Visa Lawyer Blog
As part of our commitment to our international clients, we also provide global Immigration services in many cases. In this article, we will cover the Australian Same Sex Immigration options. Unlike the united States, Australia offers many benefits to same sex couples.
Australia now has two different partner visa subclasses: the spouse visa and prospective marriage (fiancée) visa. The spouse visa subclass is available to couples who are married and to couples who are in a de facto relationship. Couples who are in a de facto relationship include same sex partners. This change occurred in 2009.
Because of this change, same sex partners in a de facto relationship can enter and remain permanently in Australia. Of great note, U.S. immigration law does not afford similar rights to same sex partners of U.S. citizens and permanent residents immigrating to the U.S.
Overview Of De Facto Partner Visa
A de facto partner visa applicant must be sponsored (nominated) by his or her de facto partner who must be either an Australian citizen, permanent resident or eligible New Zealand citizen. The Partner Migration Booklet (hereinafter “Booklet”), which can be found on the Australian government website, www.immi.gov.au, defines de facto partner as a partner “… of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.” The Booklet further widens the definition to cover people in a de facto relationship with another if:
• They are not in a married relationship;
• They are not related by family;
• They both must be 18 years or older at the time the application is made;
• They have a mutual commitment to a shared life to the exclusion of all others;
• The relationship between them is genuine and continuing;
• They live together or do not live separately and apart on a permanent basis; and
• The relationship has continued for the period of twelve months immediately preceding the date of application.
Applications can be lodged outside of Australia or within Australia. However, not all Australian consulates in the U.S. process the partner visa applications. There are some restrictions in place on an Australian citizen, permanent resident or eligible New Zealand citizen, i.e., how many times they can nominate a partner, and a time gap between the nominations.
There are certain restrictions as to the applicant’s health requirements. But the Minister of the Australian Department of Immigration and Citizenship has the power to waive the health requirements for the applicant so long as he or she determines that there will not be an undue financial burden on the Australian government and/or local community to provide the necessary healthcare for that particular applicant.
While it is unclear whether an applicant who is HIV-positive will face denial of his or her application for a partner visa, the Booklet states that, “A positive HIV or other test result will not necessarily lead to a visa being refused. However, your result(s) may be disclosed to the relevant Commonwealth and state or territory health agencies in Australia.” Id, p. 20. (Emphasis added by author.)
The sponsor must be willing to financially support the applicant for a period of two years, if the applicant will be unable to find employment in Australia during this period.
Upon the approval of the application for a partner visa, the applicant will receive the temporary (provisional) partner visa within 6 months after submitting his/her application. And after the lapse of two years, he or she will be granted a permanent partner visa.
If you are interested in applying for an Australian Partner visa or have further questions, you are welcome to send your inquiries to our office.