Examining the Definition of “Spouse” under regulation 1.15A(1A)
As per clause 309.211(2) and 309.221, at the time of making the visa application and also at the time of decision related to that visa application, it is necessary that applicant of the visa must be either the spouse or de facto partner of the citizen of Australia, permanent resident of Australia, and eligible citizen of New Zealand.
Section 5F of the Act defines the term spouse, and as per this section person is considered as spouse of another person if both persons are in married relationship. Person in marriage relationship must be married with each other as per the marriage which is considered valid marriage in the Act, and they must mutually commit with each other to share their life as husband and wife, relationship between the applicants must be genuine, and the couple must live together. While forming the opinion related to these matters all the circumstances related to the relationship. Considering of evidences includes various factors, and these factors are stated below:
- Financial aspects
- Social aspects
- Nature related to the visa applicant
- Review related to the applicant household
- Commitment shared by couple towards each other
In respect of applicant’s commitment to each other, duration of the relationship must complete at least three years, and there must be good degree of companion and emotional support. Evidence related to companion and emotional support must be present for the period of years to be present. Court also consider the evidence related to degree of companionship and emotional support parties share with each other’s, and this is evident from records of and witness accounts of constant communication, electronic, over a period of years to present. It must be noted that, if members of the visa applicant live in different countries then department consider the evidence related to contact between them and these evidences are determined through phone and electronic message. This type of relationship is considered as genuine and long term.
Therefore, after considering the financial aspects, nature of the house hold, and social aspects, and commitment shared by persons to each other. All these factors must be present to show that there is a commitment related to the future to share life as husband and wife to the exclusion of all others, and there must be genuine relationship between the parties.
This can be understood through case law Sok v Minister for Immigration and Citizenship [2008] HCA 50, (16 October 2008). This case was decided by GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ.
In this case, appellant was the citizen of Cambodia who married with a citizen of Australia. His application of visa was sponsored by his wife who permits him to enter and remain in Australia. Temporary visa was granted and allowed the appellant to enter into Australia in 2002. In this case, qualification which gets central importance was the condition for granting permanent visa for which appellant applied and this condition state that at the time the visa is granted applicant must be the spouse of the sponsor. For determining this condition minister must be satisfied that related persons make commitment to each other mutually to share life as husband and wife and the relationship shared by related persons must be genuine and continuous. Minister further considered that persons must live together and they are not apart on permanent basis. . The qualification related to the requirement that visa applicant must be the spouse of the sponsor in this case is still met even though relationship of spouse and applicant has been ceased and the applicant entitled to permanent visa only if applicant enter into Australia on the basis of temporary visa and suffered domestic violence which was committed by sponsoring spouse.
Critically Evaluating the Definition of “Spouse” in light of Extramarital Affairs
After considering the above facts, it is clear that clear explanation regarding commitment to shared life as husband and wife is not provided by any judge and it is only considered as indicia for determining the married relationships between the members. However, law does not consider that human relationships are diverse n nature and commitment between the members is different in different situations. As stated above there are number of indicators which define married status but commitment and shared life overlaps other indicators. This approach of Court for determining the status of married is narrow and includes very few factors in its ambit which reduce its consistency. Therefore, only commitment and shared life cannot be considered as important indicia for determining the marriage.
It must be noted that love is not the essential condition for marriage status, and those couples who are fundamentally flawed can still apply for partners visa, and this considered in two case laws which undermine the traditional concepts of romance. In both the cases, court broadened the definition of relationship related to partner visas and states that romantic love is not necessary for married couples and further states that dysfunctional relationship can also be genuine.
This can be understood through the facts of the case in which Mr. Singh 26 years old Indian met his sponsor that is, Australian citizen on dating website in 2012 and they married in 2013 and in same year his sponsor left him. Mr. Singh further stated to the Tribunal that his sponsor violating him and he also obtained intervention order against her. In this case tribunal stated that relationship between the indicated couple was characterized as conflicting and mutual distress. Tribunal ruled that there were no characteristics present in the relation which proves that parties share a mutual commitment to a shared life as husband and wife to the exclusion of all others. This decision of tribunal was overruled by Federal Circuit Court on ground that tribunal made mistake in taking the decision.
Lastly, it can be said that only commitment and shared life cannot be considered as important indicia for determining the marriage court must consider other factors also.
Regulation 1128 of Migration Regulation 1994 states about the return residence class BB. Clause 1 of this regulation states that application related to 155 Visa must be made in the form which is approved by minister made for this item under sub regulation 2.07(5).
Clause 2 of this regulation defines the provisions related to charges of visa application, and clause 3 of this regulation states the other implication of this visa:
- An application in context of this visa must be made at the place and in manner which is specified by minister in this regard in sub regulation 2.07(5). It must be noted that applicant must be in Australia at the time of making the application.
- However, in case of internet application it is possible to make application either through inside or outside Australia, but it must not be in immigration clearance.
- Applicant does not hold any Transitional (Permanent) visa which has been granted to applicant under regulation 9 of the Migration Reform (Transitional Provisions) Regulations.
- Application made by person cannot be considered as valid application if:
- Permanent visa ishold by the person is subject to the notice which is issued under subsection 135(1) of the Act, and such notice proposing cancellation.
- There is no notification related to the decision to the person and not to proceed with the cancellation.
- The visa was not considered in the decision to cancel the visa under section 134 of the Act.
- The most recent permanent visa held by the person was the subject of a decision to cancel the visa under section 134.
- Tribunal does not set aside the decision to cancel the visa.
If there is an extra marital affair and applicant also have child from that affair then it is necessary that applicant must disclose all these things to the department at the time of making the application, and if applicant fails to disclose this to department then it is considered as contravention of clause 3 of this regulation which result in cancellation of visa and dismissal of application as the case may be.
References
AAT, (2016). Decision Record, < https://www.abc.net.au/cm/lb/7657930/data/aat-decision-re-williamson-shen-data.pdf>, Accessed on 10th October 2017.
High Court of Australia, (2008), < https://ww3.lawschool.cornell.edu/AvonResources/Sok%20v%20Minister%20for%20Immigration%20and%20Citizenship%20[2008]%20HCA%2050%20(16%20October%202008).pdf>, Accessed on 10th October 2017.
Amanda Head, (2014). Presumption and the Law, https://www.google.co.in/url?sa=t&rct=j&q=&edata-src=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwjAld7zxeXWAhUFNo8KHZ_eD94QFggnMAE&url=https%3A%2F%2Fwww.researchonline.mq.edu.au%2Fvital%2Faccess%2Fservices%2FDownload%2Fmq%3A44334%2FSOURCE1&usg=AOvVaw3v8IuIu9hrn0jLsD7Iz0OG, Accessed on 10th October 2017.
Tessa Akeerman, (2016). Love not essentials for visas, https://www.theaustralian.com.au/national-affairs/immigration/love-not-essential-for-visas-says-court/news-story/42ea121aa168fb03905bbd4f500b4e46, Accessed on 10th October 2017.
Migration Regulation 1994- Regulation 1128.
Migration Regulation 1994- Regulation 2.
Migration Act 1994- Section 135.
Migration Act 1994- Section 134.
Migration Act 1994- Section 5.
Sok v Minister for Immigration and Citizenship [2008] HCA 50, (16 October 2008).
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