Liu v Minister for Home Affairs [2019] FCA 1925

Liu v Minister for Home Affairs [2019] FCA 1925

The appeal failed because cl 801.221(6) required the appellant to satisfy the Tribunal that she would have met cl 801.221(2) but for the cessation of the relationship and family violence. That necessarily required consideration of whether a genuine and continuing spousal relationship existed at all. The Tribunal was not bound by the earlier grant of the Subclass 820 visa and was entitled to find that the appellant did not meet s 5F. The primary judge's reasoning disclosed no error.

Jurisdiction
Australia
Judgment Date
20 November 2019
Procedural Posture
Migration Appeal / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (permanent) (class Bs) (subclass 801) Visa
Outcome
Appeal dismissed.
Legal Topics
['partner (permanent) (class Bs) (subclass 801) Visa' 'partner (temporary) Subclass 820 Visa' 'spousal Relationship' 'family Violence Exception' 'tribunal Review' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['partner (permanent) (class Bs) (subclass 801) Visa' 'partner (temporary) Subclass 820 Visa' 'spousal Relationship' 'family Violence Exception' 'tribunal Review' 'jurisdictional Error']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Partner (permanent) (class Bs) (subclass 801) Visa

Legal Issues

  1. 1 ['Whether the primary judge misconstrued cl 801.221 of Schedule 2 to the Migration Regulations 1994 (Cth).' 'Whether the Tribunal was entitled or required to consider whether the appellant and sponsor were ever in a genuine and continuing spousal relationship despite the earlier grant of a Subclass 820 visa.' 'Whether cl 801.221(6) could apply if the Tribunal was not satisfied that a spousal relationship existed in the first place.']

Ratio Decidendi

The appeal failed because cl 801.221(6) required the appellant to satisfy the Tribunal that she would have met cl 801.221(2) but for the cessation of the relationship and family violence. That necessarily required consideration of whether a genuine and continuing spousal relationship existed at all. The Tribunal was not bound by the earlier grant of the Subclass 820 visa and was entitled to find that the appellant did not meet s 5F. The primary judge's reasoning disclosed no error.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]