The number of spouses migrating to Australia has increased greatly over the past ten years, despite a tightening of border security measures.

Interestingly, when considering any impact of the September 11, 2001 or October 2002 terrorist attacks in New York and Washington, and Bali, the substantive increases in arrivals of spouses and fiancées in Australia have taken place since 2001. In 2001-02, 16,527 spouses or fiancées arrived; this increased by almost 13,000 annually with 29,421 spouses and fiancées arriving in 2006-07.

In fact, the only decline in recent years took place in 1997-98 in response to measures introduced the previous years to address fraud through alleged sham marriages contracted purely for immigration purposes. As the Annual Report of the Immigration Department [1997-98] noted:

“The full impact of measures introduced in 1996 to increase the scrutiny of bona fides in spouse, fiancé(e) and interdependency cases became apparent in 1997–98, with a 29 per cent decline in the application rate compared with that of the previous year and a doubling of the average rate of refusals. At the same time, the Immigration Review Tribunal set aside 20 per cent fewer decisions to refuse applications. [DIMA Annual Report 1997-98]”.

The criteria considered when assessing a spouse visa application are that the relationship is genuine, continuing and exclusive; the marriage is a legal and valid marriage, or will be in the case of a prospective marriage; and the sponsoring Australian citizen or permanent resident is able to sponsor her or his spouse [i.e. they have not sponsored a previous partner in the past 5 years].

In the case of de facto relationships, there is a ‘one-year relationship requirement’. The sponsor and partner need to demonstrate that their genuine, continuing and exclusive relationship has existed for at least one year.

The grant of the spouse or partner visa has two stages. Initially a temporary visa is granted. A permanent visa will be granted after a period of two years. Citizenship may be applied for after a further two years.

The fiancée or prospective spouse visa has been used increasingly, with entrants more than doubling in number since 1998-1999. This visa allows entrance of an intended spouse. In one way, this visa is a sensible innovation. Often people from different countries meet [either in person or through other means such as over the Internet], and form a relationship. They may feel that it would be a good idea to spend some time together living in one city and country to confirm that the relationship is right and they do want to marry their partner. This visa allows that to take place. People are not forced into an early marriage as the only route to obtain a visa to allow them to live together in Australia.

Still, unscrupulous men do use the immigration processes as weapons to oppress their wife, and to force submission. There are cases where men have threatened to withdraw sponsorship and report the spouse to the Department of Immigration if she does not follow his ‘rules’. Others deter the woman from reporting domestic violence to the authorities with similar threats. In response to this situation, and to increasing cases of women suffering and not reporting domestic violence, a ‘domestic violence provision’ was introduced allowing abused women to apply for permanent residence on the basis of domestic violence.

It is not always clear how many of the spouse and fiancée visa involved has been termed ‘mail order brides’. A recent article in the Sydney Morning Herald noted:

“More than 3,000 Asian-born women married Australian-born men in 2005, according to the Bureau of Statistics. These unions accounted for 3 per cent of marriages that year. One thousand Asian-born men married Australian-born women”[1]

This higher number of Asian-born women marrying Australian-born men suggests that possibly up to 2,000 Asian-born women could have married Australian men in the sort of transnational commodified marriage arrangements that have emerged over the past decades.

But as Narushima states, whilst the stereotypes of Asian women as submissive and compliant have to be abandoned, the issues and feelings are deeper and more complex –

“People date people they meet. The problem lies in the extra scrutiny interracial relationships attract. If an athletic, tanned, blonde met and dated a dumpy, freckly redhead, few would arrive at a perverse motive. They’re just a couple in love, different though they appear.

Add a difference in looks to a perceived difference in culture and, suddenly, love must be secondary. The relationship must be built on lust, or offer a social benefit - improved “status” or a visa, perhaps.

People continue to use the insult “mail-order bride”. Mothers of Caucasian men continue to fret about Asian girlfriends just being “so different”. My own mother is guilty of holding the view of Asian women as obedient and meek. She once said she would be happy for her daughters to marry who they like but she advised my brother to marry a Japanese woman because she would be more likely to do the dishes and take care of him”.]

Indeed, Australia is witnessing a progressive change –

From 1986 to 2001, the proportion of people marrying outside their ancestry increased between the first and third generations in every racial and language group in Australia other than the English, a study of the 2001 census results, Australians’ Ancestries found.[2]

Change dates back over 50 years and the gradual dismantling of the “White Australia” Policy and the adoption of a non-discriminatory immigration policy.

The setting initially was the aftermath of World War II –

During World War II, many non-white refugees entered Australia. Most left voluntarily at the end of the war, but many had married Australians and wanted to stay. Arthur Calwell, the first immigration minister, sought to deport them, arousing much protest.

Minister [Harold] Holt’s decision in 1949 to allow 800 non-European refugees to stay, and Japanese war brides to be admitted, was the first step towards a non-discriminatory immigration policy.[3]

The Longitudinal study of 10,000 migrants to Australia who arrived between December 2004 and March 2006, shows that only 4% of family stream migrants rated racism as the thing they most disliked about Australia. The report further noted –

Some groups reported quite high levels of racism in Australia - 51 per cent of Former Overseas Student PAs, 60 per cent of people from mainly English speaking countries and 53 per cent of people who spoke English as their best language said that Australia had at least some racism. Furthermore, 13 per cent of those from mainly English speaking countries said Australia had a lot of racism – a figure that was more than double that for persons from non English speaking countries.

Other groups reported relatively low levels of racism. Only 19 per cent of poor English speakers and 34 per cent of those aged over 45 said that there was either some or a lot of racial discrimination in Australia.[4]

The same study has shown that unemployment for off-shore spouse migrants fell from 30% in August 2005 to 8% 2 years later. However, women in the family stream were less likely than men to be in a skilled position [32% likelihood compared to 57%], and unemployment was higher for women family stream migrants [7% compared to 2%]. Women also earned $A11,000 less per year than male migrants in the group - $A36,000 per annum as against $A47,000 for men.

The migration and life of immigrants to Australia is against the background of stricter border security. Australia’s border control system uses 3 layers of checking

1.    At the time of application all applicants are checked against a database of people on “immigration alert”. In June 2005 there were 386,000 people on these lists.

2.    An Advance Airline Processing System allows airlines to verify the bona fides of travel documents and visas, covering 98% of people flying into Australia, with overseas compliance officers based in 27 overseas cities, including Manila, Kuala Lumpur, Shanghai, Bangkok, Ho Chi Minh City, Hong Kong, Islamabad, Beijing, Colombo, Hanoi, New Delhi, Taipei and Phnom Penh.

3.    Checks on arrival in Australia.

All visa applicants are required to declare any criminal convictions. Applicants over 17 who will stay in Australia for more than one year are required to provide a criminal records check for any country where they resided for more than 12 months in the past 10 years. Section 501 of the Migration Act 1958 imposes a ‘character test’. Grounds for failing the character test are –

• the person has a substantial criminal record;
• the person is associated with a person, group or organisation that is reasonably suspected of involvement in criminal activity;
• having regard to their past and present criminal or general conduct, the person is not of good character; or
• there is a significant risk that, if allowed to enter or remain in Australia, the person would:

• engage in criminal conduct in Australia;
• harass, molest, intimidate or stalk another person in Australia;
• vilify a segment of the Australian community;
• incite discord in the Australian community; or
• otherwise represent a danger to a segment of the Australian community.

If a person fails the character test, their visa will be cancelled. The Department of Immigration and Citizenship monitoring procedures include –

The Department works closely with Australian law enforcement and security agencies, as well as other governments, to ensure that the Department’s decision-makers have access to a comprehensive and up-to-date database of persons who are known to be of character concern. Such information can be used both in relation to considering visa applications, as well as to assess visa holders for possible visa cancellation under section 501.5

These powers have a wide scope for arbitrary use and abuse of powers. The case of Dr. Mohammad Haneef, working in Queensland on a temporary ‘Long Stay Business” visa highlighted that the power to cancel a visa and exclude on flimsy grounds of alleged involvement in terrorism can be used capriciously by the Minister of Immigration, and the legal challenges open through the Courts are not strong.

In the case of temporary spouse visa applicants there is little evidence that they have been caught up in the Department’s compliance activities locating and dealing with unlawful non-citizens. Of the 18,341 unlawful non-citizens located by the Department, the majority were holders of bridging visas (38%), student (23%) and visitor (23%) visas. Spouse and fiancé visas are temporary residence visas, and temporary residence visas as a class comprised 12% located unlawful non-citizens in 2004-05.

The heightened border control and security measures appear to have less impact on women traveling to Australia to marry Australian citizens than on other visa classes. However, the tightening of the provisions relating to spouse and partner visas require the couple to demonstrate a genuine, exclusive and continuing relationship, and to be open to inspections and spot checks of their home by Departmental officers to verify details such as shared living arrangements, shared bank accounts, and a commitment to build a life together.

The most significant role of criminal law relating to spouse visa applicants is the documented evidence of increased incidence of domestic violence in marriages that may fit the description of a ‘mail-order’ marriage. Whilst the domestic violence provision and some funding of specific support services for migrant women who are victims of violence has appeared to improve the rates for reporting of such violence, there are still immigrant women who are not aware of their rights, and the protections they have under Australian law. This educational task is an on-going challenge.

Endnotes:

1    Yuko Narushima, “Time to halt the spread of that noxious weed, the ‘oriental flower’ ”, The Sydney Morning Herald, 17 September 2007, p 15.
2    Ibid, p15.
3    Department of Immigration and Citizenship Fact Sheet 8: Abolition of the White Australia Policy.
4    Department of Immigration and Citizenship, New migrant Outcomes: Results from the third longitudinal survey of immigrants to Australia, August 2007, p 47.
5    Department of Immigration and Citizenship, Managing the Border: Immigration Compliance, 2004-05 Edition, p 8.