Australian Immigration Daily News

A very intriguing decision by Judge Driver of the Federal Circuit Court, Angkawijaya  & Anor v Minister for Immigration & Anor (2015) FCCA 450 (20 April 2015), provides fresh guidance to Registered Migration Agents and visa applicants concerning the evidence that is necessary to successfully get a Partner Visa application “over the line”. 

Interestingly, the case holds that it is not necessary to demonstrate that the relationship is based on “romantic love”.  

Perhaps it is possible that Judge Driver was listening to Tina Turner’s famous anthem on the radio before writing this decision, and hearing the song again for the umpteenth time confirmed the judge’s view that the answer to the question asked in the lyrics “What’s love got to do with it?” is “not much at all, if anything!” (at least for the purposes of migration law of course!).  So perhaps the judge would agree with Tina that, where the criteria for grant of a Partner Visa are concerned, love is truly nothing more than “a sweet old fashioned notion”!

A recent decision of the Migration Review Tribunal provides a powerful example of why it is so vital that non-citizens who wish to remain in Australia keep their visa status current at all times.

The case, 1410214 (2015) MRTA 181, involved an appeal against the Department’s refusal of a Partner Visa application (subclass 820).  The visa applicant had originally come to Australia from India in June 2007 on a student visa, which ceased in January 2008. The applicant then obtained a further student visa which ceased in June 2009. Although he was located by the Department in November 2011 and was given a bridging visa and an opportunity to apply for a further substantive visa by December 2011, he did not submit a further application until nearly two years later, in September 2013. At that time, while still on-shore in Australia, he sought a Partner Visa which was sponsored by his wife, who he had married in December 2011. The marriage took place prior to the deadline given to the applicant by the Department for lodging a further substantive visa. 

The obstacle that the applicant faced to his application was that he had failed to comply with the criteria of Schedule 3 of the Migration Regulations 1994. Furthermore, the applicant was not able to persuade the Department or the MRT that there were “compelling reasons” for not applying these criteria to his case.  The applicant’s failure to meet the Schedule 3 criteria, or to show that he was entitled to a waiver of the criteria, ultimately proved fatal to his on-shore Partner Visa application.