Gay Marriage and Immigration to Australia and New Zealand

Australia and New Zealand have similar laws in many aspects of marriage and partnerships. One of these is a gender-neutral meaning of partnership or de-facto relationship which grants a legal status to same-sex couples in both the countries but as yet does not legalize gay marriage. Among the many rights and privileges that same-sex couples share with heterosexual couples in Australia and New Zealand, one of the most important has to do with immigration of foreign gay partners into the country.

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Australia

Though gay marriages are still not performed in Australia, the country allows same-sex partners of its citizens and permanent opportunity to migrate to the country. If located overseas, a foreign national in a gay relationship with Australian citizen will have to apply for Australian Permanent at the nearest Australian Embassy, Consulate or High Commission. He will be applying for a Partner (Migrant) (Class BC) subclass 100 and Partner (Provisional) (Class UF) subclass 309. Once approved, he will have a fixed time to enter Australia and validate the visa. This time is calculated by the time left of the twelve months validity of the applicant’s medical examination. The 309 is however only a temporary visa which is valid until a decision is made on the applicant’s permanent residence. After two years from the date of the application the department will reassess the relationship and, if still genuine and ongoing, their permanent residence status will be confirmed and the 100 visa issued. If however the applicant can prove that he is in "a long-term spouse relationship" there will be no need for the two-year waiting period before permanent residence is granted.

In case the immigrant gay partner is located in Australia and holds a substantive visa, that is a visitors, student, working holiday or temporary business visa, he/she can apply for a Partner (Residence)(Class BS) subclass 801. This includes an application for a Partner (Temporary) (Class UK) subclass 820 which is valid until a decision on permanent residence is confirmed. In an on-shore application too, after two years the relationship is assessed again to confirm that it is still genuine and continuing, and if so Permanent Residence will then be granted. Just like in the off-shore process, if the applicant can prove he is in "a long term spouse relationship" then he can be considered for permanent residence at the time of application and without having to wait the mandatory two years. For both purposes, "a long-term spouse relationship" is defined under Immigration laws as a relationship that has continued for not less than 3 years.

For immigration to Australia, a medical and x-ray examination is required for all applicants. This includes an HIV test. If the applicant turns out to have a positive HIV result, it does not necessarily mean that his/her application will fail, however it is most likely that the Immigration Department will ask the applicant for a health waiver submission.

New Zealand

Like Australia, New Zealand still has not legalized gay marriages in the country. However its same-sex couples enjoy certain immigration rights. Immigration laws in New Zealand have a “Family Category” which allows a foreigner to move to the country based on “a genuine and stable marriage or de facto relationship with a New Zealand citizen or permanent resident. The gender-neutral terminology means that overseas partners of both heterosexual and same-sex relationships can apply for immigration. To be eligible to apply for the same sex partner visa, otherwise known as the interdependency visa, the New Zealand and the foreign partner must meet the general residence visa eligibility requirements, and also prove to immigration officials that they have been living together in an exclusive, committed relationship for at least one year immediately prior to filing the visa application, which before 1999, was for at least four years.

While New Zealand does not discriminate between same-sex and heterosexual partners in case of immigration, anyone entering into a partnership solely to gain residence can be imprisoned for up to seven years or a fine of up to $100,000. Generally, in assessing a claimed same-sex relationship, the Immigration New Zealand offices, whether onshore or offshore, usually look at evidence of things such as living together on a permanent basis, sharing a household, and important financial and social commitments.

Applicants for de facto partner visas who reside outside New Zealand must apply for the resident visa at the New Zealand Embassy or Consulate abroad. This process is referred to as "offshore application processing. Individuals already in New Zealand in valid immigration status may be eligible to apply for a resident visa from within the country by going through the "onshore" application process. This process permits qualifying applicants in New Zealand to apply for lawful resident status without having to leave the country to apply for a visa through one of the New Zealand Consulates abroad.

The foreign partner applying for residency status in New Zealand would need to go through medical tests for Conditions such as HIV, hepatitis, and certain types of other communicable diseases. While HIV positive status may not disqualify an applicant from immigration, it may be noted by immigration officials and be grounds for further evaluation.