Wang (Migration)

The Administrative Appeals Tribunal considered an application by Wai Kiat Wang, a Malaysian citizen, for a Partner (Residence) (Class BS) visa, subclass 801. Mr Wang had previously been granted a Partner (Provisional) visa based on his marriage to Australian citizen Yan Ling Lin. However, allegations were made that the relationship was contrived for immigration purposes, with Mr Wang allegedly paying Ms Lin $30,000 for sponsorship. The parties maintained their relationship was genuine.

The primary legal issue before the Tribunal was whether Mr Wang met the criteria for a Subclass 801 visa, specifically whether he was the spouse of the sponsoring partner, Yan Ling Lin. This required determining if their married relationship was valid, genuine, and continuing, and if they mutually committed to a shared life to the exclusion of all others, living together or not living separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. The Tribunal was also required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married under Australian law, satisfying the requirement of section 5F(2)(a). However, the Tribunal did not make a final determination on the remaining criteria for the Subclass 801 visa. Instead, the Tribunal remitted the application for reconsideration by the Minister, directing that Mr Wang met the criteria under clause 801.221 of Schedule 2 to the Regulations.