For many clients of Snedden Hall & Gallop, the ability to sponsor their overseas partner for a visa to come to Australia is seen as a right of fundamental importance.
Whether the couple is in a de facto relationship or is married, the Migration Act and Regulations set out certain criteria for overseas partner to apply for a visa and for the Australian permanent resident or citizen to sponsor them.
For those considering applying for a partner visa, it is important to take note, a simple profession of love for each other is not enough to prove that the relationship is genuine. Indeed, because of a recent Federal Court decision, whether or not the couple actually loves each other is becoming less relevant.
Instead, the requirements for this visa include providing evidence that the relationship is genuine and continuing and is to the exclusion of all others. The couple must prove that they live together or at least not apart on a permanent basis and must meet certain threshold evidentiary requirements showing the nature of their relationship measured against social, financial and household factors.
For a de facto relationship there is an extra requirement that the relationship has existed for at least 12 months.
Two recent Full Federal Court decisions have provided some clarity around these requirements when applying for a partner visa.
The first case, SZOXP v Minister for Immigration and Border Protection  FCAFC 69 (11 June 2015) investigated the concept that the couple does not live “separately and apart on a permanent basis”. The court held that this language did not put a positive obligation on the couple to have lived together prior to making their application and instead required that the couple must, if not already living together, intend to live together as soon as possible, and usually following grant of the visa.
This is obviously a crucial ruling for any couple which is currently living separately due to citizenship and visa requirements (ie; the Australian sponsor lives in Australia while the overseas partner still lives overseas).
The second case, Minister for Immigration and Border Protection v Angkawijaya  FCAFC 5 (29 January 2016) looks at the place of concepts such as “love and affection” in the Migration Act definition of a de facto relationship. In this case, the Department had refused a visa on the basis that they believed the couple were in a relationship of convenience and not one filled with love.
The Court held that while love and affection are relevant to a consideration of the genuineness and continuing nature of the relationship, they were not in themselves determinative of whether or not a relationship exists.
There are many factors, the Court held, which help to determine whether a relationship is genuine and continuing, and the existence of love and affection is just one.
These two cases highlight the ever-changing nature of migration law and the complexities of applications for visa subclasses considered to be ‘simple’ such as the Partner Visa.
If you need advice or assistance with a visa application, including applying for a partner visa, our team of Migration Law experts are here to help. Contact them today.