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The Full Court of the Federal Court of Australia has ruled that there is no requirement under the Migration Act for two people to live together prior to lodging an application for a Partner Visa on the basis of a de factorelationship. The Court thus rejected an appeal by the Minister against a decision of the Migration Review Tribunal that reached the same conclusion.

The Court’s decision in this case – SZOXP v Minister for Immigration and Border Protection, (2015) FCAFC 69 (11 June 2015) – is of obvious significance for all RMAs who are advising de facto partners in relation to Partner Visa applications. The case removes an obstacle to these types of applications, as it apparently has been the case that the Department has been refusing applications for Partner Visas in circumstances where the applicant and sponsor did not produce evidence that they had lived together before the application was lodged.

The background of this case was interesting in itself, as the applicant and his sponsor had chosen not to live together for religious reasons. The applicant was a citizen of China.  He filed an application for a Partner Visa on the basis of his claimed de facto relationship with his sponsor in October 2012. The couple was married about a month after the visa application was lodged with the Department.

Very curiously, a Departmental officer refused the visa application on the basis of the officer’s conclusion that the applicant and sponsor were not in a de facto relationship. One might comment here that, given the notoriously long processing times for assessment of “offshore” partner visa applications, it seems strange that the Department would not have been informed about the marriage, or, if the Department was informed, that it did not simply approve the visa application on the basis of the marriage.  However, the decision of the Full Court does not indicate whether the Department had been informed about the marriage or had taken it into account in its assessment of the application.

Be that as it may, when the refusal of the Partner Visa application was brought before the MRT, the Tribunal found that the applicant and his Australian sponsor had been in a committed and exclusive relationship since December 2011. They were both devout Buddhists and had to follow a Buddhist precept against living together before marriage.  The MRT found that the requirements for a de facto relationship were nonetheless satisfied.

The Minister appealed the decision of the MRT to the Federal Circuit Court, which held that the MRT had committed a “jurisdictional error” in finding that there is no requirement under the Migration Act for the parties to live together in order for a de facto relationship to be found to exist.  The visa applicant then appealed to the Full Court, and was successful.

In the end, the Full Court apparently did not find any difficulty in concluding that there is no requirement in the Act that de fact partners live together before a Partner Visa application is lodged.

The Full Court simply reviewed the language of the Act, and found that proof of cohabitation is simply not necessary to establish a de factorelationship.

The statutory provision at issue in the case was section 5CB of the Act. This section states that a person is in de facto relationship if:

  1. a) They have a mutual commitment to a shared life to the exclusion of all others; and
  2. b) the relationship is genuine and continuing; and
  3. c) they either (1) live together or (ii) no not live separately and apart on a permanent basis.

The Minister contended before the Full Court that section 5CB(2)(c)(ii) should be interpreted as if it required that the parties “have previously cohabited and do not live separately and apart on a permanent basis”.

However, the Full Court determined that section 5CB should not be construed in the manner suggested by the Minister.  The Court found, of course, that the express words of the Act do not say that the parties must have previously cohabited”. The legislation says nothing more than that the parties must not live separately and apart on a permanent basis.  The Court applied well-settled principles of statutory interpretation that legislation should not be read as if it contains “additional words” when doing so would be “too much at variance with the language in fact used by the legislature”.

In short, the Minister’s submissions that section 5BC should be interpreted as if it included a requirement which is completely absent from the express wording of the section literally “went down in flames” and “crashed and burned”!

It is a bit difficult to comprehend exactly why the Minister/Department determined that it was necessary to press this matter in the Federal Courts. One might think that the Minister/Department would have been satisfied that the requirements for a Partner Visa were satisfied due to the fact that the applicant and sponsor were legally married (apparently for years before the case came before the Full Court). For reasons that are not clear because they are not described in the Full Court’s judgment, the minister/Department apparently did not accept that the matter was “moot” and believed that the rights of the applicant turned on the determination of the Federal Court proceedings.

Equally it might be said that it seems odd that the applicant and his sponsor premised their application for a Partner Visa on the basis of a de facto relationship when, at the time that they lodged the application, they were apparently intending to get married, and when they were in fact married about 1 month after the application was lodged.  It would seem that the entire controversy would have been avoided if they had simply sought a partner visa on the basis of Prospective Marriage, or if they had simply waited a month and then filed their application on the basis that they were actually married.

Whatever the case, the outcome of this matter has made it crystal clear that de facto partners do not need to live together before they file a Partner Visa application.  They need only meet the actual, express requirements of section 5CB of the Act.  Under the Full Court’s interpretation of the legislation, it is not a problem if the parties do not “cohabit” before the application is lodged.  In circumstances where the requirements that the parties can satisfy the requirements that they have a mutual commitment to a shared life together to the exclusion of all others and that the relationship is genuine and continuing, the application will encounter difficulties only if it is the case that they do not meet the test of section 5CB(2)(c)(ii) – that is, if they live separately and apart on a permanent basis.