Deportation is a very sad fate that an individual can encounter in the Australia migration laws. To families, the challenge of separation may be shattering which may lead to the essential question:
Does Australian sponsorship of a family avert deportation?
Although family sponsorship may work in some situations, it is not a blanket protection against deportation. It is necessary to understand the relationship between sponsorship and the Australian rigorous policy regarding migration and cancellation of visas.
Knowledge about Deportation and Visa Cancellation
Deportation in Australia normally occurs after the cancellation or refusal of the visa. Cancellation of visa due to the following reasons is most common:
- Loss of character test that is contained in section 501 of the Migration Act 1958.
- Breaching visa conditions
- Giving wrong information or misleading information.
- Overstaying a visa
Cancellation of a visa followed by exhaustions of all other appeal rights makes the individual an unlawful non-citizen and can be detained and deported out of Australia.
What Is Family Sponsorship?
The term family sponsorship usually describes the process of a permanent resident and Australian citizen who sponsors a family member to receive a visa. Common family visas include:
- Partner visas
- Parent visas
- Child visas
- Other family visas (remaining relative visas or carer visas)
Sponsorship is not the only part of a successful visa application. The visa applicant is also expected to complete all the legal conditions such as health, character, and public interest.
Is direct prevention of deportation through Sponsorship possible?
In the majority of situations, the family sponsorship does not necessarily prevent deportation. In the case when the visa of a person is already cancelled and he/she is under removal, merely the presence of a sponsoring family member could not stop the situation. Nevertheless, the sponsorship can be interesting in the next cases:
Can Sponsorship Halt Deportation?
Family sponsorship, in most instances, does not necessarily prevent deportation. When an individual is already on a visa that has been cancelled and is at risk of being removed, just having a family member that is sponsoring them is not sufficient to stop it. The sponsorship can however come in play under the subsequent circumstances:
In case a New Visa Application is lodged in time
Where the individual is in a position to apply prior to the cancellation of the current visa (or within available time limits after the cancellation), has a substantive visa to apply to (e.g. partner visa), that is a sufficient basis to be lawfully retained in Australia to allow the application to be determined.
Application of a Valid Bridging Visa Application
In other instances, a pending family visa application can make the applicant get a bridging visa that will temporarily fulfill the removal until the case is being discussed.
Ministerial Intervention
The Minister for Home Affairs may also intervene in a case on discretionary basis, especially when there are strong compassionate and humanitarian reasons to do so, such as family long-term relationships or children, a case of an Australian citizen. Such request can be supported by a family sponsorship and evidence of hardship, although it is not particularly easy to get it approved and it is never a guarantee.
Merits Review or Judicial Review
In case a visa cancellation is being appealed to the Administrative Appeals Tribunal (AAT) or federal courts, deportation is normally suspended as long as the case proceedings continue. The family relationships could be applicable in pleas pertaining hardship and proportionality where the case is based on character.
Characters of Character Cancellations
Family sponsorship is not a big issue where deportation is based on a failure to pass the character grapple, usually because of a criminal conviction. Even close family relations as in the case of the Australian citizen spouses, children might not outweigh the considerations of the community safety. Nevertheless, family situations may also be included in:
- Application to cancel mandatory visa cancellation.
- Submissions that are against discretionary cancellation.
- Human rights arguments and best-interests-of-the-child arguments.
- Dangers of Relying Wholly on Sponsorship.
Another myth that many families hold is that by submitting a sponsorship or partner visa they are in effect freezing deportation. This is an unsafe supposition. In the absence of a valid visa or legal status, an individual may still be detained and deported even though an application to the family is being prepared or already partially filled.
Timing is critical. As soon as the removal arrangements are made, the choice is extremely minimal.
In the case of Legal Advice being necessary
Each deportation and sponsorship case is determined by specific conditions, i.e., the visa history, criminal record, the adherence to the immigration law, the family composition. Professional legal counsel from Migration Lawyers Applecross is important to:
- Determine the eligibility of new family visa.
- Discuss revocation or review
- Write up ministerial intervention requests.
- Control the risks of detention and removal.
- Guarantee the rights of children and the vulnerable group members in the family.
Conclusion
Sponsoring a family member is not a sure way of preventing deportation in Australia, but it may be a part of a more comprehensive legal plan in some cases. The success of sponsorship in terms of preventing removal is dependent on the timing, eligibility to visa, issues of character and the availability of review or ministerial pathways. The families with possible deportation must take immediate action and consult with migration and deportation experts before it is too late.
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