The inclusion of a de facto partner as a secondary or dependent applicant in both the Temporary Skill Shortage (subclass 482) visa and the Employer Nomination Scheme (subclass 186) visa and other visa subclasses is governed by specific legislative requirements. These requirements ensure that the relationship meets the legal criteria outlined in Section 5CB of the Migration Act 1958, which defines ‘de facto partner’ and ‘de facto relationship.’ This article explores the legislative framework that allows primary applicants to include their de facto partners in their visa applications.
Legislative Framework for De Facto Partners
Under Section 5CB(1), the legislation is explicit in its inclusivity, affirming that a de facto relationship can exist between partners of either the same sex or different sexes. This provision ensures equality and non-discrimination in recognizing relationships, regardless of gender.
Section 5CB(2) stipulates that the couple must not be married to each other. This provision distinguishes de facto relationships from marital relationships, providing a separate pathway for those who are not legally married but have an equivalent bond.
According to Section 5CB(2)(a), the couple must demonstrate a mutual commitment to a shared life to the exclusion of all others. This requirement emphasizes the exclusivity and seriousness of the relationship, ensuring that both partners are devoted to a life together.
Section 5CB(2)(b) necessitates that the couple has a genuine and continuing relationship. This clause ensures that the relationship is not merely one of convenience but is authentic and enduring, reflecting a real and lasting bond between the partners.
Per Section 5CB(2)(c), the couple must either live together or, if not living together, must not be living separately and apart permanently. This provision recognizes that while cohabitation is a significant indicator of a de facto relationship, there may be valid reasons for temporary separation, such as work commitments or family obligations.
Sections 5CB(2)(d) and 5CB(4) aim to align the requirements for de facto relationships with those for married spouses under Section 5F of the Migration Act and the Marriage Act 1961. These sections prohibit relationships between couples within a certain degree of family relation, ensuring consistency and maintaining societal norms regarding relationships.
Finally, Section 5CB(3) permits the creation of regulations that provide additional guidance on determining whether a couple meets the de facto relationship criteria outlined in Section 5CB(2). This allows for detailed provisions and flexibility in assessing the legitimacy of the relationship.
For primary applicants seeking to add their de facto partners as secondary applicants in subclass 482 or subclass 186 visa applications, it is essential to provide evidence that their relationship meets the aforementioned legislative requirements. Evidence may include, but is not limited to, joint financial commitments, shared residential arrangements, mutual social recognition of the relationship, and affidavits from friends and family.
Conclusion
The inclusion of a de facto partner in 482 and 186 visa applications is a meticulous process that requires adherence to the legislative framework established in Section 5CB of the Migration Act. By ensuring that all criteria are met, primary applicants can successfully include their de facto partners as secondary applicants, thereby enabling them to build a life together in Australia. This legislative inclusivity underscores the recognition of diverse relationship forms and the commitment to equal treatment under Australian immigration law.
Footnotes available upon request.
