Visa Case – De Facto Partner

1703187 (Migration) 2018 AATA 455 (17 January 2018)

A partner visa allows spouses and de facto partners of Australian citizens that are living overseas to migrate to Australia to live, work and study. Applicants must meet character, age and health requirements. The requirements for this visa are set out in Clause 309.111 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”).

In addition to other criteria, visa applicants are required satisfy the following criteria at the time of application. They must either:

1. Be the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
2. Intend to marry an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, where the intended marriage will be a valid marriage for the purposes of section 12 of the Migration Act 1958 (“the Act”).

An applicant from Somalia had been forcefully separated from his wife (“the sponsor”) and their two children when he was kidnapped in 2002 and held captive for a total of six years. In 2009, the sponsor was granted a subclass 204 Woman at Risk visa and migrated to Australia with their children.

After the applicant’s escape from captivity in 2008, both he and the sponsor claimed to have had no knowledge of each other’s whereabouts or even if they were still alive.

The delegate for the minister refused to grant the visa on the basis that there was not a genuine spousal relationship and therefore did not meet the criteria in clause 309.211 of Schedule 2 of the Regulations.

In January 2017 the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the decision. The Tribunal considered all of the circumstances of the relationship prescribed by regulation 1.15A of the Regulations.

In considering the duration of the couple’s relationship, the Tribunal noted that the delegate was principally concerned that there was an “insufficient effort” from both parties to locate each other after the years of separation.

The Tribunal rejected this view and accepted that the couple had made significant efforts to find one another. The Tribunal noted that:

1. the family had “resided as a family unit until 2002 and would have continued to do so had nefarious forces not intervened”;
2. the couple were in a committed marriage for 12 consistent years before the applicant’s abduction;
3. that neither party had remarried while they were separated; and
4. that considerable speed and effort had been expended to ensure they reunited after contact was re-established.

Leaders from the Somali community in Australia sent letters in support of their belief that the couple are engaged in a genuine spousal relationship. Witness evidence was also given by the couple’s children and others testifying the efforts made after the applicant’s abduction.

The Tribunal found that the visa applicant met the criteria in clause 309.211 of Schedule 2 of the Regulations and the decision was remitted for reconsideration by the Department of Home Affairs.

This article is intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. The material may not apply to all jurisdictions. The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.