[GiuseppeG]

I have a few questions about eligibility for the Subclass 461 visa.

I am a New Zealand citizen and my same-sex partner is a United States Citizen. We have been in a relationship since Apr 2012 but as the Defense of Marriage Act precludes same-sex partners from immigration to the United States, the majority of our relationship has been long distance. We are looking at moving to Australia to live together in Victoria. We are not financially interdependent yet except for having a joint savings account in New Zealand, as we haven't yet had a chance to live together on a more permanent basis in the same country. I have no option of immigrating to the United States while DOMA is in existence as federal law, and the employment options for my partner in NZ are far more limited than they would be in Australia.

By the time we look at applying for any visa for him we will have been together for 12 months, though we will have only cohabited for three months in the United States (Aug-Oct 2012) and almost one month in New Zealand (upcoming visit in March 2013). Short of a rental car agreement in New York State, and our New Zealand joint account, there's nothing at all with both of our names on it. He would apply for the visa from the United States later this year after returning from New Zealand.

One thing I'm having trouble working out is if a New Zealand civil union would be beneficial in waiving the 12 month cohabitation requirement, as a domestic relationship registered in Victoria would. The only advice I've found on this is this: "Same-sex marriages are not recognised for migration or citizenship purposes, except to the extent that they are non-conclusive evidence of a de facto partner relationship." This appears to give overseas marriages the same status as state registered domestic partnerships, though I'm unsure if a civil union would also fall under this.

Lastly my USC partner is 32 and therefore ineligible for the WHV.

Many thanks in advance for any advice you may have

 

[kttykat]

I have a few questions about eligibility for the Subclass 461 visa.

I am a New Zealand citizen and my same-sex partner is a United States Citizen. We have been in a relationship since Apr 2012 but as the Defense of Marriage Act precludes same-sex partners from immigration to the United States, the majority of our relationship has been long distance. We are looking at to live together in Victoria. We are not financially interdependent yet except for having a joint savings account in New Zealand, as we haven't yet had a chance to live together on a more permanent basis in the same country. I have no option of immigrating to the United States while DOMA is in existence as federal law, and the employment options for my partner in NZ are far more limited than they would be in Australia.

By the time we look at applying for any visa for him we will have been together for 12 months, though we will have only cohabited for three months in the United States (Aug-Oct 2012) and almost one month in New Zealand (upcoming visit in March 2013). Short of a rental car agreement in New York State, and our New Zealand joint account, there's nothing at all with both of our names on it. He would apply for the visa from the United States later this year after returning from New Zealand.

One thing I'm having trouble working out is if a New Zealand civil union would be beneficial in waiving the 12 month cohabitation requirement, as a domestic relationship registered in Victoria would. The only advice I've found on this is this: "Same-sex marriages are not recognised for migration or citizenship purposes, except to the extent that they are non-conclusive evidence of a de facto partner relationship." This appears to give overseas marriages the same status as state registered domestic partnerships, though I'm unsure if a civil union would also fall under this.

Lastly my USC partner is 32 and therefore ineligible for the WHV.

Many thanks in advance for any advice you may have

Are you an eligible New Zealand citizen? An 'eligible New Zealand citizen' is one who was in Australia on a Special Category Visa prior to 26th February 2001 or who has qualified for and been granted a permanent skilled immigration or family visa.

I don't know how immigration views NZ civil unions, perhaps PM Mark Northman and ask him, he is a migration agent and may know better.
http://www.australiaforum.com/members/marknortham.html

Kttykat

 

[kttykat]

OK, you are going for the 461 as a temporary visa with a partner. I admit I don't know much about that visa. The usual de facto requirements as I understand it still apply, the 12 month rule, I suggest again that Mark Northman is the man to talk to about your situation.

Kttykat

 

[MarkNortham]

Hi -

The 1-year living together rule for defacto couples only applies to specific visas, including the onshore partner visa. The registration option to avoid this requirement is very specific - here's the DIAC policy:

6.5 If the relationship is registered under Australian State/Territory law
Under regulation 2.03A(5), the minimum relationship period does not apply if the relationship is registered under a State/Territory law prescribed in the Acts Interpretation Act (Registered Relationship) Regulations (namely, regulation 3) as a kind of relationship as prescribed in those Regulations.

Currently, only the following laws and relationships are prescribed (and so meet the requirements of regulation 2.03A(5)):

Victoria - Relationships Act 2008 - a registered relationship that is registered under s10(3)(a) of that Act
Tasmania - Relationships Act 2003 - a significant relationship as defined in s4 of that Act
NSW - Relationships Register Act 2010 - a registered relationship as defined in s4 of that Act
ACT - Civil Partnerships Act 2008 - a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in s6 of that Act for entry into a civil partnership.
QLD - Civil Partnerships Act 2011 - a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in section 5 of that Act for entry into a civil partnership.


So for purposes of a partner visa based on a defacto relationship, to avoid the one-year living together rule, you'd need to register your relationship with one of the states as indicated above.

Turning to the subclass 461 visa, this one's a bit of a unique visa in that it technically is a temporary visa, but has a duration of 5 years and allows travel to and from Australia, and can be renewed just like a PR visa can be after 5 years. This visa is for family members ("member of the family unit", which can include a de facto partner) of NZ citizens holding a subclass 444 visa which is normally granted upon entry to Australia.

The one-year living together regulation for de facto couples does not apply to this visa. However, you'll still need to properly evidence the de facto relationship, and DIAC will take a good look at the 12 months before application for that (and sometimes longer if the relationship began before that).

I hope this is of some help - please advise if I can assist further.

Best,

Mark Northam

 

[kttykat]

It is good to have you around Mark, as these odd visas are still a mystery to me....

Kttykat

 

[GiuseppeG]

Hi -

The 1-year living together rule for defacto couples only applies to specific visas, including the onshore partner visa. The registration option to avoid this requirement is very specific - here's the DIAC policy:

6.5 If the relationship is registered under Australian State/Territory law
Under regulation 2.03A(5), the minimum relationship period does not apply if the relationship is registered under a State/Territory law prescribed in the Acts Interpretation Act (Registered Relationship) Regulations (namely, regulation 3) as a kind of relationship as prescribed in those Regulations.

Currently, only the following laws and relationships are prescribed (and so meet the requirements of regulation 2.03A(5)):

Victoria - Relationships Act 2008 - a registered relationship that is registered under s10(3)(a) of that Act
Tasmania - Relationships Act 2003 - a significant relationship as defined in s4 of that Act
NSW - Relationships Register Act 2010 - a registered relationship as defined in s4 of that Act
ACT - Civil Partnerships Act 2008 - a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in s6 of that Act for entry into a civil partnership.
QLD - Civil Partnerships Act 2011 - a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in section 5 of that Act for entry into a civil partnership.


So for purposes of a partner visa based on a defacto relationship, to avoid the one-year living together rule, you'd need to register your relationship with one of the states as indicated above.

Turning to the subclass 461 visa, this one's a bit of a unique visa in that it technically is a temporary visa, but has a duration of 5 years and allows travel to and from Australia, and can be renewed just like a PR visa can be after 5 years. This visa is for family members ("member of the family unit", which can include a de facto partner) of NZ citizens holding a subclass 444 visa which is normally granted upon entry to Australia.

The one-year living together regulation for de facto couples does not apply to this visa. However, you'll still need to properly evidence the de facto relationship, and DIAC will take a good look at the 12 months before application for that (and sometimes longer if the relationship began before that).

I hope this is of some help - please advise if I can assist further.

Best,

Mark Northam

Hi Mark

This is wonderful, thank you so much for your comprehensive reply.

It's good to know the 12 month requirement does not apply here as it's a tough thing to fulfil in a same-sex relationship with a USC.

I'm guessing though that being able to properly evidence a de facto relationship is going to be tough. We are in a long term, committed, monogamous relationship but at present that doesn't extend to financial interdependence as we haven't lived in the same country except for on an extremely temporary basis.

Are these things still mandatory if we can provide this strong and compelling reason as to why we have been unable to spend more than a couple of months at a time together? As you mention, it is a temporary visa, and he would not be seeking residence.

Thanks so much

 

[TomR]

Hi Mark,

Thanks for your input on this topic. I have a similar question regarding what relationships are prescribed.

I am in the process of preparing an onshore partner visa, and have a civil partnership registered in the ACT from September 2013. This civil partnership is under the Domestic Relationships Act 1994, rather than the Civil Partnerships Act 2008, which was the predecessor and successor of the Civil Partnerships Act 2008 that was repealed in September 2012.

I know this is confusing, but my question is this, will my civil partnership under the Domestic Relationships Act 1994 still be recognised under the Acts Interpretation Act (Registered Relationship) Regulations, and the partnership valid as an exemption for the 12 month living together criterion?

Could it be that immigration and the acts interpretation information is out of date to recognise this repeal, or will our partnership not be valid as an exemption now?

Thanks in advance,
Tom