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OK everyone, hang on to your hats!
Are you ready to read about a really interesting case about partner visas?
The answer better be yes, or I will go on strike (just kidding of course!)
But in all seriousness, this is a case you need to know about if you ever handle partner visa applications. It was handed down by the Federal Circuit Court on 2 February and just showed up on Austlii earlier this week: Malhi v Minister for Immigration & Anor (2017) FCCA 119 (2 February 2017).
And it is especially useful lf you ever handle a partner visa application where there is a significant age difference between the parties.
The story here was that the applicant was a male citizen of India. His sponsor was a woman who was an Australian citizen. At the time of the Tribunal decision, the applicant was 26 and the sponsor was 52.
Here are the issues that were raised by the case:
1. Does it matter if the parties have entered into a relationship in what the Tribunal considers to be a hasty way, without thinking through all the potential consequences for their future life?
2. Does it matter if the parties haven’t talked through questions about whether they would have biological children together, and what the consequences for their relationship might be if they had not had that conversation?
Well, as far as the Tribunal was concerned, both of these factors did matter, a lot!
In its decision, the Tribunal raised doubts about whether the relationship between the applicant and the sponsor was genuine because, in the Tribunal’s view, the applicant, not being sure whether he would gain permanent resident in Australia, had entered in to marriage with the sponsor “without having thought through the consequences for his future in a meaningful way”.
The Tribunal was also troubled that “the sponsor was ready to embark upon a new relationship with all the complexities entailed, given the visa applicant’s residency status, when she had been through a troubled relationship previously”.
The Tribunal also found it problematic that the applicant and the sponsor had not had a meaningful discussions about having children together.
Remember, the proceedings in the Tribunal are not supposed to be about “relationship advice” – it’s not “Married at First Sight” or a newspaper advice column like “Dear Abby”!
So, how much do the parties’ motives at the time they first enter into a relationship matter?
How about: not at all!
The Court (Judge Jones) observed that the test of whether a relationship is genuine and continuing is to be examined at the time of the Tribunal’s (or the Department’s) decision! Thus, according to Judge Jones, parties can enter into the relationship in the first place “for motives that are not necessarily genuine”. In fact, they may enter into the relationship for the very purpose of a person obtaining a visa!
It is also open to the parties to enter the relationship for reasons which may be considered by a third party or by the Tribunal to be “ill conceived” or “precipitous”.
All that matters is that the relationship is genuine and continuing.
Neither of these terms are defined in the legislation.
But the Court interpreted the term “genuine” to mean that the relationship must not, at the time of the decision, be either a sham or a false relationship.
And the Court said, with regard to the requirement that a relationship be “continuing” that an applicant and sponsor need only satisfy the Tribunal that the relationship will endure for the foreseeable future.
There is no requirement that the parties show that the relationship will “last into the long term” (!!).
So the migration legislation does not require an applicant and sponsor to show that they will be together until “death do them part”!
And what about having to have a conversation about children?
In this case, the Court found that the whole issue of whether the parties had had the kind of mature discussion at the commencement or early stage of the relationship about children that the Tribunal thought they should have had “overwhelmed its consideration of other matters”.
In the Court’s view, it amounted to jurisdictional error that the Tribunal had placed so much importance on this issue in reaching its decision.
So there you have it! We have seen on this blog that there is no requirement for the parties to live together, or to declare that they love each other in a romantic sense, in order for a relationship to be considered genuine. And here we see that the parties motives at the time of entering a relationship are irrelevant, even to the point that the relationship can be entered into for the purpose of one person gaining a visa for permanent residency in Australia.
And moreover, there is no need for parties to show that they have had a heart to heart discussion at an early stage of the relationship about whether they can have children, or what the consequences for their relationship might be if they cannot!