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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liu (Migration)

Details

AGLC: Liu (Migration) [2025] ARTA 144
Case: [2025] ARTA 144
Decision Date: 12 February 2025

CaseChat Overview and Summary

In the case of Liu, the applicant sought a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The dispute arose when the original relationship with the sponsor ceased, and the applicant sought to establish a new relationship with a different partner. The Administrative Appeals Tribunal was tasked with reviewing the decision to deny the visa.

The Tribunal was required to determine whether the applicant and the sponsor were in a genuine and continuing de facto relationship at the time of the decision, as required by the Migration Act 1958. The Tribunal also needed to consider the definition of 'spouse' and whether the applicant and sponsor met the criteria for a marriage that is valid for the purposes of the Act.

The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. It found that while the applicant and sponsor were validly married, there was insufficient evidence to prove that they were in a genuine and continuing de facto relationship. The Tribunal noted that the relationship had ceased, and the applicant had entered into a new relationship. The evidence provided was insufficient to establish that the new relationship met the requirements for a de facto relationship under the Act.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa. The representative for the applicant, Ms. Amy Lee, had the opportunity to comment on the Non-Disclosure Certificate but chose not to. The Tribunal found that the decision under review should be upheld based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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?

Decision

Reasons for decision

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 2025Representative for the Applicant: Ms Amy Lee (MARN: 0215803)

Ratio Decidendi

Legal Principle Established

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