It is our constitutional right to marry in this country without the fear of being disadvantaged. Sadly however our international guests living here are forced to live by a different set of rules.
On the 16 November 2019, the Immigration Department brought in new laws which affected the 190, 189 and 491 visa subclasses. These laws effectively meant that applicants do not have the right to act freely, rather they are to be constrained and disadvantaged by doing what we all take for granted, to meet someone and fall in love.
The new legislation disadvantages people who enter into a spousal relationship such as being married or de facto after receiving their invitations to lodge these visas. As single people, they received 10 points but once they have a spouse they lose these points, under the Partner Qualifications found in Schedule 6D.11 of the Migration Regulations.
These Partner points and state/territory sponsorship points are a time of decision criteria, meaning the case officer has to make a decision on the allocation of these points when your file is being assessed. All the other points in Schedule 6D like Age, English, Study etc, are all-time of invitation criteria. These means the points are locked in when the invitation is sent out to apply for the visa.
Since Partner points are a time of decision criteria you can lose points if your circumstances have changed since the invitation was received. If you were single at the time of invitation, then 10 points would have been allocated to you on the Expression Of Interest (EOI) system.
However, if you marry or enter into a spouse relationship after the invitation, you will automatically lose these points, regardless of the skills of your new partner. The only exemption to this is if your new spouse is an Australian citizen or Australian Permanent Resident.
The consequence of losing these points can be devastating because it could mean that you would no longer be able to meet the total points claimed in your expression of interest at the time of invitation. As such in Schedule 2 of the regulations for all of these points based visas, the visa may be refused.
To claim 10 points for Partner Qualifications, your spouse must have been included in the EOI, nominated a particular occupation from the list, obtained a positive skill assessment for this occupation and also have valid evidence of competent English.
In Schedule 6D111 it states;
The spouse or de facto partner of the applicant (the primary applicant):
(a) is an applicant for the same subclass of visa as the primary applicant; and
(b) is not an Australian permanent resident or an Australian citizen; and
(c) was under 45 at the time the invitation to apply for the visa was issued to the primary applicant; and
(d) at the time of invitation to apply for the visa, nominated a skilled occupation, being an occupation specified by the Minister under paragraph 1.15I(1)(a) at that time; and
(e) at the time of invitation to apply for the visa, had been assessed by the relevant assessing authority for the nominated skilled occupation as having suitable skills for the occupation and the assessment was not for a Subclass 485 (Temporary Graduate) visa; and
(f) at the time of invitation to apply for the visa, had competent English
These means on the EOI to claim 10 points for Partner Qualifications, your spouse must have been included in the EOI, nominated a particular occupation from the list, obtained a positive skill assessment for this occupation and also have valid evidence of competent English. This means an English test result of not more than 3 years old.
To claim 10 points for being single, well you just have to be single at the time of invitation or if you do have a spouse, they are an Australian Citizen or Permanent Resident. Once you have a spouse after the time of invitation who is not an Australian Citizen or Permanent Resident then you will simply lose these 10 points. 6D112 states;
Either:
(a) the applicant does not have a spouse or de facto partner; or
(b) the applicant has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen
Now if your new spouse has competent English and they were lucky enough a hold a valid English test result before your invitation was received then 5 points can be allocated under 6D113;
The spouse or de facto partner of the applicant (the primary applicant):
(a) is an applicant for the same subclass of visa as the primary applicant; and
(b) is not an Australian permanent resident or an Australian citizen; and
(c) at the time of invitation to apply for the visa, had competent English
However, being allocated 5 points instead of 10 points may not save your application. In Schedule 2 of these 3 visas it states the following;
“The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.”
If you don’t obtain a score that matches the claimed score in your EOI then your application can be refused. Traditionally when case officers come up with their own assessment of an applicants score and it is lower than what the applicant claimed in their EOI, they are most likely to refuse the application.
Now the immigration department has issued some policy in relation to the allocation of points. These guidelines read as follows;
“17.8 Partner’s nominated skill occupation and skills assessment
For the purpose of awarding partner points, the nominated occupation of the partner (that is, spouse or de facto partner) must be on the Occupation List(s) applicable to the point-tested visa that the primary applicant has applied for.
A suitable skills assessment required for paragraph 6D111 must have been obtained at time of invitation but is not subject to the time periods prescribed in Schedule 2 and which apply to the primary applicant. This means that a suitable skills assessment obtained more than three years prior to the date of invitation can be accepted for this criterion.
17.5. Single applicants
Under Item 6D.112 of Part 6D.11 of the regulations, 10 points may be awarded if:
the applicant does not have a spouse or de facto partner; (see paragraph 6D112(a)); or
The applicant has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen (see paragraph 6D112(b)).
In order to determine whether an applicant has a spouse or de factor partner, decision makers must check a visa applicant’s visa application history, (if applicable), and the documentation used to support those applications, to ensure accurate information is provided in relation to their marital status and whether or not they are in a de facto relationship.
In accordance with section 57 of the Act, inconsistent information regarding the marital /de facto relationship status of the applicant should be provided to the applicant for comment and if there has been a change in relationship status, evidence should be requested to support this change. This is to ensure applicants who are married or in a de facto relationship are not able to be awarded points under 6D112 on the basis of claiming to be without a spouse or de facto partner.’’
Clearly the last ‘’This is to ensure applicants who are married or in a de facto relationship are not able to be awarded points under 6D112 on the basis of claiming to be without a spouse or de facto partner’’ tells all of us that the department intends to deduct points and that’s give a lower total with the intention to refuse the Visa.
This disadvantage of marrying someone who is not a Citizen or Permanent resident of Australia, is not by direct legislation for of course for this would be illegal, however, it comes in the form of a specific penalty. The penalty is the loss of critical points, needed for the visa to be granted. These points can mean the ability to succeed or fail. In other words, the legislation is designed to crush the dreams and aspirations of the very young skilled people we are looking to attract simply because they have the desire to form a long-term relationship with another human being.
This potential penalty will continue throughout the visa processing and also will include any appeal process to the AAT or the Federal Courts. This creates the absurd outcome where the visa applicant may be doomed for years never to fulfil one’s desires for companionship whilst an ongoing visa application or appeal process is underway.
Laws such as this undermine the integrity of the migration system. People will meet and fall in love for that is the nature of being human. We cannot expect applicants to be able to stop this evolutionary process simply because they have applied for a visa. We also cannot expect applicants to make the difficult choice between love and visa grants.
To fail in a visa application can have catastrophic consequences so of course applicants are going to naturally hide the fact they may have formed a spouse relationship. This means we have created a law which people will feel is unjust, and history already told us what happens in these types of circumstances.
As a country, we have placed an unfair burden upon those we are looking for to build our society. Let us not begin their journey by breaking their spirits and deny them of partnership for even a nanosecond. Let’s also not kid ourselves that in forcing them to choose between obtaining their visa and declaring their relationship, obeying unjust laws will take precedence.
Instead, if applicants they find love after lodging the visa, let us say; “well done we hope you will be happy together”.
But if that is too difficult for this government to proclaim, then it should give those ‘skilled’ spouses a fair chance to be included in the application after it has been lodged. Let them demonstrate their skills and English competency when they are added; rather than penalizing the primary applicant for entering into a spousal relationship by refusing his or her visa.
