Australian Immigration Daily News

I do not want to earn a reputation as “The Grinch That Stole Christmas”! 

And I do not want to cast a shadow over the upcoming festive season (for which I wish my devoted readers: “All the best”!!!!!) by this series of articles about partner visa applications that “did not work out”. 

It just so happens that some interesting cases in this area are showing up right now through the reports on Austlii. So, much as I would like to be in control of the docket of the Federal courts (wouldn’t all of you like to have another migrant-friendly judge on the Federal bench (vote for me!!)), the subject matter of the decisions that have been coming down is really not my fault – don’t blame me! 

In fact I blame all of you! The articles that I have done on partner visas earlier this week has attracted a lot of discussion in the comments section of this blog, so, why not another one! 

The case that will be examined today is a decision that was handed down by the Federal  Court last week, White v Minister for Immigration and Border Protection (2015) FCA 1376 (4 December 2015). 

In this case, the parties “unconventional” living arrangements ultimately caused a partner visa application to “come to grief”. 

The story here was that the applicant was a British citizen. He had met his sponsor in 2003, eventually came to Australia on a prospective marriage visa, and then married the sponsor. He was then granted a “temporary” or “provisional” partner visa (subclass 820). However, when he sought a “residence” (permanent) partner visa, the application was refused. 

The source of the difficulty was that (at the time of the Tribunal hearing, and apparently at the time of the application), the applicant and his sponsor did not live together.  In fact, they did not live together at any time after the provisional partner visa was granted. 

The situation was that after the marriage to the sponsor, who lived in the Cairns area, the applicant moved to Melbourne because he could not find work in Cairns. The applicant stayed in Victoria for about a year and a half, and claimed that he had visited his wife six or seven times during that period.  

He then found work and rented an apartment back in Cairns. However, his wife remained in Port Douglas, where she was employed and where her adult children and grandchildren lived. 

It was claimed before the Tribunal that the applicant and his sponsor did not live together because of conflicting work commitments. The applicant did not have a driver’s licence and said that there was no work for him in Port Douglas. Although evidence was given to the Tribunal that the applicant and his wife were considering buying a business together at some point in the future, at the time of the hearing before the Tribunal they were not pooling their money together and had separate bank accounts. 

Even though the Tribunal accepted that the applicant and his sponsor had a “long-standing relationship”, it was not satisfied that the parties were in a “spousal relationship” as defined under Regulation 1.15A. Specifically, the Tribunal did not accept that the parties had a mutual commitment to a shared life together as husband and wife, or that they did not live “separately and apart” on a permanent basis. 

It was the Tribunal’s view that the applicant and his sponsor could have found accommodation convenient to both of their jobs, and that the limited frequency of their “face to face” contact was indicative of their lack of a lack of a mutual commitment to a shared life together. 

In the first stage of his appeal against the Tribunal’s decision that had affirmed the refusal of his application, the applicant argued that the Tribunal had misinterpreted the definition of “spouse” in the Act by concluding that the mere fact that the parties did not live together meant that they lived “separately and apart”. 

Indeed, case law that is referred  in the Federal Court’s decision holds that under “matrimonial law”, making a finding as to whether parties do live “separately and apart” requires what could be called a “two-stage” analysis. The terms “separately” and “apart” are what are known as “terms of art” for legal purposes – in other words, these terms each carries a “special meaning” that is different from what might be understood from the “common” or “ordinary” usage of these words outside the legal context. 

Under the relevant case law, the term “separate” has been interpreted to mean “living in different places physically”, while “apart” means that a married relationship no longer exists between the parties. 

In the event, the Federal Circuit Court determined that the Tribunal had not “conflated”, or “mixed together”, the necessary two-stage analysis. The Federal Circuit Court found that the Tribunal had in fact analysed both whether the parties lived in different locations and whether a marriage was still “subsisting” between the parties.  Accordingly, the Federal Circuit Court held that the Tribunal had not committed jurisdictional error. 

The outcome when the case was taken to the Federal Court on appeal from the Federal Circuit Court was procedurally complex but can be summarized very briefly:  the Federal Court did not find it necessary to address the claim that the Tribunal had misinterpreted the term “separately and apart” because the applicant did not challenge the Circuit Court’s ruling upholding the finding that the applicant and his sponsor did not have a mutual commitment to a shared life together as husband and wife.  Therefore, there was no possibility that the applicant could prevail in his appeal and be granted a visa even if his claim that the Tribunal had misinterpreted the term “separate and apart” had been successful. 

So, leaving all of these legal niceties aside, what does the result in this case tell us? 

Well, the first thing that it does tell us is that if parties never live together if they are married, they are very much vulnerable to a finding that they live “apart” and that, in that respect, they are at risk of being found not to have a spousal relationship (with all the negative consequences for a visa application that such a finding may have). 

The second thing that the case tells us is that if the parties never live together after a marriage, do not pool their finances together, and rarely see each other in person, they are at risk of a finding that they are living “separately”, in the sense of not having an ongoing spousal relationship.  

The third important point is that the mere fact that married people do not live together is not necessarily “fatal” to a partner visa application. That is the case, so long as they do not live physically apart on a “permanent” basis and so long as they can prove that their lives are not “separate” – that is to say, so long as a martial relationship is continuing.  

OK! So has everyone now had enough of stories about failed partner visa applications for the time being? Are you ready for 'Part 4" of this series or would you rather start getting ready for the holidays by "binge watching" a television series???

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