Same-sex marriage and skilled migration visas
Some of the claims in a recent mainstream media report about same-sex marriage and skilled migration were wrong. Brian Greig’s Sydney Morning Herald report ‘Banning gay marriage impacts on skilled migration’ (18 May 2013) claimed that by not recognising same-sex marriage, Australia is causing skilled workers from overseas to bypass Australia in favour of countries that recognise their marriage. Let’s address some of the issues raised and correct some inaccuracies.
In the article, the author says little has changed since 2005, a time when skilled visa applicants with a same-sex partner could not include them in their application.
This is incorrect. In 2009 changes to Commonwealth law removed discrimination against same-sex couples and their children. As part of these changes, new definitions of ‘spouse’ and ‘de facto’ partner were introduced into the Migration Act 1958 (the Migration Act) such that same-sex couples were given the same entitlements as heterosexual couples. This paved the way for all visa applicants to include their same-sex partners and allowed those partners the same work rights as ‘spouses’. It’s a shame the report got this so wrong.
While the article is correct to say the status of ‘de facto’ for same-sex couples is not automatic this is misleading as no relationship status is automatic for migration purposes. All couples — married or de facto — are required to demonstrate their relationship is genuine and continuing, that they have a mutual commitment to a shared life and that they live together on a permanent basis.
The claim that couples must spend ‘a two year period of co-habitation on our shores’ is also misleading. Permanent visas and some temporary visas generally require de facto couples to demonstrate their relationship has existed for at least 12 months before they lodge their visa application. There is an exemption to this requirement for de facto couples who have registered their relationship under an Australian state or territory scheme, regardless of their sexual orientation.
It is true that a same-sex marriage that is legally solemnised overseas is not recognised for migration purposes. This is because the Migration Act mirrors the Marriage Act 1961 (the Marriage Act) which means that only marriages valid under the Marriage Act can be recognised when assessing visa applications. While their same-sex marriage is not recognised, couples can still be recognised and assessed under the de facto provisions. The fact that a marriage occurred overseas can be taken into account in this assessment.
While Australia’s migration law does not currently recognise a same-sex marriage solemnised overseas, it is taken to be a de facto relationship which hence gives these people the same entitlements as heterosexual married or de facto couples.
Streamlining family violence evidence requirements
The family violence provisions in migration law allow certain visa applicants to remain in Australia if their relationship has broken down and they have suffered family violence.
On June 17 this year, the government proposed changes to how people who have suffered family violence provide evidence (other than court orders) to the department. For more information on the proposed changes, see the Minister for Immigration and Citizenship’s media release – New Support for family violence victims at www.minister.immi.gov.au/media/cb/2012/cb187607.htm
The proposed changes seek to improve access for vulnerable applicants who have suffered family violence. Under the proposed new framework, applicants would need to present a minimum number of documents from a list of acceptable evidence.
The intent is that the list would include documents which are accessible to victims of family violence. People who have suffered family violence may have gained access to a range of support services and it is fair that they be able to provide these documents to the department as evidence.
For example, the list could include:
- hospital medical reports
- police reports
- proof that the applicant has already satisfied the same definition of family violence under another Commonwealth law
- welfare authority reports regarding fears for a dependent child’s safety, and
- letters or statutory declarations from persons in certain professions including social workers, psychologists, marriage counsellors, medical practitioners, women’s refuge counsellors.
We are seeking feedback on the above list of documents and would be interested to hear your ideas about other credible documents that may be accessible to family violence victims. Suggestions will be accepted up until September 1.
Further information about the current requirements for submitting family violence claims is available on our website at: www.immi.gov.au/media/fact-sheets/38domestic.htm
Removal of Assurance of Support (AoS) requirement from Partner visas
Changes to partner visas
From 1 January 2012, the discretionary Assurance of Support (AoS) requirement was removed from partner visas. This change complemented other 1 January amendments to social security legislation that affect eligibility for welfare payments.
The change means that an AoS will not be required for partner visa applications made on or after 1 January. The change also applies to any partner visa applications still before the department or the Migration Review Tribunal on or after 1 January.
The amendments affect the following visa subclasses:
Partner temporary visa (subclass 309)
Partner permanent visa (subclass 100)
Partner temporary visa (subclass 820)
Partner permanent visa (subclass 801)
Prospective Marriage visa (subclass 300).
Information for those who have already had an AoS accepted by the Department of Human Services (DHS)
The Department of Human Services (DHS) is responsible for administering the AoS program. If you would like more information about the status of an AoS that was accepted by DHS prior to 1 January, please contact DHS through their AoS enquiry line on 132 850.
DHS advises the AoS will be enforced by DHS in situations where the AoS affected partner visa was granted prior to 1 January. DHS has advised that in all other partner visa cases, the AoS will be cancelled.
Further information about the AoS amendments are available on our website at: www.immi.gov.au/legislation/amendments/2012/120101/lc01012012-01.htm
Additional information about the AoS is available on DHS’ website at: www.humanservices.gov.au/customer/services/Centrelink/assurance-of-support
A New Year and a New Migration Blog
Sydney Fireworks (Photo: Copuetboy, Flickr)
Hello, happy New Year and thanks for your interest in migration. For those of you who have engaged with us previously, welcome to a slightly changed Migration Blog. As some may remember, the Department of Immigration and Citizenship (DIAC) first entered the blogosphere in June 2011, with the Skilled Migration Blog.
After great success over the past seven months, we’ve decided to expand the blog to include a much broader range of topics relating to migration. Family, Students, Working Holiday Makers as well as a host of other visa categories are very important parts of the overall Migration Program and will be explored on these pages in the future. We will also take the opportunity at various times to publish some of our research. Including the small name change, we’ve also changed our domain to: http://migrationblog.immi.gov.au
I encourage you to engage with blog posts. Ask questions and share content if you find the information interesting and informative. Hopefully our blog continues to grow and provide another avenue for anyone interested in migration to participate.
Cheers Peter Speldewinde, Acting First Assistant Secretary, Migration and Visa Policy Division
HIV and adoption – myths debunked
Recent reporting about HIV-positive children and adoption do a disservice to those seeking the facts about overseas adoption challenges. One report suggested Australians seeking to adopt children from overseas who are HIV-positive would face long waiting periods as a result of the Department of Immigration and Citizenship’s (DIAC) health waiver process. It also suggested such a child would be rejected on the basis of their health status. Neither of these suggestions is true.
Let’s address the first myth: “It takes up to a year to apply for a health waiver”
Where a health waiver is available it does not need to be applied for, but is mandatorily considered by the visa processing officer. This consideration can only occur after an applicant has met all other criteria for the visa except health, so it is considered at the end of the visa process. To consider a health waiver, we ask for information about their or their family’s ability to mitigate any potential costs or care, and for supporting information about any compelling or compassionate circumstances. Generally the health waiver process itself is quite swift – usually only a matter of days or weeks from the time all of the required information is received.
And the second myth: “the automatic ban on HIV- positive migrants”
There is no ‘automatic ban’ for HIV-positive applicants. Unless you have a condition which can be considered a public health threat, such as active TB, which by law prevents a visa grant, all applicants are considered under the same rules regardless of the nature of their condition. As a permanent visa applicant, if a medical condition is assessed as likely to cost more than $21 000, you are likely to fail to meet the health requirement, no matter what your condition may be.
There are no regulations preventing HIV-positive children being granted a visa. For parents resident in Australia who are interested in adopting an HIV-positive child, this should be discussed with the adoption authority in their state/territory (which is a requirement for all adoptions).
In fact, in the last two years our records indicate:
•all HIV positive adoption visa applicants have had a health waiver exercised and subsequent visa grant, and
•almost all adoption visa applicants who failed to meet health had a health waiver exercised regardless of the condition.
