The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

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

The second and third named visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl 309.311 of Schedule 2 to the Regulations; and
• cl 309.321 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - subclass 309 - parties validly married - sponsor has transferred significant amounts of money to the visa applicant over a period of five years - nature of the household they shared is indicative of a spousal relationship - parties are in a genuine spousal relationship - have a commitment to a shared life together to the exclusion of all others - decision under review remitted

Migration Act 1958, ss 5,65

Migration Regulations 1994, rr 1.12, 1.15, Schedule 2, cls 309.211, 309.221, 309.311, 309.321

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 18 June 2023 to refuse to grant the visa applicants a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The first named visa applicant (the visa applicant) applied for the visa on 4 October 2021 on the basis of her relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 309.211, 309.221 or 309.311 because the delegate was not satisfied on the available evidence that the visa applicant was the spouse of the sponsoring partner.
4. The review applicant appeared before the Tribunal on 19 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
6. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.

1. The issue in the present case is whether the visa applicant is the spouse of the sponsoring partner, the review applicant.

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.
2. 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: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
3. '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 visa applicant's and sponsor's 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, but not a de facto relationship. The parties have produced to the Department a Certificate of Marriage issued by Lebanon's Ministry of the Interior indicating that they married in Lebanon on 23 December 2019. The Tribunal notes that the delegate raised no issue as to the validity of the marriage, but rather accepted that the applicant and sponsor were married as claimed.
2. 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. The visa applicant is a 55-year-old female national of Lebanon. The second and third named applicants are her sons, aged 19 and 15 at the time of this decision. The sponsor is a 69-year-old male who was born in Lebanon and who migrated to Australia in 1988 with his first wife, who is now deceased. The visa applicant is the sister of the sponsor's first wife and has known the sponsor as part of her extended family since around 1985.
2. The sponsor has four children, all now adults residing in Australia. The visa applicant also has four children from her first marriage, the younger two of whom are the secondary applicants. The visa applicant's daughter is married and living with her own family in Lebanon, while her adult son is an Australian citizen.
3. The sponsor's first wife died in 2015 and a copy of her Australian death certificate is contained on the departmental file. The visa applicant was religiously divorced from her first husband in June 2018 and legally divorced on 6 March 2019 as evidenced by the Certificate of Divorce issued by Lebanon's Ministry of the Interior on that date.
4. For the following reasons, the Tribunal is satisfied the visa applicant is the spouse of the sponsor.

1. The financial aspects of the relationship as set out in r.1.15A(3)(a) of the Regulations include:

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

(ii) any joint liabilities;

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

(iv) whether on 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.

1. The visa applicant and sponsor do not jointly own property or any other significant assets, they have no joint liabilities and they do not operate a joint bank account. Rather the sponsor owns the home in which he and his children live in Australia, while the visa applicant owns the home that she lives in with her children in Lebanon. The Tribunal considers this is understandable given that they have lived in different countries since their marriage in 2019 and the visa applicant has not yet been granted a visa to enter Australia.
2. At the Tribunal hearing the parties gave consistent evidence to the effect that the visa applicant works as a teacher in Lebanon, which covers most but not all of her living expenses. The sponsor gave evidence that he received the age pension and was financially comfortable, having sold a property at a profit. He said that Lebanon's financial crisis and the resulting high inflation rates and currency crash means that people have stopped using banks and find it difficult to buy food which has increased dramatically in price. He gave evidence that as he wished the applicant to live comfortably, he sent money by international transfer and also has cash gifts carried by relatives travelling to Lebanon.
3. At the time of the visa application, the parties produced evidence of money transfers totalling US $6000 in October and November 2020. They also provided a receipt for a necklace and a gold ring costing US$2600, being gifts from the sponsor to the applicant at the time of their engagement. The sponsor paid for all the costs associated with their marriage and the time he spent with the applicant in Lebanon in 2019 and 2020.
4. Further money transfer receipts produced to the Tribunal indicate the sponsor continues to provide financial assistance to the applicant by way of international money transfers. Receipts show amounts of $4400 in October 2020, $4200 in November 2020, $650 September 2021, $1700 in March 2022, $4500 in June 2022, $750 in February 2023, $1000 in March 2023, $6140 in July 2023, $1300 in April 2024 and $5000 in February 2025. As well both parties gave evidence that their preferred way of transferring money between Australia and Lebanon on was in cash carried by relatives travelling between the two countries. The sponsor estimated that in total he had transferred approximately $30,000 to the applicant since their engagement in a combination of international money transfers and cash gifts. Given that the majority of this is documented in the receipts referred to above, the Tribunal accepts that to be true.
5. The Tribunal gives some weight to the financial aspects of the relationship, accepting that the sponsor has transferred significant amounts of money to the visa applicant over a period of five years and considering that this points to a spousal relationship between the parties at time of application and time of decision.

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

(ii) the living arrangements of the persons; and

(iii) any sharing of the responsibility of housework.

1. In the circumstances of this case while the applicant and the sponsor live in separate countries, they have been part of the same extended family for approximately 35 years and their children are cousins. I accept the sponsor and his children have travelled to Lebanon and stayed with the visa applicant and her children in the past and that both families intend that the visa applicants will move in with the sponsor in his children if they are granted a visa to come to Australia.
2. I accept that the visa applicant and the sponsor lived together as husband and wife in the applicant's home in Lebanon when the sponsor visited that country in December 2019 (one month) and January 2020 (one week) as well as his more recent travel of approximately five weeks in August 2023. I accept that on those occasions the applicant did the majority of the housework and the cooking and the evidence of the parties is that this is likely to continue, given the sponsor's age and health conditions.
3. The Tribunal considers that at the times when the applicant and sponsor have been together in Lebanon since their engagement and marriage, the nature of the household they shared is indicative of a spousal relationship. The Tribunal gives some weight to this evidence.

1. The social aspects of the relationship include:

(i) whether the persons represent themselves to other people as being in a married relationship with each other;

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

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

1. Both the applicant and sponsor have evidence about their close relationship with the other's children, including that the sponsor's children visit the applicant when they return to Lebanon and that the visa applicant cared for the sponsor's daughter Malaak when she returned to Lebanon with the sponsor in 2019. There are a great many photographs before the Tribunal showing the applicant and sponsor together in Lebanon in 2023, including with family members. While they did not have a wedding celebration because of the critical illness of the sponsor's father at the time, they celebrated their engagement and marriage at informal gatherings with the extended family as shown in the photographs.
2. The evidence before the Tribunal is that the sponsor's for adult children consider the relationship between their father and the visa applicant (who is their maternal aunt) to be genuine and continuing. The applicant's daughter Farah describes the visa applicant as her aunts and says she has known her all her life. She states that she always stays at her house when she visits Lebanon on and they are in regular contact over the phone. She believes the visa applicant's relationship with her father is genuine, that her siblings and extended family are happy about it and that they wish to see them reunited as soon as possible.
3. Another daughter of the sponsor, Malaak, states that she and her siblings have all grown up and are pursuing their own careers and study. They have known about their father's relationship with the visa applicant from the start, noting that they are in constant communication through phone calls and messages. She states that when she visited in 2022 she stayed with the visa applicant who treats her like her own daughter. She believes the relationship to be genuine and hopes the visa applicant will be able to join her father in Australia permanently. Ms Nasser had earlier provided a statutory declaration to the Department in 2021 and its contents are consistent with that provided to the Tribunal.
4. A friend of the sponsor's, Jaafar Chogri, states in a statutory declaration that he has known the sponsor for more than 35 years and that he also knew the sponsor's first wife and their children. Mr Chogri states that the sponsor told him about the challenges of raising his children as a single parent and his connection with the visa applicant. He states to that he speaks to the visa applicant on the phone when he visits the sponsor and offers the couple encouragement in the visa process. Another friend of the sponsor, Muhammad Sabea has also written in support of the genuineness of the relationship.
5. As noted above, the visa applicant has four children, the two youngest of whom are included in the visa application. The visa applicant's son oldest Muhamad, usually resident in Australia, provided a statement in support of the genuine nature of the relationship and was visiting Lebanon at the time of the Tribunal hearing and was present with the visa applicant when she was giving evidence to the Tribunal. The visa applicant's daughter, Sara, is married and living in Lebanon and has recently had her first child.
6. The visa applicant's brother Hassan Kobaessi who is resident in Australia has provided a statutory declaration to the effect that his sister and the sponsor have been married for more than five years and that he is in regular contact with both of them, staying with the visa applicant each time he visits Lebanon and visiting the sponsor regularly in Australia. He describes their family is a large extended family who are happy to see the marriage of the sponsor and the visa applicant and anxious to see them reunited with their children. This is consistent with Mr Kobaessi's 2021 statement to the Department.
7. The applicant's neighbour, Nada Al-Sabah, has written to the Tribunal in support of the genuineness of their relationship, stating that she met the sponsor when he visited Lebanon and lived with the applicant for a month. She states she has no doubts about their commitment or their sadness at their separation. A teacher who works with the applicant in Lebanon, Rebab Raslan, states that she met the sponsor on several occasions at the applicant's home in Lebanon on in July 2023. She states that their love and mutual respect for each other is evideny and she knows that they continue to chat and make video calls on WhatsApp. An invitation to a wedding in Australia set take place on 2 April 2025 is addressed to both the applicant and the sponsor.
8. The Tribunal gives significant weight to the social aspects of the relationship, considering that the sponsor and visa applicant represent themselves to family, friends and colleagues as being in a married relationship and it is the opinion of their families that they are in a genuine and continuing relationship. The Tribunal considers that the social aspects of the relationship are indicative of a genuine spousal relationship.

(i) the duration of the relationship;

(ii) the length of time they have lived together;

(iii) the degree of companionship and emotion support they draw from each other; and

(iv) whether they see the relationship as long term

1. As at the time of the Tribunal's decision, the parties have known each other for 35 years and been married for five years. They have lived together during the times the sponsor has visited Lebanon, being for one month in 2019, one week in 2020 and five weeks in 2023. Call logs and the statements of their friends, family and colleagues confirm they speak regularly. The sponsor suffers from a number of medical conditions as set out in the medical evidence and the Tribunal accepts that it is the wish of both the sponsor and applicant that she be able to provide practical and emotional support to him. The Tribunal accepts that they see their relationship as long term and that they provide to each other a high degree of companionship and emotional support.
2. The Tribunal gives significant weight to the nature of the parties' commitment to each other, considering that it is indicative of a genuine and continuing relationship between them at the time of application and time of the Tribunal's decision.

1. The Tribunal is satisfied that the financial affairs of the sponsor and the visa applicant, the nature of their household when they are together, the social aspects of their relationship and the nature of their commitment evidence a mutual commitment to a shared life as husband and wife to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.

1. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.
2. For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the visa applicant and the review applicant:
   • had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
   • had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
   • did not and do not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.
3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
4. Therefore the visa applicant meets cl 309.211 and cl 309.221.

1. The second and third named applicants are the primary visa applicant's sons, aged 19 and 15 at the time of this decision. They each claim that the meet the definition of a member of the family unit in r.1.12 of the Regulations on the basis that they are a dependent child of the family head, their mother.
2. At the time of application both children were under the age of 18 and each was a member of the family unit of their mother and met the criteria set out in 309.311.
3. As at the time of the Tribunal's decision, the second name applicant is aged 19 and must show that he is dependent on their mother, or that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. It is not suggested in this case in this case that the second named applicant is incapacitated for any reason.
4. The definition of 'dependent' for a person who is not incapacitated for any reason is found in r.1.05A(1)(a) of the Regulations. It requires that:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing, and shelter; and

(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing, and shelter...

1. The Tribunal accepts the evidence of the applicant and the sponsor to the effect that the second named applicant continues to live at home with his mother and younger brother and is currently studying science at university in Lebanon, with an intention of studying dentistry. The Tribunal accepts that he continues to be wholly or substantially reliant on his mother to meet his basic needs for food, clothing and shelter.
2. For these reasons the Tribunal is satisfied that each of the secondary visa applicants meets the requirements of cl 309.311 and cl 309.321.

1. 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 309 visa.

1. The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that:

The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

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

The second and third named visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl 309.311 of Schedule 2 to the Regulations; and
• cl 309.321 of Schedule 2 to the Regulations.

Representative for the Applicant: Ms Rayane Hawli