The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

• cl 820.211 of Schedule 2 to the Regulations.
• cl 820.221(2) of Schedule 2 to the Regulations; and

The second, third and fourth named applicants meet the following criteria for a Subclass 820 (Partner) visa:

MIGRATION - Partner (Temporary) (Class UK) visa - Subclass 820 (Partner) - genuine and continuing relationship - history of relationship and sponsor's visits - sponsor's illness, applicants' arrival, parties' valid marriage, application made and sponsor's death - expectations and plans for financial, household and social aspects of relationship in circumstances - nature of commitment - applicant's care in hospice and arrangement of cultural funeral rites - mental health and treatment - supporting statements - members of family unit young adult children - settled life, community and work - decision under review set aside and remitted

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

Migration Regulations 1994 (Cth), rr 1.03, 1.15A(3), Schedule 2, cls 820.111(2), (6), (7), 820.221(2), 820.311

He v MIBP [2017] FCAFC 206

1. This is an application for review of a decision made by a delegate of the Minister on 18 February 2025 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The first named applicant (the applicant) applied for the visa on 1 April 2024 on the basis of her relationship with her sponsor, Mr Huot Khy, an Australian citizen. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
3. Relevantly to this matter, the primary criteria include cl 820.211 and 820.221 which require that at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor unless certain circumstances exist, such as where the relationship has ceased due to family violence, or where the sponsor has died.
4. The delegate in this review assessed the applicant's circumstances against subclause 820.211(7), which applies when the applicant is the holder of a Subclass 300 visa and the applicant married the sponsoring partner, and the sponsor has died before the visa holder applied for a Subclass 820 visa.[1] Until 1 July 2024, this subclause also required that an applicant had married the sponsor, and had developed close business, cultural or personal ties in Australia. As the applicant's application had not been finally determined and was the subject of review at the time the legislation changed, the new provisions would apply in this case if the sponsor had died before the date of application.
5. The delegate found that the primary visa applicant's circumstances 'do not fall withing the provisions of' several subclauses, including subclauses 820.211(2) and (6). They proceeded to assess her application against subclause (7).
6. The delegate was satisfied that the visa applicant held a Subclass 300 visa granted on 25 March 2024 and entered Australia on 29 March 2024. The delegate was also satisfied that the visa applicant and sponsor married on 30 March 2024, and that the sponsor had passed away on 7 April 2024. However, the delegate was not satisfied that the visa applicant and sponsor would have continued to be the spouse of the sponsor if the sponsoring partner had not died, because they were not satisfied that the primary applicant was the spouse of the sponsor. The delegate referred to the shortage of information capable of satisfying the decision maker of the genuineness of the relationship and concluded that "I have formed the opinion that your relationship with sponsor is not genuine." The delegate concluded that the visa applicant did not satisfy cl 820.211(7) and refused to grant the visa.
7. The primary and secondary applicants appeared before the Tribunal on 10 December 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
8. The applicants were represented in relation to the review, and the applicant's representative attended the hearing.
9. For the following reasons, the Tribunal has concluded that the decisions under review are set aside and the matters are remitted for reconsideration.

1. The issue in the present case as identified by the Tribunal is whether the primary applicant was the spouse of the sponsor at the time of application and if so, whether she would have continued to be the spouse of the sponsor except that he had died. In relation to the secondary applicants, the issue is whether they were dependent children of their mother at the time of application.
2. In the present case, the applicant claims that she was the spouse of the sponsor at the time of application and would have continued to be his spouse had he not died.
3. The accepted history of the relationship as outlined in the application and supporting documents is as follows:
   • The primary applicant is aged 53. The secondary applicants are her children, Mengkuong aged 22, Meylingsopheak aged 20, and Kunlivthean aged 19. All applicants are citizens of Cambodia. The sponsor was an Australian citizen born in Cambodia, who was aged 76 at the time of his death.
   • The applicant and sponsor first met on 30 August 2019 at Preah Sihanouk. According to the application, they committed to a shared life to the exclusion of all others on 27 June 2021. Thereafter, when the sponsor visited Cambodia, they lived together in the applicants' home.
   • The parties applied for a subclass 300 visa in 2022. The sponsor visited the applicants in Cambodia for approximately one month in February/March 2022.
   • In mid 2022, the sponsor was diagnosed with liver cancer and commenced treatment.
   • The sponsor visited the applicants in Cambodia for one month from 22 February 2023 to 18 March 2023, for three months from 18 March 2023 to 3 June 2023, and for just over one month from 5 October 2023 to 10 November 2023.
   • The subclass 300 visas were granted to the applicants on 25 March 2024. They arrived in Australia on 29 March 2024. The primary applicant and sponsor were married on 30 March 2024.
   • The sponsor passed away on 7 April 2024.
4. In support of the application, the following documents were submitted:
   • Several photographs of the visa applicants and sponsor in a hospital room with the sponsor looking increasingly frail.
   • Photographs of signing the marriage certificate with the applicants and sponsor present, and sitting at a chair, and of the primary applicant and secondary applicants providing food and care to the sponsor in hospital.
   • Photographs taken at what appears to be the sponsor's passing (in a hospital room) and of the funeral and related matters.
   • Marriage Certificate and registration demonstrating that the parties married on 30 March 2024 in a marriage ceremony conducted by Ms Robyne Starkop, Civil Marriage Celebrant, in Noble Park, Victoria.
   • Letter from Monash Medical Centre dated 4 April 2024. This letter confirms that the sponsor was receiving palliative care, and that his wife, the primary applicant, and her three children were supporting him during his current admission. The writer states "It's essential to have the family support around for Mr Khy during this difficult time. Mr Khy would also benefit from having extra care at home if he could be discharged home." The writer requests that the visa applications could be approved as soon as possible.
   • Notification of the sponsor's death to Department, 8 April 2024, Death Certificate and funeral documentation. The death certificate lists the visa applicants as the sponsor's wife and children. His children from previous marriages are not listed. The cause of death is Multifocal hepatocellular carcinoma "2 years."
   • Supporting statement from the sister of the primary applicant, Ms Muyly Lim, who has known the primary applicant since birth and the sponsor for twelve years. She states that she became friends with the sponsor and introduced him to the primary applicant when he visited Cambodia. She states that she has witnessed them sharing joy and companionship in Cambodia and briefly in Australia. She notes that even though they were frequently separated by distance, they consistently made it a priority to spend quality time together as a family. Ms Lim states that the visa applicant has found his loss profoundly difficult. She continues to communicate with his family and friends.
   • Supporting statement from Mr Phnath Tham, a friend of the sponsor who first met the primary applicant three years prior and has observed her love and dedication towards the sponsor. He has continued in contact with the primary applicant since his friend's death and observes that had the sponsor not passed away, their profound love and commitment to each other would have continued to flourish.
   • Supporting statement from Ms Mom Touch, a friend of the sponsor who notes that she met the primary applicant through the sponsor, who frequently mentioned her and spoke highly of her before formally introducing them. Ms Touch confirms that the primary applicant shared love and commitment with the sponsor.
   • Photographs of various memorial services.
5. In submissions to the Tribunal directly after applying for review, the applicants also submitted the following information:
   • The delegate's decision and visa applicants' passports;
   • Study certificate for the secondary applicant Mengkuong Chea, Mittapheap High School in Cambodia;
   • Taxation and income details for the applicants;
   • Bank statements for secondary applicant Khunlivthean, Commonwealth Bank opened on 2 April 2024. This bank statement shows the applicant as receiving a wage deposited since 16 June 2024.
   • Bank statements for secondary applicant Mengkuong, Commonwealth Bank opened on 2 April 2024. This bank statement shows the applicant has had multiple deposits and transfers from 'pay' and 'saving' accounts.
   • Bank statements for secondary applicant Meylingsopheak, Commonwealth bank opened on 2 April 2024, showing wages deposits since 10 August 2024 and frequent use.
   • Primary applicant bank statement from 2 April 2024 showing transfers from 'savings' and 'pay', final balance $17,711.
   • Declaration of Mr Pen Kien LY, brother-in-law of visa applicant. Through his wife, he states he came to know the sponsor in 2021. He describes the primary applicant and sponsor as having a strong love and commitment for each other. They were devoted to each other and supported each other in the face of adversity.
   • Photographs of the family together at social gatherings in Cambodia;
   • Subclass 300 visa grant notice showing that the visa applicants were granted the visas on 25 March 2024.
   • Letter from Dr Maneesha De Silva stating that the applicant "lost her husband last year due to cancer and lives with her 3 children, aged 22, 20 and 19 years old respectively. She was dependent on her husband and arrived in Australia last year to live with him." Dr De Silva states that the visa applicant suffers from depression showing no improvement after starting on treatment more than three months prior. The doctor notes that her condition is complicated by social withdrawal, lack of initiative and some cognitive symptoms such as poor concentration and forgetfulness. The doctor adds; "She is not able to look after her affairs on her own. Her judgement and ability to manage the household is limited. This has posed a challenge to manage her family."
   • Letter from the Cambodian Association of Victoria Inc dated 21 July 2025. This letter states that the writer has known the applicant for over a year through the Cambodian community in Victoria. They write: "The relationship between Muoy Ruos and Huot Khy started in 2021 during Covid. They contacted each other online. On 9 February 2022 Huot Khy returned to Cambodia. Muoy Ruos with the three children came to welcome him from Phnom Penh airport and took him to her home at Sihanouk Ville (Kompong Som). When Huot Khy was in Cambodia he always goes together with Muoy Ruos and both they sleep in the same bedroom as husband and wife. Please find attached some photos in Cambodia.

The relationship of Huot Khy and Muoy Ruos became stronger in love when he was in Cambodia. When Huot Khy was in Australia, he informed his fiancée Muoy Ruos about his health. Unfortunately, after Muoy Ruos arrived in Australia just one-week Huot Khy passed away. But before Huot Khy died he requested Muoy Ruos married with him."

• Supporting submission. The applicant's representative notes that the application was self-lodged and lacked supporting documentation and information. The representative suggests that at the time of lodging the prospective partner visa application in 2022, the sponsor had been diagnosed with liver cancer but was still quite well and only at the beginning of the illness. He was still well enough to travel and did so on multiple occasions during 2023. Unfortunately, the sponsor's condition deteriorated quite rapidly in 2024. All applicants have settled well into Australian community and work. They have family here and have made friends also. They continue to live at the same address. The primary applicant is receiving treatment for depression.
• Further submission dated 16 October 2025. In this submission, the agent notes that the sponsor previously lived in a one-bedroom apartment in Springvale and so when the visa applicants arrived, they rented a new home in Noble Park. The sponsor left hospital on their wedding day but returned on the same day, and unfortunately never left the hospital again. They were unable therefore to live together after they married, but would have if it was possible. The couple met in 2019 but didn't start talking to each other seriously until 2021. He visited Cambodia and the primary applicant in February 2022, after the Covid19 travel restrictions. He stayed with the applicants for one month on that occasion. The sponsor was still quite well at that time and they were looking forward to a long life together as husband and wife. He later found out about his illness and believed that medication and treatment would assist him. Even after starting treatment, he travelled to Cambodia three times in 2023. He always stayed with the applicants during those visits. They couldn't marry in 2023 because the prospective spouse visa had not been approved.
• Statutory Declaration by the primary applicant in which she states that she and the secondary applicants travelled to Australia under Prospective Marriage (subclass 300) visas with the primary intention of reuniting with and caring for the ailing sponsor. She notes that in the brief time since arrival, they cared for him and after his death prepared and conducted his funeral in strict adherence to Cambodian cultural rites. His sudden loss has been devastating for them. Returning to Cambodia now would exacerbate their grief and disrupt the fragile sense of stability they are trying to maintain.

1. As noted above, the visa applicants all attended the hearing and gave evidence. The Tribunal found them to be credible and accepted that evidence as reliable, particularly given that it is supported by the objective information that has been provided.
2. The primary applicant confirmed in her evidence that she and the sponsor had been in a committed, loving relationship since 2021. In 2022 they applied for a Prospective Spouse (Subclass 300) visa. Later in 2022, the sponsor was also first diagnosed with liver cancer but commenced treatment and it was not conceived by either of them that he would not survive it. In 2023, he visited them in Cambodia as often as he could, and on every occasion he stayed with her and the children as a family. They shared their home as any ordinary committed couple.
3. The applicant gave evidence that the sponsor's last visit to Cambodia was in November 2023. She gave evidence that although he was frailer than previously, (she thought due to the treatment he had been receiving) he was active and engaged with them all on that visit, and they looked forward to being together when their Subclass 300 visas were approved. They spoke of their plans to join him in Australia so the family could be reunited, and also so the applicants could support and help him as he fought his cancer. They did not believe that his illness would progress or take his life at that time. Throughout the time they were waiting for the subclass 300 visa grant, the applicant ran her small business in Cambodia and was not financially reliant on the sponsor. When they were together, he would contribute to household expenses and pay for some of the activities they did together. However, there was never a need or opportunity to combine their income and resources until they were together in Australia, which they intended to do.
4. The subclass visas were granted on 25 March 2024 and the primary applicant gave evidence that she then sold her business and arranged the family's move to Australia as quickly as she could. She brought all of the money she had with her and used that to find them a rental property. Her husband's unit was small and could not house them all. It was not intended that they would live there together anyway - she and the sponsor had discussed housing options and intended to find a place together for the family when she arrived, but because of her husband's illness, she had to do that alone. She used her own savings to pay for the property. When she rented the property in Noble Park, she still hoped that the sponsor would be able to join them there. Actually, the landlord at his unit actually told her they didn't want him to return because they were fearful that he would die there. These things were really (and understandably) overwhelming for the primary applicant when she arrived in Australia to find the sponsor so unwell and in hospital.
5. As the primary applicant gave her evidence, it was clear to the Tribunal member that the catastrophic chain of events the family have experienced have caused the primary applicant real and continuing trauma. A diagnosis of cancer is devastating in itself, but the Tribunal accepts that the primary applicant genuinely hoped and expected the sponsor to survive his illness and finding him in such a frail state when they arrived in Australia was particularly overwhelming, and exacerbated by her lack of familiarity with the language, the culture and bureaucratic processes in Australia. The Tribunal accepts that she and the sponsor lodged the visa application themselves and with limited supporting evidence because of their desperate circumstances.
6. The primary applicant explained that she and the sponsor had initially planned to marry in October 2024, but once they arrived, the sponsor arranged for the marriage to happen immediately, because he really wanted to marry her before he died. At the time of the wedding, she and the children were still in shock at how much (and how quickly) his health had deteriorated and how ill he was. He arranged everything with the celebrant. He left the hospital on the day of the wedding but had to return that same day. In the final days of his life, the primary applicant and the children did everything they could to support him, staying with him as much as possible at the hospice home and helping him to eat and be comfortable.
7. When the sponsor died, the primary applicant and her children took care of all of the funeral and memorial arrangements as his closest family. The primary applicant said that the sponsor told him that some of his children had visited him in hospital but had not returned. She did not know his children, as he had told her he was estranged from them, and they did not live close to the sponsor. When she notified the authorities of his death, she just filled out the form as best she could - she didn't know the details of his natural children so couldn't complete them and just put her own and the secondary applicants' details in. She was completely ignorant of Australia's system, so just tried to do what she could and followed the advice of hospital/funeral staff. She apologised if she had not filled out the form correctly but noted she was completely overwhelmed by all of the circumstances happening in her first two weeks in Australia, as well as losing her husband.
8. The secondary applicants each gave evidence that they were still students and fully dependent on their mother when they came to Australia and at the time of application. They each separately confirmed that they had loved and considered the sponsor as a father figure over the course of his relationship with their mother and missed him. They also confirmed that when he was in Cambodia, he would stay with them and share a room with their mother as her partner.
9. The time of application provisions relevant in this case are in subclauses 820.211(2), (6) and (7). The relevant parts of those subclauses provide:

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

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

(6) An applicant meets the requirements of this subclause if the applicant:

(a) is the holder of a Subclass 300 (Prospective Marriage) visa; and

(b) has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

(i) if the applicant's spouse has turned 18 - by the spouse; or

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

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) continues to be the spouse of the sponsoring partner.

(7) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and

(c) the sponsoring partner has died; and

(d) the applicant satisfies the Minister that the applicant would have continued to be the spouse or prospective spouse of the sponsoring partner if the sponsoring partner had not died.

1. As noted above, prior to 1 July 2024, subclause 820.211(7) also contained additional subclauses which required that an applicant has married the sponsor and also that the visa applicant has established close business or personal ties in Australia. Those requirements ceased to apply to applications not finally determined at the time of change, and therefore, if those provisions are being considered, the Tribunal must apply the new provisions and assess the applicants' claims accordingly.
2. The primary visa applicant held a subclass 300 visa at the time of application and had entered Australia shortly after the visa grant. The date of application is 1 April 2024, and the sponsor died on 7 April 2024. Proof of death has been provided. Therefore, the sponsor had not died at the time of application, and the Tribunal considers that subclauses 820.211(2) or (6) are the relevant subclauses, not subclause (7) as applied by the delegate. Nonetheless, as will become clear when the Tribunal's findings below are considered, if subclause (7) was the applicable clause and the 'time of application' includes the short period after application when the sponsor died, the primary applicant would satisfy each of the subparagraphs in subclause (7). This is because, for the reasons which follow, the Tribunal is satisfied that the primary applicant was the spouse of the sponsor and would have continued to be the spouse of the sponsor if he had not died.
3. The application includes the sponsor's details, family history, including his previous sponsorship of his first wife. His phone number is given as the contact number on the application. Given that none has been included in the Departmental file, the Tribunal considers that he had not yet completed a sponsorship form (if one was required given his sponsorship of the Subclass 300 application) by the time he passed away. The Tribunal considers that in the circumstances of this case, the evidence supports a finding that, at the time of application, he continued to sponsor the applicants and demonstrated that intention by preparing and lodging the application. The Tribunal finds that the applicant was sponsored at the time of application by her husband.
4. Therefore, the relevant issue in considering the time of application provisions is whether the applicant was the spouse of the sponsor at the time of application.
5. 'Spouse' is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
6. The parties married on 30 March 2024 in Melbourne. There is no suggestion on the material before the Tribunal that there was any impediment to their marriage, and they had long expressed an intention to marry. The Department had granted a subclass 300 visa to the applicants on the basis that they were satisfied of their genuine relationship and their intention to marry. 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).

Was the primary applicant the spouse of the sponsoring partner at the time of application?

1. When considering the information and evidence before it against the various aspects of the relationship as described in regulation 1.15A(3) the Tribunal is satisfied as follows:
   • The primary applicant sold her home and business in Cambodia and intended to contribute that towards establishing a joint home with the sponsor. She took that step even knowing that he might not survive his cancer diagnosis, but was committed to living with him as his wife and sharing their financial responsibilities. Given the circumstances of his death, the mutual intention of the primary applicant and sponsor to be together must be given significant weight. Once in Australia, the primary applicant rented a home to house them all as a family (still hoping that the sponsor would be able to join them there if possible.) She bore the costs of finding a new home in very difficult circumstances. Consideration of the financial aspects of the relationship suggests that the primary applicant and sponsor intended to pool their resources and share expenses and financial responsibilities, and to live together as a married couple, had the sponsor not passed away. From the moment of their arrival in Australia, however, the primary applicant was required by her husband's dire circumstances to meet the needs of the family from her own financial resources. Nonetheless, their plans and expectations of sharing their income and resources can be given some weight as suggesting that they were each genuinely committed to the marriage and each other.
   • The Tribunal accepts that in the years before his death, the sponsor travelled to be with the applicants on several occasions and that he lived with the primary and secondary applicants each time for several weeks. The Tribunal accepts the evidence given by the applicants that they shared the home on every occasion and that the applicants considered him a family member who participated in ordinary household activities and chores. Each of the secondary applicants confirmed that as their closeness with the sponsor grew, they came to love him and appreciate his paternal guidance.
   • Once in Australia, the Tribunal is satisfied that it was the primary applicant and sponsor's intention that they live together in a shared household with the secondary applicants and spend the rest of their lives together. Sadly, by the time the subclass 300 visa was granted, the sponsor's illness had progressed to a stage where they were unable to share a home. The rapidity of his advancing illness must be noted, given that he had travelled to Cambodia as recently as November 2023 and, though frail after his treatment, was able to do so alone and contribute to daily life as the applicant's partner. The Tribunal considers that the nature of the household they had shared and intended to share suggests that the visa applicant and sponsor were in a genuine and continuing relationship as spouses at the time of application.
   • Multiple statements have been provided, including from medical professionals, which confirm that the primary applicant and the sponsor were considered to be a loving and genuine couple by their family members and by everyone who came into contact with them, including medical staff. The Tribunal accepts that it was the opinion of friends and acquaintances of the parties that theirs was a genuine and continuing relationship, that they intended to (and did) marry and that they intended to spend their lives together. When together (and when the sponsor was in Cambodia) they planned and undertook social activities together and as a family. Consideration of the social aspects of the relationship supports a finding that the primary applicant and sponsor were spouses and would have continued to be spouses if the sponsor had not died.
   • The parties had been in a committed, exclusive romantic relationship since 2021. They planned to marry (and did marry). They applied for a Prospective Marriage visa, and anxiously waited on the grant. Whilst waiting, the sponsor's cancer was diagnosed, and he underwent treatment. Despite that, they spent as much time together as they could. As soon as the visa was granted, the primary applicant acted quickly to divest herself of her Cambodian home and business and the applicants travelled to Australia where she immediately undertook the role of the sponsor's wife and carer. The fact that he was already in palliative care does not mitigate the fact of their mutual commitment and intention to live as husband and wife, even if the term of their time together was destined to be short, as it proved to be. They provided each other with companionship and care, in quite extraordinary circumstances. For example, the primary applicant attended to the sponsor's needs in care as best she could, kept him company and liaised with staff as his wife. The sponsor arranged the wedding in haste due to his desire to demonstrate the genuineness of their relationship to both their friends and family and also to the department. Having considered the evidence given, the Tribunal considers that both applicant and sponsor were genuinely committed to each other and considered the relationship to be 'long term' - that is for the term of their lives.
2. The Tribunal gives significant weight to the the fact of their marriage before the sponsor's death and the primary applicant's conduct as his spouse in arranging his funeral and honouring him after death, to the sponsor's desire to marry before he died, and the primary applicant's decision to give up her home and business and migrate to Australia even despite the sponsor's illness. The Tribunal is satisfied that at the time of application, (1 April 2024) the primary applicant and sponsor were mutually committed to a shared life to the exclusion of all others, that theirs was a genuine and continuing relationship and that they were living separately only because of the sponsor's illness and hoped to share a home if his health had permitted them to do so.
3. The sponsor was an Australian Citizen. The applicant was sponsored by the sponsor, her spouse, at the time of application. The Tribunal finds that the primary applicant satisfied subclause 820.211(2) at the time of application.
4. The Tribunal considers that the primary applicant would also meet subclause 820.211(6) at the time of application, because she held a Subclass 300 (Prospective Marriage) visa, had married the sponsor under a valid marriage, was sponsored by the sponsor and (applying the Tribunal's findings above) was and continued to be the spouse of the sponsor at the time of application. As noted earlier, at the time of application, the sponsor had not yet died, so subclause (7), which was considered by the delegate, was not actually applicable. It is nonetheless noted that, based on the Tribunal's findings above, if subclause 820.211(7) was applicable, the primary applicant satisfies each of the relevant sub-criteria at the time of application apart from the sponsor having already died.
5. The primary applicant is not and has never been the holder of a subclass 771 (Transit) visa. The Tribunal has found that she meets the criteria of subclauses (2) and (6) of clause 820.211. The Tribunal concludes that the primary applicant satisfied subclause 820.211 at the time of application.

(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant:

(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

1. The Tribunal has found that the visa applicant met the requirements of subclauses 820.211(2) and (6), and that the sponsor has died.

Would the applicant have continued to be the spouse of the sponsor if the sponsor had not died?

1. Implicit in this question is the finding that the primary applicant was the spouse or prospective spouse of the sponsor prior to his death. As noted above, the Tribunal has found that the primary applicant was the spouse of the sponsor at the time of application. In this very unusual and tragic case, the time of application and the death of the sponsor are separated by only one week.
2. In these circumstances, although consideration must be given to the various aspects of the relationship when assessing whether the primary applicant and sponsor would have continued to be spouses had he not died, it would be unreasonable to use the short period of them being together as husband and wife to suggest some lack of genuineness concerning their relationship. The speed of marriage was at the sponsor's desire, due to his failing health, but neither he nor the primary applicant knew how long he would live at the time of their marriage. Nonetheless, they made that commitment to each other on 30 March 2024. The Tribunal is satisfied that they were spouses at the time of application and that nothing had changed by the time the sponsor died. The primary visa applicant emotionally and practically supported him until his death as best she could and made all necessary funeral arrangements as his spouse.
3. As noted by the applicant's representative in submissions, the Department was satisfied (as is the Tribunal) that the primary visa applicant genuinely intended to marry the sponsor - and therefore the speed with which they married on her arrival is not reasonably seen as an indicator of lack of genuineness, as appears to have been the view of the delegate; but rather a desire to fulfil their wish to marry while they had time, in tragic circumstances.
4. These were extraordinary circumstances, and the nature of the sponsor's palliative state was not fully understood by the primary applicant until she arrived in Australia. Nonetheless, the Tribunal is satisfied that both she and the sponsor intended and desired to be together as husband and wife even after the dire situation was revealed, and for as long as he was alive. The Tribunal accepts her evidence that when she arrived in Australia, she knew her husband had 'a battle' ahead of him, but she still thought they would have longer time together than they did, and she had every intention of living with him and providing him with emotional care and support as his wife, for the rest of their lives. After considering each of the various aspects of the relationship against this intention and giving proper regard to the circumstances of the sponsor's rapid deterioration of health and death, the Tribunal is satisfied that the primary applicant would have continued to be the spouse of the sponsor if he had not died.
5. Therefore, the primary applicant satisfies cl 820.221(2) at the time of decision.

1. In relation to the secondary applicants, at the time of application they must satisfy cl 820.311 which provides as follows:

(i) a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or

(ii) a member of the family unit of a person who:

(A) is the holder of, or has been the holder of, a Subclass 300 (Prospective Marriage) visa; and

(B) has applied for a Partner (Residence) (Class BS) visa; and

(b) the sponsorship (if any) in respect of that person includes the applicant; and

(c) the Minister has not decided to grant or refuse to grant a visa to the person.

1. "Dependent child" is defined in regulation 1.03 as a child of a person who has not turned 18, or who has turned 18 and is dependent on that person (or is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.) Each of the secondary applicants is a child of the primary applicant. At the time of application, they were aged 17 (Mengkuong), 18 (Meylingsopheak) and 21 (Mengkuong) respectively.
2. "Dependent" is further defined in regulation 1.05A, the relevant part is as follows:

(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

(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; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

1. At the time of applying for the visa, all three of the secondary applicants were students, and living with and fully dependent on their mother. They relied on their mother for all aspects of their support. The primary applicant met their basic needs for education, clothing, food and accommodation. The Tribunal finds that the secondary applicants were each a dependent child of the primary applicant who had applied for a Partner (Residence)(Class BS) visa. They therefore met cl 820.311.
2. Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

1. The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with orders that:

The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

• cl 820.211 of Schedule 2 to the Regulations
• cl 820.221(2) of Schedule 2 to the Regulations; and

The second, third and fourth named applicants meet the following criteria for a Subclass 820 (Partner) visa:

Representative for the Applicant: Mr Garry Frederick Howard (MARN: 9804095)

**ATTACHMENT - Extract from Migration Regulations 1994

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

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

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

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

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

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

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

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

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

(ii) any joint liabilities; and

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the persons; and

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

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

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

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

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

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

(i) the duration of the relationship; and

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

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

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

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

[1] Migration Regulations Policy at 3.3.2.15 If the sponsor of a Subclass 300 visa holder has died