CUHADAR (Migration)

[2024] AATA 2518

CUHADAR (Migration) [2024] AATA 2518 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aziz Cuhadar

VISA APPLICANTS:  Mrs Thi Linh Nguyen
Miss Thanh Phuong Trang Nguyen

REPRESENTATIVE:  Mr Kayhan Oncu

CASE NUMBER:  1926926

DIBP REFERENCE:  BCC2018/3108244

MEMBER:Katie Malyon

DATE:24 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction 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; and,

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 24 June 2024 at 1:48 pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Re MILGEA and Dhillon [1990] FCA 144
Singh v MIEA [1996] FCA 1429

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant, Vietnamese national Mrs Thi Linh Nguyen (hereinafter Mrs Nguyen), applied for the visa on 17 August 2018 on the basis of her claimed spousal relationship with her sponsor, the review applicant Mr Aziz Cuhadar. 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 Nguyen did not satisfy

   
   

   cl 309.211 of Schedule 2 to the Regulations because, after consideration of the limited evidence provided in support of the visa application and information provided in response to the delegate’s 3 natural justice invitations issued pursuant to s 56 of the Act (on 4 September 2018, 29 November 2018 and 23 January 2019), the delegate was not satisfied that, both at the time of lodgement of the visa application and at the time of the delegate’s decision, Mrs Nguyen and Mr Cuhadar were mutually committed to a shared life as spouses to the exclusion of all others as required by reg 1.15A of the Regulations.

4. Following refusal of Mrs Nguyen’s visa application on 11 September 2019, an application for review was lodged with the Tribunal by Mr Cuhadar.  A copy of the delegate’s decision was also provided to the Tribunal.  A month later on 10 October 2019, Mr Cuhadar provided a detailed, lengthy and considered statement to the Tribunal addressing the delegate’s reasons for refusing his wife’s Subclass 309 visa application (Mr Cuhadar’s Statement).  Relevant comments in Mr Cuhadar’s Statement are discussed below. 

5. Subsequently, Mr Cuhadar submitted a bundle of documents to the Tribunal on 13 January 2020 confirming:

   1)multiple payslips from his employer Australian Plastic Profiles in the period 21 July 2017 to 27 September 2019;

   2)evidence of money transfers to his wife on 5 October 2017, 4 November 2017, 3 October 2019, 9 October 2019, 28 October 2019, 29 October 2019, 7 November 2019, 25 November 2019, 8 December 2019, 14 December 2019 and 19 December 2019;

   3)his planned travel on 20 January 2020 to Vietnam to visit his wife and his stepdaughter, the second named visa applicant Miss Thanh Phuong Trang Nguyen;

   4)ongoing regular WhatsApp communications with his wife;

   5)issue to him by Ho Chi Minh City District 11 of a Temporary Residents Book confirming his approved temporary residence at Mrs Nguyen’s family property in the periods 23 May to 2 June 2016, 2 January to 28 January 2017 and 4 January to 1 February 2018; and,

   6)his mother-in-law’s Death Certificate dated 2 October 2019 confirming her death on 1 October 2019. 

6. On 16 January 2021, Mr Cuhadar requested priority processing of his review application on the basis that the Tribunal’s delay was impacting his mental health, employment and social well-being.  In support of his request for priority processing, Mr Cuhadar provided a signed letter from Registered Psychologist Alison Bausse dated 22 December 2020 stating that he has displayed symptoms of depression and anxiety due to being unable to see his wife as a result of the limitations on his travel to Vietnam imposed during the COVID-19 pandemic.  Ms Bausse also opined that Mr Cuhadar’s symptoms would improve if his wife was allowed to enter Australia to be with him.  The Tribunal refused Mr Cuhadar’s priority request on 20 January 2021 on the basis that other applicants for Partner visas were likely to experience similar levels of distress and, therefore, there were no compelling reasons that warranted the granting of priority in this particular case.

7. On 17 May 2021, the following evidence was provided by Mr Cuhadar to the Tribunal:

   1)signed Will dated 17 May 2021 confirming appointment of his wife Mrs Nguyen as his executor and trustee as well as the only recipient of his estate;

   2)signed General Power of Attorney dated 17 May 2021 appointing his wife Mrs Nguyen as his attorney; and,

   3)evidence of money transfers to his wife on 3 April 2020, 21 June 2020, 7 July 2020, 19 March 2021, 4 April 2021 and 6 May 2021.

8. The Tribunal was informed on 8 November 2021 of Mr Cuhadar’s appointment of immigration lawyer Kayhan Oncu as his representative.  On 13 January 2022, the representative provided evidence of further money transfers from Mr Cuhadar to his wife dated 20 May 2021, 4 November 2021, 12 November 2021, 10 December 2021 and 10 January 2022.  He also informed the Tribunal on 25 July 2022 of Mr Cuhadar’s absence from Australia in the period 28 July to 8 September 2022 and provided evidence of his airline tickets to visit his family in Turkey and then returning to Australia via Ho Chi Minh City after seeing his wife there. 

   The Tribunal’s s 359(2) letter

9. On 26 April 2023, the Tribunal wrote to Mr Cuhadar via his representative pursuant to

   
   

   s 359(2) of the Act inviting Mr Cuhadar to provide updated and current evidence to address all of the circumstances in reg 1.15A of the Regulations which led to the delegate’s refusal of Mrs Nguyen’s visa application.  In response, the Tribunal was provided with further evidence of Mr Cuhadar’s travel to Vietnam to stay with his wife en route back to Australia after visiting his own family in Turkey in September 2022 as well as his travelling to Vietnam to be with her in July 2022 and again in June 2023.  Also included was evidence of recent WhatsApp communications between the couple including multiple photographs of them with family and friends. 

10. Following constitution of the matter to the Member, Mrs Nguyen and Mr Cuhadar were invited to attend a hearing on 1 March 2024. The Tribunal’s hearing invitation specifically requested a submission and further probative evidence addressing the delegate’s reasons for refusing Mrs Nguyen’s visa application as well as current and updated evidence to address the requirements in reg 1.15A of the Regulations.

11. Inconsistent with cl 5.1(a) of the Tribunal’s Migration and Refugee Matters Practice Direction dated 1 August 2018, the representative did not provide additional documentation to the Tribunal at least 7 days prior to the hearing: rather, documentation was submitted just 1 hour before the hearing.  Nor was the documentation submitted in a format consistent with cl 7.8 of that Practice Direction, that is, in a PDF format with each document given a separate number, each page numbered sequentially and an index with pagination set out in bookmarks or links to each document. 

    Hearing – 1 March 2024

12. Mrs Nguyen and Mr Cuhadar appeared before the Tribunal by way of MS Teams video conference on 1 March 2024 to give evidence and present arguments.  In addition, oral evidence was taken by way of MS Teams video conference from Mr Cuhadar’s daughter Tanya Cuhadar and Mrs Nguyen’s 2 younger brothers, Minh Dung Nguyen and Lu Hoang Nguyen.  The hearing was conducted with the assistance of an interpreter in the Turkish and English languages for Mr Cuhadar’s benefit as well as an interpreter in the English and Vietnamese languages for the benefit of Mrs Nguyen and her 2 siblings.  The Tribunal found all parties giving oral evidence to be credible witnesses.    

13. Mr Cuhadar and Mrs Nguyen were represented in relation to the review by their representative who also attended the MS Teams videoconference hearing.   

14. At the commencement of the hearing, the Tribunal noted that it had been provided with multiple documents just an hour before the hearing and, in the circumstances, a further hearing would be required to enable the Tribunal to appropriately consider all of the documentation submitted.  Mr Cuhadar apologised and said that he thought the representative had provided all necessary documentation in a timely manner.  The Tribunal reminded the representative that a pattern of failure to comply with the Tribunal’s Practice Directions may be referred to the relevant regulatory authority, in this case, the Office of the NSW Legal Services Commissioner.  It also observed that, given the passage of time since lodgement of the visa application, the failure to provide necessary documentation to the Tribunal in a timely manner raised doubts in the mind of the Tribunal regarding the genuineness of the couple’s claimed spousal relationship.  Mrs Nguyen and Mr Cuhadar acknowledged the Tribunal’s comments in this regard.  Mr Cuhadar apologised profusely for shortcomings to date.  He added that he just wants to be reunited with his wife, in Australia, as soon as possible.

15. By way of summary, Mrs Nguyen’s siblings echoed evidence which had been set out in their respective Forms 888 Supporting statement in relation to a Partner or Prospective Marriage visa application dated 27 February 2024 provided just prior to the hearing.  In addition, Tanya Cuhadar echoed evidence in her Form 888 which had also been provided just prior to the hearing.  Mr Cuhadar acknowledged the Tribunal’s observations that some documentation expressly requested in its hearing invitation had not been provided and indicated that he would arrange to have that documentation submitted as soon as possible after the hearing.  He added he has had some recent health problems impacting his back and shoulder and, as such, he has taken about 6 months off work as a forklift driver. 

16. The Tribunal experienced a number of connectivity issues and, as a consequence, it lost the ability to take oral evidence from the parties, both in Australia and Vietnam, on a number of occasions. The MS Teams’ video screen also froze a number of times. However, the Tribunal’s Registry staff persevered to restore connectivity. Mrs Nguyen gave independent evidence to the Tribunal. She clarified to the Tribunal’s satisfaction her misunderstanding of some of the delegate’s interview questions. Relevant oral evidence provided at the hearing is discussed below in the context of the Tribunal’s consideration of the reg 1.15A requirements.

17. In light of the late provision of documentation to the Tribunal and ongoing connectivity issues, the hearing was adjourned to 16 April 2024. Before concluding the hearing, the Tribunal opined that, having regard to oral evidence received at the hearing and subject to being provided with requested documentation, it may be able to make a favourable decision on the papers consistent with s 360(2) of the Act.

18. After the hearing, the Tribunal reviewed documentation submitted just prior to the hearing including:

    1)Form 888 from Minh Dung Nguyen dated 27 February 2024.  Minh Dung Nguyen is one of Mrs Nguyen’s younger brothers.  He knows Mr Cuhadar, they both live in Bass Hill and it was he who facilitated the first face-to-face meeting with his sister Mrs Nguyen when Mr Cuhadar travelled to Vietnam in January 2015 with Minh Dung Nguyen.  Prior to their flight to Vietnam, he had introduced the couple to each other over the phone at a party that they were both attending;

    2)Form 888 from Lu Hoang Nguyen dated 27 February 2024.  Lu Hoang Nguyen is another younger brother of Mrs Nguyen.  Prior to coming to Australia to live with his older brother Minh Dung Nguyen in Bass Hill, he lived in the same house with his sister Mrs Nguyen;

    3)Form 888 from Mr Cuhadar’s daughter Tanya Cuhadar dated 27 February 2024; 

    4)further evidence of transfers of funds from Mr Cuhadar to his wife in Vietnam on 20 September 2018, 20 May 2021, 30 November 2021, 18 April 2022, 13 July 2022, 26 September 2022, 24 December 2022, 12 February 2023, 24 May 2023 and 25 May 2023; and,

    5)Mr Cuhadar’s Notices of Assessment issued by the Australian Taxation Office (ATO) for years ended 30 June 2019 to 30 June 2022. 

    Adjourned hearing – 16 April 2024

19. Prior to the adjourned hearing, the representative provided extensive documentation for consideration by the Tribunal.  Although some of the documents comprised further copies of documentation previously submitted, the Tribunal was provided with a number of other documents including, relevantly:

    1)evidence of the signatures of the 3 parties - Mr Cuhadar’s daughter Ms Tanya Cuhadar and Mrs Nguyen’s 2 younger siblings, her brothers Minh Dung Nguyen and Lu Hoang Nguyen - each of whom had provided a Form 888 dated 27 February 2024 submitted just before the hearing held on 1 March 2024;

    2)signed statements from each of Mr Cuhadar and Mrs Nguyen dated 3 April 2024 confirming the history of their spousal relationship;

    3)a table of money transfers issued by RIA Financial Services Australia on 22 March 2024 confirming funds transfers from Mr Cuhadar to his wife in Vietnam in the period 21 June 2020 to 10 October 2023;

    4)bank statements for Mr Cuhadar’s NAB Classic Banking account (last 4 digits #5450) from 7 February 2014 to 1 February 2024;

    5)bank statements for Mr Cuhadar’s ANZ Pensioner Advantage account (last 4 digits #5506) for the period from 14 April 2014 to 14 February 2024;

    6)evidence of Mr Cuhadar’s assets including ownership of his apartment at 713 Hume Highway, Bass Hill including related utility bills for water, gas and electricity, strata levy fees, and home insurance with Australian Seniors;

    7)evidence of Mr Cuhadar nominating Mrs Nguyen as the 100% beneficiary of his superannuation fund with AMP Super Fund (last 3 digits #075);

    8)dozens of captioned photographs of the couple together with identified family and friends and the location of the photos in Vietnam dating back to 2016.  The photos confirm the couple’s wedding celebration with family and friends on 2 June 2018 as well as Mr Cuhadar’s visits to Vietnam to see Mrs Nguyen and her family including her mother, nieces and nephews in May 2016, January 2017, February 2019, January and February 2020, July to September 2022, June 2023 and August 2023;

    9)evidence of flight bookings for both Mr Cuhadar and his daughter Tanya Cuhadar to fly to Ho Chi Minh City on 23 July 2024 and return to Australia on 17 August 2024; and,

    10)a signed Certificate of Marital Status dated 1 April 2024 in respect of Miss Thanh Phuong Trang Nguyen issued by Van Hien Le, Vice Chairman of the People’s Committee of Bin Tan Dong A Ward in Ho Chi Minh City confirming that there are no records of marriage registration found in relation to her in Vietnam.  The certificate is in the Vietnamese language together with a certified copy English translation thereof.

20. Mr Cuhadar appeared before the Tribunal on 16 April 2024 to give evidence and present arguments.  In addition, oral evidence was received from Mrs Nguyen who joined the hearing by way of MS Teams videoconference.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages for the benefit of Mrs Nguyen.  Mr Cuhadar used the services of an interpreter in the Turkish and English languages on occasions only.  The Tribunal notes that it found both parties to be credible witnesses.  The representative also attended the in-person hearing together with Mr Cuhadar.  

21. At the commencement of the hearing, the Tribunal observed that it had still not yet received a submission consistent with cl 7.5 – cl 7.6 of the Tribunal’s Migration and Refugee Matters Practice Direction dated 1 August 2018.  The representative apologised and said that he had some health issues.  He also apologised for failing to provide evidence of his health issues which precluded preparation of a submission from him identifying the issues on review, setting out the relevant facts that support his submission and referring to the probative evidence that supports the submission.  The Tribunal added that it had also not received some of the documentation expected to be provided following the hearing on 1 March 2024.  Again, the representative apologised and said he would forward documentation as soon as possible after the adjourned hearing. 

22. During the course of the adjourned hearing, the Tribunal took independent evidence from Mr Cuhadar and Mrs Nguyen about their relationship history, the financial as well as social and household aspects of their relationship and the nature of their commitment to each other since their relationship started.  Evidence was also provided about their knowledge of each other’s backgrounds and family relationships.  The Tribunal found both Mr Cuhadar and Mrs Nguyen to be credible witnesses who gave their oral evidence in a thoughtful and authentic manner.  Although there were slight variations in their answers to just some of the Tribunal’s questions, the Tribunal is satisfied that their respective responses were authentic from their own personal perspective. 

23. After the hearing, the representative provided a further brief submission together with the following relevant documentation:

    1)an updated Form 40SP Sponsorship for a partner to migrate to Australia signed by Mr Cuhadar on 22 April 2024;

    2)an updated Form 47A Details of child or other dependent family member aged 18 years or over in respect of the second named visa applicant, Mrs Nguyen’s daughter Miss Thanh Phuong Trang Nguyen.  The Form 47A was signed on 22 April 2024 by Mr Cuhadar, Mrs Nguyen and Miss Thanh Phuong Trang Nguyen; and,

    3)a signed letter dated 18 April 2024 from Mr Cuhadar’s Accountant, Joe Marzano (Registered Tax Agent, NTAA, CTA, FIPA, JP) of S & N Accounting Services confirming that, as the couple were not married in Australia and Mrs Nguyen is not living in Australia, she is unable to be included as Mr Cuhadar’s spouse in his tax returns lodged with the ATO.

24. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  It acknowledges that it has significantly more information (in excess of 1,200 pages) than that which was available to the delegate at the time of her decision.  Consistent with cl 8.2 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews dated 1 August 2018, the Tribunal has restricted its review to the issue that is the subject of the delegate’s adverse decision. It will provide to the Department the updated Form 40SP and Form 47A which were lodged after the adjourned hearing and are referred to above in para [23].

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether Mrs Nguyen and Mr Cuhadar were in a genuine spousal relationship at the time of lodgement of the visa application, and whether they continue to be in a genuine spousal relationship at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.

   Background

2. By way of background, the parties claim to have been introduced by Mrs Nguyen’s brother Minh Dung Nguyen who lives in Australia and who is also a friend of Mr Cuhadar.  The parties first met in person on 1 January 2015 when Mr Cuhadar travelled to Vietnam to spend time with Mrs Nguyen after the couple had been introduced to each other over the phone in 2014 by Minh Dung Nguyen.  Mr Cuhadar travelled to Vietnam again on 3 August 2015 with Mrs Nguyen’s brother Lu Hoang Nguyen and spent time there with Mrs Nguyen and her family.  On 17 May 2016, Mr Cuhadar made his third trip to Vietnam.  It was during this trip that the parties became engaged on 22 May 2016 and held an engagement party with family and friends.  

3. Following Mr Cuhadar’s return to Australia on 3 June 2016, Mrs Nguyen lodged a Subclass 300 Prospective Marriage visa application on 14 July 2016.  Mr Cuhadar travelled to Vietnam to see Mrs Nguyen for a month from 30 December 2016 to 28 January 2017.  Subsequently, Mrs Nguyen’s Subclass 300 visa application was refused on 8 June 2017.  Mr Cuhadar sought review of the delegate’s decision (Tribunal Matter No 1717302).  He travelled to Vietnam for 3 weeks in January 2018 and he returned there again on 31 May 2018.  The parties were married in Vietnam on 2 June 2018.  Mr Cuhadar arrived back in Sydney on 15 June 2018.  The Tribunal, differently constituted, remitted Mrs Nguyen’s Subclass 300 Prospective Marriage visa application to the Department on 9 July 2018 in light of the couple’s marriage in Vietnam on 2 June 2018. 

4. Mr Cuhadar travelled to Vietnam on 17 January 2019 for a fortnight’s stay there and he returned again later that year for 6 weeks in July 2019.  Subsequently, he has travelled to Vietnam to be with his wife for 3 weeks in January 2020 and then, following the opening of international borders after the COVID-19 pandemic, he returned to Vietnam for: 5 weeks from 28 July 2022; 3 weeks in June 2023; and, 2 weeks in August 2023.  Information in the Department’s Movement Records confirms Mr Cuhadar’s 11 trips to Vietnam since January 2015. 

5. The Tribunal has been provided with evidence of tickets for Mr Cuhadar and his daughter Tanya Cuhadar to travel to Vietnam on 23 July 2024 returning to Australia nearly a month later on 17 August 2024. 

   Are the parties in a spouse or de facto relationship?

6. Clause 309.211(2) and cl 309.221 of Schedule 2 to the Regulations respectively require that at the time the visa application was made and at the time of this decision, the visa applicant Mrs Nguyen is the ‘spouse’ or ‘de facto partner’ of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, Mrs Nguyen claims to be the spouse of Mr Cuhadar who is an Australian citizen. Evidence of his Australian citizenship was provided to the Department.

7. The word ‘spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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) of the Act.

8. 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 review applicant’s household as well as their commitment to each other as set out in reg 1.15A(3) of the Regulations. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered by the decision-maker: He v MIBP [2017] FCAFC 206. The Tribunal’s assessment of whether the claimed relationship involves a ‘mutual commitment to a shared life’ requires an assessment of the subjective intentions of the parties: Singh v MIEA [1996] FCA 1429 at [13].

9. Relevant to the delegate’s refusal of Mrs Nguyen’s Subclass 309 visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister of Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

10. Accordingly, in deciding this matter, the Tribunal has had regard to evidence of events that have occurred subsequent to the date of lodgement of Mrs Nguyen’s visa application. 

11. Also relevant, particularly in light of comments in the delegate’s decision (a copy of which was provided to the Tribunal) that Mrs Nguyen may have entered into a relationship with Mr Cuhadar for the sole purpose of gaining entry into Australia and thereby reuniting with her younger siblings here, are comments in Re MILGEA and Dhillon [1990] FCA 144 where the Federal Court stated that:

    People enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

12. In deciding this matter, the Tribunal has had regard to the evidence lodged with the Department and the Tribunal, including oral evidence at the hearings.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

14. Based on the certified Marriage Certificate Registration lodged with the Department, the Tribunal is satisfied, as was the delegate, that Mrs Nguyen and Mr Cuhadar were married in Vietnam on 2 June 2018 and that their marriage was registered on 14 June 2018 with the People’s Committee of Binh Tan District, Ho Chi Minh City.  This is Mrs Nguyen’s first marriage.  Mr Cuhadar divorced his first wife in August 2017. 

15. Having regard to the evidence provided, the Tribunal accepts, as did the delegate, that the parties were married to each other under a marriage that is valid for the purposes of

    
    

    s 5F(2)(a) of the Act at the time of the application and that they continue to be married to each other as at the time of this decision.

    Are the other requirements for a spousal relationship met?

16. The next issue for consideration is whether the parties meet the other requirements of a spousal relationship. 

17. In forming an opinion on the matters required in s 5F(2)(b) - (d) of the Act, regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. The factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons’ commitment to each other.

18. The Tribunal has considered evidence in the Department’s file as well as evidence before the Tribunal to determine whether these requirements are met.  It acknowledges there is a substantial amount of documentary evidence of the couple’s relationship which was not before the delegate.  The Tribunal has given this evidence, and oral evidence at the hearings, due regard.

    Financial aspects of the relationship: reg 1.15A(3)(a)

19. When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and, any sharing of day-to-day household expenses.

20. The delegate acknowledged that the couple had provided evidence of several money transfers showing that approximately $15,100 had been sent to Mrs Nguyen by Mr Cuhadar in the 18 months from August 2017 to February 2019.  The delegate notes that during her interview, Mrs Nguyen said that her husband had been sending her money since the middle of 2015.  Whilst acknowledging evidence of some money transfers had been provided which confirm Mr Cuhadar had given his wife some financial support, the delegate found this did not demonstrate a major financial commitment to the pooling of the couple’s shared financial resources.  Accordingly, little weight was given to the evidence.  The delegate also noted that, as the couple live in separate countries, is difficult to combine financial affairs, jointly own assets and pool financial resources.  As such, little weight was given to this factor in consideration of Mrs Nguyen’s Subclass 309 visa application. 

21. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets and nor do they have any joint liabilities.  Mr Cuhadar and Mrs Nguyen told the Tribunal that, when the couple are together in Vietnam, they stay at her family home and pool their finances to pay for necessary expenses.  Mr Cuhadar covers his travel fees as well as utility bills and food while the couple share expenses for groceries.

22. The Tribunal has been provided with evidence that Mr Cuhadar owns an apartment in Bass Hill at a strata community operated by Australian Community Villages.  Evidence has also been provided that Mr Cuhadar has bequeathed in his Will dated 17 May 2021 his entire estate to his wife Mrs Nguyen.  Further, he has appointed Mrs Nguyen his Attorney in the General Power of Attorney also dated 17 May 2021.  In addition, the Tribunal has been provided with evidence of multiple money transfers from Mr Cuhadar to his wife since October 2017. 

23. The representative has provided evidence of Transaction Records issued by Yagoona Newsagency confirming transfer of $5,940 from Mr Cuhadar to his wife in the period 5 October 2017 to 14 December 2019.  And, as noted above, it has also been provided with a table of money transfers issued by RIA Financial Services Australia on 22 March 2024 confirming funds transfers from Mr Cuhadar to his wife in Vietnam in the period 21 June 2020 to 10 October 2023 summarised as follows:

    Table 1: Transfer of funds from Mr Cuhadar to Mrs Nguyen from 21 June 2022 - 10 October 2023

Year	AUD
21/06/2020 - 31/12/2020	$3,000
01/01/2021 – 31/12/2021	$7,200
01/01/2022 – 31/12/2022	$9,500
01/01/2023 – 10/10/2023	$6,400

1. During the hearing, Mrs Nguyen confirmed that she continues to work as a cleaner, although she also has skills as a tailor.  Comments in Mr Cuhadar’s Statement were echoed by him during the hearing that he sends money to his wife whenever she needs it.  Mrs Nguyen independently confirmed this to be the case. 

2. Based on evidence provided, in particular, oral evidence at the hearing, the Tribunal is satisfied that the financial aspects of the couple’s relationship is indicative of a couple in a spousal relationship at the time of application and also at the time of this decision.  It acknowledges - as did the delegate - that, given the parties are currently in different countries, little weight is given to this requirement in its overall assessment of the couple’s spousal relationship.  

   Nature of the household: reg 1.15A(3)(b)

3. Regulation 1.15A(3)(b) requires the Tribunal to consider the nature of the parties’ household including any joint responsibility for care and support of children, their living arrangements and any sharing of housework.

4. The delegate acknowledged evidence had been provided that Mr Cuhadar had obtained temporary household registration at Mrs Nguyen’s family’s home address in Ho Chi Minh City in 5 periods from 23 May 2016 to 16 July 2019: however, it was not the case that Mr Cuhadar had travelled to Vietnam to stay with Mrs Nguyen in each of those periods. Rather, for 3 of the periods, he had stayed for a much shorter time than the temporary household registration indicated. Further, the delegate stated no evidence had been provided to confirm that the couple had shared responsibilities of the household during the specified dates. Whilst a hotel receipt in joint names had been provided indicating that they had rented a hotel room from 13 to 20 December 2018, no information of the address of the hotel had been provided and, consequently, it was unclear as to where the hotel is located or that the couple shared household responsibilities at this time. Accepting that the couple live in separate countries and have spent limited time together, the delegate gave little weight to this requirement in reg 1.15A(3)(b).

5. As set out in Mr Cuhadar’s Statement and confirmed in oral evidence at the hearing, he has travelled to Vietnam now 11 times since first meeting Mrs Nguyen.  His most recent trip was for a fortnight from mid-August 2023.  And, as confirmed by the Flight Centre Vietnam Airline’s tickets provided, he and his daughter Tanya Cuhadar will travel to Vietnam on 23 July 2024 for a month’s holiday there with Mrs Nguyen at her family home.  In their independent evidence to the Tribunal the couple confirmed that, when Mr Cuhadar stays with Mrs Nguyen’s family in Vietnam, he is treated as a guest: he is not allowed to do anything, his wife and her immediate family do all the household duties including cooking, washing and cleaning.  Mr Cuhadar added that his wife was actually offended when he once offered to use an external laundry service provider.  Rather than assist with household duties, independent evidence confirmed that Mr Cuhadar goes out with the family for shopping, and he pays for purchases during his stays with the family.   

6. In relation to the delegate’s comments that no evidence had been provided about shared responsibilities of the household during the time the couple stayed in a hotel, Mr Cuhadar submits, and the Tribunal accepts that, their room was serviced by hotel staff and they ate at the hotel’s restaurants so did not cook for themselves.

7. Further, as set out in Mr Cuhadar’s Statement, whilst acknowledging the delegate’s comments in relation to the differences between his time spent in Vietnam and the information set out in his Temporary Residence of Foreigner Registration provided, he states it is his responsibility just to provide his passport and notice of intended dates of stay.  The Tribunal notes, in passing, that this issue is not unique to this case: rather, discrepancies between the dates of actual stay and the dates set out in Vietnamese foreigner registration documentation are routine.

8. Having regard to evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that the nature of the couple’s household is indicative of a couple in a spousal relationship both at the time of lodgement of the visa application and at the time of this decision.

   Social aspects of the relationship: reg 1.15A(3)(c)

9. In its consideration of the social aspects of the parties’ relationship the Tribunal is required to consider: whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities.

10. The delegate acknowledged a selection of photographs had been lodged of Mr Cuhadar and Mrs Nguyen together with friends and family in Vietnam on different occasions.  Also acknowledged by the delegate was Mr Cuhadar’s 7 trips to Vietnam to the time of the delegate’s decision on 11 September 2019.  The delegate, however, noted the absence of any of Mr Cuhadar’s family or friends at the couple’s wedding in Vietnam. 

11. Mr Cuhadar told the Tribunal that he has one sister and 2 brothers, all of whom live in Turkey.  He added none of them have ever left Turkey, not even to visit him in Australia.  His sister takes care of his aged mother and it would not have been possible for his Turkish family to attend the wedding in Vietnam.  He explained that his siblings only speak Turkish – they do not speak English or Vietnamese – so they have only ever spoken with him and congratulated him about his marriage.  Mr Cuhadar expressed his deep concern about the delegate’s comments regarding his Turkish family’s non-attendance at his wedding in Vietnam: it was never going to happen. 

12. In Mr Cuhadar’s Statement, he states that he only has one child from his previous marriage, his daughter Tanya Cuhadar.  Although he told his daughter about his engagement and marriage, he could not force her to speak with Mrs Nguyen because he was concerned that his daughter might be upset.  He explained she had been looking after his former wife who has had some mental health issues.  Nonetheless, Tanya approved of his marriage to Mrs Nguyen. 

13. During the hearing, Tanya Cuhadar told the Tribunal that she was unable to attend her father’s wedding due to the fact that she works in retail as well as her family commitments in Australia: she has been looking after her mother, Mr Cuhadar’s first wife, who suffers from serious mental health issues and requires ongoing care following her recent admission for 12 months to Liverpool Mental Health Hospital.  She added that she did know about Linh (Mrs Nguyen’s first name and the name which Tanya uses for her stepmother) for several months prior to the couple’s wedding and, now, she regularly interacts with her stepmother Linh, both online and in WeChat sessions. 

14. Further, Tanya Cuhadar confirmed she had planned to go to Vietnam in 2023 but was unable to do so due to other commitments: but, she and her father have already paid for tickets to travel to Vietnam together in late July 2024 for a month with a view to catching up with Linh and her extended family there as well as going to some well-known tourist sites such as Da Nang and Hoi An.  Tanya Cuhadar also told the Tribunal that she has already met Linh’s 2 younger brothers, Minh Dung Nguyen and Lu Hoang Nguyen, who live in Bass Hill not far from her father’s place.  She has met them at restaurants with her father for occasional catch ups.

15. The Tribunal has the benefit of receiving oral evidence from Mrs Nguyen, her husband Mr Cuhadar, her stepdaughter Tanya Cuhadar as well as Mrs Nguyen’s siblings Minh Dung Nguyen and Lu Hoang Nguyen.  Further, it has been provided with the multiple Forms 888 referred to above.  Without exception, evidence provided confirms that the couple represent their spousal relationship to others, both in Australia and in Vietnam, as being genuine and long term.

16. Having regard to evidence provided, including oral evidence at the hearings, the Tribunal is satisfied that, given the couple live in separate countries pending grant of Mrs Nguyen’s Subclass 309 Partner visa enabling her to join her husband in Australia, the social aspects of the couple’s relationship at the time of application is indicative of a couple in a spousal relationship at that time and, further, that they continue to be in a spousal relationship at the time of this decision.  The Tribunal particularly notes the warm sentiments expressed by the couple’s family and friends referred to above.

    Nature of the persons' commitment to each other: reg 1.15A(3)(d)

1. In its consideration of the nature of the persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time they parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.

2. As set out in the delegate’s decision, a copy of which was provided to the Tribunal, the delegate accepted that Mr Cuhadar and Mrs Nguyen had provided a Marriage Certificate issued in Vietnam on 14 June 2018 and that they were lawfully married on 2 June 2018. 

3. However, despite claiming to be in regular communication with her sponsor and accepting the limited evidence of the couple’s text messages (which showed no dates and only displayed limited conversation), the delegate noted Mrs Nguyen’s interview demonstrated significant gaps in her knowledge about Mr Cuhadar.  For example, she did not know: how long her brother Minh Dung Nguyen had known Mr Cuhadar; any details in relation to his family in Turkey including the number of siblings he has, despite the fact that Mr Cuhadar had travelled there to visit his family between January 2017 and June 2018; why it took him 8 years to formally divorce his first wife of 23 years in August 2017 after claiming to have separated from her in 2007; and, for how long he has been working as a forklift driver and how often he gets paid.  Of particular concern to the delegate was Mr Cuhadar’s divorce in August 2017 and the overlap of the development of the couple’s relationship which indicated that Mr Cuhadar may have undertaken a divorce of convenience, simply for the purpose of facilitating lodgement of Mrs Nguyen’s visa application. 

4. Further, the delegate also noted evidence that Mrs Nguyen has a close relative (her younger brother Minh Dung Nguyen) permanently living in Australia and, as such, she has a strong incentive to migrate to Australia to be reunited with her brother.  This raised questions for the delegate as to whether the couple’s relationship is genuine, or whether it is being used merely as a pathway to be granted a visa to be reunited with her brother in Australia. 

5. In summary, while the delegate was satisfied that Mr Cuhadar and Mrs Nguyen are legally married and that Mrs Nguyen displayed some knowledge of her husband at interview, limited evidence had been provided in support of the mutuality of the couple’s commitment to each other.  Concern was expressed about the significant gaps in Mrs Nguyen’s knowledge of Mr Cuhadar’s personal circumstances (such as his work) and her lack of knowledge about his friends.  Further, concern was expressed regarding the absence of Mr Cuhadar’s family members, relatives and friends at the couple’s wedding ceremony in Vietnam and that Mrs Nguyen had not spoken with Tanya Cuhadar, despite being in a relationship with her father since early 2015 and being engaged to him since May 2016.  The delegate also expressed concern that Mr Cuhadar’s divorce was only initiated some months after the couple had met as it appeared to be undertaken to facilitate Mrs Nguyen’s migration to Australia.  In conclusion, the delegate was not satisfied that the nature of commitment evidenced by the couple gave strong support for the existence of a genuine and continuing relationship between them.

6. In addition to the considered and detailed response to the delegate’s comments the subject of Mr Cuhadar’s Statement lodged with the Tribunal not long after he lodged the review application, the Tribunal also has the benefit of oral evidence at the hearing, in particular, from Tanya Cuhadar as well as Mrs Nguyen and her siblings, Minh Dung Nguyen and Lu Hoang Nguyen.  As noted above, the Tribunal found all parties appearing before the Tribunal to be credible witnesses. 

7. Regarding his divorce and as outlined in Mr Cuhadar’s Statement, he separated from his ex-wife in 2007 – essentially due to her mental health issues – and he divorced her in August 2017.  Mr Cuhadar submits, and the Tribunal accepts, he waited this long to initiate divorce proceedings because he had absolutely no plan or intention to enter into a serious relationship with anyone else after his split up with his first wife.  It was only after he met Mrs Nguyen that he decided to file for a divorce to enable him to marry her.  He told the Tribunal that he did not think it was mandatory to file for a divorce after he separated from his former wife: so, he didn’t.  Mr Cuhadar expressed real concern that this was used as one of the reasons for the delegate’s refusal of his wife’s visa application.

8. In Mr Cuhadar’s Statement he admits that, in relation to the delegate’s observation regarding the fact he had not shared with his wife how often he gets paid or how long he has worked as a forklift driver, he did not tell his wife this information because he did not think this would be an issue.  As such, he does not see any difficulty with his wife’s comments in this regard.  During the course of the hearing, Mr Cuhadar echoed evidence in this regard.  The Tribunal accepts Mr Cuhadar’s explanation.

9. Mrs Nguyen told the Tribunal that, in relation to her comment in her interview that she had not spoken with Tanya Cuhadar, she said was confused at that time and thought she had been asked if Tanya had been to Vietnam and talked to her.  She added the interviewer did not ask her if she talks to Tanya now: had she been asked this question, the answer would definitely have been ‘yes, frequently’.  The Tribunal accepts that such interviews with Departmental officers can be stressful for an applicant and sometimes confusion arises.  Mrs Nguyen confirmed she is regularly in touch with her stepdaughter Tanya, either online or using WeChat.  As noted above, Tanya Cuhadar confirmed this at the hearing.  In relation to her husband’s family in Turkey, Mrs Nguyen said that she had actually wanted to go to Turkey with her husband in August 2023 when his mother passed away, to be there with him and support him.  However, she was not able to secure a visa in time so it didn’t happen.  In his independent evidence, Mr Cuhadar reiterated his wife’s evidence in this regard.

10. Asked about oral communications between the couple, Mr Cuhadar told the Tribunal that he has been trying to learn some basic Vietnamese but it isn’t easy, especially given the different written script.  He confirmed he relies heavily on his wife who, together with her daughter Thanh Phuong Trang Nguyen, is studying English courses online.  Mrs Nguyen confirmed that she does have conversational English so talks with her stepdaughter Tanya and Mr Cuhadar without difficulty although she does act as an interpreter when other members of her family speak with Tanya and her husband.  She said they all use the online facility <translate.google.com>[1] as required.

    [1] Google Translate

11. Regarding the couple’s plans for the future, Mr Cuhadar and Mrs Nguyen told the Tribunal that they plan for Mrs Nguyen to open a tailoring business once she arrives in Australia and they have already purchased some sewing machines for her business.  Although Mrs Nguyen currently works as a cleaner in Vietnam, she said she also has skills as a tailor having worked in the industry before.

12. The Tribunal accepts the claims of Mrs Nguyen and Mr Cuhadar that they have provided emotional support and companionship to each other throughout the duration of the relationship including from the time of their marriage.  It acknowledges that Mr Cuhadar has travelled to Vietnam to be with Mrs Nguyen 11 times since they first met on 1 January 2015.  The Tribunal also accepts Mr Cuhadar’s claims that, at 66 years of age and having experienced recent health issues which have impacted his ability to continue to work as a forklift driver, he really wants to be joined by his 60-year-old wife as a priority so that they can share time together for the rest of their lives.  It also accepts the professional advice of Registered Psychologist Alison Bausse referred to above at para [6], albeit somewhat dated now, that Mr Cuhadar has displayed symptoms of depression and anxiety due to being unable to see his wife because of the travel restrictions during the COVID-19 pandemic and that his health may preclude his ability to travel to Vietnam in the future. 

13. Based on evidence provided, the Tribunal accepts the claims of Mr Cuhadar and Mrs Nguyen that, throughout the more than 9 years since they first met face-to-face on 1 January 2015, subsequently became engaged and then married on 2 June 2018, they have provided emotional support and companionship to each other.  It also accepts that they see their relationship as long term as confirmed by Mr Cuhadar’s multiple trips to Vietnam to date to visit his wife, apart from the time when Australia’s borders were closed due to the COVID-19 pandemic. 

    Overall assessment of the spousal relationship

14. Based on the evidence as to the parties’ financial and social aspects of their relationship as well as the nature of their household arrangements and their strong commitment to each other, the Tribunal is satisfied that, at the time of lodgement of Mrs Nguyen’s Subclass 309 Partner visa application and as at the time of this decision, Mrs Nguyen and Mr Cuhadar are in a genuine spousal relationship. 

15. Having regard to evidence provided, the Tribunal is satisfied that Mrs Nguyen and Mr Cuhadar are married to each other under a marriage that is valid for the purposes of the Act. It also is satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and, further, although they currently live in separate countries they do not live separately or apart on a permanent basis. It accepts that once Mrs Nguyen’s visa is granted, she will move to Australia to live with Mr Cuhadar at his Bass Hill apartment. Accordingly, the requirements in s 5F(2)(a) - (d) of the Act are met at the time of this decision. Therefore, Mrs Nguyen meets cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.

16. Given these findings, the appropriate course is to remit the application for the visa to the Minister to enable consideration of the remaining criteria for a Subclass 309 visa.  The Tribunal will provide to the Department the updated Form 40SP and Form 47A which were lodged with the Tribunal after the adjourned hearing.

17. The application of the second named visa applicant, 25-year-old Thanh Phuong Trang Nguyen, is based on her being a member of the family unit of a person who meets the primary criteria.  Accordingly, her application will be determined by reference to the outcome of Mrs Nguyen’s application on remittal to the Department for reconsideration. 

    DECISION

18. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction 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; and,

    ·cl 309.221 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT  -  Extract from Migration Act 1958 and Migration Regulations 1994

    Migration Act 1958

    …

    5F Spouse

    (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

    …

    1.15ASpouse

    (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).

    (3)The matters for subregulation (2) are:

    (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).

    …

    Schedule 2 - Subclass 309 -- Partner (Provisional)

    
    309.1--Interpretation

    
    309.111 In this Part:

    "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).

    309.2 - Primary criteria
    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:

    (a) an Australian citizen; or

    (b) an Australian permanent resident; or

    (c) an eligible New Zealand citizen.

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

    (a) the applicant intends to marry:

    (i) an Australian citizen; or

    (ii) an Australian permanent resident; or

    (iii) an eligible New Zealand citizen; and

    (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:

    (a) the applicant is a male person; and

    (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

    (c) on the date of grant of that visa:

    (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:

    (i) has turned 18; and

    (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:

    (i) has turned 18; and

    (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 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 and 1.20KB limit the Minister's discretion to approve sponsorships.

    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.

    309.225 The applicant:

    (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

    (b) has not turned 18; and

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

    oOOo