting for there visas. The problem is the cost of lodging an application and weighing this against the possible processing of this backlog by the end of the 2012 financial year. The end is in sight and by the time all the legal issues go through court perhaps the processing delay will be over? I wish I knew the answer. However since the worst of waiting seems to be behind us I suggest waiting a while longer would be wiser.
Dear Karl

Thank you so much for touching base on the usually less followed woes of people waiting endlessly for the parent visa application in your most recent newsletter.
I believe many would share my belief to support our parents in their time of need as they've always been there for us. But the current Parent migration laws just do not allow that to happen. I rather believe that DIAC is quite unjustified in their approach towards the parent migration visa program.
I've seen examples where the parents (who are usually more than 55 years of age or more) may not have these 15-20 years to live at first place and thus leaves little or no room for them to be able to be granted this visa and allowing them to live with their children.
The balance of family test requires at least 50% or more children to be permanently settled in Australia. However, what if ALL (100%) of children are permanently settled in Australia? Their parents obviously have no one to take care of them back there. Although it may technically not meet the 'remaining relative' definition set by DIAC as parents are most likely to have their brothers or sisters back there. However, these brothers and sisters have their own lives, own families and live separately. They absolutely cannot provide the same support that the children can.
T.B.C... next edition


Gagan Chawla


Gagan yours was along email but you have so many valid points I will respond to part 1 now and Part 2 next edition.
Yes you are right that DIAC`s policy is indeed unfair and there are many instances where 100% of the family are in Australia and only the parents left back home but DIAC makes no concession for these scenarios. You are also correct in stating they are not eligible for Last Remaining Relative which I have always felt is very odd and just another way to force them to pay money.


Dear Karl


I really appreciate your valuable newsletter 197 in relation to Partner Visa. You explained a lot and I'm waiting for 2 part of this matter.Please explain if possible in the next issue, if sponsor and applicant doesn't work and the sponsor getting social security, how sponsor will support the applicant while application under process.I may make a appointment to see you to make an enquiry about this matter.




Yours sincerely


With the sponsor of social security it does not stop the ability to sponsor a partner. DIAC will most likely ask for an assurance of support (AOS) to be provided. You can check the requirements about this on Centrelink web site. I have had applicants unemployed and on social security and the visa has been granted with an AOS in place.
Dear Karl

Today when I read your article I'm getting confused about those terms  `usually resident` and  "settled" is defined by Regulation 1.03 as lawfully resident (includes temporary resident).

We 5 (five) brothers, among 5 brothers we 3 (three) brothers live in Australia. 2 (two) brothers have already got PR and another brother has applied for PR in 30.06.2010 and lives in Australia more than 3 years, also he got car, full time job, rented house & utilities on his own name  but did not get final grant. According to my understanding he might sponsor to our parents (who is waiting for PR grant) because he fulfill both condition.

In that case could please let me know that we are eligible to sponsor our parents?

Kind Regards

Md. Arifur Rahman Jewel
Arifur you will need 3 of the 5 brothers to become PR and to be usually resident in Australia to meet the BoF test. When the third one get  his PR you will be ready because he is already "usually resident".

Hi Karl,


Hope you are doing great. I am a regular reader to your newsletter for long now. I must say, for many other immigration consulting firms, it's just business but not for your organization. The vast experience that you share on this platform, without a charge, makes you stand apart from everyone else in this sector. You feel the pain and anguish these students go through and act as a guiding light of hope for them when they are far far away from friends and family. I believe and I am sure many would agree, that you being a mentor to this community is very well appreciated. 


Keep up the good work.

Kind Regards

Shiv Bakaya


Dear Shiv, thank you for your kind support


If you would like to join the other 9000+ subscribers then click on this link to subscribe to our newsletter 

or the link on the right above the Editorial.

Kind regards,


Karl Konrad: Managing Director and

Jee Eun HAN, Executive Manager     

Australian Immigration Law Services

MARN: 9904238, 0850073 

AILS stuff photo
 At Australian Immigration Law Services (AILS), we offer professional advice and practical solutions to all migration matters. Our team of licensed agents and consultants specialise in various areas of immigration law, such as skilled migration, business, family, and reviews.









With sponsorship approvals having this five year limitation attached like an unwanted barnacle on a racing yacht, they can be a very nasty thing to remove. Somehow without anyone realising, we have the state playing nanny over us, deciding if we are either worthy of being a sponsor or perhaps are so incapable of making the decision to sponsor the right kind of person, they will do it for us. Hmmmm.


Now everyone must recognize that there are times where the state should step in and make decisions for those who are not capable in making them, but usually this is applied to people who have lost their marbles or never had any to begin with. I would have to say that most people are capable of trying to make the right choice in life on who we choose as partners.


Hell my first choice of a partner was a bloody disaster. Not because we didn`t love each other, we just were not compatible and unfortunately we didn`t find that out until after we got married. If I had sponsored her, how would I feel about begging to DIAC to be free to sponsor again? I can tell you I wouldn`t be happy about it and I don`t feel that the state has the right to make that kind of decision for me. Being able to sponsor who we choose to should a basic human alongside with the Freedom of Speech, Democracy and watching South Park.


Nobody wants to see a system abused and if an individual had a record of lodging multiple sponsorship applications perhaps it would be wise to investigate to ensure they were genuine. However should be with a gentle tap on the shoulder, not just to slap a ban on them as a matter of course. This is exactly what the current system does. For goodness sake, 5 years! That can be a death sentence for some people to be apart from the person they love or in reality it can spell the end of relationships altogether. No government has the right to inflict such pain upon anyone. I challenge those in DIAC to step forward to tell us how perfect their relationships have been and why they think the 5 year rule is a fair one.



Karl Konrad

Managing Director 

Karl Konrad



Han Photo with Jacket

Executive Manager

Jee Eun Han


        Senior Support Staff

Eun Hye KIM


Case Manager 

Eun Hye

Hae Jung WOO

Finance Officer




Jean Kim

Administration Officer 


Zoe HE

Customer Service Officer




Communication Officer


Yusha He_journalist


Australian Immigration Law Services  

phone: 61 2 92791991 | fax: 61 2 9279 1994
email: | website: 


 Level 13, 37 York Street Sydney NSW 2000

Disclaimer and Copyright

IMMIGRATION NEWS is intended to provide general information on migration issues and does not constitute legal advice and no responsibility is accepted by Australian Immigration Law Services (AILS) for the accuracy of material appearing in IMMIGRATION NEWS.


People seeking advice on migration law should seek advice from a registered migration agent
 and you should be aware that the law can change tomorrow without notice so you have the responsibility to keep up to date.
The copyright of IMMIGRATION NEWS belongs to Australian Immigration Law Services (AILS) and no part of IMMIGRATION NEWS is to be reproduced by any means without the written consent of AILS. Australian Immigration Law Services is a trading name licensed to AILS INTERNATIONAL PTY LTD