LIANG (Migration)

This matter concerned an appeal by Ms. Liang against the decision to affirm the refusal of her Partner (Temporary) (Class UK) visa. The core dispute revolved around whether Ms. Liang was the spouse of the sponsor, Mr. Fan, as defined by section 5F of the Migration Act 1958 (Cth), at the time of her visa application and in the period immediately preceding their separation on 17 March 2017. The Tribunal was required to determine if the relationship met the criteria for a spousal relationship under the Act, considering the evidence presented by both parties.

The Tribunal was tasked with assessing the nature of the commitment between Ms. Liang and Mr. Fan, particularly in light of evidence suggesting the sponsor was not committed exclusively to Ms. Liang and that an open marriage had been suggested. This required the Tribunal to consider various aspects of the relationship, including financial, household, social, and the nature of their commitment, as outlined in Regulation 1.15A of the Migration Regulations 1994. The Tribunal had to weigh the provided documentation, which included social media exchanges, statements from friends, details of property inspections, and communication with a marriage counsellor, against the legal definition of a spousal relationship.

In its reasoning, the Tribunal found that the evidence did not establish that the sponsor was committed to the exclusion of all others, noting the suggestion of an open marriage and contacts with other women. While acknowledging some evidence of a spousal arrangement, such as shared living arrangements and financial contributions, the Tribunal concluded that these were insufficient to satisfy the definition of a spouse under section 5F of the Act, particularly when viewed in the context of the sponsor's lack of exclusive commitment. Consequently, the Tribunal affirmed the decision not to grant the visa.