07 5641 0585

Australia’s convoluted visa laws force committed gay couples apart

A gay man who has been in a serious relationship with an Australian will be deported to Pakistan – where he faces a possible jail term. Australia’s convoluted visa laws fail gays

Senthorun Raj
theguardian.com, Friday 3 January 2014 14.45 AEST

 Screen shot 2014-01-08 at 9.36.34 AM

Sexuality and migration is a troubling topic in Australia. From lodging asylum claims to securing partnership visas, the process can be daunting and humiliating. This is especially the case when our legal system demands that you prove your “gayness” or your relationship status.

Ali Choudhry and Matthew Hynd’s experience with our migration laws is a troubling example of this. They are a binational same-sex couple and have been together for four years in Australia. Yet, as a national from Pakistan, Choudhry now faces deportation, having been denied a partnership visa to remain here.

Following changes to immigration laws in 2008, same-sex couples have been able to access partnership visas for their de facto partners. In response to questions on the issue, the immigration minister’s spokesperson noted that: “same sex couples are assessed no differently from heterosexual couples regarding immigration matters.”

Yet, as Choudhry points out, this obscures one rather important fact: unlike heterosexual couples, same-sex couples do not have the ability to get married to simplify the burdensome bureaucratic process.

Choudhry’s story also ties into Australia’s responsibility to protect refugees. Even though Ali has not yet lodged an asylum claim, the fact that he may face imprisonment on the basis of his sexual orientation if returned to Pakistan would be grounds to consider doing it.

For the purposes of partnership migration in Australia, you need to prove more than a “genuine and ongoing relationship.” Herein lies the problem. How exactly do (or should) we measure different forms of commitment? Legally, the status of being in a de facto relationship is typically contingent on couples being able to prove certain things about their relationship: the length of time living together, commitment to a shared life, financial interdependence, the presence of children, the existence of a sexual relationship and even the public “reputation” of the relationship.

While these criteria are not exhaustive or determinative, they do play a key role in how the law plots intimate kinship. However, it should not be a radical thing to say that people express their love for each other in different, sometimes contradictory, ways. Some people cohabit in non-monogamous partnerships. Others are monogamous but live separately either by choice or circumstance. Many couples do not share finances. Some even do not have sex.

Yet, as immigration scholar Audre Yue reminds us, individuals are forced to perform a particular show of intimacy to satisfy legal or administrative expectations. Even if you try to meet these, it is not a guarantee of success. Choudhry and Hynd’s story does not radically depart from our “conventional” ideas about couples. They met. Dated. Fell in love. Got civil-unioned (in the absence of marriage). Yet, Ali was denied a visa.

Marriage equality or ministerial intervention may resolve the migration difficulties for Ali and Matthew, but it does not remedy the broader issues surrounding same-sex migration in Australia. No one should have to get married to have their relationship recognised or respected. When our laws and policies literally force families apart, it is time to broaden our horizons about what counts in relationships.