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January 03 - News

What’s love got to do with it?

The Full Federal Court has done it again and changed the way de facto relationships are assessed for migration purposes.

In a decision handed down last Friday it found that love and affection were an optional, but not a mandatory, requirement for de facto relationships.

From the joint judgement of Kenny and Griffiths

JJ: KENNY AND GRIFFITHS JJ: Love and marriage, love and marriage

Go together like a horse and carriage

This I tell you brother

You can’t have one without the other...

5. These memorable lines from a song made famous by Frank Sinatra in 1955 substantially encapsulate the issue which is at the heart of this appeal. Shortly stated, that issue is whether, for the purpose of relevant provisions of migration legislation relating to partner visas, there must be love and affection for there to be a genuine spousal or de facto relationship.

6. And later (underlining added):

51. All the matters and considerations which are set out in reg 1.09A(3) may properly be described as relevant considerations which the decisionmaker is bound to take into account because the legislation so requires.

52. As emphasised above, however, these matters and considerations are not an exhaustive list of the potentially relevant matters and considerations. The Minister’s task under s 65 of the Act is subject to an overarching obligation imposed by reg 1.09A (2) to consider all the circumstances of the claimed de facto relationship. There is no basis in the legislative scheme to conclude that those circumstances do not include a consideration of whether or not there is love and affection in a claimed de facto relationship. In a particular case, for example, the evidence may suggest that the love and affection between the couple is very strong: that would be relevant to the genuineness and continuing nature of the relationship, as well as to the question of there being a mutual commitment to a shared life.

53. That is not to say, however, that the existence or absence of these aspects of a relationship is determinative. There may well be love and affection present in a relationship yet the Minister may not be satisfied that the visa should be granted because, having regard to the evidence relating to some other matter or consideration (whether or not specified in reg 1.09A (3) and as long as the matter or consideration is relevant to the circumstances of the relationship), the relevant criteria for the grant of the visa are not met to the Minister’s satisfaction at the time of the decision. Likewise, because the existence of love and affection is not determinative of the question whether there exists a de facto relationship at the relevant time, its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.

In the 2015 case below the Full Federal Court found that living together and sex were not needed to establish a de facto relationship.

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