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The safety of children is paramount and 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.
From 27 March 2010, a sponsorship limitation for child, partner and prospective marriage visas was introduced to support the protection of children.
The sponsorship limitation requires mandatory refusal of the sponsorship when a child is included in a visa application and where the sponsor has a conviction or an outstanding charge for a registrable offence. For child visa classes the sponsor's partner (such as a spouse or a de facto partner) must not have a conviction or outstanding charge for a registrable offence either. The sponsorship limitation may only be waived in extremely limited circumstances.
Who is required to provide police checks?
Police checks must be provided by the following people:
- the sponsor of any child, partner or prospective marriage visa application that includes an applicant under 18 years of age
- the sponsor’s partner of any child visa application that includes an applicant under 18 years of age.
The results of the Australian National Police Check or foreign police certificates are used by the department to assess whether the visa application satisfies the public interest criteria relating to the best interests of children.
A similar requirement to provide police certificates already applies to Australians who want to adopt a child or undertake employment relating to children.
These requirements also apply to Australians sponsoring their natural children and their step-children. If a check indicates that a parent or their partner has a conviction for a serious criminal offence, such as a child sex offence, it may not be in the child’s best interests to be sponsored for a visa by that parent and the sponsorship may be refused.
If a sponsor has already provided a police certificate in relation to the temporary Partner visa application, they will not need to provide another for the permanent visa application to be assessed.
In general terms, 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.
It includes any of the following:
- an offence that is a registrable offence within the meaning of any of the following Acts:
- the Child Protection (Offenders Registration) Act 2000 (NSW)
- the Sex Offenders Registration Act 2004 (Vic.)
- the Child Sex Offenders Registration Act 2006 (SA)
- the Crimes (Child Sex Offenders) Act 2005 (ACT)
- an offence that would be a registrable offence under the above paragraph if it were committed in a jurisdiction mentioned in that paragraph
- an offence that is a reportable offence within the meaning of any of the following Acts:
- the Child Protection (Offender Reporting) Act 2004 (Qld)
- the Community Protection (Offender Reporting) Act 2004 (WA)
- the Community Protection (Offender Reporting) Act 2005 (Tas.)
- the Child Protection (Offender Reporting and Registration) Act (NT)
- an offence that would be a reportable offence under the above paragraph if it were committed in a jurisdiction mentioned in that paragraph.
What police checks are required?
Sponsors and their partners who are required to provide police checks must provide both:
- an Australian National Police Check if they have spent a total of 12 months or more in Australia since turning 16 years of age; and
- a police certificate for any country they have lived in for 12 months or more during the last 10 years since turning 16 years of age.
How to obtain an Australian National Police Check
An Australian National Police Check may be obtained from the Australian Federal Police (AFP). The department requires that sponsors and sponsor’s partners must disclose all convictions. Sponsors and partners required to submit a National Police Check must complete the National Police Check application form.
Further information including the National Police Check form is available from the Australian Federal Police website.
See: The Australian Federal Police
- Sponsors and partners should use Code 33 at Question 1 on the National Police Check application form and include details of all names they have been known by
- If an AFP Certificate is provided based on incorrect information, the department may request another certificate
- Fingerprints are not required for National Police Checks.
How to obtain a foreign police certificate
Information about obtaining foreign police certificates is available on the department’s website.
See: Character Requirements
Refusal of an application where the sponsor or their partner has a conviction or an outstanding charge
The sponsorship will be refused if a sponsor or their partner has a conviction or an outstanding charge for a registrable offence.
The sponsorship limitation may only be waived if:
- more than five years have passed since the completion of the sentence for the last relevant offence; and
- there are compelling circumstances affecting the sponsor or the visa applicant.
Refusal of the sponsorship will result in all applicants included in the visa application being refused the visa.
Non registrable criminal offences
If a police check or other source of information reveals the sponsor or their partner has been convicted of a serious offence, other than a registrable offence, which raises concern that granting the visa may put the child at risk, the visa may be refused.
If the department considers that an application may be subject to refusal because granting the visa may put the child at risk, the applicant will be advised of the reasons for this and given a chance to provide further information or evidence before a final decision is made.
If the sponsor or their partner has a criminal history the visa will not be refused if both the following apply:
- the criminal history does not include registrable offences
- the criminal history does not raise concern that the grant of the visa may put the child at risk.
The migration regulations also provide that the department may:
- request the sponsor or their partner to provide a police check to demonstrate that there is no relevant conviction or charge
- refuse the sponsorship if the police check is not provided.
Rights of review
When an application is refused, the applicant will receive a letter advising the reasons for the refusal decision, their review rights (including whether it is the applicant or the sponsor who can apply for review) and, if the application is made within Australia, the date by which the applicant must leave Australia if they do not apply for review.
Disclosing information from police certificates
Applicants are not given a copy or provided with access to sponsors’ or their partners’ police certificates. However, if a police certificate shows that the sponsor or their partner has convictions or outstanding charges for offences against children, the department will inform any migrating and non-migrating person who can lawfully determine where the migrating child is to live.
If a police certificate shows a registrable offence or any serious offences that raise concerns about the safety and welfare of a chid included in the visa application and may therefore result in the refusal of the visa application, the applicant will be advised of this and given a chance to provide further information or evidence before a final decision is made.