Yan v Minister for Immigration

The applicant, Yan, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a Partner (Migrant) (Class BC) visa. The Minister for Immigration was the second respondent. The applicant contended that the MRT erred in its assessment of her eligibility for the visa, particularly concerning the requirements related to a subsisting spouse relationship and the occurrence of family violence.

The central legal issues before the court were whether the MRT had jurisdictionally erred by requiring the applicant to prove a subsisting spouse relationship at a time proximate to a judicial order, and whether the MRT's finding that the applicant and her sponsor were not in a genuine, ongoing, and mutually exclusive relationship at the time of a judicial order was relevant. Furthermore, the court considered whether the MRT erred in finding that the applicant was not a victim of family violence at the time the claimed violence occurred, and how the timing of such violence related to the cessation of the spousal relationship under the Migration Regulations.

Emmett J applied the principles established in *Muliyana v Minister for Immigration and Citizenship* [2010] FCAFC 24. The court accepted the broader interpretation of the policy behind clause 100.221(4)(c) of the Migration Regulations, which allows for a visa applicant to be granted a Partner (Migrant) visa even if the spousal relationship has ceased, provided they have suffered domestic violence. This policy aims to prevent individuals from being forced to remain in or return to an abusive relationship without compromising their immigration status. Crucially, the court held that the domestic violence did not need to have occurred during the currency of the spousal relationship or be the cause of its cessation. The relevant considerations were simply that the spousal relationship had ceased and that the applicant had suffered domestic violence committed by the sponsoring partner.

The court found that the MRT had erred in its approach to the family violence criterion. The applicant had been granted a Subclass 309 visa, which established the conditions precedent for a favourable assessment under clause 100.221(2A) and (4)(b) and (c)(i). The MRT's focus on the status of the relationship at a specific later point in time, and its finding that the relationship had ceased, was not determinative of the family violence claim in the manner it applied. The court concluded that the MRT's decision was infected by jurisdictional error.