Among the requirements that must be met in order to qualify for a partner visa, the Minister for Immigration must be satisfied that the applicant and sponsor are in a genuine and continuing relationship as defined by the Migration Act and its Regulations. This is a touchstone criterion, and a common theme amongst partner visa refusals. This was the situation facing our client Mario, whose partner visa had been refused on the grounds that he was not in a genuine married relationship with his wife, Mia.
In this article, we take a closer look at what is required for a relationship to be considered as being a ‘genuine and continuing relationship’ for the purposes of meeting the requirements for a partner visa, and present a real-life case study of how we assisted Mario to reach a successful outcome on his partner visa application on appeal at the Administrative Appeals Tribunal (the Tribunal) after his application had been refused by Immigration. We also discuss the types of evidence of a genuine and continuing relationship that you can provide to the Department as part of your partner visa application.
Partner Visa Requirements
Firstly, be mindful that there are different types of partner visa options, with each one designed for a specific purpose. It is important that you apply for the correct partner visa subclass in accordance with your specific circumstances. The main distinguishing factor between the various partner visa options is the nature of your relationship with your Australian partner, and whether the application is to be lodged onshore or from outside Australia.
Married And De Facto Relationships
If you are married to, or are in a de facto relationship with, an Australian partner, and you are located in Australia, you may be eligible to apply for a Subclass 820/801 Partner visa.
If you are located offshore, the equivalent offshore application is the Subclass 309/100 Partner visa.
What Is A Married Relationship For Visa Purposes?
For the purposes of the Migration Act, two persons are in a married relationship if all the following requirements are met:
(a) they are married to each other under a marriage that is valid for the purposes of the Migration Act;
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others;
(c) the relationship between them is genuine and continuing; and
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
What Is A De Facto Relationship For Visa Purposes?
Under the Migration Act, a person is in a de facto relationship with another person if they are not in a married relationship (as outlined above) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others;
(b) the relationship between them is genuine and continuing;
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family.
Before we continue our discussion, you will note from the above that a factor common to both married and de facto relationships is that it is a genuine and continuing relationship.
Additional Factors To Consider
In addition, when making a decision on either an onshore or offshore partner visa application (for both married and de facto relationships), the Department must take into account collectively the following (A to D):
(A) the financial aspects of the relationship, which may be evidenced by:
(i) any joint ownership of real estate or other major assets;
(ii) any joint liabilities;
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments;
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses.
(B) the nature of the household, which may be evidenced by:
(i) any joint responsibility for the care and support of children;
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework.
(C) the social aspects of the relationship, which may be evidenced by:
(i) whether the persons represent themselves to other people as being married to each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities.
(D) the nature of the persons’ commitment to each other (this requires an assessment of the mutuality of the persons’ commitment to one another) having regard to (but not limited to):
(i) the duration of the relationship;
(ii) the length of time during which the persons have lived together;
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
The mutuality of the relationship may be assessed having regard to, for example:
- the partners’ knowledge of each other’s personal circumstances (this could include background and family situation and could be established in an interview); and/or
- the evidence of intentions that the relationship be long-term (for example, by the extent to which the partners have combined their affairs, and the extent to which they have provided for each other, such as being beneficiary to each other’s will and/or superannuation).
In assessing whether a spouse or de facto relationship exists under the migration provisions, the Department will not simply compare how many of the above factors (A to D) are satisfied against how many are not satisfied. But rather, the Department will consider each individual relationship against all these factors as well as taking into account any other relevant information provided by the applicant to assess whether or not, on balance, a married or de facto relationship exists.
These factors (A to D above) are circumstances to be considered, and are not the only factors to be considered by the Department. Indeed, a relationship may exhibit other characteristics and as such, these factors are a non-exhaustive list of the matters to be considered. These factors are simply those that are considered to be key elements in establishing whether a relationship meets the requirements to be a spousal or de facto relationship
Additional Regulatory Requirements For A De Facto Relationship
In the case of a de facto relationship, both the applicant and their de facto partner must be at least 18 years of age at the time the application is made.
Additionally, to meet the definition of a de facto relationship when applying for a partner visa, it must have been in existence for at least the period of 12 months ending immediately before the date of the application unless:
- compelling and compassionate circumstances exist; or
- the de facto relationship is registered by a State or Territory Government agency in Australia.
Engaged To Be Married
A third partner visa option is also available if you intend to marry your Australian partner. In this case, you may like to consider your eligiblity for a Subclass 300 Prospective Marriage visa. This is an onshore application.
The above discussion on the definition of a married and de facto relationship for the purposes of a partner visa is also a relevant consideration for enaged couples, however this only comes into play at stage two of the application process (you must first apply for a Subclass 300 visa, which is subject to its own set of requirements for visa grant).
Learn more about the Prospective Marriage visa in the following articles:
Genuine And Continuing Relationship
Let us now turn our attention back to the definition of a married or de facto relationship, as was discussed above. You will note that one of the common components of both these definitions is the requirement for a genuine and continuing relationship.
It is this aspect of the definition that is the focus of our real-life case study. Before we proceed to explain the situation faced by Mario, let us first examine what a genuine and continuing relationship actually means.
According to immigration policy, in assessing whether there is a genuine and continuing relationship, the Department must have regard to all the circumstances of the relationship, as evidenced by all the information that is available to them.
The type of information to consider includes, but is not limited to:
- supporting documents submitted with the application;
- Form 888 statutory declaration by a supporting witness in relation to the partner relationship (Form 888); and
- interviews with the applicant and/or sponsor, or adverse information provided by third parties.
In addition to considering all the circumstances of the relationship, the Department must also consider the four matters as discussed above (i.e. financial, social, household and commitment aspects of the relationship).
Evidence Of Genuine And Continuing Relationship
How do you demonstrate to the Immigration that you have a ‘genuine and continuing relationship’? What type of evidence of a genuine and continuing relationship can you provide?
As discussed above, the Department will consider all the circumstances of your relationship to determine whether your relationship meets the required definition in accordance with the migration provisions. It must also consider the four factors outlined above, being financial, household, social and commitment aspects of the relationship).
Evidence of a married or de facto relationship (including whether it is a genuine and continuing relationship) can include (but is not limited to):
- Written statements from yourself and your spouse/de facto partner, outlining the following:
- how, when and where you first met;
- how the relationship developed;
- when you moved in together, got engaged or married;
- what you do together;
- time you spent apart;
- significant events in the relationship; and
- your plans for the future.
- evidence of how you and your partner share financial matters, including:
- joint mortgage or lease documents;
- joint loan documents for major assets (i,e, homes, cars or major appliances);
- joint bank account statements; and
- household bills in both names
- evidence to demonstrate how you and your partner share domestic matters, including:
- a statement about how you share housework;
- household bills in both names;
- mail or emails addressed to you both;
- documents that show joint responsibility for children; and
- documents that evidence your living arrangements
- evidence that your relationship is known to others, including;
- joint invitations or evidence that you go out together;
- evidence that you have common friends;
- evidence that you have notified government, public or commercial bodies about your relationship;
- evidence that you engage in joint sporting, cultural or social activities together; and
- evidence of joint travel
- evidence of how you are committed to a long-term relationship with one another, including:
- demonstrate that you have knowledge of each other’s background, family situation or other personal details (this information can be provided in an interview with the Department);
- demonstrate that you have combined your personal matters;
- the terms of your wills; and
- evidence that you stay in touch when apart.
The above are examples of the types of evidence of a genuine and continuing relationship that you can provide with your partner visa application. The specific evidence of a genuine and continuing relationship to supply will depend on the individual circumstances of your relationship with your Australian partner and may include other types of evidence of a genuine and continuing relationship for visa purposes.
A further point to note is that you will need to provide further evidence for a de facto relationship, in line with the definition outlined above in this article (including the minimum length of relationship requirement, unless compelling and compassionate circumstances exist for the grant of the visa, or that you have registered your relationship with an Australian births, deaths and marriages agency).
Let’s now take a look at Mario’s situation.
The applicant (Marios) and sponsor (Mia) were married in Adelaide, Australia and applied for a partner visa. The Department refused the partner visa application on the basis that the delegate was not satisfied that the applicant and sponsor were in a spouse relationship according to Regulation 1.15A of the Migration Regulations 1994 (Cth).
Regulation 1.15A states that when considering an application for a Partner visa and in determining whether the definition of a spouse relationship is met under Section 5F(2) (i.e. is the marriage legally valid; mutual commitment; genuine and continuing relationship; and live together, or do not live apart on a permanent basis), the Minister must consider all the circumstances of the relationship, including the abovementioned financial, household, social and commitment aspects of the relationship), the Department is to consider the financial, social, household and commitment aspects of the relationship,.
The decision record appeared to place significant weight on the applicant’s performance in an interview held between the visa applicant and a Senior Migration Officer. To summarise, the sponsor provided inconsistent answers to various questions in the interview, including not knowing where the sponsor went to school, where she previously worked, key dates and other important facts expected to be known by a person of their spouse. In addition, the case officer placed little weight on evidence provided and asserted that the absence of other kinds of evidence meant the application was not genuine.
How PAX Migration Australia Assisted Mario
We prepared a detailed submission to the Tribunal, breaking down the delegate’s decision. We picked apart every allegation raised by the delegate and rebutted them with evidence or arguments.
For example, in relation to the failure to answer certain questions correctly, we submitted that insufficient details have been provided by the Department to better understand the context of the assertions presented in the decision record. No material had been provided to assist the Tribunal in understanding how the interview was conducted, the sequence of questions, the quality of translating and the context generally of how the case officer arrived at the assertions made in the decision record. We had been advised by the applicant that he was nervous during the interview, the questions were not clear and he did not always understand what was being asked of him.
We submitted that, in light of no substantive materials regarding the interview (no recording and no transcript have been provided to the applicant) the assertions made in the decision record regarding the interview are unable to be verified.
We submitted that, in congruence with the de novo nature of the decision to be made by the Tribunal in this matter, the applicant be given the opportunity to be interviewed by the Tribunal so that the Tribunal may reach a state of satisfaction as to the applicant’s credibility and consistency of answers with submitted materials to inform the Tribunal’s decision regarding whether the sponsor and applicant meet the requirements of s5F and Regulation 1.15A.
And the Tribunal did just that.
What Happened At The Tribunal?
At the hearing, the Tribunal interviewed the applicant and the sponsor. Prior to attending the hearing we spent time with the applicant and sponsor going over the types of questions that might be asked, preparing them for the formal nature of the Tribunal proceeding and ensuring they were totally ready for any curve balls that might be thrown their way.
Prior to the hearing we provided a multitude of evidence addressing any concerns the Tribunal might have about the genuineness of the relationship. We obtained many statutory declarations, and ensured they were in sufficient detail to be useful. We obtained further evidence of communication between the applicant and sponsor and debunked the concerns of the case officer in our written submissions.
The hearing couldn’t have gone more smoothly. In less than two hours, the Tribunal had interviewed the applicant and sponsor and come to a decision to remit the application back to the Department with the instruction that the applicant meets the criteria for visa grant. Mia and Mario were very happy and within a few weeks, Mario was on a plane to be reunited with his wife. They celebrated the birth of their first child and are building a wonderful family life together in Adelaide.
What Does Mario’s Case Demonstrate?
An important takeaway from Mario’s case is the sheer complexity involved in most partner visa applications, and the need for a good understanding of the migration provisions and how they apply to an individual case. Conducting an internet search may help you to gain a surface level knowledge of the process and requirements, but can in no way substitute for the qualifications, training and experience that you can access by speaking to a migration professional like PAX Migration Australia. Migration law is complex and is known as being one of the most complicated areas of the law in Australia. While it might appear to be a relatively simple process for someone who is not well acquainted with the migration provisions, those who are specially trained in this area know just how difficult it can be to interpret the law, including the Migration Act, Regulations, Policy and court and tribunal decisions. For example, what is required to demonstrate that you have a spouse relationship according to immigration law? And what exactly does a genuine and continuing relationship actually mean? We therefore highly recommend that you speak to a migration expert to assist you with your case, whether it be a visa application or an appeal to the Tribunal.
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PAX Migration Australia Is Here To Help
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Get More Information About A Partner Visa
To learn more about applying for a partner visa, including the eligibility requirements and the definition of a spouse or de facto relationship for this purpose (one aspect being a genuine and continuing relationship, as discussed above), and the types of evidence of a genuine and continuing relationship that you can provide with your partner visa application, we recommend that you refer to the following articles.
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a visa in Australia, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. As we have noted in this article, there are several terms that are defined in the migration provisions. Like in Mario’s case, for example, the term ‘spouse’ for visa purposes is strictly defined. It is vital to have a good understanding of these terms, including a ‘genuine and continuing relationship’ and how they apply in practice, to avoid ending up in a situation as illustrated in Mario’s case. It is also important to be aware of the supporting documents that you need to provide with your partner visa application, including the type of evidence of a genuine and continuing relationship that you can supply.
Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up-to-date advice on applying for a visa to Australia, and to join our many happy clients, like Mario, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas, including partner visas, and who can advise you on the requirements that must be met to qualify for visa grant, and the documentary requirements, including evidence of a genuine and continuing relationship. Contact us for a no obligation discussion on how we may be able to assist you to achieve your migration goals in Australia.
Australian Government – Department of Home Affairs – Immigration and citizenship – Visas – Getting a visa – List of all visas – Partner visa (subclasses 820/801) – Subclass 820 Partner visa (temporary) – Step by step – Step 2: Gather your documents – Your relationship with your partner