The Federal Government is urged to take “urgent and immediate” action to tackle visas that trap foreign parents in Australia with restrictions that the UN says have a “serious impact” on human rights.
The 461 visa allows foreign nationals who are partners with New Zealand citizens to live and work in Australia – but problems arise when the relationship ends.
It can be renewed every five years, even when the relationship has ended, but only as a temporary visa, not permanent – and with no way to change it.
This means foreign nationals who are primary caregivers and are ordered to live in Australia, living without many rights.
This includes access to government financial support, housing subsidies and child care, and those who are unable to vote.
Other aspects include that they face harsh penalties for buying property because they are classified as “foreign investors”.
Mary * is one of many women ABC has heard who are treated as she calls “second-class citizens.”
Mary, a foreign national, moved to Australia from a prosperous London suburb with her New Zealand husband and two young sons in 2014, but the relationship soon broke down.
She said she and her ex-husband spent nearly $ 500,000 in legal fees in the family court, which ruled she had to stay in Sydney.
She has three master’s degrees and is working in Sydney in property.
Now, the employer is restructuring and the owner wants to sell the place he is renting.
With the potential to lose her job and need a new lease, Mary said she and her son are at risk of poverty and homelessness.
‘I feel left out’
Mary has taken her case to the United Nations, which wrote to the Australian Government in July voicing concern about the impact of visas, which are said to have a “serious impact” on the human rights of migrant women.
Women like Mary cannot return to their homeland with their children, where they will have greater rights.
This could be because restrictions under the Hague Convention where children cannot be carried across the border without the permission of both parents, or because the family court has rejected relocation applications.
Mary and her advocates are pushing for changes in migration rules so that if they are ordered by a court to stay in Australia as primary caregivers, they should be granted the rights and privileges of permanent residents.
If she has been married to an Australian citizen, it is possible that the temporary visa is changed to permanent in the event of a breakdown.
The government says it has issued 2,450 permanent visas on that basis over the past five years.
But on an Australian visa attached to a New Zealand citizen, there is no such route.
Mary said a lawyer told her the visa had so many restrictions it was “inconceivable” that she would have to be detained in Australia.
“This violates the principles of family law and immigration,” he said.
Over the years, he said he had been obsessed with situations of “injustice and injustice”.
“Despair and sadness are eating me alive,” he said.
“I feel like I’m not a citizen of any country. I feel left out.
Mary’s situation made it to the United Nations after she was inspired by a similar case where women approached the body because of perceived injustice.
Last year, Melbourne mother of three, Juanita McLaren, went to the United Nations Commission on the Status of Women as part of a human rights complaint about the poverty levels single mothers face in Australia.
And in a landmark case in the Netherlands in 2017, it was decided that under EU law, foreign nationals who are the primary caregivers will have the same rights as Dutch citizens if they are ordered to remain in the country by the Family Court.
The United Nations wrote to the Australian Government on Mary’s behalf in July and raised some concerns.
It said Mary had lived in Australia “in conditions of vulnerability and uncertainty, with restrictions on movement and inability to access social protection and support, as a result of the discriminatory impact of the intersection of family law and immigration law”.
She added: “We are concerned that while her freedom of movement has been limited on the grounds that children have the right to have relations with both parents, the Government has not at the same time ensured she has the same residency rights as her children and ex-husbands.”
Mary said she was very pleased the UN was highlighting her case.
“I feel very empowered,” he said.
The Government response sent in September provided no solution other than suggesting that Mary look at other visa options, such as skilled migration.
However, Mary is not eligible for skilled migration because her employer has a company policy not to sponsor employees, and she also needs to retrain to qualify under the skills category.
Mary said her response was disappointing, but not surprising.
“I really think they don’t understand what’s going on.
“They simply don’t understand their 461 visa has caused so much trouble and trouble for the children and the mother.”
Pip Davis is the lead attorney at the NSW Women’s Legal Service and said the state and federal governments needed to take “urgent and immediate” steps.
“This is a loophole that the Government needs to address urgently so that all visa holders benefit from the same protection regardless of visa status,” he said.
Assistant Shadow Minister for Community and Family Violence Prevention Senator Jenny McAllister said the government had “many tools” to deal with problems with migrants on temporary visas.
“The Minister for Women’s Affairs said this was a ‘priority’ for her but her actions said otherwise,” she said.
“At the very least the Minister should commit to including this at the next COAG Women’s Safety Ministers meeting and direct his department to work across government to provide practical options for supporting these women and children.”
A spokesman for New Zealand’s Ministry of Foreign Affairs and Trade said he had regularly raised the issue with the Australian Government.
“New Zealand is aware that some of its partner New Zealand citizens who have 461 visas face various challenges in Australia and that in some cases those challenges will increase during the COVID-19 pandemic.”
The Ministry of Home Affairs confirmed there was no “direct path” to the permanence of the 461 visa, but said “applicants can meet the eligibility criteria for permanent residency under different visa streams”.
A spokeswoman said: “This issue is a priority for the Women Minister, who is working closely with ministry colleagues across the government to advance practical policy solutions to better support women on temporary visas.”
Mary said she would continue to fight for her and her children not to be treated as “second class citizens” – and to raise awareness.
“I don’t expect that to change next month or next year, or maybe even in the next five years.
“But I really don’t want anyone else, no other parent with primary care responsibilities, to be in this situation.
“They shouldn’t – that’s surprising.”
* Not his real name