Refusal of Partner Visa Overturned!

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Court holds parties’ intentions concerning marriage irrelevant to partner application based on de facto relationship

Getting a partner visa can be a real headache!

Even if the applicant and the sponsor are in a genuine de facto relationship.

And even where there are a number of witnesses who have provided statutory declarations attesting to the genuineness of the parties’ relationship.

The difficulties that an applicant can encounter are illustrated by what happened in a case that was recently decided by Judge Smith of the Federal Circuit Court in Sydney, Ku v Minister for Immigration& Anor (2018) FCCA 3066.

The applicant in this case was a citizen of Taiwan, who over the 20 year period prior to the filing of his application for a partner visa had spent a considerable amount of time living in Australia.  The last substantive visa that the applicant had held before applying for the partner visa was as a religious worker (a “subclass 401” visa).

Although the applicant had sought the partner visa on the basis of a longstanding de facto relationship with his companion, when the case came before the Administrative Appeals Tribunal, the Tribunal member questioned the applicant and his sponsor about why they had not married after being together for a period of 8 years.

The applicant and his sponsor replied to this question  by saying that because they were already living together and in a committed relationship with each other, they had not seen any pressing need to get married.  They also said that since their children were all overseas, they had not married because they were at a loss to know who besides their children that they would invite to the wedding.

In its written decision, the Tribunal focused on the facts that the applicant and his sponsor had not married, and that they did not present themselves to friends and family as a married couple.  Relying on those facts, the Tribunal concluded  that the parties did not have “a mutual commitment to a shared life together as husband and wife  to the exclusion of all others”,  that the parties did not live together in a spousal relationship”  and that therefore the parties’ relationship was not genuine and continuing.

The error that the Tribunal made in this case was fairly obvious.

The Tribunal completely overlooked the fact that a partner visa can be predicated on a genuine de facto relationship, and does not depend on the parties’ being married at all.

Indeed, Judge Smith observed in his reasons that: “The question whether two people are in a genuine de facto relationship obviously has nothing to do with, and cannot be affected by their marital status, or indeed their intentions regarding, or attitude towards marriage.”

Therefore, in a situation where the partner visa application was based on a de facto  relationship, the issue of whether the parties were legally married, or whether they intended to have a wedding, or whether their explanations for not having a wedding after having lived together for a long period of time,  were all completely irrelevant.

The only relevant question that should have been considered by the Tribunal was whether the applicant and his sponsor were in a genuine de facto relationship.

So what happened in Ku was that the Tribunal mistakenly combined, or “conflated” the question of whether the applicant and his sponsor were in a genuine de facto relationship with the question of whether they were married, or why they had not become married.

The case provides a great example of why it is so essential for migration agents and lawyers who are representing visa applicants to read the written reasons given by the Tribunal with great attention to detail and care: under what may seem like a fairly rote, routine decision, an error may well be found that shows that the Tribunal’s decision hinged on a consideration of irrelevant matters.

And that error may well prove to be a “golden nugget” that will enable the visa application to be rescued through recourse to the federal courts.

So just because the Tribunal may have affirmed a decision to refuse a partner visa application, that does not necessarily mean that all is lost.

The Ku case is a prime example of that!

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