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.
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