De Facto Couples And Living Together Requirements In The Full Federal Court
Thursday 27 August 2015 @ 12.49 p.m. | Legal Research | Immigration
A unanimous decision by the Full Federal Court has clarified that two people can fulfill the criteria for a de facto relationship for the purposes of the Migration Act 1958 (Cth) without living together. SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 was particularly concerned with the requirements in s 5CB(2) of the Act:
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F(c) with each other but:..
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis …
The Minister argued that ss 5CB(2)(c)(ii) implicitly or impliedly required the persons to have previously lived together.
Facts
The appellant in this case had applied for a Partner (Temporary) (Class UK) visa, but was rejected by a delegate for the Minister on the grounds that he was not in a de factor relationship with his sponsor fiancée (whom he had since married).
The appellant and his now-wife were devout Buddhists, who believed that they should not cohabit or have sexual relations before marriage. They had been in a committed relationship from December 2011, and the appellant applied for the visa in October 2012. They subsequently married in November 2012, but did not live together after their marriage as the appellant was in immigration detention.
The appellant had successfully appealed the original decision to the Migration Review Tribunal, but the decision was then quashed by the Federal Circuit Court.
Decision
The decision noted that a previous amendment to provisions governing de facto relationships in the Migrations Regulations 1994 had removed a requirement that de facto spouses live together for at least six months preceding a visa application. Rather, evidence that the parties live together instead demonstrated that the relationship was genuine and continuing (a requirement of s 5CB(2)(b). Their Honours said this demonstrated “[a] positive choice, and amendment, .. to remove the six month time period.”
The decision also looked at the history of the phrase “living separately and apart”, and noted it had been used as a requirement for the granting of separation agreements between married couples during the 17th century and essentially dealt with the “the breakdown, in practice, of one household and the creation of circumstances where the husband and wife would live separate lives” [at 47]. Their Honours highlighted that the phrase is currently used in the Family Law Act 1975 (Cth) which expressly states that parties can “live separately and apart” even if they stay in the same residence. They concluded from the legislative history:
(1) both the physical and mental elements of the phrase were concerned with husband and wife who were living their lives separate and apart from each other as separate households
(2) the phrase therefore did not require that the parties live in different homes but rather focuses upon whether they lived their lives separately as separate households;
(3) conversely the phrase "not living separately and apart on a permanent basis" focuses upon whether the parties will not live as separate households on a permanent basis… [at 59]
Thus the parties were not required to physically reside in the same premises prior to the application.Their Honours concluded that the couple had met the necessary requirements.
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Sources:
SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69
