• Luciano and Drew appear on SBS's 'Who Gets To Stay In Australia?' (Supplied)Source: Supplied
"You don't have to be born in a place to feel like you belong, you know? And I feel like I belong to the society here. I feel Aussie."
Samuel Leighton-Dore

13 Jul 2020 - 9:37 AM  UPDATED 13 Jul 2020 - 9:37 AM

Every three minutes someone gains permanent residency in Australia, but every year 40,000 people are rejected.

In the case of Australian man Drew and his Peruvian partner Luciano, while their first application for Australia's Partner Visa was denied, they have won a right to an appeal, which they're now preparing for. However, the immediate concern isn't Luciano's case being rejected again, but whether or not the longtime couple can stay together for the potential two-year deliberation period.

The gravity of possible separation hangs heavy in the couple's Melbourne apartment, where they're being filmed for new SBS documentary series Who Gets To Stay In Australia?.

"I was hanging out with you and one day I invited you to have dinner..." Luciano recalls.

"What did you cook me?" Drew asks, smiling.


"It wasn't lasagna."

"Yes, it was lasagna."

"No it wasn't, it was like salmon, or fish, with asparagus or something."

After some playful back and forth, the pair eventually recollect that they'd fallen in love over an eggplant parmigiana. The meal in question was cooked over five years ago, so it makes sense that details are a little foggy - but in the eyes of Australian immigration, they simply can't be.

In preparation, the pair have kept a recorded timeline of their relationship, complete with receipts and documentation of the legal process so far. Flipping through the record, the couple become emotional and break for coffee.

Luciano was 23-years-old and working on a cruise ship when he first came to Australia. When the cruise ship departed, Luciano wasn't on it - choosing to stay behind illegally. This overstayed visa six years ago is one of the reasons he and Drew are facing extra scrutiny in their appeal. Luciano will now only be allowed to stay in Australia if he can prove that returning to Peru would have detrimental consequences.

"I think I belong here," Luciano says.

"You don't have to be born in a place to feel like you belong, you know? And I feel like I belong to the society here. I feel Aussie."

The couple's immigration lawyer, Yunn Chen, explains that Luciano's strong local ties - being employed, having a long-term relationship, actively volunteering for community organisations - make for a strong case.

Chen's job now is to prepare them for their hearing at the Administrative Appeals Tribunal.

"One of the first things they'll ask is whether you know why the [partner] visa was refused," she explains from her office.

"The main reason is that you didn't hold a visa or a bridging visa at the time that you applied. If you did hold a student visa or a visitor visa at the time, then we'd just be talking about whether you have a genuine relationship."

However, the impact of Luciano being sent back home to Peru mightn't be limited to his relationship with Drew. It could also affect his health. Luciano contracted HIV in Australia before meeting Drew. If sent back to Peru, he claims that the treatments available to him in Australia, which render the virus both undetectable and untransmissable, could be impacted.

"They use tuberculosis medication," Drew explains.

"HIV and tuberculosis come under the same category, and they treat them with the same medication."

Working on the couple's behalf, Chen's job will be to argue that two years in Peru awaiting the result of Luciano's partner visa appeal would mean two years without his necessary medication, which could impact his health significantly.

They'll have to plead their case to the Administrative Appeals Tribunal, which, as Deputy President Jan Redfern explains, is "the place where you come to tell your whole story, from the beginning to the end."

Redfern adds: "The tribunal member will listen to your story and give you the opportunity to present your case. That's the point of the tribunal."

Getting a glimpse inside the tribunal hearing as part of SBS documentary series Who Gets To Stay In Australia? is significant, as it's the first time cameras have been allowed to film proceedings.

During the hearing, Luciano is assured of the tribunal's independence from the Department of Foreign Affairs, and given the opportunity to speak while Drew waits outside. Drew will then also be given an opportunity to speak.

It makes for emotional and confronting viewing.

"Peruvian society is full of prejudice and being gay, openly gay, it's difficult to be who you are," Luciano says in Spanish, which is translated.

"I believe that the reason I'm here was so that I could meet my soulmate. Andrew [Drew] was with me from the start."

Luciano breaks down in tears: "When I was diagnosed with HIV... I don't think I'll ever find anyone like him."

Who Gets To Stay in Australia?  airs over four weeks from 8.30pm Wednesday 1 July on SBS and On Demand.

Who Gets To Stay in Australia?  will be subtitled in Simplified Chinese and Arabic and will be added to the subtitled collection on SBS On Demand, available immediately after its premiere.

Who Gets To Stay in Australia? is an ITV Studios Australia production for SBS. Principal production investment from SBS in association with Screen Australia.

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