Spousal Relationships: Evidence of Occurring Later Can Corroborate a Set of Facts Existing Earlier


Many emotional relationships between people can become quite serious early in the progress of the relationship. However both Immigration and the tribunal are naturally suspicious of relationships that are classified as spousal by the parties when they may have only met a short time ago, the so-called whirlwind romance. Whirlwind romances leading to long term serious relationships and long term marriages are not uncommon in history. US President Lyndon Baines Johnson (LBJ) met his wife Ladybird (her nick name of course) and married her six weeks later and remained married to her for almost 40 years until he died in 1973.
So if a tribunal were to look at that marriage of LBJ and Ladybird say two months after they met one could possibly think it was contrived. However, obviously close to 40 years on, one can safely conclude – yes, the marriage was always genuine given that is lasted so long. So the facts occurring after the event can throw light on a state of affairs existing much earlier. This point is well recognised in the law.
The law on this point was aptly described in Sai Chi Noriman Mak v IRT & the MILGEA [1994] FCA 918; (1994) 48 FCR 314 where the Court concluded that ‘evidence of subsequent events could be admitted where it might be relevant to the existence of a fact as at the earlier time’. The context of that conclusion is set out below :

45. Although it was asserted by the appellant in his notices of appeal and in both written and oral argument that publication of the Profile occurred after the delegate’s decision, no publication date was particularised. This was in contrast to the particularisation of publication dates for the May 1991 RATE Guidelines and the Alexander letter. This was somewhat unfortunate because the closer the date upon which the Profile was published was to the delegate’s decision the more likely it was that the Tribunal could have regard to it. I say this because in my view a subsequent publication such as the Profile may tend “logically to show the existence or non-existence of facts relevant to the issue to be determined” to quote Deane J in MILGEA v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 160. I propose to follow the course taken by O’Loughlin J in Bretag v IRT & MILGEA [1991] FCA 582 (29 Nov 1991) and Hill J in Surinakova v MILGEA [1991] FCA 596; (1991) 33 FCR 87 at 94. In each of those cases it was held that evidence of subsequent events could be admitted where it might be relevant to the existence of a fact as at the earlier time.
It is sometimes called the Bretag point as that was an earlier case which raised the issue although it is more aptly described in this case of Mak.

Typically a tribunal is looking at a spousal relationship often 18 months to 2 years after the initial visa refusal. Parties in a relationship will have done a lot more things together over that 2 year period to solidify their relationship. The writer’s advice in such cases where the parties to a relationship are waiting on a tribunal hearing and decision is always to live life as if one is going to be successful and do things as a couple as if the visa were granted at first instance.
One often sees genuine cases losing a lot of credibility by parties to a relationship who have put their lives on hold waiting for the outcome of a tribunal decision yet it is often the fact that it looks like the relationship is not progressing that leads to a refusal.
Of course one should never seek to bring offspring into the world just for migration purposes. However the existence of a pregnancy or the birth of an offspring goes a long way to proving that a relationship is genuine.
As in many visa application cases, parties to a relationship need to live their lives as if the visa will be granted. The writer has seen many cases where the parties have put their lives on hold because of the uncertainty of the situation with the result that uncertainty is then created in the minds of the decision maker.
From the moment the parties see themselves in a de facto or marriage relationship then the parties have to live their lives as if they are going to be together for life. It is useful here to record what the decision maker will take into account in determining a spousal relationship. This is set out in Reg 1.15A(3):

(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.

Not all of these factors will be present in each relationship but parties to a relationship need to ensure that they live their lives as a genuine couple for the minute they say they are in a genuine relationship and most importantly after visa refusal and up to the date of any tribunal hearing. Each of the matters in the regulation reflect life. Hence if parties are missing fundamental aspects of a relationship then it obviously raises doubt as to the existence of a genuine relationship. Parties to a spousal relationship wold ordinarily expect to know a lot about aspects of each others’ lives like how much each earns, what sort of work they do, what each likes and doesn’t like and some knowledge of each others’ friends and life history. As a practice point, tribunal members and case officers sometimes ask applicants about what happened in the last week. It must never be contrived but it is important that both parties are aware of this type of line of questioning and be prepared for it and ensure there are no inconsistencies between them or significant gaps in knowledge or information.

Apart from the reproduction issue all of the above factors apply to a same sex relationship.

Barbara Davidson