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

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) - genuine and continuing relationship - joint bank statements - evidence of communication - periods of cohabitation - decision under review remitted

Administrative Review Tribunal Act 2024 (Cth), s 106

Marriage Act 1961 (Cth)

Migration Act 1958 (Cth), ss 5, 65

Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

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 12 January 2024 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 31 May 2023 on the basis of his relationship with his sponsor. At that time, Class UF contained only one subclass, Subclass 309 (Partner (Provisional)) visa. 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, which in this review is the applicant.
3. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant and sponsor had provided sufficient evidence to demonstrate the applicant was the spouse of the sponsor within the meaning of s.5F of the Act.
4. I have considered the information provided by the applicant and sponsor to the Department, and the information recorded in the Department's decision record dated 12 January 2024. I have considered the extensive submissions also provided to the Tribunal in July and August 2025, including current and detailed statements from the applicant, the sponsor, the applicant's mother, the sponsor's father and friends of the applicant and sponsor.
5. I am satisfied that I can make a decision wholly in favour of the applicant, and that the issues for determination in the proceeding can adequately be determined in the absence of the parties. Further the only parties to the proceeding at the applicant, and the Minister who is a nonparticipating party. Therefore subsection 106(3) of the Administrative Review Tribunal Act 2024 applies, and I have decided to make a decision in the proceeding without holding a hearing pursuant to s.106(1) of that Act.
6. The following are the written reasons that the Tribunal has concluded that the decision under review is set aside and the matter should be remitted back to the Department for reconsideration.
7. The applicant was represented in relation to the review.

1. The issue in the present case is whether the applicant is the spouse of the sponsoring partner at the time of application, and continues to be the spouse of the sponsoring partner at the time of decision, within the meaning of s.5F(2) of the Act.

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 an Australian permanent resident or an eligible New Zealand citizen.
2. Clause 309.221 requires that the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal's decision, unless the visa applicant meets the alternative requirements of cl.309.221(2) or (3).
3. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian permanent resident.
4. '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. S.5F(2)(a)-(d) requires that 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, and not live separately and apart on a permanent basis. The decision-maker must have regard to all the circumstances of the relationship in forming an opinion about these matters. Reg. 1.15A(3) sets out all the circumstances of the relationship, including the circumstances of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the commitment of the parties to each other. 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. I am satisfied that the parties have provided evidence including statements of the applicant, the sponsor, the sponsor's father, the applicant's mother, detailed statements from friends, travel documents, financial documents including joint bank statements, photos, communication records, identification documents and a collection of receipts and other miscellaneous documents. I have considered the evidence provided by the applicant and the sponsor over a substantial period of time.
2. I am satisfied the parties were married in Tasmania on 9 May 2019. The application for the visa was lodged online on 31 May 2023. The applicant had previously been in Australia as the holder of a student visa which had been cancelled in 2017. The applicant was required to depart Australia in June 2019.
3. I am satisfied that the sponsor travelled to China in 2022 and resided with the applicant and his mother, and then moved into an apartment together, before the sponsor returned to Australia in March 2023. I am satisfied the sponsor sold her home in Tasmania in December 2023. I am satisfied the sponsor returned to visit the applicant in 2024, and returned to China in February 2025.
4. I am satisfied that the evidence provided by the applicant and the sponsor is detailed, and the relationship is commended and supported by the parties' family and friends. The evidence provided includes detailed evidence of the parties' financial arrangements, their household, the social recognition of the relationship and their long-term commitment to the relationship.

1. If the parties validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate, under the Marriage Act 1961 (Commonwealth), I am satisfied the applicant and sponsor were married in Tasmania on 9 May 2019, and that neither party had previously been married. On the evidence before the Tribunal, I am satisfied the parties were married to each other under a marriage that is valid for the purposes of the Act, and therefore meets the requirements of s.5F(2)(a).

Are the other requirements for a spouse relationship met?

1. Financial aspects of the relationship: - I am satisfied that the applicant and sponsor do not jointly own real estate or other major assets, and do not have joint liabilities. I am satisfied the parties currently reside in an apartment listed in the applicant's parents' name. I am satisfied that the parties pool their financial resources, as evidenced by the joint bank statement and the sale of the sponsor's property and transfer of funds and the joint fixed deposit account. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. I am satisfied that the basis of any sharing of day-to-day household expenses is based on the use of the joint accounts for daily household purchases in both countries over the years.
2. The evidence of the financial aspects of the relationship indicates that the relationship is genuine and continuing, both at the time of application and the time of decision.
3. Nature of the household: - I am satisfied that the parties do not have joint responsibility for the care and support of children. I am satisfied that the parties have lived together as a married couple in Tasmania, and then in China, including a period of time with the applicant's mother. I am satisfied the parties currently manage their own household. I am satisfied based on the statements that the parties shop together, and share the household duties together. I am satisfied that the sponsor has done the majority of food preparation, laundry and cleaning whilst the applicant is at work in more recent times.
4. The evidence of the nature of the household indicates that the relationship is genuine and continuing, and that the applicant and sponsor lived together, and not separately and apart on a permanent basis, both the time of application and at the time of decision.
5. Social aspects of the relationship: - I am satisfied that the applicant and sponsor represent themselves to other people as being married to each other, including their parents, family members and close friends. I am satisfied that the opinion of the persons' friends and acquaintances is that their relationship has endured for years, they are committed to each other, they are supportive and caring of each other, and their relationship has demonstrated they can work collaboratively through problems their relationship has faced. I am satisfied that the basis on which the parties plan and undertake joint social activities has depended on whether the parties are living together in the same country, and included daily communication and support, and spending time together and doing small things for each other.
6. The evidence of the social aspects of the relationship indicates that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship is genuine and continuing, both at the time of application and the time of decision.
7. Nature of the persons' commitment to each other: - I am satisfied that the parties were married on 9 May 2019, and at the time of application the parties had been married for four years, and at the time of this decision the parties have been married for over six years. I am satisfied that the parties have resided together for substantial periods of time in both Tasmania and China at both the time of application and at the time of decision. I am satisfied based on the written evidence of both the applicant, and the sponsor, that they provide and draw a substantial amount of emotional support and companionship from each other. I am satisfied based on the statements provided that both the applicant and sponsor see the relationship as long-term.
8. The evidence of the nature of the persons' commitment to each other indicates that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing, and that they lived together, and not separately and apart on a permanent basis, at both the time of application and at the time of decision.
9. Conclusion: - I have considered all the circumstances of the relationship as prescribed in reg. 1.15A(3), and I am satisfied that at the time of application and at the time of decision the applicant and the sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship was genuine and continuing, and that they lived together, and not separately and apart, on a permanent basis.
10. I am therefore satisfied that at the time of application and at the time of decision the applicant is the spouse of the sponsoring partner within the meaning ofs.5F(2)(b), (c) and (d).
11. On the basis of the above I am satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.
12. For the above reasons, the Tribunal is satisfied that the applicant is the spouse of the sponsoring partner who is an Australian permanent resident, at the time of application and meets the requirements of cl.309.211(2).
13. Further the Tribunal is satisfied that the applicant continues to satisfy the criterion in cl.309.211 at the time of decision and therefore meets the requirements of cl.309.221.
14. Accordingly the visa applicant meets the requirements of cl.309.211 and cl.309.221.

1. 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 Ping Chen (MARN: 1684735)