LIU v Minister for Immigration

This matter concerned an application for judicial review brought by Ms Liu against the Minister for Immigration. The dispute arose from the Administrative Appeals Tribunal's decision to affirm a delegate's refusal to grant Ms Liu a permanent partner visa (subclass 801). Ms Liu had previously been granted a temporary partner visa (subclass 820), which required her to be the spouse of an Australian citizen. The Tribunal's decision was challenged on the ground that it had exceeded its jurisdiction by determining that Ms Liu and her estranged husband were never in a spousal relationship as defined by the Migration Act 1958 (Cth).

The central legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had the power to revisit the question of whether Ms Liu and her sponsor had been in a genuine and continuing spousal relationship at the time of the grant of the subclass 820 visa. The applicant argued that the grant of the subclass 820 visa necessarily implied that this criterion had been satisfied, and that any reconsideration of this finding could only occur through specific visa cancellation provisions. The applicant contended that the Tribunal had focused solely on whether a spousal relationship existed within the meaning of section 5F of the Act, thereby asking itself the wrong question and failing to consider relevant claims, such as family violence.

The Court considered the competing submissions of the parties. The applicant argued that the Tribunal lacked the power to reconsider the spousal relationship for the subclass 801 visa application, as this had already been determined for the subclass 820 visa, and any such reconsideration would require a visa cancellation process. Conversely, the Minister submitted that the Tribunal was not bound by the delegate's previous findings and that a fair reading of the Tribunal's reasons indicated it had addressed the correct criteria for the subclass 801 visa, rather than revisiting the subclass 820 visa criteria. The Court framed the core question as whether the Tribunal failed to address the questions it was required to, or considered questions it ought not to have, when reviewing the delegate's decision.