Do you know how the Department assess the spousal relationship?
Assessing spouse relationships
Section 5F of the Act and regulation 1.15A(1A) operate as follows:
- s5F(2)(a) requires the relationship to be a de jure marital relationship recognised under migration law
- s5F(2)(b) requires the relationship to be one of mutual commitment to a shared life as husband and wife to the exclusion of all others
- s5F(2)(c) requires the (marital) relationship to be genuine and continuing (on-going)
- s5F(2)(d) requires the parties not to be living separately and apart on a permanent basis.
Under law (regulation 1.15A(1) and under policy (for regulation 1.15A(3)), decision makers must have regard to regulation 1.15A(2) when assessing s5F(2) requirements and consider all the circumstances of the relationship, particularly (but not limited to) the factors listed in regulation 1.15A(2).
Although s5F(2) requirements are inextricably linked, decision makers must assess each type of legislative requirement separately and take care not to blur the distinction between each requirement.
In accordance with regulation 1.15(A)(2), in all cases, decision makers are to consider collectively the four factors specified in regulation 1.15A(3)(a)-(d), that is, the:
- financial aspects of the relationship (Factor 1 – regulation 1.15A(3)(a))
- nature of the household (Factor 2 – regulation 1.15A(3)(b))
- social aspects of the relationship (Factor 3 – regulation 1.15A(3)(c))
- nature of the persons’ commitment to each other (Factor 4 – regulation 1.15A(3)(d))
By considering all four factors, it will ensure consistency and fairness across all visa classes, including those that are not in the partner category of visas.
By doing this, decision makers will be able to satisfy the s5F(2) requirement that the:
- relationship is genuine and/or continuing
- parties have a mutual commitment to a shared life to the exclusion of all others and
- partners are living together (or at least not living apart permanently).
The officer’s assessment must not be based by only comparing how many factors listed in regulation 1.15A(3) are satisfied against how many are not satisfied. Rather, it involves officers:
- considering each individual relationship against all factors listed in regulation 1.15A(3) and
- taking into account any other relevant information provided by the applicant (or information otherwise available to officers), assessing whether or not, on balance, the requirements of s5F(2) are met and that a spouse relationship exists.
Completing and applying will not satisfy these requirements. If there are any weaknesses in your case proper legal submissions must be provided with substantiating factors and highlighting case law when required.