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Same-Sex: Same Entitlements: Chapter 15

Same-Sex: Same Entitlements Report


 

Chapter 15. Migration

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15.1 What

is this chapter about?

This chapter discusses the impact of migration laws on

same-sex couples.

Many same-sex couples who

appeared at the Inquiry’s community forums talked about the problems they

face in getting visas. They highlighted the limited options available to a

same-sex couple wanting to migrate to Australia as a couple. They talked about

the additional expense and disruption to their lives in proving their

entitlement to a visa. And they talked about the indignity of being treated

differently to genuine opposite-sex

couples.

There is only one category of visa

available to the same-sex partner of an Australian permanent resident or citizen

– the Interdependency visa category. The Interdependency visa is similar

to the Spouse visa available to an opposite-sex partner of an Australian

resident or citizen but it may be more expensive to apply for the

Interdependency visa in some circumstances.

There is also only one category of visa which

allows a same-sex partner of a primary visa applicant to accompany them to

migrate to Australia – the Temporary Business (Long Stay) 457 visa (the

457 visa). This compares to the myriad of visas available to an opposite-sex

couple wishing to migrate to Australia together. The result is that each member

of a same-sex couple may have to qualify separately for a visa. If one is not

successful, the couple will be separated across the

world.

Same-sex couples are denied access to

the range of visas available to opposite-sex couples because a same-sex partner

does not qualify as a ‘spouse’ and is therefore not a ‘member

of the family unit’ in the Migration Regulations 1994 (Cth) (Migration

Regulations).

This chapter briefly sets out

what visas are available to a same-sex couple and the impact that limited visa

options may have on them.

Specifically, this

chapter address the following questions:

  • How can the same-sex partner of an Australian citizen or

    resident get a visa?

  • How can a same-sex couple migrate to Australia

    together?

  • Do migration laws breach human rights?
  • How should federal migration laws be amended to avoid

    future breaches?

15.2 How

can the same-sex partner of an Australian citizen or resident get a

visa?

Until 1991, the only visa available to an

Australian’s partner was the Spouse visa (or Prospective Marriage visa)

and a same-sex partner could not qualify.
When the

Interdependency category of visa was introduced in 1991, a same-sex partner of

an Australian citizen or permanent resident could apply to stay in, or come to,

Australia.[1]

However, the Inquiry has been told that it may

be harder for a same-sex partner to qualify for an Interdependency visa than it

is for an opposite-sex partner to qualify for a Spouse visa. It may also be more

expensive to obtain that visa. Further, because the visa marks the partner as a

same-sex partner, there may be a higher risk of discrimination in the

workplace.

15.2.1 A

same-sex partner is not a ‘spouse’

Under the Migration Regulations a person can only be a

‘spouse’ if he or she is married or in a ‘de facto

relationship’ with a person of the

opposite-sex.[2] The Migration Act

1958 (Cth) does not recognise a marriage between same-sex partners which

took place outside Australia.[3]

Thus, a same-sex partner can never be a

‘spouse’.

15.2.2 A

same-sex partner may be in an ‘interdependent

relationship’

The Migration Regulations define an

‘interdependent relationship’ to be a relationship between any two

people where:

  • there is a ‘mutual commitment to a shared

    life’;

  • the relationship is ‘genuine and continuing’;

    and

  • they live

    together.[4]

Thus,

a same-sex partner can be a member of an ‘interdependent

relationship’.

15.2.3 The

only visas available to same-sex partners are Interdependency

visas

Since a same-sex partner cannot be a

‘spouse’, he or she will not qualify for a Spouse visa or a

Prospective Marriage visa.[5]

However, a same-sex partner can qualify for a

permanent Interdependency visa if he or she is in an

‘interdependent

relationship’.[6]

The

Department of Immigration and Citizenship (DIAC) affirms that:

The Interdependency visa is the only visa that is

available for a person who is a same-sex partner of another person. A same-sex

partner of a person cannot be included as a member of the family unit on a visa

application, even if the same-sex couple has been married according to the laws

of another country. Under Australian law, only opposite-sex relationships can

constitute a spouse relationship (ie. de jure (married) or de

facto).[7]

15.2.4 Interdependency

visas may cost more than Spouse visas

The same-sex partner of an Australian resident or

citizen may pay more than double the amount than an opposite-sex partner to

apply for a visa in Australia.

The cost of

applying for a Spouse visa in Australia is as follows:

  • $650 for those who hold a valid Prospective Marriage visa

    and have married their partner

  • $820 for those who entered Australia on a Prospective

    Marriage visa, have married their partner, but do not hold a current

    visa

  • $1990 for those who hold any other

    visa.[8]

An

Interdependency visa costs $1990

regardless.[9]

As

the same-sex partner of an Australian resident or citizen can only apply for an

Interdependency visa, he or she will always pay the highest application fee.

15.2.5 It

can be difficult to prove entitlement to an Interdependency visa

There are substantial hurdles to proving both a

genuine opposite-sex ‘de facto relationship’ and a same-sex

‘interdependent relationship’. However, several people suggested to

the Inquiry that it may be harder for a same-sex couple to prove an

interdependent relationship.[10]

Anthony Pannuzzo and Daniel Milano write in

their submission:

We started collecting information from the beginning,

information that would prove our interdependency. We collected letters and cards

addressed to us both (including envelopes as the immigration department loves to

see post marks – legal proof), we collected legal documents, bank

statements, leases, wills drawn up in each others names. What we would have

given for a marriage licence. Or any form of federally recognised paperwork

stating we were a couple who shared each others

lives.[11]

A

woman at the Inquiry’s Canberra forum said the following:

Proving interdependency for immigration is the same

process for both straight and gay couples but the nature of the evidence and the

interviews is very different. We accumulated 15 A4 binders of proof over 2

years. Straight couples provided their marriage certificate and couple of bills.

But they didn’t need to provide the same level of evidence. The

immigration interview was much more intrusive and detailed. For example,

‘what colour is your partner’s toothbrush?’, rather than

‘how was your wedding?’. So there can be differential treatment even

when the wording of the law is the

same.[12]

15.2.6 Interdependency

visas may impact on job opportunities

Some submissions to the Inquiry raised issues of

workplace discrimination as a possible outcome of Interdependency visas for

same-sex partners. The Anti-Discrimination Commission of Queensland comments:

As evidence of their eligibility to work legally in

Australia, persons with a Subclass 310 [Interdependency] visa are required to

produce the visa when applying for employment. Committee members suggest that

some Australian employers are familiar with the Subclass 310 visa category and

aware that it is issued to same-sex couples. They expressed concern that gay and

lesbian persons who are temporary residents under this visa category are

particularly vulnerable to employment discrimination.

This approach to partner migration is differential and

places individuals in the precarious position of having their sexual preference

flagged each time they apply for paid work in Australia. Committee members

further noted that this approach to partner migration does not encourage

diversity in Australia’s workforce and shows no regard for

privacy.[13]

One

person talked about her experience as follows:

There’s this thing with getting your Visa when you

immigrate to Australia: If you’re in a same sex couple under the Partner

Migration Program, you have to nominate that you are an

‘Interdependent’ rather than married or de facto which heterosexual

couples qualify for. This means that when you get your Visa you will have

‘Interdependent’ or number 814, permanently on your Visa showing

that you belong to a particular sub-class and in this case “same

sex.”

Now I am usually asked to show my Visa when I apply for

jobs. How do I know that people aren’t saying: ‘Oh, sub-class 814,

that means she’s gay! We don’t want that kind working here!’ I

mean, what difference does it make to my professional qualifications what gender

my partner is? That’s a really bad kind of discrimination and it can have

disastrous financial

consequences.[14]

The

Anti-Discrimination Commission of Queensland recommends that the Spouse visa

category (for opposite-sex couples) and the Interdependency visa category be

merged into a single Partner/Domestic Relationship visa

category.[15]

15.3 How

can a same-sex couple migrate to Australia together?

Usually, when one member of a family obtains a work

visa, business visa, student visa, migrant visa, graduate visa, temporary

resident visa or other visa, the remainder of the family can accompany that

person for the duration of the primary

visa.

However, there is only one visa available

to same-sex couples who wish to accompany each other to Australia: the Temporary

Business (Long Stay) 457 visa (the 457 visa).

This is because a same-sex partner does not

qualify as a ‘spouse’ and therefore cannot be a ‘member of the

family unit’. And most visas only allow people who are a ‘member of

the family unit’ to accompany the primary visa

holder.[16]

There may also be some visas available to a

‘member of the immediate

family’.[17] This definition

also excludes a same-sex partner because it relies on the definition of a

‘spouse’.

Elizabeth Franklin and

Vivianne Arnold articulated the impact of restricted visa categories as follows:

Same-sex couples suffer discrimination in immigration

provisions that affect[s] their ability to live and work together in Australia.

The ability for a couple to live and work together in the same country is a

crucial financial and work-related entitlement and benefit, and a basic human

rights issue.[18]

15.3.1 A

same-sex partner is not a ‘member of the family unit’

A ‘member of the family unit’ includes a

person’s ‘spouse’ but does not include a person in an

‘interdependent

relationship’.[19] As

discussed above, a same-sex partner does not qualify as a person’s

‘spouse’ under the Migration Regulations. So a same-sex partner

cannot be a ‘member of the family unit’.

15.3.2 A

same-sex partner is not a ‘member of the immediate

family’

The definition of a ‘member of the immediate

family’ also includes a ‘spouse’ but not a person in an

‘interdependent

relationship’.[20] Thus a

same-sex partner cannot be a ‘member of the immediate

family’.

15.3.3 The

only visa available to a non-Australian same-sex couple is the 457 visa

On 1 July 2006, the visa rules for 457 visas were

amended so that a person in an ‘interdependent relationship’ can

accompany a person who has been granted a 457

visa.[21] The 457 visa grants

residency for between three months and four

years.[22]

15.3.4 A

same-sex couple will usually have to make separate visa

applications

If neither member of a same-sex couple is an

Australian citizen or permanent resident, and one is granted a temporary visa

other than a 457 visa, the other will have to apply for a visa on his or her own

merits if he or she wishes to accompany a same-sex partner to Australia.

15.3.5 Separate

applications cost more and can have long term financial impact

The fact that a migrant same-sex couple cannot

generally make a joint visa application can put that couple at a considerable

financial disadvantage. It can also create a great deal of unnecessary stress in

terms of life planning.

Some of those

disadvantages are as follows.

Firstly, in a

joint application only the primary applicant must meet all the eligibility

criteria, although the partner (or secondary applicant) must still meet health

and character tests.

Secondly, it will cost

more in both money and time to make two applications rather than

one.

Thirdly, it is unlikely that both members

of a couple will get the same visas at the same time with the same benefits and

conditions. It is also possible that the second person does not qualify for a

visa at all.

This may mean that one partner is

left behind – either temporarily or for longer periods – and the

couple must maintain two households in two countries. It may also mean that one

partner has to leave Australia at different times than the other to get a visa

renewed. Alternatively one partner may accompany the other on a temporary visa,

like a tourist visa, and be denied the right to work during that time. An

opposite-sex couple will not have to face any of these expenses or disruptions

to their life.

Doug Pollard comments that if he

had been able to work during the extensive period of time in which he was trying

to get a visa in Australia, he might still have superannuation savings now:

When [my partner] was transferred to Australia by his

company more than ten years ago, on a working visa, despite the fact that we had

been together for three years, I was not allowed to come with him as his spouse.

Because we are not a young couple - I am 56 this year, my

partner 53 - I had great difficulty in getting a visa in my own right, and we

had to rely on a series of tourist visas, failed visa applications and appeals

to stay together until he eventually gained permanent residency and I could

apply as his dependent partner. Eventually we both took Australian

citizenship.

For more than five years I was unable to work, and had to

leave the country regularly, never knowing if I would be allowed

back.

This not only imposed a great strain on our relationship,

but also a considerable financial burden. It rendered me unemployable - I have

only, finally, gained regular paid (part-time) employment this year, after

working as an unpaid volunteer for years to re-establish my

credentials.

If our relationship had been recognised at the outset, as

a heterosexual marriage would have been, none of this would have happened. I

might, for example, still have my own superannuation fund, instead of having to

rely on my partners.[23]

15.4 Do

migration laws breach human rights?

Excluding a same-sex partner from the definition of

‘spouse’ in the Migration Regulations means that there are only two

visa categories available to same-sex couples. Those two categories are

available because of the introduction of the ‘interdependent

relationship’ criteria.

While this

interdependency criteria has brought improvements for same-sex couples, there

are still a large range of visas denied to a same-sex partner simply because of

his or her sexuality. This will breach article 26 of the International

Covenant on Civil and Political Rights (ICCPR), which protects

non-discrimination and equal treatment under the law. Chapter 3 on Human Rights

Protections explains these principles more fully.

15.5 How

should federal migration laws be amended to avoid future

breaches?

Introducing a definition of ‘interdependent

relationship’ to cover same-sex couples has opened up access to two

discrete visa categories, but it has not brought equality to same-sex couples.

15.5.1 Narrow

definitions are the main cause of discrimination

The main problem is that the definition of

‘spouse’ in the Migration Regulations excludes a same-sex partner.

This is because it relies on a definition of ‘de facto relationship’

which can only include people of the opposite-sex. The problem is compounded

because the definition of a ‘member of the family unit’ and

‘member of the immediate family’ relies on the definition of a

‘spouse’.

15.5.2 The

solution is to amend the definitions

Chapter 4 on Recognising Relationships presents two

alternative approaches to amending federal law to remove discrimination against

same-sex couples.

The Inquiry’s

preferred approach for bringing equality to same-sex couples is

to:

  • retain the current terminology used in federal laws (for

    example retain the term ‘spouse’ - which includes a ‘de facto

    relationship’ - in the Migration Regulations)

  • redefine the terms in the laws to include same-sex

    couples (for example, redefine ‘de facto relationship’ to include a

    same-sex relationship)

15.5.3 A

list of legislation to be amended

The Inquiry recommends amendment to the following

legislation discussed in this

chapter:

Migration Regulations 1994

(Cth)

‘member of the family unit’ (reg 1.12 –

no need to amend if ‘spouse’ is amended)

‘member of the immediate family’ (reg 1.12AA

– no need to amend if ‘spouse’ is amended)

‘spouse’ (reg 1.15A(2) – amend criteria

of ‘de facto relationship’ to include same-sex

couples)


Endnotes

[1] Migration Regulations (Amendment) 1991 No. 60 (Cth), regs 17, 19, 20, 28, 31.

See also S. Warne, ‘Moving in the Right Direction: Migration for same-sex

couples’, Alternative Law Journal, vol 19, no 5, Oct 1994, p219.

The permanent interdependency visas are now called the Partner (Residence)(Class

BS), Subclass 814 (Interdependency) visa and the Partner (Migrant)(Class BC),

Subclass 110 (Interdependency) visa: Migration Regulations 1994 (Cth), sch 1.

The temporary interdependency visas are now called the Partner (Temporary)(Class

UK), Subclass 826 (Interdependency) visa and the Partner (Provisional)(Class

UF), Subclass 310 (Interdependency) visa: Migration Regulations 1994 (Cth), sch

1.
The interdependency visa also applies to a

person in an interdependent relationship with an ‘eligible’ New

Zealand citizen. See Australian Government, Department of Immigration and

Citizenship, Partner Migration, http://www.immi.gov.au/allforms/booklets/1127.pdf,

p 34, viewed 4 April 2007.
[2] Migration Regulations 1994 (Cth), reg

1.15A.
[3] Migration Act 1958 (Cth), s

12.
[4] Migration Regulations 1994 (Cth), reg

1.09A(2).
[5] For Spouse visas, see Partner (Residence)(Class BS), Subclass 801 (Spouse) and

Partner (Migrant)(Class BC), Subclass 100 (Spouse): Migration Regulations

1994 (Cth), sch 1. For Prospective Marriage visas, see Prospective

Marriage (Temporary)(Class TO) visa: Migration Regulations 1994 (Cth), sch 1.
[6] See Partner (Residence)(Class BS), Subclass 814 (Interdependency), and Partner

(Migrant)(Class BC), Subclass 110 (Interdependency): Migration Regulations 1994

(Cth), sch 1.
[7] Australian Government, Department of Immigration and Citizenship, Partner

Migration, http://www.immi.gov.au/allforms/booklets/1127.pdf, viewed 5 March

2007.
[8] Australian Government, Department of Immigration and Citizenship, Partner

Visa Charges, http://www.immi.gov.au/allforms/990i/partner.htm, viewed 19

January

2007.
[9] Australian Government, Department of Immigration and Citizenship, Partner

Visa Charges, http://www.immi.gov.au/allforms/990i/partner.htm, viewed 19

January

2007.
[10] See for example, Elizabeth Franklin and Vivianne Arnold, Submission 181; Doug

Pollard, Melbourne Hearing, 27 September 2006; Name Withheld, Submission 48;

Anthony Pannuzzo and Daniel Milano, Submission

72.
[11] Anthony Pannuzzo and Daniel Milano, Submission

72.
[12]Canberra

Public Forum, 19 October

2006.
[13] Anti-Discrimination Commission Queensland, Submission 264. ‘Subclass 310

visa’ is the temporary Interdependency visa applied for when outside

Australia: Australian Government, Department of Immigration and Citizenship, Interdependency Visa: Offshore Temporary and Permanent (Subclasses 310 and

110),

http://www.immi.gov.au/migrants/partners/interdependency/

110-310/how-the-visa-works.htm,

viewed 21 March

2007.
[14] Action Reform Change Queensland and Queensland AIDS Council, Submission

270.
[15] Anti-Discrimination Commission Queensland, Submission

264.
[16] For example, the following are some of the visas allowing a ‘member of the

family unit’ to accompany a primary visa holder: Business Skills visas

(subclasses 132, 845, 846, 890, 891, 892, 893, 160-165); Parent visas

(subclasses 118, 173, 884); Skilled Migrant visas (subclasses 134, 105, 106,

138, 139, 136); Cultural/Social visas (subclasses 411, 416, 420, 421, 423, 428);

Domestic Worker visas (subclasses 426, 427); Educational visas (415, 418, 419,

442); Emergency visas (subclasses 302, 303); Graduate visas (subclasses 497);

Prospective Marriage visa (subclass 300); Student visas (subclasses 570-576,

580): Migration Regulations 1994 (Cth), sch

1.
[17] For example, the Resolution of Status (Temporary) (Class UH), Subclass 450

(Resolution of Status – Family Member (Temporary)) visa may be available

to a ‘member of the immediate family’: Migration Regulations 1994

(Cth), sch

1.
[18] Vivianne Arnold and Elizabeth Franklin, Submission

181.
[19] Migration Regulations 1994 (Cth), reg

1.12.
[20] Migration Regulations 1994 (Cth), reg

1.12AA.