Faced with an appeal involving a relationship between a 90-year old man and his Indonesian de facto partner, Ms Angkawijaya aged almost 60, the Full Federal Court recently considered whether there must be love and affection for there to be a genuine spousal or de facto relationship.

The couple’s circumstances and explanations did not fit well into what the delegate and subsequently, the Tribunal expected to see in a relationship. When the member asked Ms Angkawijaya about the reason for her partner visa application, she said that, “she loved [Mr Limberiou] and she loved people generally” and that when she was asked if she loved him more than she loved people generally she said that she “loves all” and “loves everybody”.

Given her ambivalence about her feelings towards Mr Limberiou, and the other concerns, the Tribunal concluded that it was not satisfied that the couple had a mutual commitment to a shared life together. The Tribunal held that a de facto relationship which in the circumstances of this case did not include love and affection was not and could not be a de facto relationship within s 5CB(2) of the Act

However, the Full Federal Court found that the Tribunal erred and held that, “A couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love.”

In their joint judgement, Kenny and Griffiths JJ stated:

51. All the matters and considerations which are set out in reg 1.09A(3) may properly be described as relevant considerations which the decisionmaker is bound to take into account because the legislation so requires.

52. As emphasised above, however, these matters and considerations are not an exhaustive list of the potentially relevant matters and considerations. The Minister’s task under s 65 of the Act is subject to an overarching obligation imposed by reg 1.09A (2) to consider all the circumstances of the claimed de facto relationship. There is no basis in the legislative scheme to conclude that those circumstances do not include a consideration of whether or not there is love and affection in a claimed de facto relationship. In a particular case, for example, the evidence may suggest that the love and affection between the couple is very strong: that would be relevant to the genuineness and continuing nature of the relationship, as well as to the question of there being a mutual commitment to a shared life.

53. That is not to say, however, that the existence or absence of these aspects of a relationship is determinative. There may well be love and affection present in a relationship yet the Minister may not be satisfied that the visa should be granted because, having regard to the evidence relating to some other matter or consideration (whether or not specified in reg 1.09A (3) and as long as the matter or consideration is relevant to the circumstances of the relationship), the relevant criteria for the grant of the visa are not met to the Minister’s satisfaction at the time of the decision. Likewise, because the existence of love and affection is not determinative of the question whether there exists a de facto relationship at the relevant time, its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.”

http://www.austlii.edu.au/au/cases/cth/FCAFC/2016/5.html