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Same-sex couple allege partner visa rejected because of sexuality

Avi Kumar and Jeff. Source: Supplied

The Indian man and his Australian partner believe their application was deliberately prolonged, and then, the break in their cohabitation was used against them.

An Indian national whose partner visa application based on his relationship with an Australian man was refused twice has accused the Department of Home Affairs of “apprehended bias and discrimination” due to his sexuality.

The partner visa application of 28-year-old Avi Kumar* was refused for the second time as the Department of Home Affairs believed that he had not provided sufficient evidence to prove he had a genuine relationship with his partner, Jeff*.

Mr Kumar, who currently lives in the north Indian state of Haryana, says he hasn’t revealed his homosexuality to his family or  his community because he's frightened of backlash and prosecution, as homosexuality is a crime in India.  

Though the pair lived together from 2014 to 2016 and had their relationship registered with the Registrar General, Queensland, in January 2015, the case officer questioned the couple’s commitment to one another. The Department said there was insufficient evidence of a genuine and ongoing relationship because Mr Kumar had not introduced Jeff to his family as his de-facto partner when he visited him in India in 2016.

“I couldn’t do it because the society will never accept it,” Mr Kumar told SBS Punjabi from India. “Though I never admitted to it here, but I was constantly bullied and harassed when I was in school because some students suspected I was gay.”

Mr Kumar has been in India since 2016 and Jeff visited him there once in November 2016. In refusing his visa application, the Department said the pair hadn’t made an attempt to meet since then.

“He [Mr Kumar] was forced to leave the country and his chances of getting a visitor visa were very low due to his immigration history and we hadn’t expected that his partner visa application would take so long. Plus I am supporting Avi and myself and I have to work for that,” Mr Kumar’s partner Jeff told SBS Punjabi.

“He was made to leave the country and now our physical separation is being used against us.”

The latest decision on Mr Kumar’s application was handed down on 27 June, after a wait of over 26 months since the visa application was submitted from India.

Mr Kumar came to Australia in 2008 as an international student and two years later applied for protection visa claiming threat to his safety on account of his homosexuality. After his claim was refused, he remained unlawfully in Australia until he applied for a partner visa in 2014 that was also refused on the basis that he did not have a “substantive visa” when he lodged his visa application. The Administrative Appeals Tribunal affirmed the visa refusal in 2016.

He then departed Australia and applied for a partner visa from India in 2016.

The pair says they feel being discriminated against due to their sexuality.

“For the department to discredit every evidence we have given and conclude our relationship is not genuine, I believe it’s a case of discrimination, whether by the Department or by the individual officer,” Jeff says.

“I am an Australian and have always believed this country was based on the principle of fair go. But after this incident, I have lost all faith in the due process in Australia, especially as a gay person.”

Mr Kumar says the visa refusal has broken him.

“It has turned my life upside down. I am scared to death that something is going to happen to me. After over two years’ of separation, we were hoping to be together. But it’s just not fair,” he says.

“I can’t live here [India]. I am not what I am forced to be here. Some people think it’s [homosexuality] is a disease.

“I know I made some mistakes in the past and I have paid for it when my first partner visa application was refused. But for the department to overlook all the other evidence provided by us is beyond belief,” Mr Kumar told SBS Punjabi.

Mr Kumar’s legal representative says the couple had the processing of their application deliberately prolonged, and then, the break in their cohabitation was used against them.

“In February 2018, the processing office asked for ongoing evidence of the relationship knowing full well Avi and Jeff had now been living apart for 24 months and there was little in the way of household evidence to provide.

“All they had were ongoing financial records of an active joint account, ongoing records of maintaining contact and a statement about their future plans together,” Kristy Duncan of Migration Angels said.

“Avi was subject to a three-year ban but the delegate pointed to the fact that he didn’t apply for a visitor visa as a reason to conclude Avi had not demonstrated his commitment to the relationship,” she added.

Ms Duncan has written to the Department of Home Affairs for a review of the application.

The Department of Home Affairs said it does not comment on individual cases and that all applications are considered on a case by case basis and against legal requirements set out in Australia’s migration legislation.

"To meet the definition of de facto partner, the applicant and sponsor must demonstrate, among other things, that they are in a genuine and continuing mutually exclusive relationship, and live together or do not live separately and apart on a permanent basis," a spokesperson for the Department said. 

"It is open to the sponsor of the visa applicant to apply for review of the decision to refuse the Partner visa application at the Administrative Appeals Tribunal," the spokesperson added. 

*Not their real names

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