What do changes to the definition of Marriage mean for same sex partner visas?

On 7 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was passed through Federal Parliament. It changed the definition of Marriage under the Marriage Act 1961 from a union of ‘a man and a woman’ to a union of ‘2 people’. This change came into effect on 9 December 2017, allowing same sex couples to marry in Australia (subject to some other conditions, see https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx).

The Migration Act 1958 (Cth) has also changed the definition of Spouse in line with changes to the Marriage Act, to allow for a spouse to be of the same or different sex.

A person in a relationship with an Australian citizen, permanent resident or an eligible New Zealander can apply for an onshore partner visa (subclass 820/801) or offshore partner visa (subclass 309/100), or a prospective marriage visa (subclass 300, if you are outside of Australia). You can find more information on partner visas here: http://www.puttlegal.com.au/partner-visas/.

Previously same sex couples could only apply for a partner visa on the basis that they could demonstrate they had been in a de facto relationship for at least 12 months (rather than a spousal relationship). Now, same sex couples who are married can circumvent this 12-month de facto requirement. There are still substantial requirements as to proving a relationship, but same sex couples can now marry to demonstrate their commitment.

Further same sex couples with plans to marry in Australia can now apply for a prospective marriage visa. It may be the case that a couple is in a genuine relationship and want to get married and set up a life in Australia, but the sponsor is in Australia and applicant is overseas (so they may not meet the criteria of a de facto relationship as required for a partner visa). It is a condition of the prospective marriage visa that the applicant travels to Australia and marries their partner within 9 months. They are then eligible to apply for a partner visa onshore.

Putt Legal looks forward to assisting same sex couples looking to marry in Australia, with a prospective marriage visa application, and has experience with lodging same sex partner visa applications (both onshore and offshore), and appealing refusals to the Administrative Appeals Tribunal.

HEALTH WAIVERS IN RELATION TO VISA APPLICATIONS

Australian visas & health criteria

Australian migration legislation requires that almost all applicants seeking a visa to travel to, or remain in, Australia must meet prescribed health criteria. These criteria are intended to protect the Australian community's standard of public health and safety, expenditure on health and welfare, and access to health services.

All permanent and certain temporary visa applicants are required to undergo health examinations as part of the visa application process to determine if they meet the health requirement.

In practical terms this means that a visa applicant must be free from a disease or condition that would require health care or community services that would result in a significant cost to the Australian community, or prejudice the access of an Australian citizen or permanent resident to health care or community services (regardless of whether the health care or community services will be used in connection with the applicant).

Health waivers available to certain visa classes

A health waiver is available to be considered for certain visas.  This is referred to by the Department of Immigration & Border Protection (DIBP) as a PIC 4007 waiver.

Visas that have a health waiver available include partner, child, skilled independent subclass 189 (NZ stream only); subclass 888 (permanent) and ENS/RSMS visas but only for the temporary residence transition stream.

A health waiver may only be exercised after a Medical Officer of the Commonwealth has determined that the visa applicant does not meet the health requirement and where the DIBP is satisfied that the granting of the visa would be unlikely to result in:

  • undue costs or
  • further pressure on health care and community services that are in already short supply in Australia.  (This is referred to as 'prejudice to access'.)

Case study: medical condition estimated to cost $3.5 million over a lifetime

Putt Legal was approached some time ago by a client who had worked for a mining services company in Australia on a subclass 457 visa. The client was originally from Africa, and had a partner and several children.

After a number of years on the subclass 457, the family made an application for a permanent ENS temporary residence transition stream visa (subclass 186 visa). As noted above, this visa has a health waiver available.

One of the client’s children was diagnosed by a Medical Officer of the Commonwealth with a medical condition that was likely to require health or community services costing an estimated $3.5 million over the child’s lifetime.

The DIBP then considered whether to exercise the health waiver, but was not satisfied that the cost identified by the Medical Officer was outweighed by mitigating factors and/or compassionate and compelling circumstances. As a result, the subclass 186 visa application was refused for all family members (because if “one fails, all fail”). The family appealed to the Administrative Appeals Tribunal (AAT) and engaged Putt Legal’s services.

Significant evidence was placed before the AAT that showed that the family had an ability to defray costs to the Australian community; considerable employment skills; had actively contributed to Australian society; and that there were compelling and compassionate circumstances that showed that the child affected by the medical condition would find it extremely difficult to return and live in the African country from which the family originally came. As a result, the AAT found that although the potential costs of the child’s medical condition were high, the granting of the visa was unlikely to result in undue costs to the Australian community when all circumstances were considered.

The AAT remitted the visa application to the DIBP for processing, and it is likely that all family members will be granted permanent residence in the near future.

If you or a family member have a medical condition that you are concerned may adversely affect a permanent or temporary visa application, we suggest that you contact us for a confidential discussion as to your options.

PIC 4020 CHANGES DISALLOWED

Earlier in November, the government made changes to Public Interest Criteria 4020 (‘the integrity PIC’), extending its application to any visa held by the applicant in the last 10 years – see our blog published on 9 November 2017.

The changes were implemented by a legislative instrument entitled ‘Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017.’ Unlike a Bill, which is debated and voted on in Parliament before becoming law, regulations come into force immediately once they are signed off on by the Governor-General. They are then tabled in Parliament, at which point politicians can move to have them "disallowed" within 15 days.

On 14 November 2017, Senator Nick McKim introduced a motion to disallow this instrument and after a number of postponements, the Senate finally disallowed it on 5 December 2017. The instrument has now ceased to be in effect and is labelled “No longer in force” on the Federal Register of Legislation - https://www.legislation.gov.au/Details/F2017L01425.

Effectively, this means that the changes are taken never to have happened, and the integrity PIC will remain as it was prior to the changes – applying only to visas held by the applicant in the last 12 months.

It is unclear whether the Department of Immigration will seek to lodge a new instrument with similar changes. If you have concerns about the integrity PIC potentially affecting your visa application, get in touch with Putt Legal today!

PERTH OFFICIALLY EXCLUDED FROM "REGIONAL AUSTRALIA"

Since the State Election in March 2017, the Regional Certifying Body for WA ceased processing RSMS certification for the purposes of Subclass 187 nomination applications.

At the time this decision only affected people wanting to apply for a Subclass 187 visa under the Direct Entry stream for the Perth metropolitan area, as their nomination application was unable to be approved as required by law.

With effect from 17 November 2017, the Immigration Department introduced new legislation which now excludes the Perth metropolitan area from the definition of Regional Australia.  In other words, the law was changed to reflect the WA Government's decision made in March 2017.

However, this change in legislation has a broader impact than potential Subclass 187 visa applicants.  It means that Subclass 489 visa applicants can no longer live and work in Perth either.

Another consequence is that Subclass 186 nomination applications under the Temporary Residence Transition stream for positions within the Perth metropolitan area will now attract a $540 fee (whereas previously the cost was nil).

Finally, potential Subclass 457 (and from March 2018, TSS) visa applicants need to be aware that if their occupation has a "regional Australia" caveat then they cannot be sponsored for a position located in Perth.

The areas of Western Australia that are now considered regional are:

  • Cocos & Christmas Islands;
  • Gascoyne;
  • Great Southern
  • Kimberley
  • Mid West
  • Peel
  • Pilbara;
  • South West; and
  • Wheatbelt

and the regional post codes are:

  • 6041 to 6044
  • 6083 to 6084
  • 6121 to 6126
  • 6200 to 6799

If you are confused about these changes and whether they affect your visa options, feel free to come in to see us and seek our advice.

BEWARE OF NEW INTEGRITY CHECKS!

Nearly every Australian visa has a "public interest criteria" - commonly known as a PIC 4020 - which must be satisfied in order for the visa to be granted.

PIC 4020 is essentially an integrity check.  Put simply, it involves immigration confirming that you aren't providing them with false or misleading information, or bogus documents - and that you haven't done so in the past.  If you don't pass the integrity check, then you don't get your visa.

The current version of PIC 4020 allows immigration to refuse your visa application in circumstances where the applicant provides a bogus document or information that is ‘false or misleading in a material particular’, in relation to –

  1. any current application for a visa, or
  2. any visa that the applicant held in the period of 12 months before the application was made.

Significantly, however, PIC 4020 is changing as of 18 November 2017.

The new version of PIC 4020 will apply to any visa that the applicant has held, or applied for, in the 10 years before the current application was made. This means that any information or documents provided to immigration, a skills assessment body or Medical Officer of the Commonwealth in conjunction with a visa application made in the last 10 years can be taken into account to determine whether you pass the integrity check.  Importantly, this includes visas which were refused or withdrawn prior to decision.

The changes are contained in the Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017.

If you have any concerns about this forthcoming change - because, for example, you may have forgotten to previously declare a criminal conviction - then we strongly recommend that you seek legal advice before lodging your next visa application. 

Putt Legal is experienced in making submissions to the immigration department, requesting that the strict application of PIC 4020 be waived.