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Partner Visas: Motives for Relationship Don't Matter!

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!

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Comments

  • Guest
    Geo Sunday, 19 February 2017

    The indian guy's motive is just to get visa in Australia by marrying the aussie girl

  • Guest
    Bea Leoncini Tuesday, 21 February 2017

    I think the issue here is that there are lots of relationship types - this long held view by government that it needs to protect its citizens from 'perky foreigners wanting to circumvent the visa system' needs to change (limitation of sponsorships, etc) with the realisation that yes, there may be people who will shop around but there are far more relationships which arise from the need of companionship, mutual support, and long term stability as the norm (in fact, it has always been...) We know that the law accepts there doesn't have to be 'romantic love' between people to enter into a relationship to be genuine (though it helps, I guess); care for each other, mutual support and commitment to the exclusion of all others is what a relatioship is all about - after all, arranged marriages are still in vogue AND getting plenty of TV air time ('marriage at first sight' a case in point, though no foreigners there YET). In fact, the now defunct 'interdependent visa' category was established to cover both this AND same sex relationships; interdependency was the deal then and it is what seems to be the go for many relationships nowadays. As indeed happens within the broader Australian population (that is, aussies hitching themselves to aussies for various reasons) then it stands to reason that it will happen with aussies hitching themselves to foreigners and vice versa... We just need to get our head around it and, as usual, anticipate what the counterarguments are going to be so that these can be address to show the relationship is genuine, ongoing and to the exclusion of all others... the rest is the noise that needs to be well sorted if things go pearshaped... including AAT jurisdictional error. Thanks Michael.

  • Guest
    John Wednesday, 22 February 2017

    Very well summed up by Bea.

    Sorry Geo, the Honourable Judge has already delivered the judgement but it seems that you want to live in your own cacoon. Move on, the world has changed..

  • Guest
    Robert K Chelliah Wednesday, 22 February 2017

    The primary decision maker and the Tribunal Member is only required to assess the "intended genuine relationship as husband and wife to the exclusion of all others" . The collateral benefit derived by such union, including obtaining Australian resident visa is irrelevant for the assessment of partner visa. In any case all marriages are marriages that accrues some benefit for both parties. It is the "genuine intention" that is important and irrelevant issues should not be allowed to infect the decision.

  • Guest
    Robert K Chelliah Wednesday, 22 February 2017

    And in many arranged marriages the intention commences on the day of the marriage ceremony. the caveat being both partners must have the right to refuse the marriage. Intentions are expressed in words in conjunction with a whole set of circumstances that supports the credibility to the expressed intentions.

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