Revisiting a Landmark Case: Cohabitation is Not a Necessary Requirement in a De Facto Relationship to Apply for the Partner Visa

In the case of SZOXP, the Full Court of the Federal Court of Australia has ruled that there is no express requirement under the Migration Act 1958 for two people to cohabitate prior to lodging an application for a Partner Visa.

This case has removed the pre-existing obstacle where the Department would continuously refuse applications for Partner Visas in circumstances where the applicant and sponsor failed to provide evidence that they had lived together.

 

Couples Made the Choice Not to Live Together Before Applying for the Partner Visa

 In SZOXP, the couple had chosen not to live together for religious purposes. They were both devout Buddhists and had decided to follow a Buddhist custom of living separately before marriage. The applicant, a citizen of China filed an application for a Partner Visa on the basis of a de facto relationship with the Sponsor. The couple married a month after the visa was lodged.

The Department’s Case Officer refused the application as the officer was not satisfied that the couple was in a de facto relationship. The applicant made an appeal to the AAT and despite discovering that the couple had been in a committed and exclusive relationship for more than 3 years including the religious nature of the relationship, the Tribunal held that the requirements for a de facto relationship was nonetheless established.

The applicant appealed the Tribunal’s decision to the Federal Circuit Court on the basis that the Tribunal had committed a jurisdictional error as there is no requirement under the Migration Act for the parties to live together in order to be a de facto relationship.

Jurisdictional Error on the Decision of the Partner Visa

 The Court held that “proof of cohabitation is simply not necessary to establish a de facto relationship”.

Taking s 5CB(2)(c)(ii) of the Act, it states that a person is in a de facto relationship if:

(c) they either:

            (i) live together; or

            (ii) do not live separately or apart on a permanent basis;

…

The Court determined that there are no express words that say that the parties “must have previously cohabitated”, and further held that “legislation should not be read as if it contains “additional words” when doing so would be “too much at variance with the language in fact used by the legislature”.

Key Takeaway

 This case is significant in the sense that it establishes that co-habitation is not necessary before the couple makes an application for a Partner visa.

 How Can Agape Henry Crux Help

If you have any questions or would like us to assist you in your Partner visa application process, simply call one of our highly trained immigration lawyers at Agape Henry Crux on (02)-7200 2700 or email us to book in a time at info@ahclawyers.com

We also speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian, Spanish and Malay. If these aren’t your language, we can also help you arrange an interpreter.