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Partner migration to Australia: Background and context

The following section outlines the current partner migration framework, specifically detailing:

  • the process of obtaining a visa to enter and remain in Australia as a spouse, de facto partner (same sex and opposite sex), or fiancé (see Box 4);
  • sponsorship arrangements; and
  • the provisions that are available to an immigrant spouse if they experience family violence perpetrated by their sponsoring partner.

Analysis of a selection of partner migration data, supplied by DIBP, is provided as background and context to the exploitative experiences described by stakeholders and victim/survivors.

Box 4 The Partner Migration visa framework

Intimate partners (ie spouses, de facto partners and fiancés) of Australian citizens or permanent residents do not have an automatic right to permanent residency in Australia (DIBP 2013c). Intimate partners of Australian citizens or permanent residents must apply for either a Partner visa (for spouses, same and opposite sex de facto partners) or a Prospective Marriage Visa (for fiancés) to enter and remain permanently in Australia.

Partner visas

Partner visas allow migrants to move to Australia based on their spousal or de facto relationship with an Australian citizen or permanent resident (ALRC 2011: 490). Partner visa applicants must go through a two-stage process to obtain permanent residence. The first stage involves granting the migrant spouse or de facto partner a temporary Partner visa based on an assessment that the couple:

  • have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
  • are living together or, if not, that any separation is only temporary (DIBP 2013c).

De facto couples are also required to have been in a relationship for at least 12 months immediately prior to lodging an application.

In most cases, the permanent visa is decided after two years and the visa is granted if the couple continue to satisfy the requirements above. When assessing the genuineness of a relationship, DIBP will also consider the couple’s financial arrangements, household/living arrangements, social context of the relationship (ie do others recognise the applicant and sponsor as being in an intimate relationship) and the nature of the commitment to each other and how they met (DIAC 2012).

Prospective Marriage visas

A Prospective Marriage visa allows a non-citizen to enter Australia to marry an Australian sponsor. The visa is valid for nine months, during which time the visa holder must travel to Australia and marry their sponsor (DIAC 2012). After the marriage, the migrant spouse must apply for permanent residence as per the two stage Partner visa process described above (ALRC 2011). For a Prospective Marriage visa to be granted the couple must satisfy certain criteria, including that both the applicant and sponsor must be:

  • at least 18 years of age at the time of visa application;
  • known to each other personally and have met in person as adults (even if it is an arranged marriage or the relationship was formed on the internet);
  • genuine in their intent to marry and live together as spouses; and
  • intending to enter into a marriage that is recognised under the Marriage Act 1961 (DIAC 2012; DIBP 2013c).

On 1 June 2013, the Migration Regulations 1994 were amended so that couples must have met in person since turning 18 to satisfy the Prospective Marriage visa requirements. Changes were also made to remove the ability for a parent or guardian to sponsor an applicant for a Prospective Marriage visa on behalf of the prospective spouse who is less than 18 years of age (DIBP 2013a). These changes do not apply to applicants and sponsors of Partner visas.

How does the Department of Immigration and Border Protection assess applications for Partner and Prospective Marriage visas?

As stated above, partners of Australian citizens do not have an automatic right to permanent residency in Australia. DIBP assesses all applications for Partner visas and Prospective Marriage visas, as described below.

DIBP’s visa application system is a risk-based system where the Department scrutinises visa applicants’ risk profile, reason for travel and individual characteristics to determine what kind of visa application process is undertaken (DIBP 2014b). All visa applicants must meet health and character requirements, including police checks from previous countries of residence and/or an Australian police check (DIBP 2013c).

How many people migrate to Australia as partners of Australian citizens/permanent residents?

Between 2001–02 and 2010–11, 337,127 people migrated to Australia on a Partner Migration (Partner or Prospective Marriage) visa as a fiancé, spouse (including de facto partnerships) or interdependent (same sex) partner (ie a principal applicant). A further 42,288 people migrated to Australia as a child or dependent of the migrating partner (ie a secondary applicant; see Table 1). The number of persons granted a Partner Migration visa to enter or reside permanently in Australia each year has remained stable over this period.

Table 1 Partner Migration visa grants by applicant type and relationship type, 2001–02 to 2010–11
Applicant Spouse/de facto partner Fiancé Interdependent (same sex) Total
Principala 278,387 53,819 4,921 337,127
Secondaryb 36,117 6,071 100 42,288
Total 314,504 59,890 5,021 379,415

a: Includes fiancé, spouse, de facto partner, same sex partner

b: Includes child, dependent

Note: Interdependent and spouse visas were combined as of 1 July 2009

Source: Department of Immigration and Border Protection

Two-thirds of principal applicants were female (66%; n=222,313; see Table 2). There were approximately equal proportions of male and female secondary applicants.

Table 2 Partner Migration visa grants by applicant type and sex, 2001–02 to 2010–11
Principala Secondaryb Total
Male 114,814 21,353 136,167
Female 222,313 20,935 243,248
Total 337,127 42,288 379,415

a: Includes fiancé, spouse, de facto partner, same sex partner

b: Includes child, dependent

Source: Department of Immigration and Border Protection

Principal applicants who were granted a Partner Migration visa to enter and/or remain in Australia arrived from a wide variety of countries. The five most common countries of citizenship were the United Kingdom, China, India, the Philippines and Vietnam. Spouses, de facto partners and same sex partners were most likely to arrive from the United Kingdom, and fiancés most commonly arrived from the Philippines (see Table 3).

Table 3 Top 20 countries of citizenship of Partner Migration visa holders, 2001–02 to 2010–11
Country of citizenship Spouse/de facto partner Fiancé Interdependent
(same sex)
United Kingdom 42,526 4,138 1,255 47,919
China 27,161 4,386 145 31,692
India 23,515 1,495 30 25,040
Philippines 11,446 6,222 192 17,860
Vietnam 12,144 5,145 61 17,350
USA 13,705 1,826 575 16,106
Thailand 9,221 3,050 424 12,695
Lebanon 6,256 3,663 9 9,928
Indonesia 6,950 1,418 167 8,535
Japan 7,200 1,042 145 8,387
Canada 6,921 954 155 8,030
Germany 5,321 583 132 6,036
Republic of Korea 5,714 202 77 5,993
Republic of Ireland 5,209 403 121 5,733
Malaysia 4,224 414 189 4,827
Fiji 4,119 677 21 4,817
Sri Lanka 4,320 287 12 4,619
South Africa 3,494 788 100 4,382
Pakistan 3,803 254 4 4,061
Cambodia 2,938 913 4 3,855

Note: The number of visas cited is for those granted to principal applicants. It excludes visas granted to secondary applicants; that is, the children or dependents of principal applicants

Source: Department of Immigration and Border Protection

Who can sponsor an overseas partner to enter and/or remain permanently in Australia?

Partner visa and Prospective Marriage visa applicants must be sponsored to enter Australia by an Australian citizen, permanent resident or eligible New Zealand citizen. Sponsors must ordinarily be adults aged 18 years or older to sponsor a partner; however, if the sponsor is aged 16 or 17 years and the application is made on the basis of a married relationship, their parent or guardian must be the sponsoring person. Prior to 1 January 2012, sponsors were required in some cases to provide an Assurance of Support. An Assurance of Support was ‘a commitment to provide financial support to a partner category visa applicant so that they will not have to rely on any government forms of support’ (DIBP 2013c: 29). With the removal of the Assurance of Support requirement for partner category visas, sponsors can no longer be asked to provide an Assurance of Support, however sponsors still agree to financial obligations by undertaking the sponsorship. The migrating partner may also be eligible for social security payments (Special Benefit) if they can prove they are in financial hardship and have experienced a substantial change in circumstances beyond their control since arriving in Australia (DIBP 2012a).

There are, however, limitations placed on Australian sponsors in relation to sponsoring migrant partners to enter and/or remain permanently in Australia. Restrictions relate primarily to serial sponsorship and to sponsoring minors.

Limitations on serial sponsorship

Sponsorship limitations apply to people who have previously sponsored a partner to enter and/or remain permanently in Australia or been sponsored as a partner to enter Australia themselves. A person can only sponsor or be sponsored a maximum of two times, with a five year interval between sponsorships. Placing limitations on sponsorship is intended to ‘prevent abuse of the partner migration provisions’ (DIBP 2013c: 16). These limitations may be waived if there are compelling circumstances affecting the sponsor, for example, the migrating partner dies or abandons the relationship leaving young children, if the current relationship is longstanding, or if there are children from the relationship (DIBP 2013c). Legislative amendments were made in 2005 to prevent a sponsor, whose relationship had broken down as a result of the sponsor perpetrating domestic violence against their partner, being exempt from sponsorship limitations. Prior to this, ’visas granted following cessation of the relationship as a result of domestic violence committed by the sponsor were not counted against the sponsor’ (Vanstone 2005: np). This meant that ‘serial sponsors’ with ‘an unfavourable record from their previous relationship’ (Schloenhardt 2009b: 5) were not subject to restrictions on the number of times they could be a sponsor.

The issue of ‘serial sponsorship’—that is, of Australian citizens/permanent residents sponsoring more than one partner to enter Australia on Partner or Prospective Marriage visas—has been raised as problematic in the literature (see eg Cunneen & Stubbs 2000; Quinn 2009). In some cases it suggests the ‘commodification’ (Quek 2010: 5) and expendable nature of migrant wives.

Little has been documented about the prevalence of serial sponsorship in Australia. Research by the then Department of Immigration, Local Government and Ethnic Affairs between 1990 and 1992 revealed that during that period there were 110 repeat sponsors. Of these, all but nine sponsored women from Asia and 80 (73%) were known to have perpetrated some form of domestic violence (Schloenhardt 2009b).

Data supplied by DIBP for this study show that during the six year period between 1 July 2005 and 30 June 2011, there were a total of 288 repeat sponsors in Australia. All 288 persons sponsored one partner on two separate occasions; none had sponsored more than two individual partners on a Partner or Prospective Marriage visa. This is a potentially concerning figure, as there must be a five year interval between sponsorships unless compelling circumstances affecting the sponsor exist.

Future research on serial sponsorship is vital given the extreme nature of exploitation of some migrant women documented in the available literature (see eg Cunneen & Stubbs 2000).

Limitations on the sponsorship of minors

In 2009–10, the Australian Government made changes to strengthen the policies around the sponsorship of minors. The purpose of introducing stronger measures was to:

ensure that children seeking to enter Australia under partner and child visas are protected from being sponsored by people with convictions for child sex offences or other serious offences indicating that they may pose a significant risk to a child in their care (DIBP 2013b).

The first change, introduced in September 2009, requires sponsors of Child visa applicants and Partner or Prospective Marriage visa applicants that include a minor to undertake an Australian Federal Police (AFP) National Police Check (NPC) as part of the process of assessing the application. Sponsors must provide an NPC if they have spent a total of 12 months or more in Australia since turning 16 years of age and police certificates from each country in which they have spent 12 months or more in the last 10 years since turning 16 years of age.

In March 2010, the Migration Regulations were amended to include ‘mandatory refusal of sponsorships when a child is included in the visa application and the sponsor has a conviction or an outstanding charge for a registrable offence’ (DIBP 2013b: np). A registrable offence is

an offence against a child, most notably of a sexual or violent nature, which would lead to registration on the Australian National Child Offender Register’ (DIBP 2013b: np).

There are exceptions to mandatory refusal of sponsorship, to be approved at the discretion of the Minister, if five years have passed since completion of the sentence for the last relevant offence committed by the sponsor, the sponsor has not been charged with a registrable offence since the sponsor completed that sentence and there are compelling circumstances affecting the sponsor (Migration Regulations 1994 Regulation 1.20KB (9) (10)). Conversely,

if a police check or other source of information reveals the sponsor has been convicted of an offence, other than a registrable offence, which raises concern that visa grant may put the child at risk, the visa application may be refused under the public interest criteria relating to the best interests of the child (DIBP 2013b: np).

This study nonetheless raises serious concerns about the exploitation of children as a result of human trafficking involving partner migration. These are discussed later in this report.

Special provisions relating to family violence

The Family Violence Provisions allows for a person seeking to migrate to Australia on a Partner Migration visa to continue their application for permanent residence if their relationship with their Australian partner breaks down and the applicant, or a member of their family unit, has suffered family violence.

The Migration Regulations 1994 (Cth; Division 1.5, Regulation 1.21) defines family violence as conduct, whether actual or threatened, towards:

(a) the alleged victim; or

(b) a member of the family unit of the alleged victim; or

(c) a member of the family unit of the alleged perpetrator; or

(d) the property of the alleged victim; or

(e) the property of a member of the family unit of the alleged victim; or

(f) the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

Family violence is not limited to physical harm, but may also include other forms of abuse, such as psychological and/or financial abuse. Notably, the violence must be perpetrated by a spouse and does not include violence by the spouse’s family, which is frequently the case in situations of human trafficking where the exploitation occurs in a domestic setting (as discussed later in this report).

The Family Violence Provisions:

were introduced in response to community concerns that some partners might remain in an abusive relationship because they believe they may be forced to leave Australia if they end the relationship (DIBP 2012b: np).

However, there is still concern that Prospective Marriage visa holders will be forced to marry their abusive partners to be able to access the provisions (ALRC 2011), as holders of a Prospective Marriage visa who experience family violence may only seek access to the family violence provisions if they have married their sponsor (DIBP 2012b). This has prompted the Australian Law Reform Commission (ALRC 2011) to recommend that amendments be made to the Family Violence Provisions to allow fiancés on a Prospective Marriage Visa to remain in Australia if they suffer family violence despite not marrying their abusive partner. As Prospective Marriage visa holders may remain in Australia for up to nine months prior to the marriage

there is a risk that some visa applicants may be manipulated and forced to remain in an abusive relationship. Such amendments [as proposed by the ALRC] would ensure that Prospective Marriage visa holders have a legal basis for having their claims heard by the Department (ALRC 2011: 494)

and would be able to access family violence services and have time to apply for another visa.

Partner visa holders who satisfy the Family Violence Provisions

While the percentage of Partner visa cases in which the Family Violence Provisions have been used has steadily increased since 2005, the provisions are only invoked in a small percentage of claims (approximately 1.5% of all Partner visa cases; ALRC 2011). Analysis of data supplied by DIBP for this study shows that between 1 July 2006 and 31 December 2011, 3,654 Partner visa holders (1.6% of all Partner visa holders over the same period) met the criteria as victims of family violence. This number reflects holders of Partner visas and their children. It does not include holders of Prospective Marriage visas (for fiancés) as they are ineligible to access the Family Violence Provisions. There were 2,932 females, 697 males and 25 persons of unknown sex who successfully accessed the family violence provisions as either principal (intimate partner) or secondary (child or dependent) visa holders (see Table 4). Those who successfully access the family violence provisions and wish to remain permanently in Australia are able to do so under a different visa category.

Table 4 Successful Family Violence Provision applicants by sex and applicant type, 1 July 2006–31 December 2011
Principal Secondary Total
Male 284 413 697
Female 2,489 443 2,932
Unknown 20 5 25
Total 2,793 861 3,654

Source: Department of Immigration and Border Protection

Partner visa holders who accessed the Family Violence Provisions were aged between less than 12 months and 72 years (see Figure 1). Of the 3,233 successful applicants whose age was known, 20 percent were children (under 18 years).

Figure 1 Partner visa holders who accessed Family Violence Provisions by age, 1 July 2006–31 December 2011 (n)

Note: Includes principal and secondary Partner Migration visa holders

Source: Department of Immigration and Border Protection

Those who successfully accessed the Family Violence Provisions (n=3,654) most commonly immigrated on a Partner Migration visa from China (12%), the Philippines (10%) and Vietnam (8%; see Table 5). The top five countries of citizenship for Partner Migration visa holders that successfully accessed the Family Violence Provisions also comprise the top five countries of citizenship for Partner Migration visa holders who successfully migrated with no problems after arrival.

Table 5 Top 12 countries of citizenship for Partner Migration visa holders who successfully accessed Family Violence Provisions, 1 July 2006–31 December 2011
Country of citizenship n %a
China 441 12.1
Philippines 378 10.3
Vietnam 302 8.3
United Kingdom 188 5.1
India 177 4.8
Thailand 155 4.2
Fiji 145 4.0
Lebanon 112 3.0
Indonesia 92 2.5
United States of America 88 2.4
Republic of Korea 82 2.2
Cambodia 79 2.2
Other country 1,415 38.7
Total 3,654

a: Percentages may not total 100 due to rounding

Note: Includes principal and secondary Partner Migration visa holders

Source: Department of Immigration and Border Protection

Data on Partner visa holders who have been granted permanent residency after experiencing family violence are a limited proxy measure of human trafficking cases involving marriage. Although there is some overlap between migrant partner violence and human trafficking involving intimate relationships, particularly since this form of human trafficking is often identified as domestic violence, this measure is limited since these scenarios are different crime problems that require different responses. Moreover, data on cases in which the Family Violence Provisions were used are an under-representation of family violence, which is often unreported, particularly in migrant communities (Taylor & Putt 2007). Therefore, while these data provide important contextual information, the following analysis must be read with caution and should not be considered to reflect the number of potential people trafficked to Australia on a Partner Migration visa.