ABUL RIZVI: Bob Birrell’s War on Partner Visas

Sep 23, 2019

The partner visa categories are for people who have formed a genuine relationship (formally married or de facto or prospective marriage) with an Australian citizen or permanent resident. In July 2019 Bob Birrell continued his long-standing war on partner visas, particularly for people from poorer Asian countries, by calling for further restrictions on partner migration. His article attracted substantial coverage in The Australian and Sky News. But how strong is his case?

At end-June 2018, the Government had allowed a backlog of over 80,000 partner visa applications to build up with average processing times around two years. The number of places available for partners in the 2019–20 migration program is 39,799. While the annual application rate has fallen to between 50,000 and 55,000, the number of places available means the backlog or pipeline will continue to grow (see Chart 1).

The pipeline of partner visa applications was well under 30,000 in 2009–10. The sustainability of maintaining a pipeline of partner applications in excess of 80,000 is legally questionable. Sections 86 and 87 of the Migration Act (the capping powers) prohibit Government from capping the number of spouse visas issued (a subset of partner visa categories). Parliament has twice voted (in 1989 and 1996-97) against giving Government the power to cap spouse visas

While the Government has not used these formal capping powers in respect of partner visas, it has found other means of limiting the number of partner visas granted.

Birrell suggests two reasons for the fall in partner visas issued in 2017–18 compared to 2016–17. He firstly notes “the reason why the number of partner visas dropped in 2017–18 is that the Department of Home Affairs took a harder line on assessing the bona fides of partner visa applications”.

Birrell subsequently states that “in 2017–18 ‘only’ 39,799 partner visas were issued. This was a result of a slow-down in the processing of partner visas”.

It is possible both reasons were in play, along with the fact the Government will have been keen to maintain the two thirds skill versus one third family balance. With a large reduction in the skill stream, this balance could not have been maintained without a reduction in partner visas.

Birrell provides no evidence to suggest integrity checking by Home Affairs, at either the provisional stage or after two years at the permanent visa stage, has been missing many non-bona fide cases, or why integrity checking had been relaxed under previous Immigration Minister Scott Morrison. It is notable that at end-March 2019, there were 5,396 active partner cases at the AAT. The set-aside rate at the AAT is around 50 percent, which suggests integrity checking by Home Affairs can frequently come to the wrong conclusion.

While there can be no question about the importance of ensuring partner visas are issued only on the basis of bona fide relationships, Birrell’s concerns about partner migration from Asian countries is broader than just bona fides.

Birrell says Australia’s partner migration rules are the most lax in the Western world – but he provides little evidence to support this extraordinary claim. The tightening of partner visa rules introduced under the Hawke and Howard Governments, especially requiring the genuineness of the relationship to be re-tested two years after migration, remain unusual amongst Western nations. These are by far the most effective means of ensuring partner visas are only issued to people in a genuine relationship.

Birrell argues Australia does not require the Australian sponsor’s capacity to support their partner to be tested. This ignores the fact Australia:

  • charges one of the highest partner application fees in the world (almost $8,000 plus the costs of health testing, character checks and any migration agent fees);
  • has a four-year wait to access social support which means recently migrating Australian sponsors must have a job to survive for the first four years after securing their own permanent residence; and
  • skilled migrants are generally performing very well in the labour market and would mostly have an income well above the level used in the UK which Birrell cites with approval.

These factors would make the need to undertake income testing of Australian sponsors largely redundant.

Birrell notes that the Netherlands and Denmark require the sponsor and visa applicant to both be 21 and 24 respectively while Australia only requires the applicant and sponsor to be 18. But he provides no evidence that many partner sponsors and applicants to Australia are under 21 or 24, or indeed why people marrying at ages between 18 and 21 is bad.

Birrell is particularly concerned overseas students from the sub-continent will use the partner visa pathway as a means of remaining in Australia. He then undercuts his own argument by noting that in 2017–18, only 526 partner visas were issued to current or former overseas students from India and 102 to those from Pakistan.  Hardly the flood Birrell worries about.

A further concern Birrell has is the apparently high proportion of Australian sponsors who were born in the same country from which they have chosen their partner. He cites data showing a high proportion of Chinese-born males married in Australia in 2017 married a Chinese-born female. He cites a similar ‘problem’ with Vietnamese-born males. But he gives no explanation for why this represents a public policy problem.

Birrell is also concerned partners from Asia will have poor employment prospects. He provides no data to back up this concern.

While not broken down by source country, the 2016 Continuous Survey of Australia’s Migrants finds that six months after arrival, people on partner visas had:

  • an employment to population ratio of 61.4 percent (commensurate with that for the general population and rises further at the 18 month after arrival point);
  • an unemployment rate of 17.8 per cent (around three times above that for the general population but this falls sharply at the 18 months after arrival point as new migrants secure greater experience in the labour market);
  • a labour force participation rate of 74.6 per cent (significantly above that for the general population); and
  • median annual full-time earnings of 51,800.

Concerns about partner migrants performing poorly in the labour market appear largely unfounded.

Birrell argues many of the people securing a partner visa are likely to settle in the major capital cities, thus increasing problems of congestion. While this is likely to be correct, why partner migrants in particular should be to blame for congestion is not explained.

Finally Birrell is concerned the partner visa is being used to game the system to extend stay in Australia. He notes that after entry on a temporary visa, most likely a visitor visa, “the onshore [partner] applicant can stay on in Australia on a bridging visa while the application is assessed and/or the appeal process is pursued. This is a highly attractive and inexpensive option from the point of view of the applicant, which can deliver many months, if not years of additional stay in Australia.”

No evidence is provided that people entering on temporary entry visas and then applying for an onshore partner visa are actually gaming the system, over the more plausible explanation that newly married couples want to live together rather than wait two or more years offshore while the partner visa application is processed.

Moreover, if a person is interested in gaming the visa system this way, they are unlikely to pay the almost $8,000 application fee when there is the alternative of applying for asylum with no application fee. Given the massive increase in onshore asylum applications in recent years, it is surprising Birrell makes no reference to this form of gaming as the more obvious option.

Nevertheless, Birrell notes with approval that from mid-2019, the Department of Home Affairs has “removed the bridging visa option while the [onshore] partner application is being processed. From this date, if partner visa applicants can’t obtain another substantive visa (like another student visa) they will have to return overseas, pending the outcome of the partner application”.

Birrell provides no evidence of any positive impact from this change but does propose a total ban on onshore partner applications. He does not explain the benefit of this. It would separate newly married couples for longer and/or impose on them additional costs to go overseas to be granted a partner visa.

Birrell is right to point out that “Australia faces a stark choice with the management of partner visas”.

He opposes a return to processing partner visas efficiently, with appropriate integrity checking and on a demand-driven basis as intended by Parliament. This would require the Government to make more partner visa places available, possibly around 60,000 per annum while the backlog is cleared.

Birrell’s preference is the Government continue to artificially (and unlawfully) restrict partner visa places and introduce measures that would further reduce the partner visa application rate which has already fallen from around 70,000 in 2012–13 to just over 50,000 in 2016–17.

Abul Rizvi was a senior official in the Department of Immigration from the early 1990s to 2007 when he left as Deputy Secretary. He was awarded the Public Service Medal and the Centenary Medal for services to development and implementation of immigration policy, including in particular the reshaping of Australia’s intake to focus on skilled migration. He is currently doing a PhD on Australia’s immigration policies.

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