Stronger Measures for the Protection of Children

The Australian Government is strengthening policies around the sponsorship of minors for visas to enter Australia because it considers that the safety of children is paramount. The Government wants to ensure that children seeking to enter Australia under partner and child visas are protected from being sponsored by people with convictions for child sex offences or other serious offences indicating that they might pose a significant risk to a child in their care.

Since 16 September 2009, sponsors of child visa applications and partner or prospective marriage applications which include a minor applicant have been required to provide a police check as part of the process of assessing the application. Sponsors who have spent 12 months or more in total in Australia since turning 16 years of age are required to provide an Australian National Police Check (NPC). Sponsors who have not spent 12 months or more in total in Australia since turning 16 years of age are required to provide police certificates from each country in which they have spent a total of 12 months or more in the last 10 years since turning 16 years of age.

The results of the Australian NPC or foreign police certificates are used by the department to assess whether or not the visa application satisfies public interest criteria relating to the best interests of children.

From 27 March 2010, the Migration Regulations are amended by inserting Regulation 1.20KB. This regulation further strengthens the measures for the protection of children by providing for mandatory refusal of sponsorships when a child is included in the visa application and the sponsor has a conviction or an outstanding charge for an offence against a child.

This new sponsorship limitation provides that the Minister must not approve a sponsorship for the relevant visa classes if one of the proposed applicants is under 18  years of age and the Minister is satisfied that the sponsor has a conviction or outstanding charge for a registrable offence. Broadly described, a registrable offence is an offence against a child, most notably of a sexual or violent nature, which would lead to registration on the Australian National Child Offender Register. Further, for child visa classes, the sponsor's partner must not have a conviction or outstanding charge for a registrable offence.

The Migration Regulations also provide that the Minister may:

• request the sponsor or their partner to provide a police check to demonstrate that there is no relevant conviction or charge; and
• refuse the sponsorship if the police check is not provided.

Refusal of the sponsorship will result in all applicants included in the associated visa application being refused the visa.

Partner and child visa applications lodged prior to 27 March 2010

The requirements for sponsors to provide police checks, as outlined above, will remain in place for applications lodged before 27 March 2010. These applications remain subject to the public interest criteria relating to the best interests of the children, but are not subject to Regulation 1.20KB.

Partner and child visa applications lodged on or after 27 March 2010

For applications lodged on or after 27 March 2010, a requested police check will be used in assessing both whether the sponsorship limitation and the public interest criteria relating to the best interests of the children are met.

Additionally, for a child visa, the sponsor's partner is required to provide an Australian National Police Check or foreign police certificates.

From 27 March 2010, sponsors of child and partner visas where there is a minor included in the application, and the sponsor's spouse or de facto partner for child visas, must provide both of the following:

• an Australian National Police Check if they have spent 12 months or more in total in Australia since turning 16 years of age; and
• police certificates from each country in which they have spent a total of 12 months or more in the last 10 years since turning 16 years of age.

Discretion to approve the sponsorship

A sponsorship that would otherwise be refused under reg 1.20KB may be approved at the discretion of the Minister or his delegate if five years have passed since completion of the sentence for the last relevant offence and there are compelling circumstances affecting the sponsor or the visa applicant.

If a police check or other source of information reveals the sponsor has been convicted of an offence, other than a registrable offence, which raises concern that visa grant may put the child at risk, the visa application may be refused under the public interest criteria relating to the best interests of the child.
See: Stronger Measures for the Protection of Children – Questions and Answers (90KB PDF file)