Xue (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, specifically a Subclass 802 (Spouse) visa. The applicant claimed that their relationship with the sponsoring partner had ceased, but that they met the criteria for the child exception to the relationship requirement. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the relevant clauses of Schedule 2 to the Regulations concerning the cessation of a relationship and the child exception.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 820.221(3)(a) and (b)(ii) of Schedule 2 to the Regulations. This clause allows for a visa to be granted even if the spousal relationship has ceased, provided certain conditions are met, including an ongoing connection to a child. A further consideration involved a certificate issued under section 376 of the Act, which related to confidential information provided to the Department by the former sponsor. The Tribunal had to determine the relevance and impact of this certificate on the review process.

The Tribunal reasoned that clause 820.221(3)(a) requires only the prior existence of a spousal relationship, which the applicant met. The Tribunal found that information protected by the section 376 certificate, which detailed the sponsor's reasons for feeling deceived, was not relevant to the assessment of whether the applicant had been in a spousal relationship at an anterior point in time. Consequently, the Tribunal considered it unnecessary to disclose this information to the applicant. The Tribunal concluded that the applicant met the criteria under clause 820.221(3) of Schedule 2 to the Regulations.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant met the criteria under clause 820.221(3) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for a Subclass 820 visa.