Liu (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309). The primary applicant sought to establish that she was the spouse of an Australian permanent resident, and that their relationship was genuine and continuing. The Tribunal was required to consider the evidence presented regarding the nature of their commitment, and the financial, household, and social aspects of their relationship.

The central legal issue before the Tribunal was whether the primary applicant and the sponsor were spouses at the time of the visa application and at the time of the Tribunal's decision, as defined by section 5F of the Migration Act 1958 (Cth). This definition requires that persons in a married relationship be validly married, demonstrate a mutual commitment to a shared life to the exclusion of others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was also directed to consider all circumstances of the relationship, including financial, household, and social aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal noted the parties met online in July 2018, married in China in January 2019, and the sponsor returned to Australia shortly thereafter. The sponsor made several subsequent trips to China, but was unable to return to Australia from January 2020 due to COVID-19 border closures. The Tribunal found that the evidence provided, including testimony from the parties and the sponsor's sister, was informative and consistent. While the parties had spent periods living apart, this was explained by the sponsor's health recovery and subsequent travel restrictions. The Tribunal concluded that the primary applicant met certain criteria for the visa, and the second applicant also met specified criteria.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister, with directions that the primary applicant met specific criteria, and the second applicant also met specified criteria for the Subclass 309 visa.