Same-Sex: Same Entitlements: Chapter 15
Chapter 15. Migration
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- 15.1 What is this chapter about?
- 15.2 How can the same-sex partner of an Australian citizen or resident get a visa?
- 15.3 How can a same-sex couple migrate to Australia together?
- 15.4 Do migration laws breach human rights?
- 15.5 How should federal migration laws be amended to avoid future breaches?
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
