Pollyana

SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 (11 June 2015)

Be interested to hear views and discussion on this from agents and anyone else with 2 pennyworth to chuck in.

Effectively the Court's decision seems to be saying that a de facto relationship, like a marriage, starts on a cer5tain date, and there is no requirement to live together before that date - whether married or not - as long as the relationship meets the requirements from that date onwards.
If that is the case it could indicate huge changes for not just Spouse Visas but also other visas that involve proving a de facto relationship.


"...even if it is assumed, as senior counsel for the Minister asserted, that the purpose of the provision was intended to extend to people who were in a marriage-like relationship, there is no reason why people cannot be in a marriage-like relationship without having previously lived together. Section 5F of the Migration Act defines persons to be in a married relationship without any express requirement of having previously lived together. Rather, that definition, in very similar terms to s 5CB(2), provides that they must have a valid marriage and fulfill the same requirements as contained in s 5CB: a mutual commitment to a shared life to the exclusion of all others; the relationship between them is genuine and continuing; and they live together; or do not live separately and apart on a permanent basis."

"Further, there is no language in s 5CB(2)(c)(i) or s 5CB(2)(c)(ii) which directs attention to anything that occurred in any period of time preceding the time when the de facto relationship is to be considered."

Interesting........

MarkHoath

Yes its going to be an interesting time for Spouse Visa's. Although the biggest problem is going to be meeting the evidentiary burden or proving when the relationship actually began. (Get those Facebook updates happening ASAP).

It is really easy to show when a couple is living together because of the paper trail. Rent Receipts, Drivers License, Payslips, Bank Statements etc, they are all sent somewhere, so it is easy to identify where

But clients are going to have to show when their relationship became "a mutual commitment to the exclusion of all others", this is quite difficult to show if you don't register your relationship or have a marriage certificate. When did you "announce your relationship to the world" ? Is it when you told your best friend ? Your Family ? It will be interesting to see what the Policy people do to update the PAM's.

TeeTMI

I suspect that the Minister may seek to re-word the legislation. However, that may be interesting as Senate has over turned a number of recent changes.

There is another case currently ongoing where the couple are in a long-term caring (rather than romantic) relationship 'negotiated to meet particular needs' rather than a committed relationship with each other.

Pollyana

That's an interesting one, and probably just as valid a relationship as a romantic one. After all people get married for many reasons, why shouldn't they live in de facto relationships for those reasons too?