• - cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) -application with previous partner refused and relationship ceased - genuine and continuing relationship - validly married - applicant returned to home country and visitor visa applications refused - review applicant's family commitments and fear of flying - limited evidence of financial, household and social aspects of relationship while living in different countries - nature of commitment - statutory declarations from relatives and friend, and documentation - decision made without hearing necessary - decision under review remitted

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

Administrative Review Tribunal Act 2024 (Cth), s 106(3)

He v MIBP [2017] FCAFC 206

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 July 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 2 August 2021 on the basis of her relationship with the sponsor, the review applicant. At that time, Class UF contained only one subclass, the Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant, in this review that is the visa applicant.
3. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the evidence and information provided demonstrated that the visa applicant was the spouse of the sponsoring partner as defined in s.5F of the Act.
4. The review applicant appeared before the Tribunal on 27 February 2025 by video connection to give evidence and present arguments. The visa applicant was unable to join the hearing by video. The Tribunal granted a postponement of the hearing, to give the visa applicant the opportunity to attend the hearing by video connection. The Tribunal discussed with the review applicant and his representative that it would be of assistance if the review applicant provided current submissions and information in relation to the review.
5. The Tribunal has considered the information and evidence provided by the applicant to the Department. The Tribunal has considered the information and evidence provided by the applicant to the Tribunal, particularly in response to an outreach invitation in August 2024. The Tribunal has considered the further information and evidence provided to the Tribunal in March 2025.
6. The Tribunal is satisfied that the provisions of s.106(3) apply to this review. The only parties to the proceeding are the review applicant, the visa applicant and the Minister who is a nonparticipating party. The Tribunal has considered all the information before it and is satisfied it can make a decision wholly in favour of the visa applicant. Further it appears to the Tribunal that the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding. For these reasons the Tribunal has decided to make its decision in the proceeding without holding a hearing of the proceeding, noting that the hearing scheduled for 27 February 2025 was postponed, without the Tribunal taking evidence from any party.
7. The review applicant was represented in relation to the review.
8. The following are the written reasons that the Tribunal has concluded the decision under review is set aside and the matter should be remitted for reconsideration.

Whether the parties are in a spouse or de facto relationship

1. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal's decision to meet the requirements of cl.309.221. In the present case the visa applicant claims to be the spouse of the review applicant 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 separately and apart, on a permanent basis to meet the requirements of 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 aspects of the relationship, the social aspects of the relationship, the nature of the visa applicant's and the sponsor's household, and the nature of their commitment to each other, as set out in reg. 1.15A(3). 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.
3. The applicant provided the Tribunal with a copy of the Department's decision record, dated 14 July 2022. The Tribunal has considered the information in the Department's decision record, which refers to the limited evidence of the relationship, and also the visa applicant's visa history. The delegate recorded his concern that the relationship may be contrived to facilitate the visa applicant gaining residence in Australia. The Tribunal is satisfied the visa applicant had made a previous partner visa application in relation to a marriage with an Australian citizen or Australian permanent resident, and that visa application was refused and the marriage ended in divorce. This is an issue that the Tribunal has also considered prior to making its decision in this review. The review applicant's representative provided submissions to the Tribunal addressing the concerns of the visa applicant's previous visa history, and provided submissions, information and evidence to demonstrate the relationship between the visa applicant and the review applicant is genuine and continuing.

Consideration of the evidence before the Tribunal

1. The visa applicant had provided documents to the Department which included the application for the visa which was lodged online on 2 August 2021, the sponsorship form which was lodged online on 20 August 2021, registered Victorian marriage certificate confirming the parties married on 25 December 2020, a relationship statement of the visa applicant, a handwritten statement of the review applicant, a copy of the review applicant's divorce in his previous relationship made 28 June 2018, a copy of the visa applicant's divorce in her previous relationship made 2 July 2020, statutory declaration from the review applicant's cousin dated 13 May 2020, statutory declaration from the visa applicant's niece dated 4 July 2021, statutory declaration from a friend of the visa applicant dated 28 December 2021, statutory declaration from the review applicant's sister-in-law dated 22 December 2021, confirmation of a joint bank account opened 11 November 2021 (no transactions), collection of photos, and collection of financial documents including the review applicant's utility bills, rates notice, and owners corporation invoice, a booking confirmation for a week in joint names dated January 2021, and some screenshots of video calls and call records and messages for the period October to November 2021.
2. The review applicant provided the Tribunal with information including a medical report in relation to the review applicant dated 11 September 2022, a counsellor report in relation to the review applicant dated 17 October 2023, confirmation of child support payments to the review applicant's previous wife, and a request for priority processing.
3. In response to an invitation to provide further information in August 2024, the review applicant provided the Tribunal with a statement from the review applicant, a statutory declaration from the review applicant's sister dated 13 August 2024, a statutory declaration from the partner of the visa applicant's niece dated 17 August 2024, a further statutory declaration from the review applicant's cousin dated 13 August 2024, evidence of 13 money transfers to the visa applicant over the period 4 September 2021 to 12 June 2024 all in the amount of $506 or close to this amount, except for one money transfer in the amount of $1005.10 (the money transfers do not record who the money was transferred from), communication records (some of which are not translated), series of text messages (some of which are very brief e.g. "good morning").
4. Prior to the hearing scheduled for 27 February 2025 the review applicant's representative provided a written submission, which included a relationship timeline and description of the relationship.
5. The Tribunal accepts that the parties met in Australia. The Tribunal is satisfied based on a marriage certificate that the parties married on 25 December 2020. The submission states that the parties dated regularly after meeting in person on 6 November 2018, and the visa applicant moved in with the review applicant in December 2019. The Tribunal is satisfied that the visa applicant departed Australia and returned to Vietnam on 29 June 2021.
6. The visa applicant applied for further visitor visas to return to Australia and these applications were refused.
7. The review applicant did not travel to Vietnam to visit the visa applicant after she departed Australia in June 2021.
8. Based on the information including medical certificates and statements provided to the Tribunal in March 2025, the Tribunal is satisfied that the review applicant's mother resides permanently in an aged care facility and the review applicant visits her regularly. The Tribunal is satisfied the review applicant's brother was diagnosed with a terminal and aggressive cancer on 19 March 2024. The Tribunal is satisfied that the review applicant's son spends every weekend with his father; the Tribunal accepts that the review applicant's son is picked up by his father on Friday night and stays with his father, the review applicant, until Monday morning. The Tribunal is also satisfied that the review applicant has consulted a doctor and reported that he has a fear of flying and is scared of dying if he travels by plane. The Tribunal is satisfied that the review applicant has family commitments and responsibilities including the weekend care of his son, the regular visits to his mother, and was involved in the support for his ill brother, which prevented him from making arrangements to travel overseas. The Tribunal is also satisfied that the review applicant has a genuine fear of flying which prevented him from making arrangements to travel overseas to visit the visa applicant.
9. The Tribunal has considered the current statements of the visa applicant dated 18 March 2025 (with a translated copy) and the statement of the review applicant dated 18 March 2025. The Tribunal has also considered the supporting statement and a translated copy of the visa applicant sister-in-law dated 17 March 2025, and the supporting statement and translated copy of the visa applicant's neighbour dated 17 March 2025, and the supporting statement and translated copy of a person who has a small business in front of the visa applicant's house dated 17 March 2025. The Tribunal is satisfied that the three persons who have provided supporting statements are aware of the relationship between the visa applicant and the review applicant, and regularly see the visa applicant in communication with the review applicant.
10. The Tribunal has considered the supporting statement of the review applicant's sister dated 13 March 2025 and the supporting statement of the review applicant's brother dated 10 March 2025, and the further supporting statement of the review applicant's cousin dated 9 March 2025. The Tribunal is satisfied that the three persons who provided the supporting statements are aware of the relationship between the visa applicant and the review applicant, that they discuss the relationship with the review applicant, that they met the visa applicant with the review applicant before she departed Australia and that they often see the review applicant in communication with the visa applicant.

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied based on the documents provided, that both the review applicant and the visa applicant had previously been married and have been divorced. Based on the registered Victorian marriage certificate, the Tribunal is satisfied that the review applicant and the visa applicant were married at Epping on 25 December 2020. On the evidence, 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. Financial aspects of the relationship: - the Tribunal is not satisfied that the parties have any joint ownership of real estate or other major assets. The Tribunal is not satisfied that the parties have any joint liabilities. The Tribunal has considered the parties have a joint bank account, but there is no evidence of any transactions or use of the joint bank account, and the Tribunal is not satisfied that this is evidence that the parties pool their financial resources. There is no evidence that one person in the relationship owes any legal obligation in respect of the other. The parties do not currently share a household as they reside in separate countries, but the Tribunal accepts that the review applicant has been providing financial support through money transfers to the visa applicant on a regular basis since September 2021, shortly after the visa applicant departed Australia.
2. The evidence of the financial aspects of the relationship is limited and is not sufficient to indicate that the parties meet any of the requirements for a spousal relationship in s.5F(2).
3. Nature of the household: - the Tribunal is satisfied, based on the written evidence of the review applicant, the visa applicant, the cousin of the review applicant, the sister of the review applicant, the sister-in-law of the review applicant and the brother of the review applicant, that the review applicant and the visa applicant resided together prior to the time of application. The Tribunal is satisfied that the above described relatives of the review applicant met the visa applicant at the home of the review applicant prior to her leaving Australia on 29 June 2021, which was prior to the visa application being lodged on 2 August 2021. The Tribunal is satisfied that the review applicant and visa applicant resided together in Australia prior to the time of their marriage on 25 December 2020, and prior to the time of application. The Tribunal is satisfied that the review applicant and visa applicant have not managed a household together at the time of application or since the time of application, as they have resided in separate countries and have not spent time together. The Tribunal accepts that the visa applicant applied for visitor visas to return to Australia. The Tribunal accepts that the review applicant could not depart Australia due to commitments to his elderly mother, his weekly responsibilities to his son, and then the diagnosis for his brother, coupled with his fear of flying.
4. The Tribunal is satisfied that the parties do not have the joint responsibility for the care and support of children. The Tribunal is satisfied that the parties shared the responsibility for housework when they resided together prior to the visa applicant departing Australia on 29 June 2021.
5. The evidence of the nature of the household is limited. As the Tribunal is satisfied the parties have resided together prior to the time of application, and managed a household together, and as the Tribunal is satisfied that there are genuine reasons why the parties have not resided together since that time, the Tribunal is satisfied this evidence of the nature of the household indicates the relationship is genuine and continuing.
6. Social aspects of the relationship: - the Tribunal is satisfied that the review applicant and visa applicant represent themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the persons' family, friends and acquaintances about the nature of the relationship is that it is genuine, positive, supportive and enduring. The Tribunal is satisfied that the basis on which the person's plan and undertake joint social activities is around their daily communication through video calls and trying to stay connected in each other's lives.
7. The evidence of the social aspects of the relationship indicates that the relationship between the visa applicant and the review applicant is one of mutual commitment to a shared life as a married couple to the exclusion of all others, and is genuine and continuing, at both the time of application and time decision.
8. Nature of the persons' commitment to each other: - the Tribunal is satisfied that the parties have been married since 25 December 2020. At the time of application the parties had been married for just over seven months. At the time of this decision the parties have been married for four years and three months. The Tribunal is satisfied that at the time of application the parties had resided together for six months since their marriage. The Tribunal is satisfied that at the time of this decision the parties had resided together six months since their marriage.
9. The Tribunal is satisfied that the parties have kept in regular communication with each other, that they communicate on a daily basis, and their communication is witnessed by family and friends. The Tribunal is satisfied that the parties send gifts to each other. The Tribunal is satisfied that the review applicant provides financial support to the visa applicant. The Tribunal is satisfied that the parties have provided emotional support to each other during their period of separation. The Tribunal accepts that the review applicant and visa applicant provide and draw companionship and emotional support to and from each other. The Tribunal accepts the written evidence of the review applicant and the visa applicant that they see the relationship as a long-term one.
10. The evidence of the nature of the persons' commitment to each other indicates that the relationship between the visa applicant and the review applicant is one of mutual commitment to a shared life as a married couple to the exclusion of all others, and is genuine and continuing at both the time of application, and at the time of decision.
11. Other relevant matters: - the Tribunal has considered the evidence before it, and notes that the parties have not resided together at all since before the time of application. The Tribunal accepts that the visa applicant has applied for visitor visas to come to Australia to spend time with the review applicant, but these applications have been refused. The Tribunal accepts that the review applicant has been unable to leave Australia because he has the care of his son every weekend from Friday evening to Monday morning, his brother was diagnosed with a terminal illness, and he visits his elderly mother who is in residential care, on a regular basis. The Tribunal accepts that the review applicant could not take a short break from these family commitments and fly to Vietnam to meet the visa applicant because of his fear of flying. The Tribunal accepts that the parties reside in different countries, and due to unique circumstances, the parties have not been able to meet up since the time of application. The Tribunal accepts that the parties previously resided together in Australia, and intend to reside together in the future. In these circumstances the Tribunal is satisfied that the parties do not live separately and apart on a permanent basis. Therefore the Tribunal is satisfied that the review applicant and the visa applicant lived together, and not separately and apart, on a permanent basis, at the time of application, and at the time of decision and meet the requirements of s.5F(2)(d).
12. The Tribunal has considered all the circumstances of the relationship as prescribed in reg.1.15A(3). The Tribunal is satisfied that the relationship between the review applicant and the visa applicant is one of mutual commitment to a shared life as a married couple to the exclusion of all others, and the relationship is genuine and continuing, at both the time of application and at the time of decision, and meets the requirements of s.5F(2)(b) and (c).

1. Conclusion: - For the reasons set out above, the Tribunal is satisfied that the relationship between the review applicant and the visa applicant is a spousal relationship within the meaning of s.5F(2)(a), (b), (c) and (d), at the time of application, namely 2 August 2021, and at the time of this decision.
2. The Tribunal is satisfied that the visa applicant is the spouse of an Australian citizen at the time of application, and therefore the visa applicant meets the requirements of cl.309.211.
3. The Tribunal is also satisfied that the visa applicant continues to satisfy cl.309.211 at the time of decision and therefore the visa applicant meets the requirements of cl.309.221.
4. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

Representative for the Applicant: Miss Belinda Christie (MARN: 1682855)