Liu (Migration) - [2025] ARTA 144

LIU (MIGRATION) [2025] ARTA 144 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Xun Liu
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2119181

Tribunal:Peter Emmerton
Place:Adelaide
Date: 12 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 12 February 2025 at 1:22pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship with sponsor ceased – has a new partner – applicant made another partner visa application with the new partner – unsatisfied that the applicant and the sponsor were in a genuine spousal relationship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 376
Migration Regulations 1994, Schedule 2, cl 801.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 December 2021 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 June 2015 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that they were not satisfied the applicant was in a genuine and ongoing relationship with the sponsor.
The applicant appeared before the Tribunal on 12 February 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is in a genuine and continuing de facto relationship with the sponsor.
Non-Disclosure Certificate
The Tribunal informed the applicant that some of the information before it provided by the Department is subject to the provisions of a Non-disclosure Certificate under Section 376 as detailed below. This is because disclosure of this material would be contrary to the public interest because it may:
·disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’
The Tribunal asked the applicant if they would like to comment on the validity of the Certificate or make any comment about the Certificate or its contents. The representative e was afforded the same courtesy. They both declined.
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who was an Australian Citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 22 June 2015, as determined by the Department in their assessment. The delegate accepted this as a marriage that is valid for the purposes of the Act, as does the Tribunal. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 29 June 2015.
The sponsor is an Australian Citizen.
The Partner (Temporary) (Class UK) (Subclass 820) was granted on 18 August 2016.
The Tribunal has verified that both the sponsor and the visa applicant are beyond the age of 18.
The Tribunal has read and carefully considered all the material provided to the Department and the delegate.
The Tribunal has read and carefully considered all the material provided to it prior to hearing as outlined below.
·Joint (Xun Liu & Kam Lun Leung) Wesptac Bank Statements – 14 October 2022 to 16 November 2022, 16 September 2022 to 14 October 2022, 16 August 2022 to 16 September 2022, 15 July 2022 to 16 August 2022, 16 June 2022 to 15 July 2022, 16 May 2022 to 16 June 2022, 14 April 2022 to 16 May 2022, 16 March 2022 to 14 April 2022, 14 January 2022 to 16 February 2022, 16 December to 14 January 2022, 16 November 2021 to 16 December 2021, 15 October 2021 to 16 November 2021, 16 September 2021 to 15 October 2021, 16 August 2021 to 16 September 2021, 16 July 2021 to 16 August 2021, 16 June 2021 to 16 July 2021, 14 May 2021 to 16 June 2021, 16 April 2021 to 14 May 2021, 16 November 2022 to 16 December 2022
·Flight Tickets & Invoice (Xun Liu & Kamlun Leung) – 1 October 2018
·Joint (Xun Liu & Kamlun Leung) Gas Bill – 15 July 2022 to 13 October 2022, 14 October 2022 to 12 January 2023, 13 January 2023 to 16 April 2023, 25 March 2021 to 19 April 2021, 20 April 2021 to 15 July 2021
·Joint (Xun Liu & Kamlun Leung) Electricity Bill – 26 February 2022 to 25 May 2022, 26 May 2022 to 28 August 2022, 29 August 2022 to 23 November 2022, 24 November 2022 to 28 February 2023, 27 August 2021 to 24 November 2021, 24 March 2021 to 28 May 2021, 29 May 2021 to 26 August 2021, 25 November 2021 to 25 February 2022
·Evidentiary Photos of Relationship
·2x SA Police Expiation Notice – Xun Liu
·Dispatch Label – Xun Liu
·Representative Letter to Member – 10 February 2025
·Applicant and Sponsor Statement - Explanation statement response to refusal decision
·Sponsor Statement - Explanation of why they do not want a will
·Statement – Why applicant is not included as superannuation beneficiary of Professor Qin, and why they chosen not to marry in this relationship
·Zhaobin Chen last will
·Zhaobin Chen’s 3 sets of property ownership evidence (Translation available one week after hearing if needed – Tribunal accepts the as factual without the translation)
·Zhaobin Chen’s Bank Statements – 18 December 2024 to 17 January 2025
The Tribunal has considered all aspects of the relationship. The Tribunal notes that in the period between the delegate’s decision and the hearing before the Tribunal, it has been possible for the applicant to gather and present additional relevant evidence for consideration.
Financial Aspects
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses. The delegate was not satisfied that the couple had demonstrated that the financial aspects of the relationship were consistent with two people in a genuine and continuing relationship.
The Tribunal notes the Bank Account details and Statements provided to the delegate. It has concluded, having reviewed the pattern of activity in them that strongly indicates they were not use for the joint daily financial activity necessary to sustain the expected joint household expenses. It further observes the details were provided for the years 2017 and 2018 initially, not up until the time the delegate was considering the case in 2021 and their subsequent decision in December 2021.
Noted by the Tribunal is the fact that following an invitation to comment issued to the applicant on 22 April 2021 Bank Statements for the period February 2021 until April 2021 were provided to the delegate. The Tribunal has concluded that this scant level of documentation which did not include details of transactions for the 2 years between the end of 2018 and February 2021 strongly suggests either the Statements would not indicate the level of transactions expected for joint daily household expenses, or the account only came into being as a means to demonstrate joint financial interdependence post the delegate’s request. In either case this is not supportive of joint financial interdependence. When this was raised at the hearing the applicant was unable to provide comments to the effect that the sponsor was a drinker, there were arguments between her and her sponsor. It was stated that the relationship with her sponsor ceased in March 2023. It was also stated early in the hearing that she had a new partner of under 2 years.
The Tribunal received further Bank Statements for the period May 2021 until December 2022 prior to the hearing. It notes that the most recent 2 years of Bank Statements have not been provided. The Tribunal is puzzled by this as it would be a logical action to provide such data if it supported the assertion of current financial interdependence. It would appear a reasonable assumption that the documents may have ceased to be available as the relationship ceased in March 2023 as stated in the paragraph above.
The large multi-year gaps between the relevant financial data provision to the delegate and the Tribunal at a later stage, suggest strongly that the obfuscation is deliberately attempting to hide a pattern of financial activity that may not indicate financial interdependence in relation to the pooling of money. The Tribunal gives this no weight in support of the Financial Aspects of the claim.
In addition to the information provided to the delegate, the Tribunal notes the receipt of 5 Origin Gas accounts in joint names issued between April 2021 until July 2021 and 17 October 2022 and 18 April 2023. It is noted that these are not current and up to 4 years in the past. The Tribunal further notes the receipt of 8 Origin Electricity Accounts covering the period 2 June 2021 until 28 February 2023. They too cover a period from approximately 2 years prior to this review and up to almost 4 years prior to review. They do indicate the joint names under which they are issued at an address in Adelaide South Australia, but this may or may not indicate cohabitation, merely that the joint billing as a means to amass evidence for a relationship claim.
The Tribunal gives this minimal weight in support of the Financial Aspects of the claim. It again notes the cessation of the relationship in March 2023.
The Tribunal has no additional recent relevant evidence of Wills, Superannuation beneficiaries, Insurance policy beneficiaries showing the claimed couple providing for each other.
Cumulatively the Tribunal gives the evidence provided minimal weight in support of the Financial Aspects of the claim.
Nature of the Household
When assessing the nature of the household the Tribunal has considered the domestic living arrangements, shared household duties, daily routines and caring for children. The delegate was not satisfied that the couple were able to demonstrate, that the nature of their household, was consistent with two people in a genuine and continuing spousal relationship.
The Tribunal has determined that the applicant’s nominated address from time of application in 2017 was in Kurralta Park, South Australia. However, on 19 January 2021 while executing a Warrant, Departmental Border Force Officers and searching a premises in Heidelberg, Melbourne the applicant’s identity was confirmed by her and that she resided at that address. In contravention of the immigration requirements, she had failed to notify the Department of this change of address.
The Tribunal notes the delegate in their decision stated the following.
‘The department received information from a credible agency that for financial transactions you made from February 2015 to July 2016, you declared your addresses as 23 Bellombi Street, Campsie NSW and 503 Port Road West, Croydon, SA. It is noted that from 30 June 2015 to 29 May 2017 you provided your address to the department as 40 Orchard road, Everard Park, SA. In your response provided on 18 May 2021 you claim that you did not know the addresses 23 Bellombi Street, Campsie NSW and 503 Port Road West, Croydon, SA and you wrote ‘I suspect that my documents have come to be known to some bad people’. Given that this information was obtained from a credible agency I do not find your response plausible.’
The Tribunal at the hearing offered the visa applicant the opportunity to explain these assertions and subsequent contradictions. They were unable to provide a coherent credible explanation. When asked why she had not informed the Department of her move to Melbourne she claimed it was only temporary and didn’t know she was supposed to. The Tribunal stated it was on her visa documentation and it is her responsibility to comply with the requirements.
The Tribunal notes the statement regarding the sharing of household duties made in the application and considered by the delegate. No evidence was proffered to support these assertions. Likewise, none was provided to the Tribunal. The Tribunal observes the sponsor was not at the hearing to support the assertions. When asked why, it was stated by the applicant she didn’t know he had to be. The Tribunal explained it was not a requirement but if trying to establish the relationship it would have been helpful in support of her claims.
Several documents were previously supplied to the delegate in support of the assertion the applicant and the sponsor lived at the same address. It firstly noted that many of the documents were several years pre the date of the decision. It is secondly noted there were substantial gaps in the evidence. The Tribunal further notes that in the additional evidence provided to it to indicate cohabitation, all are at least 2 years in the past and some dated back to 2018. As previously stated, documents addressed to the same address as the sponsor do not indicate cohabitation, they do not indicate a relationship status. All that is indicated is the address stipulated to a range of Government and private entities, which is self-nominated, and it can easily be falsely stated to facilitate the impression of a person’s location to suit their needs.
The fact that it is clearly established by the Department that the applicant was living in Melbourne with a man identified as a ‘Mr Moh’, combined with an extensive period where there appears to be an absence of verifiable relevant correspondence to the nominated address which only resumed following the discovery of the applicant’s location in Melbourne by Border Force Officers in January 2021, leaves the Tribunal unsatisfied that the applicant and the sponsor were in a genuine spousal relationship and cohabiting at the same address.
The Tribunal asked the applicant what her relationship with Mr Moh was. In response she said he was her landlord and a boyfriend for a brief time. It was further explained they took ‘comfort’ with each other during the multiple Covid-19 lockdowns in Melbourne. After he was arrested, she returned to Adelaide.
The Tribunal places substantial negative weight on this evidence in relation to supporting the Nature of the Household.
Social aspects
In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family.
The Tribunal acknowledges the claims made in the applicant’s Statutory Declaration dated 28 April 2017. It is stated that the visa applicant and sponsor meet with friends as a couple and socialise. It additionally acknowledges the Statements made by a range of individuals which state they are aware of the claimed couple’s relationship status and in 1 case the individual outlines the development of the relationship and his interactions with them as a couple. It is noted no reference is made regarding the visa applicant’s time in Melbourne.
The Tribunal has been provided with a number of photographs which are unannotated. The bulk of the pictures show the applicant and the sponsor in several social settings alone. The other 2 photographs show them on 2 separate occasions in a restaurant with several other individuals. There is no indication of the social relationships or the understanding by the other individuals of the applicant and sponsor’s relationship status. The Tribunal has perused the 14 photographs provided to the delegate, also unannotated.
The Tribunal acknowledges the evidence provided to the delegate of joint travel undertaken by the sponsor and applicant in 2016 and 2017. It also has been provided with evidence of a joint trip undertaken in 2018. There is no correlating information or evidence provided to show that the travel was undertaken as a couple and not merely 2 people travelling together.
The Tribunal acknowledges an unpaid car insurance premium notice sent to the address claimed in South Australia and addressed as MRS X LIU and MR K LEUNG. This again indicates a self-reported status but no reflection on the relationship status. In addition, 3 Expiation notices, (2 Police for red light and speeding and 1 for contravention of No Stopping with the Adelaide City Council), have been produced for offences between 25 March 2022 and 9 June 2022. This indicates the presence of the applicant in Adelaide but nothing more. This was stated to the applicant during the hearing.
Nature of the Commitment
In relation to the nature of the commitment, the Tribunal considered the nature of the parties first meeting, relationship development, length of time living together, degree of companionship and mutual emotional support.
The Tribunal notes the Statutory Declaration dated 28 April 2017, where the applicant states an intention to buy property and have children with the sponsor. No evidence on either count has been produced. Under questioning the applicant stated that it did not eventuate as it was realised there were issues with the relationship.
The Department identified unfavourable information on 11 December 2017 when an officer spoke to the applicant’s sponsor at the Adelaide airport. He claimed to be collecting a party who was not the applicant, who he claimed was his girlfriend at that time. The individual being collected declared her intended address was 16 Barwell Avenue, Kurralta Park SA 5037 on her incoming passenger card. A legal document.

The applicant stated to the Department on 18 May 2021 they were unaware of this information until notified by the Department. This was reiterated during the hearing when the Tribunal asked for comment. It was also stated the applicant was living at that address at the time.
The sponsor, in his response provided on 18 May 2021 claims that ‘at that time I was always arguing with my wife’. This raises the question as to whether the visa applicant was living at the same address and also the status of the relationship. The sponsor’s intention was clear in that he was to bring his girlfriend to 16 Barwell Avenue, Kurralta Park SA 5037. The Tribunal questioned the visa applicant regarding where she was living at the time. She replied with the sponsor, at the claimed address.
The Tribunal again refers to the admission by the visa applicant when spoken to by Border Force officials in Heidelberg, Melbourne on 19 January 2021 that the applicant acknowledged she lived at that address. Mr Moh stated they lived there together, and the applicant was his girlfriend. The visa applicant provided no comment when asked about their relationship with Mr Moh. When asked why no comment the response appeared somewhat contradictory. It was stated it was because she was just a tenant and then added a brief relationship occurred during Covid lockdowns.
The delegate in their decision stated the following.
‘Chun Kit MOH was arrested on the same day and he appeared in the Melbourne Magistrates court on 20 January 2021. During the bail hearing the defence lawyer in support of the contention that Chun Kit MOH had ties to the community claimed that you were in a relationship with Chun Kit MOH. The defence lawyer also stated that you were willing to put up a $10,000 surety if bail was granted for Chun Kit MOH.’
In the response to the delegate dated 18 May 2021, the applicant claimed this was incorrect and they were not in a relationship with Mr Moh and the interpreter made a translation error. The Tribunal finds it unlikely that Border Force would misrepresent the details or that an interpreter would get the response so incorrect as was claimed by the applicant. Furthermore, it is not likely an individual would pay a $10,000 surety if they were not in a relationship. When questioned during the hearing as to the explanation for this series of events the Tribunal found the response unconvincing and did not entirely tally with the reported events. It was volunteered by the applicant that the $10,000 was from the sponsor’s friend not the applicant, it was not paid, and he was not granted bail.
Again, in the response dated 18 May 2021, the applicant talked about discussing with her sponsor a move to Melbourne for work in February 2020 and claimed they were determined to return to Adelaide once finished. No corroborating evidence on either count has been supplied. Nor is there any evidence of the claimed Melbourne work. When questioned by the Tribunal, she admitted the job was paid cash, there were no pay slips, but she claimed she paid income tax. The Tribunal stated this was not legal. When questioned why there was no evidence of the discussion with her claimed partner at the time or her moving to Melbourne, it was stated she drove there.
The Tribunal asked if returning to Adelaide was in response to being found living in Melbourne by Border Force, knowing the relationship status with her sponsor was therefore questionable, which might in turn endanger her visa status going forward. The applicant stated no.
Cumulatively the Tribunal gives the evidence provided substantial negative weight in support of the Commitment to the Relationship Aspects of the claim.
Early in the hearing as previously stated the applicant explained she was no longer in a relationship and living with her sponsor. The relationship finished March 2023 and they ceased living in the same abode in May 2023. The Tribunal asked about the latest current relationship she is in which is less than 2 years in duration, and whether she had made another partner visa application with him. The applicant freely answered the question. The response was in the affirmative, and stated the visa was applied for in June 2023. The Tribunal subsequently confirmed this by reference to Departmental records. This is 1 month after her claimed leaving the joint household and 3 months post the claimed relationship cessation. The evidence provided by the applicant clearly makes it not possible to grant the visa.
For all the above reasons, the Tribunal is not satisfied at the time of decision, the visa applicant and the review applicant were in a genuine and continuing relationship and had a mutual commitment to a shared life to the exclusion of all others, and lived together, or not separately and apart, on a permanent basis.
Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore, the applicant does not meet cl.801.221(2).
Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Date(s) of hearing: 12 February 2025
Representative for the Applicant: Ms Amy Lee (MARN: 0215803)