Australian citizens, Australian permanent residents or eligible New Zealand citizens may sponsor their partner to enter and/or remain permanently in Australia. Different visa categories apply, depending upon whether the visa applicant is overseas or already in Australia.
In order to qualify for a visa, the relationship may be based upon:
- a marriage that is legal under Australian law;
- a de facto relationship of at least 12 months; or
- an interdependent relationship of at least 12 months (generally a same sex relationship).
Regardless of whether the application is based on marriage, a de facto relationship, or an interdependent relationship, the applicant must provide evidence that the relationship is genuine and continuing. This includes evidence of living together full-time, shared financial and social commitments, and establishing a household separate from other people.
Where the Minister for Immigration and Citizenship is satisfied that the criteria for the issuance of a visa have been satisfied, a temporary visa is issued for a waiting period. This waiting period is ordinarily two years. During this time the visa holder may remain in Australia with his or her partner until a decision is made regarding a permanent visa. If the relationship still exists after the waiting period has elapsed, a permanent visa will be granted.
If the relationship has ceased, the applicant will still be entitled to a permanent visa if the applicant suffered domestic violence committed by the sponsoring spouse after the applicant first entered Australia as the holder of a relevant temporary visa. This issue was recently considered by the High Court of Australia in Sok v Minister for Immigration and Citizenship, [2008] HCA 50.
In the Sok decision, the appellant was a citizen of Cambodia. He married an Australian citizen who sponsored his application for a temporary visa and a permanent visa permitting him to enter and remain in Australia. The appellant had applied for both visas in 2002 and entered Australia that year. A two year waiting period was imposed in relation to the grant of the permanent visa. In 2005, the Minister's delegate refused the appellant's application for a permanent visa on the ground that he was not the spouse of the sponsor.
The appellant applied for a review of this decision by the Migration Review Tribunal. While the review was pending, the appellant submitted materials to the Tribunal through his migration agent, claiming that he had been the victim of domestic violence at the hands of his sponsor.
The Tribunal, without inviting the appellant to appear to give evidence or make submissions, found that it was not satisfied that the appellant had suffered relevant domestic violence. The Tribunal sought the opinion of an independent expert who determined that the appellant had not been a victim of domestic violence. The Tribunal also invited the appellant to make submissions in response to the expert opinion. As a result of the appellant's additional submissions, the Tribunal sought a second opinion from an independent expert who also concluded that the appellant had not suffered relevant domestic violence. The Tribunal provided the second opinion to the appellant and held a hearing at which the appellant adduced evidence and presented arguments in support of his claim to have suffered domestic violence. Ultimately the Tribunal affirmed the decision of the Minister's delegate to refuse to grant the permanent visa.
The appellant sought review of the Tribunal's decision. The Federal Magistrates Court set aside the decision on the basis that the Tribunal was obliged by s 360 of the Migration Act 1958 (Cth) to invite the appellant to a hearing before seeking the opinion of an independent expert and that it had failed to do so.
The Minister successfully appealed to the Full Court of the Federal Court of Australia. The Full Court allowed the Minister's appeal on the basis that the claim to have suffered domestic violence had to have been made in the application to the Minister and could not be raised for the first time in connection with a review by the Tribunal.
On appeal to the High Court of Australia, the court determined that the Tribunal must consider a claim of domestic violence made by an applicant for a permanent spouse visa, even though the applicant did not make such a claim at the time when the Minister refused to grant the visa which was sought. In addition, the High Court of Australia determined once the appellant made the claim that he had suffered relevant domestic violence, the Tribunal was bound by s 360 to invite the appellant to appear before it to give evidence and present arguments relating to that issue. This hearing had to take place before the Tribunal sought an independent expert opinion, as once the opinion was obtained, the expert's opinion would determine the issue.
The High Court of Australia allowed the appeal, resulting in a rehearing of the matter by the Tribunal.