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Punitive truth behind Dutton's 'sham marriage' furphy

  • 11 November 2016


'We're not going to allow people who have sought to come by boat to come to Australia through a backdoor and we are not going to allow sham marriages to facilitate that.' — Peter Dutton

The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 passed the House on 10 November and is now in the Senate. If passed, it means that anyone who was aged 18 and entered Australia as an 'unauthorised maritime arrival' after 19 July 2013 and was taken to Nauru or Manus Island would be forever blocked from applying for any visa to come to Australia.

The statutory bar could only be lifted personally by the Minister if they think 'it is in the public interest to do so'. There are already five statutory bars preventing asylum seekers who are in Australia from lodging any visa, unless the Minister permits them to do so. The decision to lift the bar is the Minister's only, it cannot be delegated to a bureaucrat.

There already is a bar on applications for visas for those deported under s200 for criminal matters or those whose visas are cancelled on character grounds. However this is the first time that a statutory bar will be created for a life ban, regardless of the person's citizenship or the visa they are seeking simply because they arrived in Australia by boat after a certain date.

In a press conference Dutton said the purpose was to prevent sponsorship for sham marriages. This was odd because there is already considerable law to deal with this issue. Firstly, it is already a criminal offence to falsely apply to sponsor someone as a spouse. Secondly there are a number of strict requirements for both sponsors and the visa applicants to meet in order for a partner visa to be granted.

The family program has 57,400 places, with probably around 65-75 per cent of those visas being for fiancé visas and partner visas and dependents. Therefore on a conservative estimate the Department assesses around 35,000 fiancé or partner visa applications every year for genuineness already. If the Department has doubts, they will commonly interview applicants. Given this process already exists, why do you need to prevent anyone accessing it if they wish to come to Australia to be with their partner?

When asked, the Minister claimed 'this government won't tolerate the law being subverted, we're not going to allow the system to be gamed because that