A significant decision for Partner visa applicants, the Full Federal Court has determined that in order to satisfy the definition of ‘de facto partner’ per Section 5CB of the Migration Act, living together is not a necessary requirement prior to lodging an application for a Partner visa.
The requirement is for the applicant to be the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, both at the time of application and time of decision.
Under section 5CB of the Act, a person is in de facto relationship if:
a) They have a mutual commitment to a shared life to the exclusion of all others; and
b) the relationship is genuine and continuing; and
c) they either (1) live together or (ii) do not live separately and apart on a permanent basis.
Of significance to individuals in a de facto relationship yet not residing together, the Full Federal Court found that proof of cohabitation is not a necessary requirement to establish a de facto relationship, provided they do not intend to live separately and apart on a permanent basis.
Summary
The appellant in the case of SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 (11 June 2015), was refused a Subclass 820 Partner (Temporary) (Class UK) visa by a delegate of the Minister for reasons including not being in a de facto relationship.
Findings of the Tribunal:
- The spouse was an Australian citizen;
- the appellant and the spouse were in a committed relationship prior to lodgement and their relationship was exclusive;
- at the time of application, the appellant and the spouse had a mutual commitment to a shared life to the exclusion of all others, and the relationship was genuine and continuing;
- the appellant and spouse were both devout members of the Buddhist faith, sharing and following the teachings of the faith which dictates they should not have sexual relations or cohabitate prior to marriage
- the appellant and spouse did not reside together on the basis that they intended to marry first
- the appellant and spouse were prevented from living together as the appellant was held in immigration detention
The Tribunal held there was no requirement for the parties to live together and cohabitate for the de facto relationship to exist.
The Minister sought judicial review in the Federal Circuit Court on the basis of ‘jurisdictional error’, with the primary judge considering the “resumption of cohabitation”, ultimately finding in favour of the Minister.
The applicant then appealed to the Full Federal Court which was found in his favour.
Interpretation
Per the Full Federal Court’s interpretation of the legislation, cohabitation is not a necessary requirement prior to lodgement of the visa application. Supported by legislative history, the decision cleared ambiguities surrounding the requirement to physically reside in the same premises, provided they satisfy requirements of having a mutual commitment to a shared life together to the exclusion of all others, the relationship is genuine and continuing, and they do not live separately and apart on a permanent basis, consistent with provisions of the act and the definition of spouse per s5F.
In the case, the appellant and spouse were found to have been in a de facto relationship, although not residing together for religious reasons at the time of application.
Many couples may find themselves in similar situations whereby they do not reside together nor are in a typical de facto relationship by definition of the word, for reasons including but not limited to employment, religion, culture and so on.
Each couple’s circumstance is different, therefore it is advisable that you seek an opinion from an Immigration solicitor to ascertain the particulars of your situation and assist with gathering necessary supporting documents for your case. Should you require assistance, please do not hesitate to contact ross@crystalmigration.net or (02) 9189 2988 for further guidance.