Federal Court: in determining whether an applicant satisfies the definition of 'spouse' under s 5F of the Migration Act 1958, are decision makers required to make findings of fact about each of the matters contained in each of the 4 aspects of the relationship pursuant to r 1.15A(3) of the Migration Regulations 1994?
Summary and discussion
The question to the Federal Court (FCA) was whether the decision maker (the AAT in this case) was required to make findings of fact about each of the matters contained in r 1.15A(3) of the Regulations in the context of a partner visa application.
Section 5F of the Act provided (and continues to provide) as follows:
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(i) live together; or
(ii) do not live separately and apart on a permanent basis
(3) The regulations may make provisions in relation to the determination of whether one or more of the conditions in paragraphs 2(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A provided (and continues to provide) as follows:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraph 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
The FCA answered as follows ...
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