_, __­____«­__€€VM _­____«{Hwang (Migration)

The Federal Circuit Court of Australia considered an appeal by Mr. Hwang concerning the refusal of his Partner (Residence) (Class BS) visa, Subclass 801. The primary dispute revolved around whether Mr. Hwang and his spouse were in a genuine and continuing relationship, and whether they were living together or not living separately and apart on a permanent basis, as required for the visa.

The court was tasked with determining whether the delegate's decision to affirm the refusal of the visa was affected by an error of law. Specifically, the court had to assess whether the delegate had properly considered the evidence regarding the couple's living arrangements, the nature of their commitment to each other, and whether the relationship was one of convenience for migration purposes. Key to this was the interpretation of "living together" and "not living separately and apart on a permanent basis" in the context of the couple's circumstances, including periods of living in different states or countries due to study, work, and COVID-19 restrictions.

The delegate had found that the relationship was not genuine and continuing, and that the couple were not living together on a permanent basis. This conclusion was based on several factors, including the fact that the marriage occurred shortly before the applicant's previous visa was due to expire and the partner visa application was lodged the following day. While the couple had a joint tenancy agreement, they lacked joint assets or liabilities and did not pool their financial resources. Furthermore, when they did share accommodation, it was often with other people. The delegate also considered statements from family and friends, but ultimately found that the long-term aspect of their commitment was not sufficiently demonstrated, and that the relationship appeared to be one of convenience for the migration outcome. The court affirmed the delegate's decision.