Liu (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by a Chinese citizen, the applicant, sponsored by her Australian citizen spouse. The core dispute revolved around whether the applicant continued to meet the criteria for being the spouse of the sponsor for the purposes of the *Migration Act 1958* (Cth) at the time of the decision. The Tribunal was required to assess the genuineness and continuation of the spousal relationship, considering various aspects including financial, household, and social elements, as well as the nature of the parties' commitment to each other.

The legal issues before the Tribunal were whether the applicant and sponsor remained in a genuine and continuing spousal relationship, and whether they were living together or not living separately and apart on a permanent basis, as required by section 5F of the *Migration Act*. This involved an assessment of all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3) of the *Migration Regulations 1994*. The Tribunal also had to consider the validity of their marriage and whether they met the definition of a married relationship under the Act.

The Tribunal reasoned that while the parties were validly married, the delegate had not had the benefit of significant additional evidence provided between November 2022 and May 2024. This extensive documentation supported their claims of remaining in a genuine and continuing spousal relationship since their marriage in 2013. Applying the principles from *He v MIBP* [2017] FCAFC 206, the Tribunal considered the various factors outlined in regulation 1.15A(3), including financial pooling, household arrangements, social presentation, and mutual commitment. Based on the substantial evidence presented, the Tribunal was satisfied that the parties met the criteria for a genuine and continuing spousal relationship and did not live separately and apart on a permanent basis.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 801 Partner visa, namely clauses 801.221(2)(a), (b)(i), (c), and (d) of Schedule 2 to the Regulations.