Critical Analysis Of Australian Migration Framework For Partner Visa - Essay. (70 Characters)

Critically examine and analyse Australia’s Migration framework in relation to the Partner Visa scheme and discuss whether its legislative framework provides for consistency.

Advantages of Migration to Australia

Migration is defined as permanent or semi-permanent changes occurred in the place of an individual or a group of individuals from one location to another.

Every person wishes to live happy and free life in that country where they get equality and also secured future for themselves and their families, and not many nations provides such equality and freedom to immigrants but Australia does. This is the reason number of migrants find Australia as suitable place and attractive solution to their problems. There are number of advantages such as freedom and egalitarian society which provides equal opportunities to migrants and this is the reason people overlook the disadvantages such as long distance. As per the statistics report, there are large number of immigrants who arrive in Australia every year through different visas such as skilled visa, partner visa, etc..

It must be noted that immigrants arrive for their personal reasons but it also beneficial for Australia in number of ways. Australian society is ethnically diverse and they showed that these immigrants are important for them. Recently numbers of changes are placed in law and also some additional requirements are stated in immigration law, and various categories are introduced such as skill-based migration, family PR in Australia, business migration and others, but all these categories included condition that it is necessary for migrants to prove that they are economically stable after arriving in Australia.

In this essay, we critically examine and analyze the Australian Migration framework related to partner visa, and also states whether its legislative framework provides any consistency. For the purpose of examining the Australian migration framework various policies and case laws are considered.  Subsequently this essay is concluded with brief conclusion.

Sponsoring your partner to Australia or being sponsored by your partner is not only strenuous but also a time consuming process, and application related to Australian partner visa face number of difficulties and also dealing with Australian immigration authorities. Generally, department of immigration & Border Protection does not offer any advice to prospective migrants and it is completely depends on applicant to build a strong case and also provide sufficient evidence related to their genuine and ongoing relationship.

Partner category migration allows for the grant of visa that permits married partners and de facto partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens to enter in Australia and remain permanently in Australia. At initial stage those partners who meet the legal criteria for the purpose of granting visa are granted a temporary visa, and permanent visa is also granted at later stage on the basis of eligibility period, if there is any long standing relationship, and if there is any children from the relationship as soon as possible after the grant of temporary visa. This category also allowed fiancé of Australian citizen, permanent residents and eligible New Zealand citizens to get temporary entry in Australia. It must be noted that fiancé of Australian citizen, permanent residents and eligible New Zealand citizens does not have any automatic right related to permanent residence in Australia. If any person wants to be in Australia under this category then he/she must first apply for permanent visa and such person is assessed on the basis of legal criteria for the grant of that visa.

Partner Category Migration

There are two types of visa under this category and this visa named as Prospective Marriage visa and Partner visa, and person can apply for the type of visa completely depends on the relationship of person.

It is necessary that applicant who apply for partner category visa must be sponsored by a person who can be fiancé(e), partner, or in some circumstances, a parent or guardian of your partner, and such sponsored person must be Australian citizen, Australian permanent resident or eligible New Zealand citizen. It is necessary that person who is sponsoring applicant must satisfy all legal requirements for being sponsor. Some other requirements are also there which includes that applicant must meet character requirement. In case applicant has members of family unit then they must then they must make combined applications with the application of applicant which state that they meet the requirements related to criteria.

Section 5CB of the Migration Act 1958 states the meaning of de facto partner, and as per this section:

• A person is considered as de facto partner of another person if such person is in de facto relationship with such other person. It must be noted that no matter whether person is of same sex or different sex. De facto relationship is defined under subsection 2 of this section.
• Subsection 2 of this section states that a person is in de facto relationship with other person if they are not married with each other but:

1. They have mutual commitment to share life with each other to the exclusion of all others, and the relationship between them is genuine and continuing.
2. They live together or do not live separately and apart on permanent basis.
3. They are not related with each other by family.

This table sets out the types of relationship and visa corresponds to that relationship:

Type of relationship	Visa
Intended marriage	Prospective marriage visa
Married relationship	Partner visa
De facto partner relationship (including a same-sex relationship)	Partner visa

Prospective marriage visa: this visa is temporary visa and valid for the period of 9 months from the date the visa is granted. If this visa is granted to the person then person can enter into Australia and after that person can marry to intended spouse within the period in which such visa is valid. Later person can apply for partner visa by filling other application form and pay visa application charges.

It must be noted that at each stage of application processing relationship between the applicant and his/her partner. If any person is marry to their fiancé before entering into Australia or if they have been in de facto relationship with their partners for the period of more than 12 months then they can apply for a partner visa. Following are the eligibility criteria of prospective marriage visa:

• Applicant must be sponsored.
• Applicant must be aged either 18 years or more at the time of making application.
• Applicant must be of opposite sex to the intended spouse.
• Applicant must met intended spouse in person and they both turned 18 years of age and known each other personally.
• Applicant must not have any impediment to marry his/her intended spouse which means that both of them are free to marry and both are of marriageable age, and such marriage must be intended to recognized in Australian law.
• Applicant must be genuinely intended to marry his/her intended spouse, and genuinely wants to live as husband or wife with his intended spouse.
• Applicant must meet health and character requirements.

It must be noted that all these are requirements are applicable even though marriage is arranged marriage or partners met on internet. However, it is necessary that applicant must enter in Australia with Prospective Marriage visa before marry to his/her fiancé, and applicant married with his/her fiancé till the marriage visa is still valid. It must be noted that marriage can take place either in Australia or outside Australia but it is necessary that applicant must entered into Prospective Marriage visa at least once before the marriage takes place.

Types of Visas under Partner Category Migration

This 9 month period validity does not count towards the two year requirement within the period of 9 months to partner visa processing and applicant as the holder of this visa can study and work in Australia.

This visa is valid only for the period of 9 months and this period cannot be extended. In case applicant does not travel to Australia and marry his/her fiancé then such visa will cease. In case applicant travel to Australia but does not marry to his/her fiancé within the period of 9 months then such person cannot stay in Australia after that period or such person cannot apply for partner visa also. Such visa is granted to the person on the basis that such person genuinely want to travel in Australia for the purpose of marry to intended spouse. However, if holders of this visa marry any person other than there fiancé then also such person may still be able to lodge application for partner visa.

In case person is applying from outside Australia:

There are two types of process first are 3 step processes and second is 2 type processes:

• 3 step processes includes:

Step 1: Temporary visa- Subclass 300 (prospective marriage).

This visa is applied by applicant when they are planning to marry their intended spouse then they can make application under visa subclass 300.

Step 2: Temporary Visa- Subclass 820 (partner)

This visa is applied after subclass visa 300 is granted to the person, and such person marry to Australian partner or travel to Australia then such person can make valid application under this class.

Step 3: permanent visa- subclass 801 (residence).

After the period of two years from the date of applying subclass visa 820 if such person is still in relationship with the Australian partner then such person can make application under this class.

2 step process:

Step 1: Temporary visa- subclass 309 (partner).

Applicant and their partner are legally married or intended to legally marry before he decision is made on their visa, and they have been in de facto relationship for at least 12 months before the date of application then such person can make application under subclass 309 visa.

Step 2: permanent visa- subclass 100 (partner migrant).

After the period of two years from the date of applying subclass visa 309 if such person is still in relationship with the Australian partner then such person can make application under this class.

Eligibility Criteria for Prospective Marriage Visa

In case person applying visa from inside Australia:

2 step processes include:

Step 1: Temporary visa- subclass 820 (partner).

Partners must be legally married or in de facto relationship for at least 12 months before the date of application then such person can make application under subclass 820 visa.

Step 2: permanent visa- subclass 801 (partner migrant).

After the period of two years from the date of applying subclass visa 801 if such person is still in relationship with the Australian partner then such person can make application under this class.

Making a valid application: For the purpose of making valid application applicant must complete the application form 47SP Application for migration to Australia by a partner in English language, and they provide residential address where they intended to live while there application is being processed. As per the legislation post office address will not be accepted as residential address.

Applicant applied under partner category visa must have a sponsor, and it is necessary that sponsor must be prepared to sponsor the visa applicant and also any family member if included. Generally, sponsor is the person with who is the fiancé or in de facto relationship with visa applicant. As part of the application process relationship between the applicant and his/her fiancé is assessed, and partner is asked to provide personal information and documents to the department.

If any Australian citizen, Australian permanent resident or eligible New Zealand citizen wants to sponsor their partner or fiancé then such sponsor must fulfill following conditions:

• Sponsor must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen, but such sponsor must not be the holder of Woman at Risk visa (subclass 204) granted in last five years and not such person wants to sponsor their former partner or partner they had at the time of visa grant.
• Must not be subject to any sponsorship limitations.

Some limitations have been imposed on sponsors by the department for the purpose of limiting the sponsorship, and visa application of the applicant may be refused if such person is affected by some sponsorship limitations. These limitations include if any person have been previously sponsored or nominated more than 2 partners as fiancé or partner for the purpose of migrating to Australia, person sponsor any other fiancé or partner in last 5 years, and sponsored as a fiancé or partner as you within the last 5 years.

However, it is really important to note that if any applicant applied visa under the partner   category then it might be possible that visa application of the applicant is refused because sponsorship is affected by the limitations. Therefore, it is necessary that sponsor must assess all the details before providing sponsorship.

There are some situations when sponsorship of the person can be affected such as if any person sponsor two or more partner visa applicants, or sponsor any applicant within the period of last five years, or you yourself were sponsored as a partner or fiancé in the past 5 years.

Application Process for Partner Category Visa

New migration regulations stated strict criteria related to limitation on sponsorship under partner category visa. If sponsorship of the person is affected then in stated circumstances sponsorship of the person is approved, and these circumstances are when previous partner of the sponsor is died, when previous partner of the sponsor abandoned the relationship, and in case young children’s are involved. There are some other situations also such as when there is long standing relationship with your current partner or fiancé or if sponsor has children with their current partner of fiancé.

These limitations may consider as harsh in some cases but it is necessary to put these limitations under Australia’s partner migration program for the purpose of preventing abuse. Therefore, it is necessary that if sponsorship of the person is affected then person must get proper advice related to it because in case sponsorship is refused by the department then visa application of the partner of fiancé is refused as well.

If sponsor falls under compelling circumstances then such person may be eligible for waiver and the decision maker at the Department of Immigration and Citizenship (DIAC) will consider all the relevant situations for the purpose of deciding whether or not to exercise their discretion. Decision maker of department also consider the ties of person with Australia, and whether refusal make any hardship or detriment.

This limitation policy is implemented for the purpose of limiting the sponsorship for lifetime, and prevents abuse under the partner/fiancé migration provisions. Therefore, it is necessary that this purpose must be kept in mind when decisions are made by the decision maker while deciding for granting the waiver. Department must consider the evidence related to genuinely of relationship between the partners and whether there is long term relationship between the parties for the purpose of providing waiver.

As stated above various limitations are imposed on sponsorship for the purpose of preventing violence under migration provisions. Government of Australia makes strong commitment for reducing violence in Australian community which also includes family and sexual violence, and as part of this commitment if any person has been convicted or charged under certain circumstances then it may affect the eligibility of sponsor. It is necessary that person must disclose any convictions related to visa applicant for the purpose of granting visa. In case applicant of visa is under the age of 18 years then department asks for the permission to disclose convictions related to any other person who can determine lawfully the residence place of child.

Limitations on Sponsors

Australian government consider that the safety of children’s are the most important, and this consider is reflected in the policies framed by government such as in sponsorship of minors for visas to enter in Australia. Through their policies government ensures that those children’s who are seeking to enter in Australia must be protected from the sponsors who are convicted for child sex offence or any other serious offense which indicates that sponsor can pose significant risk to a child in their care. As of 27^th March 2010, limitation on sponsorship has been existed in the migration regulations, and this limitation prevents the person to be sponsor if any proposed applicant is under the age of 18 years and department has evidence that sponsor has convicted for any registrable offence.

Therefore, sponsors of partner and prospective marriage visa applications if lodged after 27^th March 2010, and if such application includes applicant under the age of 18 years then it is necessary that sponsor must provide Australian Federal Police (AFP) National Police Check and/or foreign police certificate(s) for the purpose of processing the application. Results showed by police certificates are used by department for the purpose of assessing the application related to sponsorship, and they decide whether such applicant is fulfilling the public interest criteria related to the best interest of the children. Or the purpose of affecting the

However, this policy also provide some waivers also such as such sponsorship which is refused under the limitation can be approved at the discretion of minister or any of their delegates if 5 years have been passed from the completion of sentence related to the last relevant offense and some compelling situations are present which affect the application of visa applicant and sponsor. Additionally to the AFP National Police Check or other police certificate(s), other information related to any conviction for child sex offences must be given to the department by the person, and also if there are any other charges which are awaited for action.

There is one more issue that is forced marriages, and it is necessary for department to make provisions related to forced marriages. Forced marriage are considered as those marriages in which either one or both parties has not freely and fully consented related to the marriage because of the use of coercion, threat or deception. As per the Australian law, if any person entered into marriage without the real consent then such marriage is not considered as valid marriage. However, it must be noted that arranged marriages are not the same as forced marriage because arranged marriages are those marriages in which consent is given by parties to the marriage but these marriages are organized and arranged by third parties, and generally these third parties are respective family members of the parties. Therefore, arranged marriages are valid in Australia because both the parties give their full and free consent.

It must be noted that as per the regulations of migration act partner or prospective marriage visa may be refused if department founds that one or both of the parties does not give their free and final consent to the marriage. From the date of 8^th march 2013, if any person forced another person to enter into forced marriage or be a party to the forced marriage then such person is charged for criminal offense. However, it must be noted that this provision provides relief to the victim of forced marriage. In other words, it does not apply on victim of forced marriage. Under these offenses person is penalized maximum for the period of 4 years imprisonment for an aggravated offense. The applicability of this offense is wide which means offense can apply on those marriages which are performed in Australian and on those marriages also which are performed outside Australia that means overseas. In case person is identified as suspected victim of forced marriage then Australian government may provide them any specific support program.

Therefore, in short forced marriage is that marriage in which person married without freely and fully consent because of the coercion, threatened, deceived and because they are not able to understand the nature and effect of marriage ceremony for various reasons such as age or mental capacity.

It is very easy to determine some type of coercions such as use of physical or sexual violence or refuse to let somebody leave the particular place or location if they do not accept the marriage. There are some other types of coercions which are not easy to determine such as psychological and emotional pressure. These type of coercion includes making the person feel that they make shame to their family if they do not marry or ashamed of not being marry.

Generally, forced marriages are considered as slavery-like practices and also it is considered as form of gender-based violence and an abuse related to human rights. These types of marriages are not limited to any particular group, religion, and ethnicity. Therefore, for the purpose of preventing the migration in Australia on the basis of forced marriages regulations have been made which state that if marriage is forced marriage then government does not provide visa to such person under partner visa category.

As a response to forced marriages various strategies are formed by Australian government under the migration act for the purpose of preventing serious forms of exploitation such as human trafficking, slavery, and other slavery practices such as servitude and forced labour.

This offense is considered as criminal offence under both migration regulations and Criminal Code Act 1995 (the Criminal Code) because it also contains various provisions regarding forced marriage.

Government of Australia is getting tough on those people who trying to enter into Australia through illegal ways such as by targeting the scam marriages or those marriages which are not genuine by nature. As per the partner migration accounts for the quarter period almost 70000 migrants are intake and expected to be submitted and almost 48000 out of them being approved. It must be noted under partner category visa highest applications are submitted from China, UK, India and Vietnam.

After considering the critical evaluation of migration framework under partner category, it is clear that partner system framed by department has various flaws. There are number of critics who believed that current system has various flaws such as provision allowed that young children’s under the age of 16 years can enter into Australia, even though their sponsors do not have any job or financial assistance to support them. In Britain, it is necessary that partner must be aged at least 21 years and sponsors must earn 18600 pounds.

In last two years almost 519 applications related to partner visa has been cancelled by department, and Australia and Immigration Minister Peter Dutton says that he wants to prevent the corruption in Australia and claims that Australian government adopts no tolerance policy for visa fraud. Almost 8000 applications are received under partner category from the foreign students who arrive from different countries and study here. However, it must be noted that these relationships ended soon and they are short lived because very young students are indulged in these relationships. Therefore, requirement is stated and as per this requirement partner visa requires assessment of relationship after the period of two years for the purpose of proving that relationship is genuine and it still exists, but there are number of cases in which it is found by Department of Immigration and Border Control that relationships are not genuine and they are not comprehensive as the should be.

This can be understood through case where headlines related to fake marriages are hitting the news channels. In February 2017, an Indian couple was found guilty for almost 66 charges from Queensland. In this case Chetan Mashru and his wife Divya Gowda were found guilty for making a scam related to a marriage visa in which Indian men marry Australian women for money. In this Indian men apply for visa and Australian women paid $ 1000 per month till such visa came through, and for this fraud Mashru, a former migration agent was sentenced to imprisonment for the period of four and a half years and Gowda a marriage celebrant for the period of 18 months.

However, it is possible that this fraud can be discovered at any stage of migration process, but various flaws are there in the process because of which it is really difficult to reflect this fraud. In authorities of the immigration department founds that marriage is fake and conducted for the purpose of visa then both parties face serious consequences.

Those immigrants who committed fake marriages are deported from the country and have their visas revoked, and these persons are blacklisted for lifetime for the purpose of obtaining visa in Australia. These immigrants also face various criminal fines and penalties up to the $300000 and also imprisonment. It is on the desertion of immigration department to conduct check at any time and also apply range of different methods for the purpose of discovering marriage frauds.

Therefore, it is necessary that application related to visa must have valid evidences and documents which show and prove that marriage is valid and various checks must be made by the party for the purpose of determining the existence and status of marriage.

Conclusion:

After analyzing above facts it can be concluded that various limitations have been imposed on sponsors by the department for the purpose of limiting the sponsorship, and visa application of the applicant may be refused if such person is affected by some sponsorship limitations, and also make some other provisions which state that Government of Australia makes strong commitment for reducing violence in Australian community which also includes family and sexual violence, and as part of this commitment if any person has been convicted or charged under certain circumstances then it may affect the eligibility of sponsor.

Therefore after analyzing above provisions related to visa under partner category it is clear that government introduce various provisions related prevent violence under the migration provisions such as various limitations are imposed on sponsors for providing sponsorship, but still there various flaws in the migration framework of Australia under the partner category.

It is clear that because of these flaws it is very easy for applicants to make applications on the basis of fake and forced marriages for the purpose of entering into Australia. This framework still needs lot of improvement.

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