Azzi v Minister for Immigration

This case concerned an appeal by an applicant, a male citizen of Lebanon, against a decision of the Migration Review Tribunal (MRT). The applicant had applied for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa on the basis of a spousal relationship with an Australian citizen. He was granted a subclass 309 Partner (Provisional) visa but his subsequent application for a subclass 100 Partner visa was refused by a delegate of the Minister for Immigration. The MRT affirmed this refusal. The applicant then sought judicial review of the MRT's decision.

The primary legal issue before the court was whether the MRT had erred in law in affirming the refusal of the subclass 100 Partner visa. Specifically, the court was required to consider whether the MRT had correctly applied the definition of "spouse" under section 5F of the *Migration Act 1958* (Cth) and the relevant criteria under clause 100.221 of the *Migration Regulations 1994* (Cth), particularly in relation to the cessation of the spousal relationship and the applicant's claim of family violence.

Emmett J found that the MRT had made an error of law. The MRT had concluded that the applicant was not able to satisfy clause 100.221(4) because it had already determined that the parties were not in a spousal relationship. However, clause 100.221(4) requires the decision maker to be satisfied that, had the relationship not ceased, the applicant would have met the criteria for a spousal relationship. The MRT failed to consider this hypothetical scenario. Furthermore, the MRT's findings regarding the lack of evidence for the financial, household, social, and commitment aspects of the relationship were made in the context of determining whether the relationship was genuine and continuing at the time of the decision, rather than assessing whether it *would have been* genuine and continuing had it not ceased. The court also noted that the MRT had not adequately considered the applicant's claim of family violence in light of the requirements of clause 100.221(4)(c).

The court ordered that the MRT's decision be set aside and remitted to the MRT for redetermination according to law.