Feng (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The applicant sought review of a decision not to grant the visa, which had been refused by the Department of Home Affairs. The refusal was based on the applicant not meeting essential criteria for the visa, specifically in circumstances where the sponsor had withdrawn their sponsorship, the relationship had ceased, and the applicant had departed Australia to care for family, despite remaining married.

The central legal issue before the Tribunal was whether the applicant met the eligibility requirements for the Partner (Residence) visa, notwithstanding the withdrawal of sponsorship and the cessation of the de facto relationship. This required the Tribunal to consider the legislative criteria for the grant of such a visa, particularly in light of the circumstances of the relationship breakdown and the applicant's subsequent actions.

The Tribunal affirmed the decision under review, finding that the applicant did not meet an essential criterion for the visa. The decision was based on the fact that the sponsorship had been withdrawn and the relationship had ceased, which are fundamental requirements for the grant of a Partner (Residence) visa. The Tribunal's role was to apply the relevant migration law to the facts of the case, and in this instance, the failure to satisfy these essential criteria led to the affirmation of the original refusal.