Whether the parties are in a spouse or de facto relationship

1. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
2. 'Spouse' is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

1. If the parties are validly married, they may meet the requirements of a married relationship. A marriage certificate on file shows the parties married in Australia on 28 March 2021 and the marriage was valid. On the evidence, the Tribunal finds the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Are the other requirements for a spouse relationship met?

1. The delegate refused the visa as the delegate considered that there was limited evidence about the relationship. The delegate also had concerns about the short inception of the relationship. The delegate did not accept that the parties had been living together at the sponsor's Yagoona home, due to some apparent inconsistencies, or that the sponsor had declared his relationship to Centrelink. The Tribunal now has more evidence available to it than what was available at the time of application and at the time of the delegate's decision. The Tribunal has also had the benefit of speaking face-to-face with both the applicant and the sponsor and being able to clarify the information in the documents they provided.
2. The Tribunal found both the applicant and the sponsor to be a credible witnesses who gave consistent evidence about their relationship and who demonstrated genuine affection and care for each other. At the hearing, the parties demonstrated sound knowledge of each other's lives and circumstances. The Tribunal therefore accepts the parties' evidence about the circumstances in which they met and their relationship developed.
3. The Tribunal has considered the delegate's concerns about the short inception of the relationship. At the hearing, the applicant explained that she was introduced to the sponsor by a friend. They realised they had shared interests and values and quickly formed a bond. Due to the COVID-19 pandemic, the applicant was having difficulty finding a place to live and the sponsor offered his place. They were both single and had the same cultural, ethnic and religious background, and were therefore able to agree to marry reasonably quickly. Their relationship has now been ongoing for more than 5 years, which the Tribunal considers overcomes any concerns regarding the short inception of the relationship.
4. The Tribunal does not draw any adverse conclusions from the fact that the applicant applied for a protection visa in 2019. This occurred before she had met the sponsor and she has now withdrawn that application. She also applied for the partner visa before the protection visa application was refused by the Department, indicating that she did not apply for a partner visa as a 'last resort'.
5. The Tribunal also some concerns about the considerable age difference between the applicant and the sponsor. The Tribunal considers that part of the relationship involves the applicant being a full-time carer for the sponsor, and a migration motive for the applicant. The Full Federal Court, however, has held that people enter into marriages with a variety of purposes and motives.[1] It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, for example with the hope of gaining permanent residency. The Tribunal should consider whether the parties' intentions or motives for entering into a relationship are consistent with having a mutual commitment to a shared life.[2]
6. The Tribunal now considers the factors under reg 1.15A(3).

1. The parties have provided a considerable amount of evidence to demonstrate that they pool their financial resources and expenses. The sponsor receives the age pension. The applicant does not work, except for small amounts of cash for massage and some voluntary work. She previously did part-time work as an aged care worker, but she has largely relied on sponsor's income since the start of their relationship. The delegate considered that the sponsor had not told Centrelink about his relationship with the applicant. At the hearing, however the parties gave evidence that the sponsor told Centrelink about his relationship within one month of their marriage. The Tribunal accepts that Centrelink continued to assess him at the single rate under s 24 of the Social Security Act 1991, due to the fact that the applicant was not earning any income at the time. They have now provided evidence that Centrelink has assessed the sponsor as 'partnered' since 2024.
2. At the hearing, the sponsor gave detailed evidence about how he closed his own bank accounts after his relationship with the applicant started. He transferred this money into their joint account. Some of the money was used to pay for the applicant's son's student tuition fees and also to repay a property loan that the applicant owed in China. The parties have provided bank statements from their joint account to demonstrate these transfers of approximately $20,000 in 2021. This represents a significant pooling of financial resources, consistent with a genuine relationship.
3. The parties have also provided consistent evidence about how they pay for household bills and day-to-day financial expenses. The Tribunal accepts that they use cash for grocery shopping and their joint account for other expenses. The applicant also has her own account. They have bought some household assets and furniture together. They both gave evidence about how they live fairly frugally, as they have limited funds. Given their financial circumstances, the Tribunal would not expect that they have accumulated many assets or that they have complex financial arrangements.
4. On the basis of this evidence, the Tribunal accepts that the parties have joint financial arrangements, consistent with a genuine and continuing relationship, both at time of application and decision.

1. At the hearing, the parties provided consistent evidence about their living arrangements since the time of the application. The Tribunal accepts that they started living together on a permanent basis at the sponsor's one-bedroom apartment in Yagoona in October 2020. There is no evidence before the Tribunal that the applicant has lived anywhere else, other than with the sponsor, since that date. The parties have provided correspondence sent to the same address in Yagoona. Their living arrangements are corroborated by the oral and written evidence of third parties (including Mr Ellis and Pastor Huynh), who have visited their home and viewed their living arrangements. The Tribunal has evidence from the New South Wales Communities and Justice Department, that the applicant was added as an additional occupant to the property in June 2021.
2. At the hearing, the parties gave consistent evidence about their daily routines and how they manage household tasks. The Tribunal accepts that the applicant does all the household chores, cooking, cleaning and shopping. This is due to the sponsor's medical conditions which prevent him from doing household chores. The Tribunal also accepts that the applicant does all the driving and takes the sponsor to his various medical appointments. They receive some home care assistance through an aged care package. These arrangements are corroborated by the aged care assessments and medical evidence regarding the sponsor.
3. The Tribunal accepts that the sponsor has also provided financial and other support to the applicant's adult son. The Tribunal accepts that they have a good relationship and the applicant's son often visits and assists in caring for the sponsor.
4. On the basis of the above evidence, the Tribunal accepts that the parties have joint household arrangements, consistent with a genuine and continuing relationship.

1. In relation to the social aspects of the relationship, the Tribunal accepts that the parties present themselves as a couple to their friends, family and the community at large. Photographs demonstrate that they have undertaken social activities, together and with other people, at their local church, RSL club and sports club. They are widely known by members of their church community as a couple and have volunteered to assist other church members (the applicant by providing them with massages and the sponsor by helping them with their English). The Tribunal also accepts that they undertake fewer social activities now, due to the sponsor's health problems.
2. The Tribunal has considered the evidence regarding the sponsor's children. At the hearing, the applicant gave evidence that the sponsor's children do not have any contact with him, and she has not met them. The sponsor stated however, that his children come to see him two or three times a year, but the applicant has not met them as she wanted to avoid contact with them. The applicant clarified that the sponsor's memory was not very good, and he may have been confusing details. After he was diagnosed with prostate cancer, she suggested that he contact his children and tell them the news. He messaged them and they replied, but they have never visited the house. The Tribunal notes that the medical evidence regarding the sponsor refers to some short-term and long-term memory loss and confusion. The Tribunal therefore accepts the applicant's evidence that the sponsor's children do not have contact with him and have therefore not expressed their support for their relationship.
3. Despite these concerns, the Tribunal accepts that other friends support the relationship and see the parties as a genuine couple. The Tribunal gives weight to the oral evidence of Mr Ellis and Pastor Huynh, as they have known the parties for several years, have visited them at their home, and see them as a couple on a regular basis. The evidence is also supported by several statutory declarations from other friends and care workers. In particular, Ms Wei, case manager at Austacare (the applicant's former employer and the sponsor's home care provider), attests that she has conducted home visits, where she has observed the applicant preparing meals for the sponsor and taking care of his daily living needs. In their reports, the sponsor's other healthcare providers recognise the applicant as his wife and primary carer and confirm that she attends all his medical appointments. The earliest of these reports is dated from October 2021.
4. On the basis of the above evidence, the Tribunal accepts that the social aspects of the relationship demonstrate that the parties are in a genuine and continuing relationship.

1. The Tribunal is satisfied that the parties have a long-term commitment to each other and that their relationship is long term and ongoing. They have now been in a relationship for approximately 5 years. At the hearing, the parties spoke convincingly of their reliance upon each other for companionship and emotional support and their fondness for each other.
2. The sponsor spoke of how he admired the applicant's qualities - that she is sincere, diligent, kind and not materialistic. They both share the same interests in doing volunteer work and helping other people. The applicant spoke similarly of the sponsor, stating that they communicate well with each other and he treats her well.
3. The parties have provided a considerable amount of medical evidence regarding the sponsor's multiple health conditions. Reports and letters from care providers and medical practitioners outline the substantial amount of care the applicant provides to the sponsor in attending to his daily needs. The Tribunal accepts that the applicant provides the sponsor with a considerable amount of emotional and practical support, consistent with a genuine relationship. The Tribunal accepts that the sponsor has provided financial support and companionship to the applicant, consistent with a genuine relationship. The Tribunal finds this demonstrates a strong mutual commitment by the parties.
4. The Tribunal has addressed other concerns regarding the apparent short inception of the relationship and the age difference between the parties in the findings above.
5. On the evidence before it, the Tribunal is satisfied the parties had a long-term commitment to each other at time of application. The Tribunal is satisfied that their commitment remains at time of decision.

1. Having regard to all aspects of the relationship, the Tribunal is satisfied that, at the time of application and at the time of decision, the applicant and the sponsor had, and continue to have, a mutual commitment to shared life to the exclusion of all others. The Tribunal accepts that their relationship is genuine and continuing. The Tribunal accepts that they live together and do not live separately and apart on a permanent basis.
2. The Tribunal finds the applicant is the spouse of Mr Wenbin Liu, who is an Australian citizen. She therefore met the requirements of s 5F(2) at the time of application and continues to meet it at the time of decision.
3. The Tribunal finds the sponsor is not prohibited by cl 820.211(2B) from being a sponsoring partner. The applicant therefore met cl 820.211(2)(a) at the time of application.
4. The Tribunal finds at the time of application, the applicant was sponsored by her spouse, an Australian citizen who is over 18. She therefore met cl 820.211(2)(c).
5. The Tribunal now considers the Schedule 3 criteria and cl 820.211(2)(d).

Does the applicant meet the Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

1. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, they must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).
2. The Tribunal finds the applicant did not hold a substantive visa at the time of application. Her last substantive visa ceased on 1 October 2019. She applied for the Subclass 820/801 visa on 26 June 2021. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, she must satisfy the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

1. In order to satisfy criterion 3001 (set out in the attachment to this decision), the visa application must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in criterion 3001(2) and in this case, it is the last day the applicant held a substantive visa, which was 1 October 2019 (criterion 3001(2)(c)). The Tribunal finds the applicant applied for the Subclass 820/801 visa on 26 June 2021, which was more than 28 days later. The Tribunal therefore finds the applicant does not meet criterion 3001.
2. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001 and it is not necessary for the Tribunal to consider criteria 3003 or 3004.

Are there compelling reasons for not applying the Schedule 3 criteria?

1. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it must consider whether there are compelling reasons for not applying the criteria.
2. The expression 'compelling reasons' is not defined. However, reasons that are compelling should 'force or drive the decision-maker' 'irresistibly' to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
3. The Department's policy guides decision-makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant's control in considering the provision.[3] The Tribunal's consideration of 'compelling reasons' is not limited to these circumstances.
4. In this case, the applicant has maintained her lawful status since her arrival in Australia. She applied for a protection visa before her substantive visa had ceased and before she met the sponsor. She did not hold a substantive visa at the time of the partner visa application as she had lodged a protection visa application and was waiting for the outcome. The Tribunal is satisfied that the applicant was never unlawful at any stage.
5. The Tribunal considers there are 2 sets of circumstances that amount to compelling circumstances in this case.
6. First, the Department accepted that the applicant lodged her visa application during the COVID-19 pandemic. This impacted on her ability to travel to and from Australia and on the Department's capacity to progress visa applications in a timely manner. The Department was therefore satisfied that there were compelling circumstances beyond the applicant's control to not apply the Schedule 3 criteria. The Tribunal also accepts this reasoning and accepts that this was a compelling circumstance in this case.
7. Second, the Tribunal accepts the sponsor has a number of serious medical conditions for which he requires considerable care, supervision and assistance from the applicant on a daily basis. Reports from his general practitioner and aged care assessment plans, dated October 2021 and November 2025, state that he has chronic back pain and restricted mobility, which affects his ability to manage his daily activities and puts him at risk of falls. He has recently been diagnosed with prostate cancer and will need extensive treatment. He also has other medical conditions including heart disease, osteoarthritis and sleep apnoea. He has reported some short-term and long-term memory loss and confusion. The Tribunal gives weight to these reports as these health professionals have been treating the sponsor for several years.
8. The medical evidence states that the applicant provides significant care and assistance to the sponsor to help him manage his medical conditions and his activities of daily living. This includes: assistance with getting up from a seated position and sitting down, monitoring and supervision due to risk of falls, taking him to medical appointments, meal preparation, showering, dressing and toileting. The medical evidence shows that the sponsor has required assistance since the time of application. However, the level of assistance required has increased at the time of decision, due to a deterioration in the sponsor's conditions and his recent diagnosis of prostate cancer.
9. The Explanatory Statement which accompanied the introduction of the Schedule 3 provisions stated that the inclusion of a 'waiver' provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a partner visa, but would otherwise be forced to leave Australia and apply offshore. [4]
10. The Tribunal is satisfied that if the applicant had to leave Australia to apply for a partner visa offshore, the sponsor would be left without her care and support and his medical conditions could deteriorate further and his risk of falls could increase. His treating health professionals and aged care workers all confirm that he is unable to manage his conditions on his own and requires the applicant to supervise and manage his daily activities. The Tribunal finds that these circumstances amount to compelling reasons for not applying the Schedule 3 criteria in this case.

Sponsorship limitations under reg 1.20J - cl 820.221(4)

1. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force: cl 820.221(4)(a).
2. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant, any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned, with the effect that he or she is taken never to have been convicted of the offence: cl 820.221(4)(b).
3. In this case, the Tribunal is satisfied that the sponsor provided the relevant consent when he signed a Form 40SP sponsorship form on 21 May 2021 and cl 802.221(4)(b) is satisfied.
4. Approval of sponsorship is subject to limitations contained in regs 1.20J, 1.20KA, 1.20KB and 1.20KC of the Regulations. The Tribunal finds that only reg 1.20J is relevant in this case and the other regulations do not apply.
5. Regulation 1.20J sets a limit on the number of people a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application.
6. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2). The expression 'compelling circumstances' is not defined in the legislation. Judicial consideration of this term is discussed above in paragraph 51.
7. Departmental policy identifies the following as relevant when considering waiving the bar on repeat sponsorship:
   • the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and
   • the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
8. These examples are not exhaustive. The Tribunal should consider the individual circumstances of each case, taking into account that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions.
9. In this case, the Tribunal finds, based on Departmental records and the information in the sponsorship form, that the sponsor previously sponsored 2 people for a partner visa. Both sponsorships led to the grant of a partner visa. The sponsorship is therefore subject to the limitations in reg 1.20J. The Tribunal must now consider whether there are compelling circumstances affecting the sponsor.
10. The Tribunal has found in paragraphs 56 and 57, that the sponsor has a number of serious medical conditions for which he requires daily supervision, assistance and care from the applicant and regular medical care. His aged care assessment plan, dated November 2025, recommends an increase in the level of home care he receives due to a decline in his medical conditions. In addition, the Tribunal accepts the sponsor would not be able to live in China with the applicant, as his current medical care, particularly his cancer treatment, would be disrupted and his conditions may further deteriorate.
11. The Tribunal is satisfied, for the same reasons set out in paragraphs 56 to 59, that the sponsor's age and medical conditions are compelling circumstances affecting the sponsor for the purpose of reg 1.20J.

1. Having regard to the above findings, the Tribunal finds that there are compelling circumstances affecting the sponsor that warrant waiving the sponsorship limitations in reg 1.20J. The Tribunal is satisfied that the sponsorship is still in force at the time of decision and the sponsor has given undertakings, as required by reg 1.20, in signing the sponsorship form on 21 May 2018. The Tribunal therefore approves the sponsorship and finds the applicant meets cl 820.221(4) at the time of decision.
2. The Tribunal has found the applicant meets cl 820.221(1) and cl 820.221(4) at the time of decision. Therefore she meets cl 820.221 at the time of decision.
3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
   • cl 820.211 of Schedule 2 to the Regulations
   • cl 820.221 of Schedule 2 to the Regulations

Representative for the Applicant: Mr Nan Cao (MARN: 0103659)

**ATTACHMENT - Extract from Migration Regulations 1994

(1) For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

(2) If the Minister is considering an application for:

(a) a Partner (Migrant) (Class BC) visa; or

(b) a Partner (Provisional) (Class UF) visa; or

(c) a Partner (Residence) (Class BS) visa; or

(d) a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one person in the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day to day household expenses; and

(b) the nature of the household, including:

(i) any joint responsibility for the care and support of children; and

(ii) the living arrangements of the persons; and

(iii) any sharing of the responsibility for housework; and

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married to each other; and

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities; and

(d) the nature of the persons' commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long term one.

(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or

(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or

(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii) entered Australia unlawfully on or after 1 September 1994;

(iii) the last day when the applicant held a substantive or criminal justice visa; or

(iv) the day when the applicant last entered Australia unlawfully; or

(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of:

(i) the day when that last substantive visa ceased to be in effect; and

(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

[1] See Re MILGEA and Dhillon [1990] FCA 144, Northrop, Willcox and French JJ, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453, at 458.

[2] Harchandani v MIBP [2017] FCA 1395.

[3] Policy - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant - Eligibility at [8.7] (re-issue date: 19/11/2016).

[4] Explanatory Statement to Statutory Rules 1996, No 75.