• reg 1.20KC for the purposes of cl 309.222 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) - sponsorship limitation requirement - no approved sponsorship - significant criminal record - sexual assault conviction - evidence of communication - sponsor's visits to Vietnam - criminal detention long completed - lengthy relationship - decision under review set aside and remitted

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth), ss 5, 54, 65

Migration Regulations 1994, Schedule 2, cls 309.211, 309.213, 309.222; rr 1.15, 1.20

Plaintiff M27-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40

1. This is an application for review of a decision made by a delegate of the Minister on 17 August 2023 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
2. The visa applicant, Vietnamese national Mrs Thi Nguyen Le, applied for the visa on 29 June 2021 on the basis of her spousal relationship with her sponsor, the review applicant Mr Thanh Si Le. 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 Mrs Le did not satisfy cl 309.222 of Schedule 2 to the Regulations because Mr Le's sponsorship of his wife's Subclass 309 visa application had not been approved by the Minister. This was due to the fact that the delegate found Mr Le could not sponsor his wife as he had been convicted of sexual assault charges which resulted in him being sentenced to 2 or more terms of imprisonment where the total of those terms with 12 months or more and, in the circumstances, it was not reasonable to approve the sponsorship. Based on the Australian Federal Police certificate dated 17 May 2023 (the AFP Certificate) lodged with the Department accompanying his sponsorship application lodged on 15 July 2021, Mr Le had been convicted on 6 January 2000 by the Sydney District Court of 3 offences of Aggravated Indecent Assault impacting a Victim Under the Age of 16 years. As a result, he was sentenced to periodic detention for a period totalling 24 months commencing on 14 January 2000.
4. Following refusal of his wife's visa application due to the non-approval of his sponsorship, Mr Le sought review of the delegate's decision. Since lodgement of the review application with the Administrative Appeals Tribunal (AAT), a volume of additional documentary evidence has been provided. Evidence provided is discussed below.
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

1. The visa applicant Mrs Le is a 41-year-old citizen of Vietnam. She divorced her first husband Le Hong Chau Vo on 2 August 2016 after marrying him on 19 April 2011. Mrs Le and all of her family, including her 2 children, live in Vietnam. Mrs Le's son from her first marriage is 13 years old. She also has an 8-year-old daughter from a casual one night stand. Initially, Mrs Le included both of her children in her Subclass 309 visa application sponsored by Mr Le. However, she withdrew them from the application on 12 April 2023.
2. Mrs Le's Subclass 309 visa application is sponsored by her 65-year-old Australian citizen Mr Le who was born in Vietnam. He arrived in Australia in April 1978 and acquired Australian citizenship on 9 November 1981. Mr Le was formerly married but divorced his first wife Samantha Thanh Le on 15 October 1997 as confirmed by the Divorce Certificate issued by Family Court of Australia lodged with the Department. He has a daughter from his first marriage who is now 30 years of age. The child the subject of Mr Le's sexual assault offences was a child of his first wife (and her former partner). Subsequently, Mr Le had a de facto relationship with Thi Kim Diep Nguyen which ended in 2009. From this de facto relationship, he also has a daughter who is now 25 years old.
3. As set out in documentation lodged within the Department, Mr Le and Mrs Le first met on 31 December 2016 when Mr Le went back to Vietnam for a holiday and to catch up with his family. After his return to Australia, Mr Le and Mrs Le (hereinafter referred to as the couple) kept in touch. Mr Le went to Vietnam again in April 2019 to see Mrs Le. Together, they visited their respective families and also travelled to Thailand. The couple's relationship developed further and, after Mr Le's return to Australia, he proposed to Mrs Le. The couple were married in Vietnam on 17 November 2019.
4. Following constitution of the matter to the Member, the couple were invited to attend a hearing. Prior to the hearing, the representative provided further documentation for consideration by the Tribunal including a Statutory Declaration from Mr Le sworn 18 October 2025, extensive evidence of phone calls and online communications in Vietnamese between the couple as well as evidence of 7 funds transfers from Mr Le to his wife in Vietnam in the period 29 March 2024 to 9 March 2025.

1. Mr Le appeared before the Tribunal on 27 October 2025 to give evidence and present arguments. His wife Mrs Le also appeared before the Tribunal. She did so by way of MS Teams videoconference given her current location in Vietnam. The Tribunal also received oral evidence at the in-person hearing from 2 friends of the couple, Ms Thi Hong Loan Nguyen and Mr Vince Wong. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Mr Le used the interpreter on occasions only. The Tribunal found all parties appearing before it to be truthful and credible witnesses. The couple's representative also attended the in-person hearing.
2. As noted above, the representative provided some documentation prior to the hearing. At the hearing itself, the representative provided a signed letter dated 27 October 2025 from the Venerable Thich Dao Thong, a Director of the Hong Long Buddhist Welfare Association Inc based in Cabramatta attesting to Mr Le working as a volunteer for the Association, and his good character.
3. At the commencement of the hearing, the Tribunal took evidence from Ms Nguyen and Mr Wong thereby enabling them to leave the hearing. Ms Nguyen essentially echoed evidence in her 3 Forms 888 Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application sworn 28 June 2021, 6 November 2021 and 1 May 2023 which had been lodged with the Department. She confirmed that she was fully aware of the basis of refusal of her long-standing friend Mrs Le's Subclass 309 visa application and that she, as well as her young children, had lived with Mr Le at various places in Sydney as shared tenants before he purchased his home in June 2018 at William Street, Condell Park (the Condell Park Property). She and her children then moved in to live at the Condell Park Property and she rented rooms there. As a result, she said she got to know Mr Le really well over time.
4. Ms Nguyen confirmed at the hearing that she fully understands Mr Le's past criminal history and that, in her opinion, he is a changed man who poses no risks to anyone. She attested to Mr Le's strong character and his willingness to help people in the Vietnamese community in a range of ways including with legal paperwork or just reading instructions on how to operate machinery including computers and phones. In relation to Mr Le's criminal history, Ms Nguyen said she is aware that the child the subject of his big mistake in 1995 was about 12 years old at the time and that he was, and continues to be, extremely remorseful about his mistake. As Ms Nguyen did not arrive in Australia until 2008, Mr Le shared his ongoing sadness and remorse about his mistake after she got to know him here. During the time that she has known him, Ms Nguyen said that he has been a really good man who is very friendly to everyone that he meets.
5. Mr Wong also reiterated evidence in his Form 888 sworn 25 June 2021 lodged with the Department. He and Mr Le have known each other for over 24 years as his wife is Mr Le's cousin. Mr Wong confirmed that he is aware Mr Le was convicted in 2000 of 3 offences of indecent assault on a child and that he totally admits, remorsefully, to doing the wrong thing. In his opinion, Mr Le is now a really decent man, and has been so for years.
6. After giving their oral evidence, Ms Nguyen and Mr Wong left the hearing.
7. The Tribunal informed the couple that the Department's file contains a valid certificate issued under s 375A of the Act dated 12 October 2023 (the s 375A Certificate). The Member explained the effect of a valid s 375A Certificate is that the information the subject of the certificate cannot be disclosed to the couple as relates to the Department's methodology of investigating breaches of the law including information the subject of the AFP Certificate referred to above. As such, the couple were fully aware of information in the AFP Certificate, the Department's further investigations would not be discussed and, as such, no regard would be had by the Tribunal to the information the subject of the s 375A Certificate.
8. Mrs Le told the Tribunal that she first became aware of Mr Le's criminal history before the couple married: he had been totally honest to her and told her about his criminal convictions. Because it had all happened way back in the past and Mr Le was deeply regretful of his conduct, she had no hesitation about including her 2 young children, including her daughter, as dependents in her Subclass 309 visa application. However, Mrs Le said she felt she had no choice but to withdraw her children from the application on 6 April 2023. This was despite her discussions with her children including her 8-year-old daughter. Mrs Le also told the Tribunal that, before the couple were married, she had informed her parents of her husband's his past criminal convictions and his deep remorse about his wrongdoing. She added that she genuinely believes her husband to be a hard-working and good man, one who she can totally trust.
9. A teary Mrs Le told the Tribunal that the couple have now been married for nearly 6 years following their marriage on 17 November 2019 and, in that time, her husband has been able to return to Vietnam to spend time with her and her children only once. She apologised for being very emotional and explained that she misses her husband deeply. Mrs Le added it was just after the couple married that international borders were closed due to the COVID-19 pandemic and, following the reopening of borders, her husband went back to Vietnam for a month in March 2023. However, despite the couple's physical separation, she said Mr Le speaks with her and her 2 children nearly every day, often on multiple occasions during a day. And, many of their chats include photographs of each of the couple as well as Mrs Le's children. The Tribunal acknowledged the hundreds of pages of chats between the couple, provided to both the Department and the Tribunal, confirmed this information.
10. The Tribunal noted that, inconsistent with cl 6.2(c) of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024, nearly all of the chats submitted were in Vietnamese and that no NAATI certified translation in English had been provided_._ However, it also noted the recent decision of the High Court of Australia in Plaintiff M27-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40 in which the court held that, consistent with s 54 of the Act, a decision maker (in this case, the Tribunal) is obliged to have regard to all of the information included in an application and that, while it is open to a decision maker to afford minimal weight to documentation not translated into English, it is not open to treat all documents involving untranslated components as having not been included for assessment.[1] In the circumstances, and having regard to the nature of the photographs included as well as the frequency of the communications between the couple, it is clearly evident to the Tribunal that the couple are deeply committed to each other and that they provide each other with a deep sense of companionship and emotional support through their daily communications. Mrs Le concluded her evidence to the Tribunal by saying that she wishes to just have a long and happy life living together with her husband.
11. Mr Le confirmed that, following his obtaining a new Australian passport on 24 June 2025, he is now awaiting confirmation from his employer Visy of his ability to take annual leave next month in November 2025 and go back to see his wife and her children. He explained that he was unable to go in 2024 because his sister, who was living in Queensland, was having serious health issues such that he had to go up there and help her: but, after his many trips to Queensland, she has now relocated to live with him at the Condell Park Property and so he is planning to go back to Vietnam shortly to see his wife and her children again once his employer approves the leave application that he has submitted.
12. The Tribunal acknowledged that in his Statutory Declaration sworn 18 October 2025 lodged with the Tribunal prior to the hearing, Mr Le stated his wife had lodged a Subclass 600 Visitor visa in the Sponsored Family Stream which was refused on 1 September 2025. It also discussed in some detail with the couple its concerns in relation to shortcomings in documentation submitted to address the requirements in reg 1.15A of the Regulations and that, in the event it does remit Mrs Le's application for a Subclass 309 Partner (Provisional) visa on the basis it is reasonable to approve Mr Le's sponsorship, it may take the Department some time to consider the remitted application. The representative acknowledged the Tribunal's comments about the need for applicants to lodge fully documented decision-ready applications. He confirmed that, in the event the Tribunal does remit the matter back to the Department, he would expeditiously attend to collating probative evidence to address all of the remaining criteria for grant of the visa.
13. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and the matter remitted for reconsideration. The Tribunal acknowledges that it has significantly more information than that which it was available to the delegate at the time of their decision, in particular, oral evidence at the hearing.

1. The issue in the present case is whether the sponsorship requirements are met having regard to the fact that the sponsor Mr Le may be precluded by 1.20KC of the Regulations from sponsoring his wife Mrs Le due to his significant criminal record as set out in the AFP Certificate. Relevant provisions of the Act and the Regulations referred to in this decision are extracted in the Attachment to the decision.

1. Clause 309.211 of Schedule 2 to the Regulations requires the applicant, at the time of application, to meet one of 2 alternative sub-criteria. These include cl 309.211(2) which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen. Further, cl 309.213(1) of Schedule 2 to the Regulations requires the visa applicant to be sponsored by their spouse or de facto partner who must have turned 18 or, where they have not, by the parent or guardian of the spouse or de facto partner.
2. 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 still be in force: cl 309.222 of Schedule 2 to the Regulations.
3. Approval of a sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in their lifetime and a minimum time that must elapse between each sponsorship. Further, reg 1.20KC imposes limitations on sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016. For visa applications made on or after 18 November 2016, the sponsor must also have given consent for the Department to disclose to each visa applicant any conviction of the sponsor for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that s/he is taken never to have been convicted of the offence.
4. In the present case, the Tribunal is satisfied that the visa applicant Mrs Le is the spouse of her sponsor Mr Le, and that he is an Australian citizen who has turned 18. Therefore, Mrs Le meets the time of application requirements in cl 309.211 and cl 309.213 of Schedule 2 to the Regulations.

1. Regulation 1.20KC(3) of the Regulations provides that the sponsorship of an applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of 'relevant offences' and has a 'significant criminal record' in relation to it (emphasis added).
2. The term 'relevant offences' is defined in reg 1.20KC(2) of the Regulations as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters: violence against a person including assault, sexual assault and the threat of violence; the harassment, intimidation or stalking of a person; the breach of an apprehended violence order; firearms or other dangerous weapons; people smuggling; human trafficking, slavery or slavery-like practices (including forced marriage); and, attempting to commit any such offences.
3. Further, reg 1.20KD of the Regulations provides that a 'significant criminal record' includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: reg 1.20KD(5).
4. Nevertheless, the sponsorship may be approved if the Minister (in this case, the Tribunal) considers it reasonable to do so having regard to matters including (without limitation): the length of time since the sponsor completed the sentence (or sentences) for the relevant offence/s; the best interests of any children of the sponsor or primary applicant; and, the length of the relationship between the sponsor and the primary applicant: reg 1.20KC(4) of the Regulations (emphasis added).
5. Based on available evidence, the Tribunal finds that the AFP Certificate discloses Mr Le was convicted on 6 January 2000 by the Sydney District Court of 3 offences of aggravated indecent assault impacting a victim under 16 years of age. As a consequence, he was sentenced to periodic detention for a period totalling 24 months commencing on 14 January 2000. The Tribunal is satisfied that these offences come within the definition of 'relevant offences' for the purposes of reg 1.20KC(2) and the definition of 'significant criminal record' under reg 1.20KC(3) and reg 1.20KD of the Regulations.
6. For the purposes of reg 1.20KC(4) of the Regulations as to whether it is nevertheless reasonable to approve the sponsorship, the Tribunal has considered that:
   1. Mr Le's relevant convictions occurred over 25 years ago and he completed his periodic detention sentences over 23 years ago;
   2. as set out in the Report from Forensic Psychiatrist Dr Bruce Westmore dated 19 November 1999 lodged with the Department and used by Mr Le's criminal lawyer Trevor Nyman when appearing before Judge Luland on 6 January 2000 at the Sydney District Court at Mr Le's criminal law trial, the offences occurred between November 1995 and January 1997: that is, approximately 30 years ago;
   3. there are no other convictions for any other 'relevant offences' - or, indeed, any other offences at all - since then the time of Mr Le's sentencing by the Sydney District Court on 6 January 2000;
   4. the couple have now been in a spousal relationship for nearly 6 years since the time of their marriage in Vietnam on 17 November 2019;
   5. oral evidence not only from Mrs Le but also the couple's friends Ms Nguyen and Mr Wong (which confirms the earlier evidence in their respective Forms 888 lodged with the Department) attest to Mr Le's total remorse for what happened, the fact that he has moved on and has consistently demonstrated good character;
   6. the signed letter from the Venerable Thich Dao Thong, Director of the Hong Long Buddhist Welfare Association Inc dated 27 October 2025 attesting to Mr Le's commendable work as a volunteer for the Association as well as his good character; and,
   7. despite the shortcomings in evidence lodged to date with the Department and the Tribunal to demonstrate that all of the requirements in reg 1.15A(3) of the Regulations addressing the circumstances of the couple's spousal relationship are met, the Tribunal is satisfied that, based on the couple's independent oral evidence at the hearing as well as evidence submitted to date, they will provide comprehensive probative evidence to demonstrate that all of the time of decision requirements in

cl 309.221 of Schedule 2 to the Regulations are met. 7. For the cumulative reasons outlined above, the Tribunal considers it is reasonable to approve the sponsorship despite Mr Le's criminal history record. Therefore, the Tribunal approves the sponsorship consistent with reg 1.20KC(4) of the Regulations and, accordingly, Mrs Le meets the sponsorship requirements in cl 309.222 of Schedule 2 to the Regulations. 8. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Department to enable consideration of 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:
   • reg 1.20KC for the purposes of cl 309.222 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Quang Nhat Nguyen (MARN: 0746874)

ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994

Migration Act 1958

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) shoot they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c) the relationship between them is genuine and continuing; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

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).

1.20KC Limitation on approval of sponsorship--prospective marriage and partner visas

(1) Applications for which visas? This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:

(a) a Prospective Marriage (Temporary) (Class TO) visa;

(2) Relevant offences This regulation applies in relation to an offence (a relevant offence ) against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

(a) violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;

(b) the harassment, molestation, intimidation or stalking of a person;

(c) the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;

(f) human trafficking, slavery or slavery - like practices (including forced marriage), kidnapping or unlawful confinement;

(g) attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);

(h) aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

(3) Sponsor has significant criminal record in relation to relevant offence The Minister must refuse to approve the sponsorship of each applicant for the visa if:

(a) the sponsor has been convicted of a relevant offence or relevant offences; and

(b) the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).

(4) Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):

(a) the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;

(ii) any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

(c) the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

(5) Police check To determine whether a sponsor has been convicted of a relevant offence, and whether the sponsor has a significant criminal record in relation to a relevant offence, the Minister may, on one or more occasions, request the sponsor to provide a police check relating to the sponsor from any, or all, of the following:

(a) a jurisdiction in Australia specified in the request;

(b) a foreign country, specified in the request, in which the sponsor has lived for a period, or a total period, of at least 12 months since the latest of the following dates:

(6) In addition to subregulation (3), the Minister may refuse to approve the sponsorship of each applicant for the visa if:

(a) the Minister has requested a police check from the sponsor under subregulation (5); and

(b) the sponsor does not provide the police check within a reasonable time.

1.20KD Prospective marriage and partner visas--definition of significant criminal record

(1) For the purposes of regulation 1.20KC, a sponsor has a significant criminal record in relation to a relevant offence or relevant offences if, for that offence or those offences:

(b) the sponsor has been sentenced to imprisonment for life; or

(c) the sponsor has been sentenced to a term of imprisonment of 12 months or more; or

(d) the sponsor has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

(2) Concurrent sentences For the purposes of subregulation (1), if a sponsor has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example: A sponsor is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of subregulation (1), the total of those terms is 6 months.

(3) Periodic detention For the purposes of subregulation (1), if a sponsor has been sentenced to periodic detention, the sponsor's term of imprisonment is taken to be equal to the number of days the sponsor is required under that sentence to spend in detention.

1. Residential schemes or programs For the purposes of subregulation (1), if a sponsor has been convicted of a relevant offence, and the court orders the sponsor to participate in:

the sponsor is taken to have been sentenced to a term of imprisonment equal to the number of days the sponsor is required to participate in the scheme or program.

(5) Pardons etc For the purposes of subregulation (1), a sentence imposed on a sponsor for a relevant offence, or the conviction of a sponsor for a relevant offence, is to be disregarded if:

(a) the conviction concerned has been quashed or otherwise nullified; or

(i) the sponsor has been pardoned in relation to the conviction concerned; and

(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.

Schedule 2 - Subclass 309 -- Partner (Provisional)

"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).

Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).

309.21 - Criteria to be satisfied at time of application

309.211 (1) The applicant meets the requirements of subclause (2) or (3).

(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:

(3) The applicant meets the requirements of this subclause if:

(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.

309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.

(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:

(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.

309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:

(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,

(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:

(a) if the applicant's intended spouse has turned 18--by that intended spouse; or

(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

309.22 - Criteria to be satisfied at time of decision

309.221 The applicant continues to satisfy the criterion in clause 309.211.

309.222 (1) The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.

Note: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.

(2) The sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

Note: The sponsor may be asked to consent to such disclosure on the approved form required to be completed by the sponsor in relation to the visa application.

(3) For the purposes of subclause (2), the conviction of the sponsor for a relevant offence is to be disregarded if:

(a) the conviction has been quashed or otherwise nullified; or

(i) the sponsor has been pardoned in relation to the conviction; and

(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.

(4) This clause does not apply in relation to an applicant who meets the requirements of subclause 309.221(2) or (3).

309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.

309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and

(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.

309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.

309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and

(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

309.229 If a person (in this clause called the additional applicant):

(a) is a member of the family unit of the applicant; and

(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

[1] M27-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40 [26] ((Gageler CJ, Gordon J and Beech-Jones J)