No discrimination between Australian interdependency, spousal and de facto visa applications

Published: 17/03/2009

With the aim to remove any discrimination of same-sex couples over the partner visa application process, changes will come into effect as of 15th March 2009 to ensure all same-sex and opposite-sex family visa applications are processed under the same rules, with the same considerations.

The issues surrounding same-sex visa applications and family visa applications for same-sex couples with children have been under scrutiny to ensure there is no discrimination against applicants. These amendments have been created to give parity on the basis of sexual preference, although all other visa requirements apply.

Same-sex partner visas, otherwise known as interdependency visas, are subject to the same tight requirements as any other family visa, e.g. prospective marriage, de facto partner, or marriage visa. Applicants must be over eighteen years of age and be able to prove their ‘genuine and continuing’ relationship has been for a minimum of twelve months. An interdependent relationship is defined as one in which the same-sex couple have ‘mutual commitment to a shared life to the exclusion of any spouse relationships or any other dependent relationships.’

The Australian visa application process requires that same-sex couples apply for visas under the ‘Same-Sex or Independency’ visa category, with opposite-sex couples needing to apply under the ‘Spouse or Partner’ visa category, however, the new amendments highlight the parity between the two application processes. If applicants are outside of Australia when the application is made, a temporary visa may be granted. As with spouse temporary visas, if the relationship ends prior to a permanent visa being issued, if appropriate, the applicant may still be eligible for a permanent visa to remain in Australia.

The legislation change has seen the Australian Citizenship Act 2007 amended in the section ‘Same-Sex Relationships (equal treatment in Commonwealth Laws – General Law Reform – Act 2008) and extends to both partners in same-sex and opposite-sex de facto relationships and their children. The new term ‘responsible parents’ has been coined to illustrate the parent-child relationship, rather than relying on simply genetic material. This now means that same-sex couples and de facto couples of same-sex and opposite-sex (those living as a married couple, although not actually married) are able to be recognised as the parents of their children, for family visa application purposes. This is now the case if the child/children have been conceived through artificial insemination, with donated genetic material or through a surrogacy arrangement.

The amendments also relate to the assessment of residency discretion in order to count time outside the country as time within, when meeting the requirements for Australian citizenship by conferral. This means that the residency of both members of the same-sex partnership, or de facto couple, will now be taken into consideration so that it is the same as the residence requirement for married opposite-sex couples.

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