Do Not Live Separately And Apart On A Permanent Basis- Interpretation And Significance

1. Where the phrase “do not live separately and apart on a permanent basis” is defined in the migration legislation and the meaning of the phrase as defined in migration legislation as well as in policy.

2. The meaning of the phrase in the context of the decision of the Full Federal Court in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69.

3. The principles of statutory interpretation that were employed by the judges in construing the phrase.

The phrase “do not live separately and apart on a permanent basis” is provided under section 5BC (2)(c)(ii) of the Migration Act 1958 (Cth) (MA)[1]. This phrase is used to determine whether the individuals are in a De Facto relationship or not. The phrase means that for the purpose of establishing a de Facto relationship two persons should not live separately from one another and not apart from each other on a permanent basis. This does mean that the parties have to cohabit as the act does not provide that these people have to live together in relation to the establishment of a de facto relationship.    In addition there is no wording in the legislation which defines whether the parties should have been living together previously before filing a visa application.  In terms of policy in order to make a successful visa application in terms of a De Facto relationship people had to cohabit together before making the visa application. The department refused the application of those applicants in relation to a Partner visa where the sponsor and the applicant were not able to provide evidence that they were living together before they had made the visa application.

A ruling had been made by the Full Court of the Federal Court of Australia that two individuals are not required under the provisos of the MA to reside together before making a visa application in relation to a partner visa based on De Factor relationship. The appeal made by the minister against the decision made by the Migration Review Tribunal was rejected by the court where the Tribunal held the same. This ruling had been made by the court in the case of SZOXP v Minister for Immigration and Border Protection[2]. The ruling made by the court is of utmost significance to those Registered Migration Agents who are indulging in providing advice to individuals seeking to apply for Partner Visa. It is clear for the situation that the department refused the application of those applicants in relation to a Partner visa where the sponsor and the applicant were not able to provide evidence that they were living together before they had made the visa application.

Meaning of the Phrase Do not Live Separately and Apart on a Permanent Basis

In this case both the sponsor and the applicant had chosen not to reside together due to their religious belief. The person who had made the application was a Chinese resident. The application for a partner visa had been filed by him based on the fact that he was in a De Facto relationship with his partner since October 2012. After the couple had been married for a month they made a visa application for partner visa to the department[3].

However the visa application was very curiously rejected by one of the officers of the department based on the conclusion that there was no de facto relationship between the applicant and the sponsor. In the given situation it can be stated in the light of the notoriously long assessment processing time in relation to application of “offshore” partner visa it is a bit peculiar that the department would not have been notified in relation to the marriage or in situation where the department had been informed, that, the visa application was simply not approved based on the marriage. However it was not indicated by the decision of the full court that whether the department had been informed about the marriage or whether it was taken into consideration by the department while assessing the application[4].

However, when the situation in relation to the refusal of the visa had been brought by the applicants before the Migration Review Tribunal it was determined by them that the Australian Sponsor as well as the applicant had been in a relationship with each other from December 2011. Both the individuals were devoted Buddhists and in the pursuance of the path of Buddhism decided not to lie together before getting married. It was determined by the MRT that the requirement in relation to a de facto relationship had been nevertheless satisfied even where they were not living together.

An appeal had been made by the Minister against the decision of the MRT in the Federal Circuit Court. According to the appeal there was a “jurisdictional error” which had been made by the MRT in deciding the case. The error was that the MRT held that there was no need of the parties to reside together under the MA for a de Facto relationship to exists between them. The court overturned the decision of the MRT. However another appeal which was successful had been made by the party to the full court. There was no difficulties in the end which the Full Court encountered towards coming to a conclusion that there was no need for applicant of the partner visa to mandatorily reside with the sponsor before the visa application had been lodged by them.  There was a simple review done by the full court in relation to the language of the legislation. In this review the court determined that cohabitation is not required for the purpose of establishing a de facto relationship.  The statutory provisions which were involved in the case was section 5CB of the MA.  According to the section a De facto relationship exists where the individuals have “agreed mutually to share life without the inclusion of any other person, the relationship is continuing and genuine, they both live together and not live separately and apart permanently”[5].

De Facto Relationships

A contention had been made by the Minister in this case that the interpretation of section 5CB(2)(c)(ii) has to be done as the provisions mandates that the applicants have to “previously cohabited and do not live separately and apart on a permanent basis”. However it has been stated by the Full court that the provisions cannot be interpreted in a manner which has been asked for by the minister. It had been found by the court clearly that the words expressed through the legislation do not signify  or state that the applicants "must have previously cohabited”. The only thing which has been stated by the legislation is that the applicants must not reside separately and apart on a permanent basis. In this situation well settled principles of statutory interpretation had been applied by the court according to which a legislation should not be read in a way as it contains extra words in situation were doing so will be “too much at variance with the language in fact used by the legislature”.

To make it short, the submission which had been made by the Minister before the court in relation to the interpretation of the section had been clearly and evidently been rejected by the court based on the principles of statutory interpretation. Thus the case clearly signifies that there is no requirement for parties to live together before lodging a partner visa application. The only requirement which a person has to meet by the parties is the express and actual requirements provided by section 5CB of the Act. Under the interpretation done by the court the parties do not have to “cohabit” before the application is lodged. In situation where the requirements of the section that the parties have agreed mutually to share life without the inclusion of any other person, the relationship is continuing and genuine is satisfied only where the test of “live separately and apart permanently” is not met the parties would face a difficulty in making the visa application.

In this part of the paper the principles of statutory interpretation which had been used by the court to come to a decision in the case by giving meaning to the phrase are discussed.  In this case the court had relied on the provisions of the Interpretation Act 1901 (Cth). According to section 15AA of the legislation the courts while giving meaning to any text of the legislation has to take into consideration the overall objective and purpose of the legislation[6]. Thus any construction which is contrary to the purpose of the legislation should not be preferred by the court over the interpretation which is in compliance with the legislation. The court must take into consideration the text of the surrounding provisions of the legislation for the purpose of giving meaning to the particular text. In this case the court also followed the statutory interpretation rules used in the case of Taylor v The Owners - Strata Plan No 11564[7]. The case had applied well settled principles of statutory interpretation according to which a legislation should not be read in a way as it contains extra words in situation were doing so will be “too much at variance with the language in fact used by the legislature”. Thus the meaning of the phrase did not signify that the parties have to be residing together in order to establish a de facto relationship. in addition where there is no mention of a particular text in the legislation, the text cannot be added to vary the intention of the legislature. Thus the parties are not required to cohabit together before lodging a visa application.

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

[1] Migration Act 1958 (Cth) at Section 5BC (2)(c)(ii)

[2] (2015) FCAFC 69

[3] (2015) FCAFC 69 at 5

[4] (2015) FCAFC 69 at 6

[5]  11564 [2014] HCA 9 at 38

[6] Interpretation Act 1901 (Cth) at Section 15AA

[7] 11564 [2014] HCA 9 at 38