Australian Immigration Daily News

Is it possible that there is anything that could be more frustrating in the “universe” of migration practice than for the Department to “doubt” the “genuineness” of a genuinely genuine relationship, and to refuse an offshore partner visa application that is genuinely meritorious? 

Bad, bad enough that the Department has seen fit to raise the application fees to a point where they cost an arm and a leg and another arm and another leg! 

And worse, worse yet that the Department’s processing times for these applications make “a snail’s pace” seem like “warp speed” – what on earth is it that makes review so beeping beeping slow?? 

One can only have the greatest and most heartfelt sympathy for couples in genuinely loving relationships who are kept apart by the Department’s unjustifiably slow processing times! And even worse when the Department sees fit to question the relationship and refuse the application! 

Well, at least for offshore partner visas, there is the saving grace that the refusal of an offshore partner visa application is “Tribunal-reviewable” – unlike offshore student visa applications or visitor visa applications that are not “sponsored”, where the refusal can be totally arbitrary and there is zero recourse against a refusal! 

There was recently a case before the Administrative Appeals Tribunal which shows that there is hope for getting the refusal of an offshore partner visa application overturned, and which offers some guidance about the kinds of evidence that may help to “turn the tide” – 1421176 (Migration) (2015) AATA 3632 (16 November 2015). 

The background of this case was that a 49 year-old Australian man sought to sponsor a 36 year-old Austrian woman who he had met while taking an intensive German language course while he was in Vienna.  A Departmental officer refused their partner visa application on the basis that the officer was not satisfied that the relationship had reached the level of a committed de facto relationship. 

So what evidence did this couple rely on to persuade the Tribunal that they were genuinely in a genuine relationship? 

Well, fortunately for them, they were able to get the Tribunal member to make a “holistic” assessment of their relationship based on the factors that are specified in Regulation 109A – the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of their commitment to each other – and that the Tribunal member ultimately came to a positive conclusion on the basis of these factors. 

One aspect that was potentially problematic for this couple – and would likely be problematic for many many couples living in different countries – was the financial aspects of the relationship. They did not have any joint assets or liabilities at the time that the application was submitted. Nor did they “intermingle” their finances. However, both the applicant and the sponsor were able to provide evidence that it had not been their practice in previous relationships to intermingle their financial affairs with their partners.  There was evidence that both the applicant and her Australian sponsor had each paid for their household and other daily expenses when they were living in their respective home countries. 

Consequently, the Tribunal found it appropriate not to hold it significantly against the application that the couple had not pooled their finances and had not made any major purchases together. It also helped their case that they had jointly met with the sponsor’s accountant in Australia to discuss their financial situation. The Tribunal accepted that evidence to be consistent with the type of joint financial decision-making that was consistent with a committed, long-term relationship. 

Another of the grounds upon which the Departmental officer who had refused the application was skeptical of the genuineness of the relationship was the officer’s concern that the couple “did not spend more time together”.   However, on the evidence in this case, it seems like the officer’s concerns and objections were truly baseless.  The couple was able to show through travel and other documents that out of the 12 month period prior to the lodging of the application, the couple had spent 8 months together, either living together in Austria or in Australia,  or travelling to various other places around the world together. 

They also were able to offer evidence to the Tribunal that they shared domestic duties such as cooking, washing and cleaning while they were together; that the sponsor had business commitments that required him to limit the length of his absences from Australia; and that the sponsor had received advice from his accountant not to spend more than half the year living outside of Australia. 

The Tribunal concluded that the evidence that the couple had spent 8 out of the 12 months before lodgment of the application together, while balancing their respective work, business and taxation issues, to be consistent with their claim to have a genuine de facto relationship with each other. 

The moral here is that it will assist the prospects of the partner application if the parties can show that, notwithstanding that they live in different countries, the parties can show that they spend as much time as possible together, and that they offer a persuasive explanation of the reasons why they have had to spend periods of time apart from each other. 

It was also extremely helpful that the couple in this case were able to present very compelling evidence concerning the social aspects of their relationship.  This included: Numerous (not just 2!) statutory declarations from family, friends and work colleagues attesting to their knowledge of the couple’s relationship, as well as many photos of themselves socializing together and with family and friends. 

The moral that can be taken from this is that where the people in the relationship live in different countries, it will strengthen an application if extensive and voluminous evidence concerning the social recognition of the relationship is presented.  It does not seem like it is possible to present “too much” evidence on this issue to the Department (or, if it becomes necessary, to the Tribunal). 

Another factor that assisted the couple in this case was the evidence concerning the nature of their commitment to each other.  Even though they normally lived on opposite sides of the planet, they were able to show that they had spent 70 % of the time over the 20 months before the application with each other, each making numerous trips between Australia and Austria; and that they each had knowledge of the other’s previous relationships, which the Tribunal took to be an indication of the level of intimacy and commitment between them. 

The ultimate message that can be taken from this case is that “where there is true love, there is always hope”.  Even though there may be occasions where the Department’s staff takes the view that it is their primary role to “prevent applicants from rorting the system”, and they must assess applications with a jaundiced and skeptical eye, this can still be overcome. 

It is simply essential, in every case, to assemble the strongest available evidence to prove that the relationship is indeed genuine!!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837