SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69

SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69

Section 5CB(2)(c)(ii) of the Migration Act 1958 (Cth) does not expressly or impliedly require a couple to have previously lived together. The text provides an alternative to living together, the legislative history shows that an earlier six-month living-together requirement was removed, and the established meaning of "living separately and apart" does not require prior physical residence in the same premises. The Tribunal therefore did not make jurisdictional error by deciding that the appellant and Ms Yang could satisfy the de facto relationship requirements despite not having cohabited before the visa application.

Jurisdiction
Australia
Judgment Date
11 June 2015
Procedural Posture
Migration Appeal / Appeal From the Federal Circuit Court of Australia
Outcome
Appeal allowed.
Legal Topics
['partner Visa' 'de Facto Relationship' 'meaning of "do Not Live Separately and Apart on a Permanent Basis"' 'previous Cohabitation']
['migration Law' 'statutory Interpretation'] ['partner Visa' 'de Facto Relationship' 'meaning of "do Not Live Separately and Apart on a Permanent Basis"' 'previous Cohabitation']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether s 5CB(2)(c) of the Migration Act 1958 (Cth), in particular s 5CB(2)(c)(ii), implicitly requires persons relying on the de facto relationship definition to have previously lived together.' 'Whether the Migration Review Tribunal made a jurisdictional error by finding that there is no requirement in the Migration Act 1958 (Cth) that the parties live together before a de facto relationship can be found to exist.']

Ratio Decidendi

Section 5CB(2)(c)(ii) of the Migration Act 1958 (Cth) does not expressly or impliedly require a couple to have previously lived together. The text provides an alternative to living together, the legislative history shows that an earlier six-month living-together requirement was removed, and the established meaning of "living separately and apart" does not require prior physical residence in the same premises. The Tribunal therefore did not make jurisdictional error by deciding that the appellant and Ms Yang could satisfy the de facto relationship requirements despite not having cohabited before the visa application.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of the Federal Circuit Court of Australia made on 26 March 2014 be set aside and in lieu thereof order that the application to show cause dated 17 April 2013 be dismissed.' "The first respondent pay the appellant's costs of the appeal, including the costs of the application in...