Feng (Migration)

This matter concerned an appeal by Ms Feng against a decision to refuse her Partner (Temporary) (Class UK) visa, Subclass 820. The primary issue before the Tribunal was whether Ms Feng and Mr Chen were in a genuine and continuing spousal relationship, as required by the Migration Regulations 1994. The delegate had refused the visa on the basis that Ms Feng did not satisfy clauses 820.211 and 820.221, which require the applicant to be the spouse of an Australian citizen or permanent resident.

The Tribunal was required to determine whether Ms Feng and Mr Chen were in a married relationship that met the criteria set out in section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The assessment was to consider all circumstances of the relationship, including financial, household, social aspects, and their commitment to each other.

The Tribunal found that Ms Feng and Mr Chen were validly married on 2 November 2015. While the delegate had initially expressed scepticism regarding the genuineness of the relationship, the Tribunal noted evidence of an improvement in the sponsor's attitude and lifestyle, including undertaking religious activities and volunteer work together. The Tribunal concluded that the matter should be remitted for reconsideration, directing that Ms Feng met the criteria for the visa.