Liu (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant sought to establish that they were the spouse of the sponsoring partner at the time of the decision, as required by cl.100.221(2)(b) of the Migration Regulations 1994. The Tribunal considered all documents on file and oral evidence presented at the hearing.

The primary legal issue before the Tribunal was whether the applicant met the criteria for being the spouse of the sponsoring partner under s.5F of the Migration Act 1958 and cl.100.221(2)(b) of the Regulations. This required determining if the parties were in a married relationship, which involves a mutual commitment to a shared life as a married couple to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal was also required to have regard to all circumstances of the relationship, including financial, social, household, and commitment aspects as outlined in r.1.15A(3).

The Tribunal found that the parties were married to each other under a marriage valid for the purposes of the Act, as evidenced by a Marriage Certificate. However, the Tribunal's consideration of the specific matters under r.1.15A(3), including financial aspects, nature of the household, social aspects, and the nature of their commitment to each other, led to the conclusion that the matter should be remitted for reconsideration. The Tribunal directed that the first named visa applicant met criterion cl.100.221(2)(b), but the ability of the second named visa applicant to satisfy the secondary criteria required further reconsideration.