Liu v Minister for Home Affairs

Link copied
Case Copied 10 min read

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Home Affairs [2019] FCA 1925

Appeal from: Liu v Minister for Immigration & Anor [2019] FCCA 1638
File number: NSD 1024 of 2019
Judge: NICHOLAS J
Date of judgment: 20 November 2019
Catchwords: MIGRATION – whether appellant satisfied requirements for Partner (Permanent) (Class BS) (Subclass 801) visa – whether primary judge misconstrued cl 806.211 of Schedule 2 of Migration Regulations 1994 (Cth) – no error in primary judge’s reasoning – appeal dismissed
Legislation:

Migration Act 1958 (Cth) s 5F

Migration Regulations 1994 (Cth) cll 820.211, 820.221

Date of hearing: 19 November 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 24
Counsel for the Appellant: Mr L Karp
Solicitor for the Appellant: Australia United Lawyers
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent submitted save as to costs

ORDERS

NSD 1024 of 2019
BETWEEN:

YUJIA LIU

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

20 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

NICHOLAS J:

  1. This is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Manousaridis) dismissing an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the first respondent to refuse the appellant a Partner (Permanent) (Class BS) (Subclass 801) visa.

  2. The appellant applied for the Partner (Permanent) (Class BS) (Subclass 801) visa on 8 August 2013 based on her relationship with the sponsor who she said she married in either June or July 2013.  At the same time she also applied for a Partner (Temporary) Subclass 820 visa.  

  3. On 8 February 2014, the appellant was granted the Subclass 820 visa. The requirements of this subclass of visa included those set out in cl 820.211 and cl 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 820.211 specified requirements that the appellant was required to meet at the time of making her application for the Subclass 820 visa. Clause 820.221 specified requirements that the appellant was required to meet at the time of the decision. Both of these clauses relevantly required that the appellant be the spouse of her sponsor.

  4. Section 5F of the Migration Act 1958 (Cth) (“the Act”) defines “spouse” for the purpose of the Act. It is unnecessary to set out s 5F or the Regulations made in respect of that provision. It is sufficient to note that to satisfy the requirements of the definition the relationship between the appellant and sponsor must be (inter alia) genuine and continuing.

  5. Clause 801.221 specified the requirements for…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Liu v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCA 1925
Decision Date

CaseChat Overview and Summary

In Liu v Minister for Home Affairs, the appellant, a Chinese national, sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) that dismissed her appeal against the Minister's refusal to grant her a Partner (Permanent) (Class BS) (Subclass 801) visa. The appellant argued that the AAT misconstrued the provisions of cl 806.211 of Schedule 2 of the Migration Regulations 1994 (Cth) by requiring her to prove that she was in a genuine and continuing relationship with her sponsor at the time of the AAT's decision. She submitted that because the delegate had granted her a Subclass 820 visa, the AAT should have been bound by that fact. The primary judge rejected the appellant's submission and held that the AAT was required to consider whether the appellant would meet the requirements of cl 801.221(2) except for the cessation of their relationship and the fact that she had suffered family violence. The appellant appealed to the Full Court of the Federal Court of Australia.

The central legal issue in this case was whether the AAT erred in its interpretation of cl 806.211 of Schedule 2 of the Migration Regulations 1994 (Cth) by requiring the appellant to prove that she was in a genuine and continuing relationship with her sponsor at the time of the AAT's decision. The appellant argued that because the delegate had granted her a Subclass 820 visa, the AAT should have been bound by that fact. The Full Court of the Federal Court of Australia considered the submissions made by the parties and held that the AAT was not bound by the delegate's decision in granting the Subclass 820 visa. The Court held that the AAT was required to consider whether the appellant would meet the requirements of cl 801.221(2) except for the cessation of their relationship and the fact that she had suffered family violence.

The Full Court of the Federal Court of Australia dismissed the appellant's appeal and held that the AAT did not err in its interpretation of cl 806.211 of Schedule 2 of the Migration Regulations 1994 (Cth). The Court held that the AAT was required to consider whether the appellant would meet the requirements of cl 801.221(2) except for the cessation of their relationship and the fact that she had suffered family violence. The Court held that the AAT was not bound by the delegate's decision in granting the Subclass 820 visa and was entitled to consider the evidence spanning the entire period of the appellant's claimed relationship with her sponsor. The Court held that the appellant could not satisfy the Tribunal that the spousal relationship ceased if it was not satisfied that the relationship existed in the first place. The Court held that the primary judge's reasoning was correct and that the appeal was dismissed. The appellant must pay the first respondent's costs of the appeal.

ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal was not satisfied that the parties were ever in a genuine and continuing relationship or that other relevant requirements of s 5F of the Act were met. In those circumstances it did not think it necessary to consider whether the appellant had suffered family violence.THE PRIMARY JUDGE’S DECISION Before the primary judge the appellant contended that the Tribunal exceeded its jurisdiction by revisiting the question whether the appellant and sponsor were in a genuine relationship at the time she applied for the Subclass 820 visa. In essence, it was submitted that it was not open to the Tribunal to consider whether the appellant and her sponsor were in a genuine spousal relationship in November 2013 because the delegate must have been satisfied that they were or the delegate would not have granted the Subclass 820 visa. The learned primary judge held that the Tribunal was required by cl 801.221(6) to consider whether the appellant would meet the requirements of cl 801.221(2) except for the cessation of their relationship and the fact that she had suffered family violence. His Honour said at [24]:The applicant in the case before me claimed she suffered family violence committed by the sponsoring partner; that occurred in November 2013; and it was the family violence that led her to escape from the sponsor. In these circumstances a question the Tribunal was required to consider was whether, “except for” the applicant’s relationship with the spouse having ceased, and the applicant’s having suffered the family violence she claims to have suffered, the applicant and sponsor would be in a spousal relationship. To answer that question the Tribunal was required to consider whether the relationship between the applicant and the sponsor as it existed in November 2013 (being the month in which the applicant claimed she was the victim of family violence committed by the sponsor, and which led her to escape from the sponsor) met the requirements of cl.801.221(2), namely, the applicant was the spouse of the sponsor. That rendered relevant all evidence that related to the nature and extent of the applicant’s relationship with the sponsor, including whether the applicant and sponsor were ever in a spousal relationship. There is nothing in any provision of subclass 801 of Schedule 2 to the Regulation that could be taken to have required the Tribunal to be bound by any fact the delegate who had granted the subclass 820 visa may have been satisfied existed. The Tribunal was entitled, and, in my opinion, it was required, to consider for itself evidence of the relationship between the sponsor and the applicant spanning the entire period of their claimed relationship to determine whether, except for the applicant’s relationship with the sponsor having ceased, and the applicant’s having claimed to have suffered family violence, the applicant would be the spouse of the sponsor. His Honour’s reasoning was as follows. Because it was necessary for the Tribunal to consider whether the appellant would have been the “spouse” (as defined by s 5F) of her sponsor at the time of its decision except for their relationship having ceased and the appellant having suffered family violence committed by her sponsor, the Tribunal was bound to consider whether the spousal relationship was ever genuine or continuing. Put another way, cl 801.211(6) could only apply if the spousal relationship ceased, and the spousal relationship could only have ceased if it existed to begin with. It followed that the requirements of cl 801.211(6) could not be satisfied if there never was a genuine and continuing relationship.

Ratio Decidendi

Legal Principle Established

The appellant challenges the correctness of the primary judge’s reasoning. CONSIDERATION For cl 801.221(6) to apply, the appellant had to satisfy the Tribunal that the requirements of cl 801.221(2) would have been met except that the relationship between the appellant and her sponsor had ceased and the appellant has suffered family violence committed by him. She could not satisfy the Tribunal that the spousal relationship ceased if it was not satisfied that the relationship existed in the first place. In my opinion the primary judge’s reasoning was correct. Counsel for the appellant submitted that the words “the relationship” where appearing in cl 801.221(6)(b) did not refer to the spousal relationship between the applicant and the sponsoring partner (“the applicant is the spouse … of the sponsoring partner”) referred to in cl 801.221(2)(c). However, that construction implies that any relationship between the applicant and sponsor would suffice to meet the requirements of cl 801.221(6)(b). It ignores the context of the words used including that cl 801.221(6) is expressed to operate (when it applies) to dispense with the requirements of cl 801.221(2) (c). Counsel for the appellant also submitted that the combined operation of various provisions of the Act and Regulations precluded the Minister from granting a Subclass 801 visa on the basis that the Minister was not satisfied that there ever was any genuine spousal relationship in circumstances where he may be taken to have been previously satisfied that such a relationship existed at the time of granting the Subclass 820 visa. Reference was made to s 31, s 45, s 46(1), s 47, s 65, s 82(2) and various regulations relating to both Subclass 820 and Subclass 801 visas. How it was that the combined operations of these provisions produced the result attributed to them by counsel was never properly explained. In my opinion, the submission did not rise any higher than a bare assertion that it was not open to the Minister to be satisfied (even on the basis of quite different evidentiary material) as to the existence of a particular state of affairs at a given time but not be so satisfied at some later point in time. In my opinion the learned primary judge’s decision was correct for the reasons he gave. The appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal.