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Motives for Entering Marriage Will Not Prevent Grant of Partner Visa

Does it matter if an applicant for a partner visa‘s motives for entering into a marriage are primarily to get a visa to remain in Australia?

If an applicant’s motives are primarily to get a visa, does that mean that other evidence demonstrating that the applicant is in a genuine spousal relationship can be disregarded?

These important questions were considered in a decision that was handed down last week by Justice Driver of the Federal Circuit Court, Mahmoud v Minister for Immigration & Anor (2018) FCCA 54 (8 February 2018).

The background facts of this case were that the applicant was a citizen of Egypt who had originally arrived in Australia on a student visa in 2005.  He met his sponsor in July 2013; they were married in a religious ceremony in October of that year, and then had a civil marriage in January 2014.  The applicant’s student visa was due to expire “only” four months after the civil marriage ceremony.

The partner visa application was accompanied by a variety of supporting material, including statutory declarations of witnesses to the relationship.  In its decision affirming the Department’s refusal of the application, the Tribunal acknowledged that the applicant and his sponsor were validly married under Australian law, and that there was a “great amount” of documentary evidence, along with “broadly consistent oral evidence” that pointed to the existence of a genuine and committed relationship between the applicant and the sponsor.

Nonetheless, the Tribunal found that its concerns that “the relationship was arranged to enable the applicant to remain in Australia” outweighed the other evidence in the case, and led it to conclude that the applicant and the sponsor did not have a mutual commitment to a shared life together to the exclusion of all others, and that their relationship was not “genuine”.

Justice Driver held in this case that even though an applicant’s motivation for entering into a relationship is a “relevant consideration”, a desire to remain in Australia is “not necessarily inconsistent with the formation of a mutual commitment to a shared life with another person”.

Justice Driver referred to this important passage from the Full Court’s decision in the case of Minister for Local Government & Ethnic Affairs v Gamdur Singh Dhillon & Anor (1990) FCA 144.

“It is not necessarily inconsistent with a genuine marriage 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. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others.”

Justice Driver noted in his reasons that this language from Dhillon remains an accurate statement of the law, as it was recently by the Full Court in the recent case of Minister for Immigration v Angkawijaya ((2016) FCAFC 5.  In that case, it was held that a person’s desire to remain in Australia is not “mutually exclusive” to there being a genuine de facto relationship.

Thus, in this case, Justice Driver concluded that even if the applicant’s “dominant” reason for entering into a spousal relationship with his sponsor had been his desire to remain in Australia, such a motivation was not mutually exclusive with the existence of a genuine spousal relationship.

So, can you get a partner visa even if the “dominant” reason for entering into a marriage or a de facto relationship is to get a visa to enable you to remain in Australia?

The answer provided by Justice Driver’s decision in Mahmoud, following the Full Court’s decisions in Dhillon and in Angkawijaya, is “Yes you can!!!!!!”

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

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Comments

  • Guest
    kevin Tuesday, 13 February 2018

    with decisions like this now officially open the floodgates

  • Guest
    JIMMY Tuesday, 13 February 2018

    people in danger or under threats are saved for their lives? or would they be sent back to face death penalties? send me everyday updates on immigration matters in all perspectives please?

  • Guest
    Jeremy Hooper Friday, 23 February 2018

    This is a timely decision. I will remove another reason for refusing a visa from the library of these ill trained case officers, and their "all too keen to refuse" supervisors.

  • Harbir Nindra J.P;ADLaw(NSW)
    Harbir Nindra J.P;ADLaw(NSW) Saturday, 24 February 2018

    A very erudite Judge's decision that I am absolutely sure will be very well received by RMAs

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Guest Sunday, 25 February 2018
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