Chen (Migration)

The Administrative Appeals Tribunal considered an application for a Business Skills (Permanent) visa, subclass 888 (Business Innovation). The applicant sought to be recognised as a member of the family unit of the primary visa applicant, Ms Junya Xu. The core of the dispute revolved around whether the applicant met the criteria for being a "member of the family unit" under the Migration Regulations 1994, specifically in relation to their marital status.

The Tribunal was required to determine if the applicant qualified as a "spouse" of the primary visa applicant, Ms Xu, for the purposes of the Business Skills (Permanent) visa application. This involved interpreting the definition of "spouse" under section 5F of the Migration Act 1958, which requires a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship is genuine and continuing, with the couple living together or not living separately and apart on a permanent basis. The Tribunal also considered the circumstances outlined in regulation 1.15A, which include financial, household, social aspects, and the nature of the commitment to each other.

The Tribunal's reasoning focused on the documentary evidence presented, specifically a divorce order made under the Australian Family Law Act 1975 on 26 November 2020, which indicated the marriage was terminated on 27 December 2020. Based on this, the Tribunal concluded that the applicant and Ms Xu were no longer married and therefore no longer spouses under the Migration Act. Consequently, the Tribunal found that the applicant did not satisfy the requirements of clause 888.311 of the Migration Regulations. The Tribunal affirmed the decision not to grant the applicant a Business Skills (Permanent) visa.