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31 January 2002 at 2230L (GMT+11)
Same-sex Options in Australia
Australia is one of the few countries in the world in which the migration program allows Australian citizens, Australian permanent residents and eligible New Zealand citizens to include their same-sex partner (known as an interdependent partner) in certain temporary and permanent visas or to sponsor their interdependent partner to remain in or migrate to Australia.
As with de facto couples, interdependent couples must show evidence of a genuine and ongoing relationship of 12 months or more.
There are visas options which can be applied for both on-shore (within Australia) or off-shore (overseas).
Apart from the Interdependency classes of visas, gay men and lesbians are able to apply for any of the many visas subclasses available so long as they meet the relevant criteria within the visa subclass. However, in the visa sub-classes set out below, interdependent partners can be included in the visa application.
Interdependant Partner Visas
An Interdependent Relationship is defined as "a relationship which is genuine and continuing between two people who are not in a prohibited degree of relationship (brothers, sisters, parents, children, uncles, aunts cousins etc), who have both turned 18 years of age, and who both have a mutual commitment to a shared life to the exclusion of any spouse relationship or any other interdependent relationship, who live together or do not live separately and apart on a permanent basis".
An Interdependent relationship does not have to be between people of the same sex. However this is the category of visa upon which visas are granted because of same-sex relationship between an applicant and an Australian citizen, permanent resident or eligible New Zealand citizen.
The Partner (Interdependency) program generally mirrors the Partner (spouse) visa category in the following ways:
The applicant must be nominated and sponsored by an Australian citizen, Australian permanent resident or eligible New Zealand citizen;
Applications can be lodged either at an Australian overseas post or within Australia;
The couple do not have to be married but must have been in a genuine and ongoing relationship for at least 12 months prior to the lodgement of the application (unless exceptional circumstances exist);
The couple do not have to have lived together for 12 months prior to lodgement of the application but must have lived together for some of the time and if living apart must not be living separately and apart on a permanent basis;
Generally approval of the permanent visa entails an initial grant of a temporary visa (an EETV) (Subclass 309 or 826) for up to two years prior to the grant of a permanent visa (Subclass 110 or 814);
If the couple have been in a "long-term" relationship of 5 years or more, the applicant may be eligible for the grant of permanent residence from the time a decision is made about the application;
- Nominations by an Australian citizen, permanent resident or eligible New Zealand citizen under this class of visa are limited to 2, with a five year gap between both, unless the Minister determines that there are exceptional circumstances;
- The Minister has the power to waive the health requirements for the applicant so long as he or she determines that there will not be undue cost to the Australian community or undue prejudice to access to health care or community services for Australian citizens or permanent residents.
The nominator must be willing to financially support the applicant for a period of two years, should the applicant be unable to find employment within Australia during this time.
Should the relationship between the Australian nominator and the applicant break down within the period of the long term temporary visa (the EETV) the applicant cannot remain in Australia on the basis of that application alone, unless:
The break up was due to the death of the Australian nominator;
The break up was due to domestic violence and a court order has been issued to that effect, or statutory declaration from prescribed professionals have been provided.
Temporary Work Visas
From 1st July 2006, applicant's for Business Visas 457 (long term temporary working visas) can include their interdependent partner in the visa application subject to evidence of the 12 month relationship rule. Dependent children of the interdependent partner can also be included in the application. These visas can be granted from 3 months to 4 years.
Permanent Skilled Based Visas
From 1st September 2007 applicants for visas under the General Skilled Migration program can include their interdependent partner and any dependent children of their partner in an application under this program. For sponsored visas under this program an applicant or an applicant's interdependent partner can be sponsored by either a relative or a relative of their interdependent partner subject to an approved degree of relationship which can include:
brother or sister (including adoptive or step brother or sister)
father or mother (including adoptive or step father or mother)
non-dependent son or daughter (including adoptive or step son or daughter)
uncle or aunt (including adoptive or step uncle or aunt)
- niece or nephew (including adoptive or step niece or nephew)
or be nominated by a State or Territory of the Commonwealth of Australia.
If your relative lives in certain parts of Australia called designated areas, the sponsoring relative can be a grandchild or first cousin.
Refugee or Protection Visas
Within Australia, systematic persecution of an individual or group on the basis of sexual orientation, is generally recognised as grounds for the grant of a Protection visa under the United Nations High Commissioner for Refugees Convention and Protocol falling under the category of a "particular social group". It has generally been accepted in the High Court of Australia, that persecution based on sexual orientation falls within the Convention grounds and therefore requires protection.
The Author
Brendan Hillis is the principal of the firm Access Immigration and is an Accredited Specialist in Immigration Law.
Other Resources
Fact sheets available from the Australian Department of Immigration & Indigenous Affairs (DIMIA):
Interdependent Partner Migration: www.immi.gov.au/allforms/f_inter.htmPartner Migration: www.immi.gov.au/allforms/f_partner.htm
Family Migration to Australia: www.immi.gov.au/allforms/family.htm