The Full Federal Court has now held that living together is now not a requirement needed to satisfy the definition of a “de facto partner” in Section 5CB of the Migration Act.
In the case of SZOXP v Minister for Immigration and Border Protection  FCAFC 69 (11 June 2015), the appellant is a citizen of China who on 24 October 2012, applied for a Partner (Temporary) (Class UK) visa under the Migration Act. The Migration Regulations 1994 (Cth) Sch 2, cl 820.211 and cl 820.221(1) imposed various requirements including that at the time of application, and at the time of decision, the applicant is the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The appellant said that he was in a de facto relationship with Ms Yang, an Australian citizen. A delegate of the Minister refused the appellant’s application for a visa for reasons including that he was not in a de facto relationship with Ms Yang.
The appellant applied to the Tribunal for a review of the decision of the Minister. The Tribunal found that the appellant was in a de facto relationship with Ms Yang and that cl 820.211 and cl 820.221(1) were satisfied. The application was remitted with directions (set out in the conclusion to these reasons).
The Tribunal found that:
- Ms Yang was an Australian citizen;
- the appellant and Ms Yang were in a committed relationship from December 2011, and that their relationship was exclusive;
- the appellant and Ms Yang had, as required at the time of the visa application, a mutual commitment to a shared life to the exclusion of all others, and the relationship was genuine and continuing;
- the appellant and Ms Yang are devout Buddhists and share the same outlook on life;
- the appellant and Ms Yang had chosen to follow specific teachings and interpreted the Third Precept of Buddhism to mean that they should not cohabit or have sexual relations before marriage;
- the appellant and Ms Yang had not had a sexual relationship or cohabited before their marriage on 26 November 2012; and
- the appellant and Ms Yang did not live together because they wanted to marry first, but they had not lived together after their marriage because the appellant had been in immigration detention.
The Tribunal held that there was no requirement in the Migration Act that the parties live together before a de facto relationship can be found to exist. The Tribunal concluded that the requirements for a “de facto” relationship had been met.
The Minister sought judicial review in the Federal Circuit Court. The Federal Circuit Court held that the Tribunal had made a jurisdictional error in finding that there is no requirement in the Migration Act that the appellant and Ms Yang live together before a de facto relationship is found to exist. The primary judge considered that the requirement that a de facto couple live together arose because s 5CB(2)(c) contemplated a “resumption of cohabitation”. Her Honour relied upon the decision of Hill J in Li v Minister for Immigration, Local Government and Ethnic Affairs  FCA 14; (1992) 33 FCR 568.
The Migration Review Tribunal set the decision aside but the Minister appealed to the Federal Circuit Court which found in favour of the Minister.
The applicant then appealed to the Full Federal Court which found in his favour. Below is an extract from this important decision:
- 65. The appellant’s construction of s 5CB of the Migration Act, which does not require that the parties physically reside in the same premises prior to the application, is supported by the plain meaning of the section. It is consistent with other provisions of the Migration Act, notably the definition of spouse in s5F.
- It avoids the ambiguities and the difficulties associated with an implication of the additional words into s 5CB(2)(c)(ii) sought by the Minister. It is supported by the section’s legislative history. And it is supported by the well hallowed meaning of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted.
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