The Sponsor Who Changed Her Mind
Priya, an RM, lodged a Partner (Subclass 820/801) application for client Aiko on 3 March. Aiko's sponsor Kenji signed a Form 40SP and a sponsorship undertaking. On 14 August, before any decision, Kenji emails Priya: he and Aiko have separated, he has withdrawn his consent to the sponsorship, and he wants the application cancelled. He adds that he has already told the Department by phone. Aiko calls Priya the same day, distressed, saying the separation is temporary, that Kenji was pressured by his parents, and that she is pregnant with his child. Priya has not yet notified the Department of anything. The Department's processing time for the subclass is currently 14-22 months. Priya's file note from the initial consultation records that Aiko was previously refused a Student visa for a fraudulent bank statement, which she disclosed at the time.
1. What must Priya do with Kenji's withdrawal information, and by when?
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Priya must act on the withdrawal promptly because it is directly relevant to the criteria for the visa. Kenji's withdrawal of sponsorship is a material change in circumstances that goes to whether the sponsorship requirement continues to be met.
Key points:
- A sponsor cannot unilaterally 'cancel' an application; only the Minister (or delegate) can decide it. Priya should not tell Aiko the application is cancelled.
- Priya's duty to her client includes keeping her informed and acting in Aiko's best interests, but she cannot withhold from the Department information that is materially adverse and that she knows to be true. Advising Aiko to conceal the separation would be misleading conduct.
- Priya should obtain written confirmation of the withdrawal from Kenji, verify what he actually told the Department, and advise Aiko in writing of the consequences and her options (e.g. responding to any s 57 natural justice invitation, withdrawing the application, or providing evidence that the relationship continues).
- She should document the advice and Aiko's instructions. She must not lodge anything she knows to be false about the state of the relationship.
2. Aiko asks Priya to 'hold off' telling the Department until after the baby is born so she can 'sort things out with Kenji'. How should Priya respond?
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Priya must decline to deliberately delay disclosure of known, material information in order to influence the outcome. That would be misleading conduct and a breach of the Code of Conduct obligations (act honestly, diligently and in the client's lawful best interests, but not by deceiving a third party or the Department).
Reasoning:
- Timing tactics designed to let the Department decide on an incomplete picture are inconsistent with the obligation not to engage in conduct that is misleading or deceptive.
- Priya can explain the legitimate options: Aiko can provide a statutory declaration and evidence about the relationship, the pregnancy, and any reconciliation; she can seek more time to respond to a natural justice invitation if one is issued; she can withdraw if she does not wish to proceed.
- Priya should put the advice and the client's decision in writing. If Aiko insists on concealment, Priya should consider whether she can continue to act and, if not, follow the orderly termination of engagement and file-transfer obligations.
3. Priya recalls Aiko's earlier Student visa refusal for a fraudulent bank statement. Does that affect how Priya handles the current matter?
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Yes, but carefully. The prior fraud finding is relevant to Aiko's credibility and to any character-related criteria, and it is a matter Priya must factor into her advice and risk assessment.
Reasoning:
- Priya should not assume the current application is tainted, but she must be alert to the risk that any new evidence is scrutinised closely, and she must not assist in presenting anything that could be misleading.
- She should advise Aiko that the earlier finding may be considered and that any documents now provided must be genuine and verifiable.
- If Aiko proposes to provide a document Priya believes is false or altered, Priya must refuse to lodge it and must not pass it on.
- Priya should record the disclosure and the advice given. If she forms a reasonable belief that Aiko intends to mislead the Department, she should consider her obligations to report and to cease acting.