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Can a member of the same sex be included as spouse in the Independent category?

Can a member of the same sex be included as spouse in the Independent category?

Old Oct 20th 2002, 7:36 pm
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Default Can a member of the same sex be included as spouse in the Independent category?

I hope that someone can help me in this matter.

I am in a gay relationship with my partner of 5 years. We would like to migrate to Australia but only one of us meets the skilled independent migrant points test.

My question: Can I include him as my spouse in the application?

Would greatly appreciate any information or souces of information on the internet. Thanks in advance.
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Old Oct 20th 2002, 9:56 pm
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Jaj
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

    >On Sun, 20 Oct 2002 19:36:30 +0000, Keng wrote:
    >I hope that someone can help me in this matter.
    >I am in a gay relationship with my partner of 5 years. We would like to
    >migrate to Australia but only one of us meets the skilled independent
    >migrant points test.
    >My question: Can I include him as my spouse in the application?

No you can't.

You need to get PR yourself, and then sponsor him through the Family
Stream Interdependent category. You should talk to a migration agent
about the best strategy to employ.


Jeremy
 
Old Oct 20th 2002, 10:51 pm
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

Originally posted by Keng:
I hope that someone can help me in this matter.

I am in a gay relationship with my partner of 5 years. We would like to migrate to Australia but only one of us meets the skilled independent migrant points test.

My question: Can I include him as my spouse in the application?

Would greatly appreciate any information or souces of information on the internet. Thanks in advance.

YES you can. On the form under relationship you will see a tick box for deFacto, tick this and provide proof of your relationship.

Defacto is for same sex AND Opposite sex relationships for people who can prove they have been together (in a relationship) for 12+ months. I asked DIMA about defacto and this is what they told me.

I have a list of proof for defacto and can forward you a copy if you want.

Jaj has said you can't, not sure why they said no! But from my understanding of defacto on the skilled independant form and the response I got back from DIMA re defacto, I would say yes.


Kieron
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Old Oct 20th 2002, 11:53 pm
  #4  
Jaj
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

It's pretty clearly defined in the Migration Regulations 1994.

Spouse definition comes from Regulation 1.15A, the relevant extract
from which is

(2)Persons are in a de facto relationship if:
(a)they:
(b) are of opposite sexes; and

The full definition is a lot longer - you can look it up on Scaleplus,
http://scaleplus.law.gov.au - I have only
reproduced what's necessary
to show that a same-sex partner is NOT considered to be a de-facto
spouse.

As for someone at DIMA telling you otherwise, I keep saying on this
forum and on others that people should *not* rely on verbal advice
given on public enquiry lines like this, or from consular officials,
whether it concerns the law of Australia or other countries.

Such advice is often incomplete, misinterpreted or just plain wrong.

Only members of the 'family unit' of the main applicant can be
included on a skilled visa application. And 'family unit' has a
definition too, in Regulation 1.12, which makes no reference at all to
a same-sex partner.

The only way for a same-sex partner to migrate to Australia is either
to apply for migration separately, or be sponsored on Interdependent
grounds by the partner once he or she has become a permanent resident.

Jeremy


    >On Sun, 20 Oct 2002 22:51:09 +0000, shorrock wrote:
    >Originally posted by Keng:
    >> I hope that someone can help me in this matter.
    >> I am in a gay relationship with my partner of 5 years. We would like
    >> to migrate to Australia but only one of us meets the skilled
    >> independent migrant points test.
    >> My question: Can I include him as my spouse in the application?
    >> Would greatly appreciate any information or souces of information on
    >> the internet. Thanks in advance.
    >YES you can. On the form under relationship you will see a tick box for
    >deFacto, tick this and provide proof of your relationship.
    >Defacto is for same sex AND Opposite sex relationships for people who
    >can prove they have been together (in a relationship) for 12+ months. I
    >asked DIMA about defacto and this is what they told me.
    >I have a list of proof for defacto and can forward you a copy if you
    >want.
    >Jaj has said you can't, not sure why they said no! But from my
    >understanding of defacto on the skilled independant form and the
    >response I got back from DIMA re defacto, I would say yes.
    >Kieron
    >--
 
Old Oct 21st 2002, 1:40 am
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

Originally posted by Jaj:
It's pretty clearly defined in the Migration Regulations 1994.

Spouse definition comes from Regulation 1.15A, the relevant extract
from which is

(2)Persons are in a de facto relationship if:
(a)they:
(b) are of opposite sexes; and

The full definition is a lot longer - you can look it up on Scaleplus,
http://scaleplus.law.gov.au - I have only
reproduced what's necessary
to show that a same-sex partner is NOT considered to be a de-facto
spouse.

As for someone at DIMA telling you otherwise, I keep saying on this
forum and on others that people should *not* rely on verbal advice
given on public enquiry lines like this, or from consular officials,
whether it concerns the law of Australia or other countries.

Such advice is often incomplete, misinterpreted or just plain wrong.

Only members of the 'family unit' of the main applicant can be
included on a skilled visa application. And 'family unit' has a
definition too, in Regulation 1.12, which makes no reference at all to
a same-sex partner.

The only way for a same-sex partner to migrate to Australia is either
to apply for migration separately, or be sponsored on Interdependent
grounds by the partner once he or she has become a permanent resident.

Jeremy


    >On Sun, 20 Oct 2002 22:51:09 +0000, shorrock wrote:
    >Originally posted by Keng:
    >> I hope that someone can help me in this matter.
    >> I am in a gay relationship with my partner of 5 years. We would like
    >> to migrate to Australia but only one of us meets the skilled
    >> independent migrant points test.
    >> My question: Can I include him as my spouse in the application?
    >> Would greatly appreciate any information or souces of information on
    >> the internet. Thanks in advance.
    >YES you can. On the form under relationship you will see a tick box for
    >deFacto, tick this and provide proof of your relationship.
    >Defacto is for same sex AND Opposite sex relationships for people who
    >can prove they have been together (in a relationship) for 12+ months. I
    >asked DIMA about defacto and this is what they told me.
    >I have a list of proof for defacto and can forward you a copy if you
    >want.
    >Jaj has said you can't, not sure why they said no! But from my
    >understanding of defacto on the skilled independant form and the
    >response I got back from DIMA re defacto, I would say yes.
    >Kieron
    >--
Hi Jaj

You've convinced me!!

Kieron
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Old Oct 21st 2002, 8:24 am
  #6  
FredDed
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

Hi,

I looked up the SCALEplus web site.. there seem to be two definitions of 'de-facto':

From the Australian Citizenship for Eligible De facto Spouses Bill 2002 First Reading (ammendment to Section 13(9A))

"de facto spouse, in relation to a person, means a person who, whether or not of the same gender as the person, lives with the person and they have a mutual commitment to a shared life to the exclusion of all others."


From MIGRATION REGULATIONS 1994- REG 1.15A Spouse
"(2)Persons are in a de facto relationship if:

(a) they:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii)are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961; and...."


The first quote is, of course, from a bill that's in its first reading.. but are there any other similar definitions of a de-facto partner? I received my PR but did not include my partner on the application.. now I'm worried that when we apply for an interdependency visa I run the risk of having my visa cancelled.


URL's:

Australian Citizenship for Eligible De facto Spouses Bill 2002 First Reading:

http://scaleplus.law.gov.au/cgi-bin/...unt%3D50#hlhl9

MIGRATION REGULATIONS 1994- REG 1.15A Spouse:

http://scaleplus.law.gov.au/cgi-bin/...unt%3D50#hlhl0
 
Old Oct 21st 2002, 7:09 pm
  #7  
Emmy & Phil
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

Come to NZ, He can be included on your application here : )

Emily

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"Keng" wrote in message
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...
    > I hope that someone can help me in this matter.
    > I am in a gay relationship with my partner of 5 years. We would like to
    > migrate to Australia but only one of us meets the skilled independent
    > migrant points test.
    > My question: Can I include him as my spouse in the application?
    > Would greatly appreciate any information or souces of information on the
    > internet. Thanks in advance.
    > --
 
Old Oct 22nd 2002, 11:31 am
  #8  
Jaj
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Default Re: Can a member of the same sex be included as spouse in the Independent category?

The Bill you mention is sponsored by an opposition backbench MP and as
such as little or no chance of becoming law.

Anyway, the fact that something is defined a particular way in one law
(eg the Citizenship Act) does not mean it's defined the same way in
another law (eg Migration Act and Regulations).

As to you your question about not including your partner on your
original application, I can't see it causing any problems simply
because a same sex partner is not legally a spouse, de-facto or
otherwise. The 47SK form does not ask about interdependent
relationships, hence you've not told any untruths.

But if you want to put your mind at ease, you could talk to a
migration agent, or if in Sydney, have a word with IARC -
http://www.iarc.asn.au. If you're in another
city, there should be
similar organisations to IARC locally.

Jeremy


    >On Mon, 21 Oct 2002 08:24:33 +0000, FredDed wrote:
    >Hi,
    >I looked up the SCALEplus web site.. there seem to be two definitions of
    >'de-facto':
    >From the Australian Citizenship for Eligible De facto Spouses Bill 2002
    >First Reading (ammendment to Section 13(9A))
    >"de facto spouse, in relation to a person, means a person who,
    >whether or not of the same gender as the person, lives with the
    >person and they have a mutual commitment to a shared life to the
    >exclusion of all others."
    >From MIGRATION REGULATIONS 1994- REG 1.15A Spouse
    >"(2)Persons are in a de facto relationship if:
    > (a) they:
    > (i) are of opposite sexes; and
    > (ii) are not married to each other under a marriage that is recognised
    > as valid for the purposes of the Act; and
    >(iii)are not within a relationship that is a prohibited relationship
    > for the purposes of subsection 23B (2) of the Marriage Act
    > 1961; and...."
    >The first quote is, of course, from a bill that's in its first reading..
    >but are there any other similar definitions of a de-facto partner? I
    >received my PR but did not include my partner on the application.. now
    >I'm worried that when we apply for an interdependency visa I run the
    >risk of having my visa cancelled.

 

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