Australian Immigration Daily News

What if a husband and wife have an “appalling relationship”?

Will that mean that a partner visa application will be “doomed to failure”?

Does the fact that the husband and wife have a “fundamentally flawed” relationship mean that they cannot, at the same time, have a “mutual commitment to a shared life together” – and thus cannot satisfy the criteria for a partner visa?

And what’s the story if one partner to the marriage pays all of the household bills, and the other does not contribute any of her/his earnings toward the sharing of household expenses?

Does that, in and of itself, mean that the relationship is not “genuine and continuing”?

These questions were all dealt with in a decision of the Federal Circuit Court that was handed down on Monday: Singh v Minister for Immigration & Anor, (2016) FCCA 114 (1 February 2016).

As my colleague Jerry Gomez has pointed out in a recent post on this blog, we have already had some guidance this year – from the Full Court of the Federal Court - about the necessary “ingredients” for a successful partner visa application.

In the case of Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 (29 January 2016) which was handed down late last week, the Full Court held that it is not necessary for there to be an element of “romantic love” in a relationship in order for an applicant for a partner visa to prove that a genuine de facto relationship exists. This decision, by the way, affirmed an earlier judgment of the Federal Circuit Court of Australia - Angkawijaya & Anor v Minister for Immigration & Anor (2015) FCCA 450 that reached the same conclusion. (I have provided a full discussion of the Federal Circuit Court’s decision on this site back in June 2015, which can be found at the following link):

http://migrationalliance.com.au/immigration-daily-news/entry/2015-06-what-s-love-got-to-do-with-it-according-to-the-federal-circuit-court-not-necessarily-a-whole-lot-when-it-comes-to-a-partner-visa.html

The recent decision in the Singh case will contribute to our understanding of “how to get a partner visa application successfully across the line”. It is therefore “essential reading” for RMAs who are advising clients in this important area of migration law.

The account of the marital relationship that was the subject of the partner visa application in the Singh case did not exactly “paint a pretty picture”.

The background was that the applicant was a 26 year old Indian man who had originally come to Australia in 2008 on a student visa. The applicant met his sponsor on a dating website (where else!!) in December 2012. The sponsor was an Indonesian woman who was 37 years old, had been divorced, and had a child from her previous marriage who lived with his father. The applicant and the sponsor started living together in April 2013 and were married in May 2013. By August of 2013, the sponsor had left the relationship and the couple was no longer living together. The applicant claimed before the AAT that the sponsor had gambled a lot and had been violent towards him. In March 2014, the applicant obtained an “intervention order” against the sponsor.

In assessing whether there had been a “genuine relationship” between the applicant and sponsor, the Tribunal had regard to Regulation 1.15A of the Migration Regulations. It assessed the “financial aspects of the relationship”, and specifically, “the basis of any sharing of day-to-day household expenses”.

The evidence on this issue before the Tribunal was that, although the couple both were employed and had a joint bank account, the applicant paid all of their household bills. The sponsor did not contribute to the payment of utility bills or other living costs.

On the basis of this evidence that the couple did not share household expenses, the Tribunal came to the conclusion that the relationship between the applicant and the sponsor was not “genuine”. The Tribunal interpreted Regulation 1.15A as requiring that in order for there to be a genuine relationship, The parties must contribute equally, or at least substantially, to paying the expenses of the household.

The Federal Circuit Court held that this interpretation of Regulation 1.15A by the Tribunal was incorrect, and amounted to “jurisdictional error”. It was the Court’s view that the mere fact that the sponsor did not contribute her earnings toward joint living costs not, simply by itself, disqualify the relationship from being considered “genuine and continuing”.

The Federal Circuit Court also concluded that the AAT had committed jurisdictional error as a result of its finding that the marriage between the applicant and the sponsor was a “bad relationship”.

The Tribunal had found that: “the relationship was characterized for its duration by conflicting expectations, demands and mutual distress”. It determined that these aspects of the relationship were not consistent with a relationship between a husband and wife who share a mutual commitment to a shared life together to the exclusion of all others.

The Court took the view that this analytical approach by the Tribunal was mistaken, and amounted to a second form of “jurisdictional error”. The Court held that it was wrong for the Tribunal to decide the case on the basis that a “fundamentally flawed” relationship was one in which there could not be a mutual commitment to a shared life together.

In other words, the Court found that the Tribunal had decided the case based on an “irrelevant consideration” – whether the relationship between the applicant and the sponsor was a “good relationship”.

The Court observed that there are a significant percentage of marriages in which the parties have “an appalling relationship”, but that did not necessarily mean that such couples cannot nonetheless have a mutual commitment to a shared life together.

So, the lessons of this case are two-fold:

1. It is not essential that an applicant and sponsor share household expenses in order for a partner visa application to be successful; and

2. The critical issue for a partner visa is whether the applicant and the sponsor have a mutual commitment to a shared life together. The “quality” of the relationship is not a relevant consideration. The parties can have an “appalling” relationship, but that fact alone will not preclude a finding that they also have a mutual commitment to a shared life together to the exclusion of all others.

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