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Australian Immigration Law & Practice

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The case of Malhi v Minister for Immigration & Anor (2017) FCCA 119 (2 February 2017) is very unique in facts and judgment. It is a case on handling of partner applications in Visa handled by the federal justice court on the second of February 2017.

Facts of the Case

It is fundamentally important to handle with care partners visa applications especially where the partners have a significant age differences (Goyal, n.d.). The male applicant is this case was a 26 year old Indian male and the partner or the sponsor is a 52 year old Australian Citizen. The tribunal raised the following issues in the case;

  • If the 26 year old and the 52 year old woman entered into their relationship hastily and did not think about the future of the relationship or any potential consequences after the commencement of their relationship.
  • Does the question on potential biological children arise or have they talked about it. What are the consequences of the relationship if they have not talked about the issue of the family?

The tribunal considered the two matters to be of great importance and it was concerned. The decision was made considering the merits in the case.

The issue raised in this case is that there are very many relationship types. This is the view held by the government of Australia in its need to protect the citizens from foreign trickery. Perky foreigner wants to circumvent the visa system in the Country and therefore the need to change the limitation of sponsorships (Junankar, n.d.). There are many relationships which arise from the need of companionship, long stability as the norm and mutual support but there are also other relationships that are made up to gain citizenship. A relationship which is romantic in nature requires commitment and a lot of fore thought.

Arranged marriages which are where the foreigners who want to get visa applications made permanent really stick to. There now defunct interdependent visa in Australia was established to cover the arranged marriages and the same sex marriages(Federal immigration laws and regulations, 2005). The Australian citizens were comfortable with this issue of arranged marriages. The Australians were hitching themselves to the foreigners.

It is Federal Court of Justice of the Nation that determines an immigration suit, including the remedies or procedures derived there from, be substantiated and resolved on a priority basis, without changing in any way the periods provided by immigration law: (Australian immigration law & practice - continuing professional development, 2010).
The urgency in the terms of this article will be justified when:
I.  promoted for the defense of vulnerable groups in the terms of the law.
II. It is the fulfillment of decrees, resolutions or acts of authority in matters of economic competition, monopolies and free competition.
III. It is to prevent irreversible damages to the ecological balance.
IV. In those cases considered by the Plenum of the Supreme Court of Justice of the Nation.


The interdependency was the deal then and it is what seems to be the go for many relationships nowadays. As indeed happens within the broader Australian population (that is, aussies hitching themselves to aussies for various reasons) then it stands to reason that it will happen with aussies hitching themselves to foreigners and vice versa(Scalia and Litras, 2002). We just need to get our head around it and, as usual, anticipate what the counterarguments are going to be so that these can be address to show the relationship is genuine, ongoing and to the exclusion of all others... the rest is the noise that needs to be well sorted if things go pear-shaped... including AAT jurisdictional error.

The primary decision maker and the Tribunal Member is only required to assess the intended genuine relationship as husband and wife to the exclusion of all others . The benefit in collateral   derived by this type of union, including obtaining Australian resident visa is irrelevant for the assessment of a partner visa. In any case all marriages are marriages that accrue some benefit for both parties. It is the "genuine intention" that is important and irrelevant issues should not be allowed to infect the decision.

In many arranged marriages the intention commences on the day of the marriage ceremony, the caveat being both partners must have the right to refuse the marriage. Intentions are expressed in words in conjunction with a whole set of circumstances that supports the credibility to the expressed intentions. There is no legal requirement for the parties to live together and for the young Indian man to be assented to since there is no meaningful reason for the two to live together.



Australian immigration law & practice - continuing professional development. (2010). 1st ed. [Kensington, N.S.W.]: University of New South Wales, Faculty of Law, Centre for Continuing Legal Education.

Blackstone, W., Prest, W. and Lemmings, D. (2016). Commentaries on the laws of England. Oxford: Oxford University Press.

Federal immigration laws and regulations. (2005). 1st ed. [St. Paul, Minn.]: Thomson/West.

Goyal, K. (n.d.). Immigration laws. 1st ed.

Junankar, P. (n.d.). Economics of Immigration.

Scalia, J. and Litras, M. (2002). Immigration offenders in the federal criminal justice system, 2000. 1st ed. [Washington, D.C.]: U.S. Dept. of Justice, Office of Justice Programs.


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