Assignment 1 Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    1685

Question one

The meaning of “de facto partner” in the case of Peta Piper and Tom Tucker

A brief definition of the term “de facto partner” can be given as a person (of either sex) who is in a de facto relationship with another. However, this definition is too brief to be applicable in the practice of migration legislation in the country. The Migrations Act 1958 sets out a series of conditions which must be satisfied for a relationship to be termed as being “de facto” and the partners in such a relationship to be termed as de facto partners. According to s 5 of the Migrations Act 1958, these conditions are as follows. One, the individuals must not be in a married relationship as defined in the Migrations Act 1958 (Cth). This implies that relationships which satisfy conditions for marriage can not be termed as being de facto. Two, the partners, apart from being at least eighteen years of age at the time an application is made, should not be related by family. Paragraph (2) of section 5 of the Migrations Act 1958 gives provisions for what can be termed as a family relationship between individuals. Three, the partners must have a mutual agreement to a shared life to the exclusion of all the others. Four, the relationship between the individuals should be genuine and continuing. This implies that partners in such an arrangement should not live separately and apart on a permanent basis. Lastly, the relationship should have continued for a period of at least twelve months prior to the date of application, as indicated in the (Department of Immigration and Citizenship 2013).

In order to determine whether Peta Piper is a de facto partner of Tom Tucker (and by extension, whether the relationship between the two qualifies to be called a de facto one), it is important to examine the facts surrounding their situation and weigh them against the provisions of the Migrations Act 1958 together with the regulations contained in the Migrations Regulations 1994. Peter Piper intends to apply for a partner visa, basing on the fact that she has been in a relationship with Tom Tucker, an Australian citizen, for eighteen months. The two intend to get married in September 2013. Further, Tom, being employed by a multinational oil company, spends three months away from Peta, working on an offshore oil rig. The only periods that the two are physically together is during Tom’s three-month holidays.1

In this circumstance, it is important to examine whether all the conditions have been satisfied for Peta Piper to be considered as being in a de facto relationship with Tom Tucker before she validly makes an application for a partner visa, as she intends to do. Regulation 1.09 Aoffers a comprehensive criteria which can be used to determine whether, in this particular circumstances, Peta Piper qualifies as a de facto partner of Tom Tucker. According to s 3, several aspects of the relationship must be examined to determine whether the relationship is a de facto one. Of special interest are the regulations on the provisions of the household. This includes any joint responsibility for the care of children, living arrangements and the sharing of responsibility for housework. In the case of Tom Tucker and Peta Piper, the relevant provision regards the nature of the persons’ commitment to each other. Since the duration of their relationship is eighteen months and both see the relationship as a long term affair, they have satisfied all the conditions as provided in s 3 as well as reg 2.03of the regulations. Despite the brief periods of absence, it is clear that their relationship is based on long-term plans as required by s 3 of the Migrations Regulations 1994.

However, the twelve-month requirement provides a complicated scenario for this case since the nature of Tom’s work of requires him to be absent from home for every three months. Under the current circumstances, it is important to determine whether this absence amounts to “living apart” and, as a result, whether the two have satisfied the conditions as set out in the Migrations Act 1958 and the guiding regulations in regs 1 and 2. According to Atkin (2008, p. 796) the practice in many Commonwealth countries has been to  define de facto relationships in similar approach to civil marriages since the similarity between the two is exposed in the event of application of Property (Relationships) Act. This view is shared by Hallett (2011, p. 66). Despite their periods of long absence from each other, the relationship has satisfied all the conditions as set out in sub-regs 2.03(1) – 2.0 (5) of the regulations. Further, that there have been long periods of absence by one partner does not warrant the relationship to qualify for a waiver of the 12-month requirement as stipulated under the Migrations Act 1958 (Cth).2 Therefore, it is logical to conclude that the brief absence of Tom does not amount to the partners living separately and apart on a permanent basis as stipulated in sub-para (2)(c)(ii) of the Act. Their stay during the period satisfies all the other conditions necessary for this relationship to be termed as a de facto relationship and, by extension, for Peta Piper to be validly referred to as the de facto partner of Tom Tucker.

References

Atkin, B 2008, “The Legal World of Unmarried Couples: Reflections on ‘De Facto     Relationships in Recent New Zealand Legislation,” Victoria University of Wellington Law Review, vol. 39, no. 4, pp. 793 — 811. Viewed 17 June 2013,     Australian Legal Information Institute, Rw/2008/44.pdfLaw/journals/VUWnzwww.austlii.org/

Department of Immigration 2013, One Year Relationship Requirement in Australia,     viewed 17 June 2013, http://www.immi.gov.au/media/fact-    sheets/35relationship.htm

Hallett, AT 2011, “Civil nullity: de facto marriage or void marriage?” Law Institute     Journal, February 2001, pp. 65 – 67, viewed on 17 June 2013, http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/LawIJV/2001/34.html?    stem=0&synonyms=0&query=de%20facto%20relationship

Migration Act of 1958 (Commonwealth of Australia) s. 3 and 10, viewed on 17 June 2013, http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/

Migration Regulations of 1994 (Statutory Rules 1994 No. 268 as Amended) viewed on 17 June 2013, http://www.comlaw.gov.au/Details/F2012C00021/Html/Volume_7

Question two

Client Reference Number: 2013/123

11 June, 2013

Adam O’Malley

234 Street

MIGRATIONS ACT 1984

Dear Mr. O’Malley,

YOUR APPLICATION FOR A PARTNER VISA: SAM ANDREWS

I refer to our meeting earlier today concerning application for a permanent visa for your partner, Sam Andrews. The nature of her arrival, your intentions for a partner visa application and her plans of offering professional services for your firm present important legal issues which I shall address. Here is my legal opinion of the matter. First and foremost, it is important to note that onshore temporary visa is covered by two important subclasses: 820 (partner temporary visa) and subclass 801 (partner permanent visa) Migrations Act 1984(Cth.)

For Sam to make a valid application for any of the aforementioned classes of visas, several factors have to be taken into consideration. The first one is whether all the conditions prescribed by the relevant laws have been fully satisfied. Subject to legal provisions in the Migrations Act 1984 (Cth), Sam has to satisfy the following conditions before she can apply for a partner visa. Firstly, she must make an application for a Partner (temporary) visa of subclass 820, according to s 2. She must also make sure that she pays the entire required fee for the application process. Since you are an eligible Australian resident, the first legal hurdle can be considered crossed.

Secondly, the Migrations Act 1998, Section 801.14 provides that the applicant of either class of visa must either be in or out of Australia but not in the immigration clearance at the time of the visa being granted. Since Sam is already in Australia, this visa can be validly applied. Thirdly, Sam will have to meet all the legal criteria for the grant of the visa, she will be eligible for the grant of a partner (temporary) visa (subclass 820). Once Sam has been granted the subclass 820 visa, she will be eligible to apply for the partner (permanent) visa (subclass 801) under the provisions of the Migrations Act. This will be subject to having completed the prescribed waiting period and during which the application shall be considered. It is after this process that Sam will be eligible for the granting of the partner (permanent) visa (subclass 801). Concerning payment of fees, you should bear in mind the fact that no further charges shall be imposed on her during the application for the subclass 801 type of visa. Also, the application for permanent stay shall be done concurrently with that of temporary stay (subclass 820) and shall be made in Australia together with the application for partner residence, in accordance with para 1214 (3) (a).

Concerning the question of whether Sam, under her current visa, can be allowed to proceed with the intended duties, this is my opinion. The Migrations Act provides that a holder of the e visitor subclass 651 visa shall be subject to conditions 8101, 8521, 8528 and 8201, as stipulated in regs 801.2- 801.3. However, since in this case, the visa is already in operation, condition 8201 shall be applicable. This condition bars any holder of an e visitor visa (subclass 651) from engaging in any work. In this case, Sam shall not be eligible to offer her services in your business as proposed since doing so would amount to contravention of these legal provisions.

Yours sincerely,

Registered Migration Agent

1
Two issues of concern stand out in this scenario. One is whether the prevailing conditions can be deemed to satisfy the requirements for a de facto relationship. The second one is whether, in view of the repeated period of physical absence from each other, this relationship can be termed as having satisfied the 12 — month requirement.

2
See Atkin (2008, p. 796). The length of the relationship is critical in determining when a de facto relationship actually started and ended. Although the case cited here is under New Zeeland legislation, the importance of a relationship satisfying the time requirement is critical under the provisions of the Australian Legislation as well.