Applicant is refused the grant of a subclass 801 visa on the grounds that no spousal relationship existed

Liu v Minister for Immigration & Anor [2019] FCCA 1638

Background

On 8 February 2014, the applicant was granted a subclass 820 visa on the basis that she was married to the sponsor.  On 12 April 2015, however, the sponsor sent an email to the Department stating that his marriage had broken down and that he wished to withdraw his sponsorship. 

The Department issued a letter to the applicant inviting her to provide a response explaining her current circumstances and the reason for the breakdown of the relationship.

The applicant responded by submitting a statutory declaration claiming she was the victim of family violence perpetrated by the sponsor.

On 8 August 2013, the delegate refused to grant the applicant a subclass 801 visa on the grounds that the applicant did not comply with public interest criterion 4020(1).

Tribunal’s Considerations

The Tribunal’s principal question was whether the applicant and sponsor were in a spousal relationship.  As the Tribunal was not satisfied that a spousal relationship ever existed, it had not gone on to consider whether the applicant suffered family violence committed by the sponsor. 

 

Issue

The issue is whether it is open to the Tribunal, when considering whether to grant a subclass 801 visa, to revisit the question of whether the couple were in a genuine and continuing relationship at the time of grant of the subclass 820 visa.

 

FCA’s Considerations

Whether the Tribunal addressed the wrong question when considering whether to affirm the delegate’s decision turns on the proper construction of clause 801.221(6) of the Regulations because the applicant claimed that she and the sponsor had separated, and that she was the victim of family violence committed by the sponsor.

 

Cl.801.221(6) can only be engaged if the decision-maker is satisfied that “except for” the cessation of the relationship and the family violence suffered, the applicant and sponsor would still be in a spousal relationship.  To consider this, the Tribunal is required to consider whether the spousal relationship existed at the time the family violence occurred.

 

By considering whether the applicant and sponsor were ever in a spousal relationship, the Tribunal did what it was permitted to do when considering whether cl.801.221(6) of the Regulations were satisfied

 

Decision

The Tribunal did not purport to determine for itself whether the applicant did not satisfy the criteria of the subclass 820 visa granted by the delegate.  There was no jurisdictional error by considering whether the applicant and sponsor were in a spousal relationship.

HOW CAN WE HELP YOU

Because representation matters for migration matter.

If you need assistance with your Australian visa matter you can contact our immigration agents and lawyers by calling 02-27007200 or email us to book in a time at info@ahclawyers.com.