Partner Visa on De Facto Grounds for a Couple Who Have Never Lived Together

The visa applicant was legally married to his ex-wife as divorce in the Philippines is considered illegal. He was living and working in Saudi Arabia, which meant the Australian sponsor was not able to relocate to this part of the world. Cultural and religious reasons operated to restrict the sponsors ability to relocate. 

A partner visa solution was required in light of these challenging obstacles. An application for a Subclass 309 (Partner) visa was made on De Facto grounds, despite the fact the visa applicant and sponsor have never previously lived together. 

Facts

Our client first met his partner on an internet forum where they shared a common interest and conversed in various discussion threads about their shared admiration.

Inevitably, our client enjoyed his soon to be partners company and the couple spoke every day, going out of his way to ensure he was online very early in the morning when he lived in Saudi Arabia at a time that was convenient to his Australia based sponsor.

Our client had travelled to Singapore several times and thought of inviting his new friend to meet there as he wanted to see if he could take their relationship a step further if they met in person. The Australian sponsor was reluctant to travel to Saudi Arabia as a tourist and they had a common friend in Singapore that they could both visit.

It was during this time in Singapore the couple had fallen in love where they both agreed to continue their relationship even though they lived in different countries. The couple continued to speak daily using any technology available such as email, video ‘Skype’ calls, text messages and phone calls.

Throughout the course of their relationship, the couple frequently travelled to various countries to meet and spend time together.

Our client together with his sponsor are originally from the Philippines, however living together in in this country was not going to be a legal option as our client was still technically married to a former partner. Our client has been separated from his wife for 14 years, however divorce is illegal in the Philippines which made the couples separation more complicated than necessary.

Living in Saudi Arabia would have proven to be challenging for the couple, as our client feared being caught illegally being with a woman who is not a relative which meant they could not live together.

Furthermore, the Australian sponsor is an educated woman with an excellent career and continues to advance herself on a professional level.

These professional opportunities do not exist in Saudi Arabia as women are provided with very limited career choices. Women receive very little respect and are vulnerable to abuse with authorities providing limited support and assistance to female victims.

We provided an extensive submission on how our clients met the definition of a de facto couple in accordance with Australian immigration legislation and policy and more specifically, s5CB(2)(c) of the Migration Act which requires the partners not to be living separately and apart on a permanent basis.

Without going into the legalities, the compelling and compassionate circumstances associated with this case are as divided between two issues, the illegality of living together and women’s rights in Saudi Arabia.

As is very well known, the primary source of law in Saudi Arabia is the Islamic Sharia which is derived from the Quran. The legal system of Saudi Arabia is exceptional in the world of Islam, in that Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify (and thereby modernize) them. In Saudi Arabia, the state regards uncodified Sharia in its entirety as the law of the land and does not interfere with it.  The system of Sharia implemented in Saudi Arabia is said to be the closest system in the modern world to the form of Sharia adopted at the advent of Islam.

In 2010, the U.S. State Department stated that in Saudi Arabia “freedom of religion is neither recognized nor protected under the law and is severely restricted in practice” and that “government policies continued to place severe restrictions on religious freedom”. No faith other than Islam is permitted to be practised, although there are nearly a million Christians, nearly all foreign workers, in Saudi Arabia. There are no churches or other non-Muslim houses of worship permitted in the country. Even private prayer services are forbidden in practice and the Saudi religious police reportedly regularly search the homes of Christians. Foreign workers must observe Ramadan and are not allowed to celebrate Christmas or Easter. Compensation in court cases discriminates against non-Muslims: once fault is determined, a Muslim receives all of the amount of compensation determined, a Jew or Christian half, and all others a sixteenth.

Under the religion of Islam, living in a De Facto relationship is considered adultery which is a crime under the Islamic faith. 

Our clients would have risked their lives if they ever tried living together in Saudi Arabia.

Women’s rights in Saudi Arabia are unfortunately defined by Islamic and tribal customs. All women, regardless of age, are required to have a male guardian. The World Economic Forum 2009 ranked Saudi Arabia 130th out of 134 countries for gender parity. It was the only country to score a zero in the category of political empowerment. The report also noted that Saudi Arabia is one of the few Middle Eastern countries to improve from 2008, with small gains in economic opportunity.

Only twenty-one percent of Saudi women are in the workforce and make up 16.5% of the overall workforce. Even if the sponsor was to somehow get away with living in an illegal de facto relationship in Saudi Arabia, she would find herself in a very likely situation where she would have been unemployed.

Outcome

We are pleased to confirm the Subclass 309 (Partner) Visa application was approved, despite the fact the visa applicant and sponsor had never previously lived together.