Valentine’s Day is around the corner but love is seemingly not around in the Federal Court.
A recent Federal Court case has sparked heated debate on whether love is a necessary factor in a spouse visa application. This case is worth pondering because the outcome will have implications on current and future spouse visa applications lodged and to be lodged at the Department of Immigration and Border Protection (DIBP).
A 58-year-old Indonesian woman had applied for a spouse visa based on her relationship with an 89-year-old Australian citizen, her sponsor in the spouse visa application. She was granted a temporary partner visa in 2009. However, when she applied for the permanent partner visa in 2012, she was anonymously reported that she did not live with her sponsor and eventually had her permanent visa application refused.
It has been stated that the Applicant had agreed to care for the sponsor in exchange for permanent residency for her and her children and financial support from the sponsor. After the AAT had decided to affirm DIBP’s decision, the Applicant took her case to the Federal Circuit Court (FCC). The FCC overturned and ruled that the Tribunal was making a “value judgment” in concluding the couple needed to share a romantic love to be in a legitimate de facto relationship.
An appeal made by DIBP has taken this case to the Federal Court. Federal Court Chief Justice Allsop upheld FCC’s decision and a previous ruling that the couple’s de facto relationship was genuine even though it was “calculated for personal advantage on both sides”. The Judge further stated that the legislation surrounding spouse visas does not require a de facto couple to show love or affection and ordered the minister to pay court costs.
However, it should not be mistaken as if “love is unnecessary for the spouse visa application”. As mentioned in our previous blog, a partner visa is assessed on four aspects:
- Financial arrangement between the couple
- Nature of the household duties
- Social context of the relationship
- Nature of your commitment to each other
The Applicant in this particular case had successfully demonstrated their financial arrangement, their household nature, social recognition, and most importantly, the couple had both admitted that they are each other’s emotional support and campaign. Looking at their respective age, love maybe absent but such absence does not mean that their relationship is not continuing & genuine.
The moral of this case is love may not be a necessary factor in a spouse visa application but without the element of love, it can be harder to prove continuity and genuineness of the relationship which is the crucial criteria of a spouse visa application. Spouse visa can be complicated in certain circumstances. If you wish to apply for a spouse visa, give us a call on +61 3 9078 6819 or email us on email@example.com to discuss your situation or visit our website on www.thinkvisa.com.au.