Liu v Minister for Home Affairs

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.