When a court quotes Sinatra, you know it's going to be a good one
You don't need to be madly in love to get a partner visa. That's the short version of Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5, one of our favourite Federal Court decisions.
This court decision opens with Frank Sinatra. Justices Kenny and Griffiths kicked off their reasons with a few lines of the 1955 hit Love and Marriage, the one about love and marriage going together like a horse and carriage.
Then they asked the question every partner visa applicant has quietly wondered about: does the Department need to see true love? Or will a genuine, committed, slightly unromantic partnership do?
Meet the couple
Ms Angkawijaya was 58 and from Indonesia, with a migration history best described as "eventful". Several failed protection visa applications. A long stretch of unlawful stay. A previous marriage to someone who turned out to be ineligible to sponsor her.
Mr Limberiou was 89. His wife had passed away in March 2006. Two months later, he met Ms Angkawijaya.
By 2008 they were living together. They shared a bedroom and had a physically intimate relationship. She did most of the housework and helped with his medication. He paid nearly all the bills. His sons knew about the relationship, with what the Tribunal politely called "some caution". In 2009 she applied for a partner visa (820/801) as his de facto partner.
This led to some phone interviews, where the couple's answers about their household and some things didn't line up. The delegate refused the visa.
The Tribunal goes looking for romance
On review, the Tribunal (then the Migration Review Tribunal) asked Ms Angkawijaya directly whether she loved Mr Limberiou or was just caring for him.
Her answer was probably too honest. She said it was a bit of both. She loves him, but she loves all people. Pressed on whether she loved him more than everybody else, she stuck to her position: she loves everybody.
The Tribunal wasn't impressed. It found the couple were committed to "an agreement" to exchange services, not to a relationship. She got financial support and a shot at permanent residency. He got care and company.
The Tribunal also held a few other things against the couple:
He couldn't pronounce or spell her surname, which it read as "indifference". (In fairness, Angkawijaya is a toughie.)
He seemed more interested in having someone with him than in a shared life.
She hadn't told him about her unlawful status when they met, and didn't know about his three-month trip to Greece in 2008.
The Full Federal Court: love is optional, commitment is not
The Federal Circuit Court overturned the Tribunal's decision. The Minister appealed to the Full Federal Court, and lost.
The Court's key points:
Love is relevant, but it isn't a requirement. The decision-maker must consider all the circumstances of the relationship, and love can be one of them. Strong evidence of love helps. But its absence isn't automatically fatal.
The Tribunal made romance a hidden criterion. Reading its reasons as a whole, the Court found the Tribunal had treated love and affection as essential. Nothing in the Migration Act or Regulations says that. That was a jurisdictional error.
It's not "care deal" versus "real relationship". Chief Justice Allsop called the Tribunal's either/or approach a false dichotomy. A couple can be committed to a shared life as partners without romantic love. But a simple swap of money for company and housework still isn't enough on its own.
Motivation can be considered, but it doesn't decide the case. Wanting a visa doesn't make a relationship fake. What matters is whether the relationship is genuine.
What this means for your partner visa
You do need to show a genuine, continuing, exclusive commitment to a shared life together. Here's how Angkawijaya plays out in practice:
Unconventional relationships can qualify. Big age gaps, practical arrangements and couples who aren't very lovey-dovey can all meet the definition. Decision-makers can't refuse because your relationship doesn't look like a rom-com.
Evidence still does the heavy lifting. The four areas in regulation 1.09A, which are finances, household, social life and commitment to each other, are where applications are won or lost.
Consistency matters. The original refusal began with mismatched interview answers. If you live together, you should both know who lives in the house and what you did last weekend.
Be upfront with your partner. The Tribunal noticed that Ms Angkawijaya hadn't shared her migration status with Mr Limberiou. Couples building a life together usually talk about the big things.
Need a hand with your partner visa?
Whether your relationship is a whirlwind romance or more of a sensible long-term arrangement, Shamrock Migration Services can help you put your best evidence forward. We assist with partner visas (820/801 and 309/100) and with Tribunal reviews when things go wrong.
Harry Parsons, Director and Registered Migration Agent (MARN 2418538), Shamrock Migration Services.
This article is general information only and is not migration advice. Every case depends on its own facts. Please speak with a registered migration agent about your circumstances.
