A very intriguing decision by Judge Driver of the Federal Circuit Court,Angkawijaya & Anor v Minister for Immigration & Anor (2015) FCCA 450 (20 April 2015), provides fresh guidance to Registered Migration Agents and visa applicants concerning the evidence that is necessary to successfully get a Partner Visa application “over the line”.
Interestingly, the case holds that it is not necessary to demonstrate that the relationship is based on “romantic love”.
Perhaps it is possible that Judge Driver was listening to Tina Turner’s famous anthem on the radio before writing this decision, and hearing the song again for the umpteenth time confirmed the judge’s view that the answer to the question asked in the lyrics “What’s love got to do with it?” is “not much at all, if anything!” (at least for the purposes of migration law of course!). So perhaps the judge would agree with Tina that, where the criteria for grant of a Partner Visa are concerned, love is truly nothing more than “a sweet old fashioned notion”!
In this case, Judge Driver noted that there was a very large age difference (31 years!) between the applicant and her elderly sponsor (who was 89 years old); that the sponsor was unable even to spell or pronounce the applicant’s last name; and that the applicant had not been able to recall that her sponsor had been away from Australia for a three month period since the time that their “de facto” relationship had begun.
Notwithstanding these somewhat remarkable “issues in the relationship”, the Court concluded that the “true and only” test for the grant of a Partner Visa is whether the applicant and the sponsor “have a mutual commitment to a shared life…to the exclusion of all others” and that it is not the role of the Department or the MRT to “second guess” or make “value judgments” about the reasons why the applicant and the sponsor have entered into the relationship with each other.
To put it mildly, the applicant’s migration history and her relationship with her sponsoring partner were “unusual” and “unconventional”.
The applicant was a 58 year old woman from Indonesia. She had originally entered Australia on a tourist visa, and had then unsuccessfully applied for protection visas. She then remained in Australia as an unlawful non-citizen. She originally married a person who she was expecting to sponsor her to remain in Australia; however, it turned out that this person was ineligible to be a sponsor, and the applicant divorced him. This is quite an amazing “migration journey”!
The prospective sponsor was an 89 year old man of Greek ethnicity. The applicant and the sponsor had met each other in 2006 and had been living together since 2008.
The evidence concerning the relationship, as it was presented before the Migration Review Tribunal (following, of course, a decision by the Department to refuse the Partner Visa application) was that the applicant did not have a detailed knowledge of her sponsor’s financial affairs and that she did not have access to his funds other than money he placed in a joint account for the applicant’s use and for support of her children; that the applicant and the sponsor lived in the same household together and shared a bedroom; and that the applicant and the sponsor were recognized to be a couple.
What was troubling to the MRT, and what prompted it to affirm the Department’s refusal of the Partner Visa application, was the evidence concerning the nature of the commitment between the applicant and her sponsor. When she was asked at the hearing before the MRT whether she “loved” her sponsor more than other people, the applicant responded only that she “loves people generally”.
The MRT thus took the view that the relationship was one which involved a negotiation by the parties to meet each other’s needs and to “exchange services”, with the applicant having agreed to stay with the sponsor for as long as he lived, and the sponsor paying for the support of the applicant and her children and providing a basis for the applicant to secure permanent residency in Australia.
Thus, although there was evidence before the MRT that the applicant and sponsor had been “physically intimate”, that she prepared meals for the sponsor, assisted him with his medication and treatment, and accompanied him at home, the MRT concluded that the arrangement between the applicant and the sponsor was in reality one where the applicant was the sponsor’s “carer”. Consequently, the MRT decided that the parties did not have a commitment to a shared life together as partners.
On appeal, Judge Driver determined that the MRT was wrong to require that there be a demonstration of romantic love between in order to arrive at a finding that the applicant and sponsor had a commitment to a shared life together.
His Honour relied on the decision of the Full Federal Court in the case ofMinister for Immigration v Dhillon (1990) FCA 144, which quoted with approval remarks by Chief Justice Street in R v Cahill that:
“It is not necessarily inconsistent with a genuine…relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country”.
In the circumstances of this case, Judge Driver found that the parties had “agreed to remain together until his (the sponsor’s) death and to support each other in a personal relationship”, which went “well beyond a contractual agreement to provide care services”. The Court ruled that the fundamental issue to be decided was whether the parties had a commitment to a shared life with each other, and that the reasons for their entering into that commitment (e.g. that the applicant was to get residency in Australia by reason of her relationship with the sponsor, and the sponsor was to get care and support) were ultimately “immaterial”.
Accordingly, the Federal Circuit Court determined that the MRT had been in error when it relied on evidence that the applicant had not professed feelings of romantic love for her sponsor, and that she had not said in her evidence that she had greater feelings of love for her sponsor than for the rest of humanity in general.
The message than can be drawn from the Court’s decision is that the “emotional content” of a couple’s relationship is not necessarily determinative of the fate of a Partner Visa application. People can enter into a relationship for a wide range of reasons, and it is not the place of the Department, the MRT or the Courts to scrutinize or question those reasons.
The sole consideration that matters is whether the parties have a mutual commitment to a shared life together to the exclusion of all others; the internal emotional dynamics of the relationship are simply not something that is a factor in determining the merits of a Partner Visa application.