Migration Law: Partner Visa and Statutory Interpretation Analysis

This essay delves into Australian migration law, focusing on the requirements for partner visas, particularly concerning de facto relationships. It examines Section 5BC (2)(c)(ii) of the Migration Act 1958 (Cth), which addresses the concept of not living separately and apart on a permanent basis. The essay explores the customary understanding of de facto relationships and the significance of physical cohabitation, referencing the Department of Immigration and Border Protection's stance and the landmark case of SZOXP v Minister for Immigration and Border Protection. The case highlights the court's interpretation of the Act, emphasizing that physical cohabitation is not a prerequisite for a partner visa application. The analysis further discusses the application of statutory principles, including the Interpretation Act 1901 (Cth) and the precedent set by Taylor v The Owners - Strata Plan No 11564, to determine the existence of a de facto relationship based on mutual agreement, a genuine continuous relationship, and the absence of permanent separation. The essay concludes by summarizing the key takeaways from the case and its implications for partner visa applications.

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

1
MIGRATION LAW
Question 1
Section 5BC (2)(c)(ii) of the Migration Act 1958 (Cth) (the Act)1 incorporates the phrase
which is in context of the assignment which states “do not live separately and apart on a
permanent basis”. The purpose of the phrase is to determine the question that that a person who
has applied for a partner’s visa is in a de facto relationship with an Australia citizen or the
relationship does not exists. According to the customary meaning of the phrase a de facto
relationship is only present where the person making the visa application and the other
Australian citizen are not residing separately from each other as well on a permanent basis not
apart for each others’ company. Thus the customary meaning signifies that individuals in context
of the de Facto relationship merely have the obligation of being together and not physically
cohabit in order to indentify the relationship as such requirement has not been provided expressly
through the Act. Moreover the Act also does not expressly provide any requirements where the
people involved have to physically reside together to gain a partners visa before making an
application for it. However as stated by Mary the Department of Immigration and Border
protection considers that the parties have to reside physically before they can claim a defector
relationship and make an application for the partner visa. In the light of such belief and customs
the DIBP did not provide visa to those applicants who did not reside together physically2.
Question 2
In the case of SZOXP v Minister for Immigration and Border Protection3 the Full Court
of the Federal Court of Australia had provided a landmark decision in relation to determination
1 Migration Act 1958 (Cth) at Section 5BC (2)(c)(ii)
2 Crock, Mary, and IMPALA Consortium. "Law as an agent of social transformation: trends in the legal regulation of
migration." Social Transformation and Migration. Palgrave Macmillan, London, 2015. 269-282.
3 (2015) FCAFC 69

2
MIGRATION LAW
of a de Facto relationship between the visa applicant and the sponsor. In this case it has been
provided by the court that the applicant and the sponsor do not have the duty of physically
residing together before a visa application is made in relation to a partner visa as such provisions
are not provided through the text of the Act. In this case the court rejected the appeal which has
been made by the DIBP by citing the same reason as discussed above. This decision has utmost
significance to the individuals who are looking to apply for a partner visa based on a de facto
relationship is Australia as well as migrations agents dealing with the application of partner visa.
According to the statement made in the appeal by the DIBP it can be evidently analyzed that the
all application which were made for a partner visa and required de Facto relationships were
rejected by the DIBP if the individuals were not found to physically cohabit before making the
application for the statutory period.
The facts of this case were unique and this they require attention in this paper. In the case
the individuals who made the partner visa application were in a relationship with each other.
However they refrained from physical cohabitation due to their religious belief (Buddhist belief
that one should not reside together before they have entered into a marriage relationship). In this
case the parties filed a visa application and stated that they have been in a de facto relationship
with each other from 2012 October. The visa application was made by the parties only when they
have been legally married for a period of one month. It was provided through the facts of the
case that the DIBP officer rejected the application of SZOXP (Chinese Resident) by providing a
reason that there was no existence of a de facto relationship between the applicant and the
sponsor as they did not reside together for the statutory period of one year. The de facto
relationship between the parties is analyzed by various other parameters one of which is the

3
MIGRATION LAW
intention of the party4. In this case the parties were married to each other however it has not been
made clear by the DIBP that they took into account the marriage of the party to decide the
approval or rejection of the visa application.
It had been determined by the MRT that the parties involved in the case have been in a
relationship with each other since 2011 December when the matter had been brought before the
MRT. The court determined by the evidence provided by the respondent that as the respondent as
well his partner were devoted to Buddhism they did not feel that it was right for them to stay
together before marriage against Buddhist principles. The MRT based on such findings provided
a decision that a de facto relationship existed between the parties in spite of their not living
together physically. The minster against the decisions of the MRT made an appeal citing
jurisdictional error to the Federal Circuit Court. Although the decision of the MRT was revered
by the court the decision had been sustained in this court in favor of the MRT and the visa
applicants. Without any difficulties the full court provided a decision in favor of the visa
applicant and stated along with the decision that the applicant and the sponsor do not have the
duty of physically residing together before a visa application is made in relation to a partner visa
as such provisions are not provided through the text of the Act. It was made very specific by the
court that physical cohabitation is not needed on the part of the applicants to make a visa
application for a partner visa.
4 Ghafournia, Nafiseh, and Patricia Easteal. "Spouse Sponsorship Policies: Focus on Serial
Sponsors." Laws 6.4 (2017): 24.

4
MIGRATION LAW
Section 5CB of the Act (The only provisions which was at issue before the court) a de
facto relationship is found to be present in circumstances where the parties have got into a
mutual agreement of sharing life without including any third person, they have a genuine
relationship of a continuous nature between them, and finally they” reside together and not live
separately and apart permanently”. The court made it clear that the appeal made by the DIBP
cannot be granted as interpretation DIBP. The court held that the sole requirement in relation to a
de facto relationship is that parties must not reside separately and apart on a permanent basis
and not that they must have cohabited previously. The court in this case applied precedent rule
in relation to statutory interpretation which is well settled. As per the provisions of interpretation
meaning to a legislative provision has to be provided by reading it in light of its purpose and
where there is no ambiguity in the text not to add any additional words to provide it with a
different meaning.
The court in this case rejected the submission made by the DIBP as well as the suggested
interpretation by them by providing a ruling that legislations cannot be provided meaning based
on what the parties wants. The parties cannot add extra words to the legislation by their own and
interpret it according to their suitability. Thus whatever words are contained in section 5CB of
the Act are to be only used for the purpose of determining a de facto relationship between parties
and no additional words are to be added to provide it with a different meaning. The section at no
point provides a requirement that the parties have to physically live together in order for them to
form a de facto relationship. Their intention of residing together and the fact that they have been
in a genuine relationship is enough to establish a de facto relationship along with other express
provisions of the section. This means that they only have to establish a mutual agreement of
sharing life without including any third person, a genuine relationship of a continuous nature is

5
MIGRATION LAW
present between them, and finally they ”reside together and not live separately and apart
permanently” for a de facto relationship.
Question 3
The court applied specific statutory principles provided by legislations as well as
precedent cases in order to interpret the provisions of section 5CB of the Act which was at issue
in this case. The legislation which has been used by court in this case was the Interpretation Act
1901 (Cth) in order to resolve the issue. The specific provision which was used by the court from
the IA to give effect to the issue in the present case was s. 15AA. The section expressly rules that
the purpose of the legislation has to be taken into account by the judges to interpret a text. Any
meaning which does not comply with the primary objective of the legislation or the primary
meaning of the section is a void interpretation. The principles provided through the case of
Taylor v The Owners - Strata Plan No 115645 had also been applied by the court. the judges
ruled in this case that no extra words should be added to a text where it causes “too much at
variance with the language in fact used by the legislature. Thus through the applying the
principles the court held that to establish a de facto relationship the parties only have to establish
a mutual agreement of sharing life without including any third person, a genuine relationship of a
continuous nature is present between them, and finally they” reside together and not live
separately and apart permanently” for a de facto relationship. They do not live to cohabit
together mandatorily.
5 11564 [2014] HCA 9 at 38

6
MIGRATION LAW
References
Crock, Mary, and IMPALA Consortium. "Law as an agent of social transformation: trends in the
legal regulation of migration." Social Transformation and Migration. Palgrave Macmillan,
London, 2015. 269-282.
Ghafournia, Nafiseh, and Patricia Easteal. "Spouse Sponsorship Policies: Focus on Serial
Sponsors." Laws 6.4 (2017): 24.
Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
SZOXP v Minister for Immigration and Border Protection (2015) FCAFC 69
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9