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Posted by on in Partner Visas
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Significant Partner Visa Decision from Federal Court!

Does it matter if the applicant for a Partner visa is not concerned or interested in the religious life of his sponsoring partner? 

Does a lack of interest in one’s partner’s religious life necessarily mean that an applicant is not providing emotional support to his partner? 

Is it fatal to a Partner visa application? 

These interesting questions were at the heart of a case that was decided late last week in the Federal Court, Singh v Minister for Immigration and Border Protection (2017) FCA 1298. 

The background of this case was that the applicant, a citizen of India, had originally arrived in Australia in 2009 as the holder of a student visa. In 2012, he met his future wife, an Australian citizen, in a shopping centre (of all places!). They were married in March 2013, and in August of that year, he applied for a Partner visa. 

The critical aspect of the relationship, for the purposes of the Federal Court case, was that the applicant is a Sikh and his wife is Christian. 

At the hearing before the Tribunal (after the Partner visa application was refused by the Department) the applicant gave evidence that he had “not bothered” to ask his wife to what church she belonged. 

The Tribunal made a finding that the applicant’s “lack of interest in the sponsor’s church as an indicator of his lack of support for her”.  

It then relied on this finding to support a conclusion that it was not satisfied that the applicant and his sponsor were “committed to each other ...emotionally as spouses”. 

And so it affirmed the refusal of the Partner visa application. 

Was the Tribunal correct to determine that since the applicant had not shown interest in his sponsor’s religious life that he did not provide her with emotional support? Or did this amount to jurisdictional error, requiring the case to be sent back to the Tribunal for “re-determination in accordance with law”? 

In this case, Justice Charlesworth of the Federal Court found that it was jurisdictional error. 

In essence, the Court held that a lack of interest in one’s partner’s religious life is not in and of itself determinative of the question of whether the parties to a relationship provide emotional support to each other, and thus does not necessarily determine whether the parties’ relationship is genuine. 

The Court ruled that the Tribunal simply did not make enough inquiries of the parties to evaluate the degree of emotional support that they drew from each other.  It did not ask the sponsor whether the applicant’s lack of interest in her religious life was something that affected her emotionally or not, or whether his lack of interest in her church affected the degree of emotional support that she derived from the relationship. 

As a matter of fact, in this particular case it appears that the applicant’s lack of interest in his wife’s religious life made no difference to the degree of emotional support that his wife received from him: 

In evidence that he gave before the Federal Circuit Court, the applicant had stated:

“I never asked my wife more in detail about her religion nor has she asked me. So what? Myself and my wife are ok about it.” 

Justice Charlesworth made these noteworthy observations concerning how the Tribunal should carry out the task of assessing the degree of emotional support that the parties’ to a relationship derive from each other, under Regulation 1.15A(3)(d): 

* The question is not to be resolved by reference to an “objective standard of the gratuitous or unsolicited support one spouse should give to the other”; 

* “Nor is the assessment to be made by reference to the decision-maker’s idiosyncratic view of what constitutes a supportive husband or wife.” 

In other words, just because a Tribunal member may subjectively consider that one cannot provide emotional support to a partner without taking an interest in the partner’s religious or spiritual life, that does not necessarily mean that the parties do not provide an adequate degree of emotional support to each other for the relationship to be considered genuine.  In some relationships it matters and in others, for example the one at issue in this case, it doesn’t matter at all. 

As Justice Charlesworth noted: “The proper focus is on the nature and extent of the emotional support subjectively desired by one party to the relationship and the degree to which those desires are fulfilled in fact by the other party” 

So the moral is that there is no “universal” or objective” standard by which the question of whether the degree of emotional support derived by the parties to a relationship can be measured; it is something that is entirely subjective and particular to each individual relationship, and therefore must be assessed and determined on a “case-by-case” basis. 

So the answer to the question, “Does it matter whether a person takes an active interest in the religious life of her/his partner?” is: not necessarily! In some cases yes, and in others no, but the question is not by itself a fixed standard by which the genuineness of every relationship can be measured. 

Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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Comments

  • Guest
    GARBAGE IN GARBAGE OUT Monday, 13 November 2017

    Bull - this SINGH case has nothing to do with partner visa but on a total different issue of English language competency!!

    Get you facts right.

  • Michael Arch
    Michael Arch Monday, 13 November 2017

    Apologies to all. There were 2 Singh cases decided on 9 November 2017, I inadvertently linked to the incorrect decision, the link has now been repaired.

    I would ask that those who find errors in any post to endeavour to point them out in a polite and courteous manner (unlike the person above) - you might find out it goes a long way!:)

  • Guest
    Ganasan Arujunan Monday, 13 November 2017

    Agree with you Michael.
    Also you have been doing a fantastic job in bringing all these cases to the readers. I particularly eagerly look for you post.

  • Guest
    Mr EyesOnDetails Monday, 13 November 2017

    Hi, the link to the case law leads to the previous hearing with the same name and date but not FCA number:
    Minister for Immigration and Border Protection v Singh [2017] FCA 1297 (9 November 2017)
    Click on ( http://classic.austlii.edu.au/au/cases/cth/FCA/2017/1298.html ) for the Singh v Minister for Immigration and Border Protection (2017) FCA 1298. ) (Partner case)

  • Guest
    Paul Foster Friday, 17 November 2017

    Mr Bull, It is always better to appear to be a rude fool, that make a post like yours and remove all doubt.

  • Guest
    Paul Foster Friday, 17 November 2017

    "than" not "that" make a post like yours .....

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