If you are married or in a de facto relationship with an Australian citizen, Australian permanent resident or eligible New Zealand Citizen, you may qualify for a partner visa. However, partner visa applications have a refusal rate of almost 40%. Therefore, you are unlikely to be successful if you do not prepare your application correctly. This was the situation with a real-life case heard by the Administrative Appeals Tribunal (AAT), after the Department of Home Affairs (DOHA) refused an application for a partner visa. The applicant was ultimately successful in overturning this decision because he was able to demonstrate that his relationship with his Australian spouse was genuine and continuing. This article outlines the facts and reasoning applied in this case to secure a partner visa application.

Why Was the Partner Visa Application Initially Rejected?

DOHA refused the applicant’s visa because it was not satisfied that the applicant was in a genuine and committed relationship with their Australian sponsor. However, on appeal, the court found that there was a genuine, committed and continuing relationship at the time of the application. We will discuss below how they came to this decision.

Are the Parties in a Spousal or De Facto Relationship?

You should first determine whether you and your partner are in a spousal or de facto relationship. This will determine the correct legal relationship between the parties and impact your visa application requirements.

A spousal relationship refers to a situation in which you are married to your partner. Importantly, you must: 

  • be in a marriage that is valid under Australian law;
  • have a mutual commitment to a shared life as a married couple to the exclusion of all others;
  • be in a relationship that is genuine and continuing; and
  • live together, or not live separately and apart on a permanent basis.

In contrast, a person is in a de facto relationship with another person to whom they are not married if: 

  • they have a mutual commitment to a shared life to the exclusion of all others; 
  • the relationship is genuine and continuing;
  • the couple live together, or do not live separately and apart on a permanent basis; and 
  • the couple are not related. 

Further, the court will consider four elements of a relationship to help establish either a spousal or de facto situation. These include:

  • financial aspects of the relationship;
  • the nature of the household;
  • social aspects of the relationship; and
  • the nature of commitment to one another. 

In this particular case, the applicant and sponsor were found to still be legally married and had not divorced. 

Applicant’s History with the Sponsor 

The applicant and the sponsor: 

  • were married in 2007; and 
  • had a son and daughter in 2008 and 2010. 

The applicant and the sponsor separated soon after the birth of their second child, in late 2010. The sponsor arrived in Australia with her children in 2015 on a special global humanitarian visa. They received Australian citizenship.

During 2010-2015, the applicant and the sponsor did not have any contact due to limiting circumstances. This was primarily due to his job restrictions and the state of unrest in his country of residence. 

It was only from late 2015 that the applicant re-established and maintained regular contact with the sponsor and his two children. Since making contact, the applicant had developed strong emotional connections with his two children and resumed the relationship with the sponsor. 

Considerations in Determining the Existence of a Genuine and Committed Relationship 

The table below outlines the factors a court will consider when determining the existence of a genuine and committed relationship. This list is not exhaustive and the court will consider each case on its own merit.  

Consideration
What it Looks Like in Practise 
Case Application
Financial aspects of the relationship
The court will look at whether you and the sponsor:

  • own any real estate or major assets together;
  • have shared loans in both your names;
  • pool your finances;
  • owe a legal obligation in respect of your partner; and
  • share day-to-day household expenses.
The applicant and the sponsor did not share any assets or loans together. However, the sponsor provided financial support to the applicant by sending him money transfers that were a significant amount of her income.
Nature of the household 
The court will consider:

  • any joint responsibility for the care and support of children;
  • your shared living arrangements; and
  • any sharing of the responsibility for housework.
The sponsor had sole physical and financial responsibility for the care and support of the children. The applicant was not physically present and was not able to provide financial support, all due to limiting circumstances beyond his control. However, from an emotional and decision making view, the parties had joint responsibility for the care and support of children.
Social aspects of the relationship
The court will examine whether:

  • you present yourselves to society as married to each other;
  • other people consider you to be in a relationship; and
  • you attend social activities together.
The court accepted that the two parties represented themselves as married and were viewed by friends, family and acquaintances as married. 
Nature of the commitment to each other 
The court will acknowledge:

  • the duration of the relationship; and
  • the length of time you have lived together; and
  • the degree of companionship and emotional support you draw from each other; and
  • whether you and your partner see the relationship as a long‑term one.
The court accepted that the applicant and sponsor had re-established their relationship in 2015. They had since provided each other with companionship and emotional support, despite not being able to be together physically.

How Did the Court Come to Their Conclusion?

After considering all the evidence on the circumstances, the ATT determined that the parties were in a continued spousal relationship. This was due to the analysis of the four elements of a relationship outlined above, leading the AAT to conclude that the:

  • two parties had and continue to have a mutual commitment to a shared life together as an exclusive, married couple; and
  • relationship between the applicant and the spouse was genuine and continuing. 

Key Takeaways

This case highlights the list of factors that a court will consider when determining whether a relationship is genuine and continuing. Notably, however, it is not a list of minimum requirements that you need to meet. Rather, it is a list of guiding factors for the court to take into consideration whilst holistically assessing the overall situation and the relationship itself. If your situation with your partner is not straightforward and does not seem to meet the required grounds of a de facto or married couple at face value, this does not automatically preclude you from accessing a partner visa. If you would like the assistance of a qualified immigration lawyer in preparing your application, contact LegalVision’s immigration’s lawyer on 1300 544 755 or fill out the form on this page.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer