Kubukawa (Migration) - [2025] ARTA 343

Kubukawa (Migration) [2025] ARTA 343 (14 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ifereimi Koromueli Kubukawa
Visa Applicant:  Ms Varanisese Varo
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2200163

Tribunal:General Member Kate Malyon
Place:Sydney
Date: 14 March 2025
Decision:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 14 March 2025 at 4:36 pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – parties are validly married – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – social aspects of the relationship are consistent with a married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.09, 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Singh v MIEA [1996] FCA 1429
STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 December 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant, Fijian national Varanisese Varo, applied for the visa on 28 May 2019 on the basis of her relationship with her sponsor, the review applicant Ifereimi Koromueli Kubukawa, who is an Australian citizen. 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 delegate refused to grant the visa on the basis that Ms Varo did not satisfy cl 309.211 and cl 309.221 of Schedule 2 to the Regulations. Whilst accepting that Ms Varo and Mr Kubukawa (hereinafter referred to as the couple) are married, the delegate was not satisfied Ms Varo had demonstrated that she is the ‘spouse’ of the sponsor as defined in s 5F of the Act.
Following refusal of Ms Varo’s visa application, Mr Kubukawa sought review of the delegate’s decision. Since lodgement of the review application, further documentary evidence has been provided including handwritten statements from each of Ms Varo and Mr Kubukawa in response to the s 359(2) Outreach letter of 5 August 2024.
The matter was set down for hearing on 10 October 2024. The hearing invitation requested the couple provide at least 7 days prior to the hearing a submission supported by further probative evidence to address all of the delegate’s reasons for refusing Ms Varo’s Subclass 309 visa application. On 30 September 2024, the representative submitted further evidence of the genuineness of the couple’s spousal relationship as discussed below.
Hearing - 10 October 2024
Mr Kubukawa appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence by MS Teams video conference from the visa applicant Ms Varo. Also in attendance at the in-person hearing were friends of the couple, Mariama Navovooo and Jonetani Savakuru. The hearing was conducted with the assistance of an interpreter in the English and Fijian languages. Only Ms Varo used the interpreter, and she did so on occasions only. The couple were represented in relation to the review by Mukesh Chand who also attended the hearing. The Tribunal found all persons appearing before it to be truthful and credible witnesses.
After the hearing, the representative provided further documentation to address aspects of the couple’s spousal relationship raised at the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges it has significantly more information than that which was available to the delegate, in particular, oral evidence at the hearing.
BACKGROUND
Mr Kubukawa is a 60-year-old Australian citizen who was born in Fiji and migrated to Australia in 2008 after being granted a Partner visa sponsored by his then de facto partner Tracey. He was granted permanent residence on 26 November 2010 and, subsequently, acquired Australian citizenship on 26 October 2016.
During the hearing, Mr Kubukawa apologised for incorrectly stating in his online Sponsorship for a partner to migrate to Australia form lodged in respect of his sponsorship of Ms Varo that he had not been in a previous relationship with anyone and nor had he been sponsored to Australia as a partner. He said he thought the question on the form was asking about a former spouse, not his former de facto partner Tracey. After the hearing, Mr Kubukawa provided the Tribunal with a formal Notification of incorrect answer(s) form in this regard, the original of which had been lodged by the representative with the Department on 14 June 2020. Both of Mr Kubukawa’s parents are deceased. Two of his siblings continue to live in Fiji and one of his brothers is an Australian citizen residing in Australia. Mr Kubukawa lives in regional NSW in Griffith and works as a Farm Hand / Farm Machinery Operator with chicken producer Baiada Poultry.
Ms Varo is a 40-year-old citizen of Fiji. She has not declared any previous marriages or de facto relationships. Her father is her sole surviving parent. Ms Varo has only one sibling, a brother who also lives in Fiji. She has not been in the paid workforce since 2011: rather, she looks after her aged father as her mother has passed away. Ms Varo told the Tribunal her brother will look after their father when her Subclass 820 visa is finally granted and she moves to Australia to be with her husband.
As stated in the application, the couple have known of each other since they were children as they come from the same beachside village of Viseisei, just north of Nadi. They met up in 2012 on social media. The couple’s relationship developed online, and they started communicating on a daily basis. It was when Mr Kubukawa returned to Fiji on 19 December 2017 and they met again face-to-face that they realised just how romantically serious their relationship was and, after lodging necessary documentation with Fijian authorities, they married in Fiji on 19 January 2018. Sixteen months later on 28 May 2019, Ms Varo lodged a Partner visa application (Subclass 309) which was refused by the Department on 9 December 2021.
Since refusal of her visa application, Ms Varo has applied unsuccessfully for a visa to visit Australia. However, her husband has returned on multiple occasions to Fiji to spend time with his wife including for 3 months from 21 November 2022 to 21 February 2023 after international borders were opened again following the COVID-19 pandemic and most recently for a week in late October 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue in the present case is whether the couple were in a genuine spousal relationship both at the time of application and 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.
Whether the parties are in a spouse relationship
Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221 of Schedule 2 to the Regulations. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
The word ‘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) of the Act.
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 of the parties’ relationship as well as the nature of their household and 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) is effectively a question which must be answered: 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].
Relevant to its review of the delegate’s refusal of Ms Varo’s Subclass 390 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 for 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.
In deciding this matter, the Tribunal has had regard not only to evidence lodged with the Department but also evidence provided to the Tribunal, including oral evidence at the hearing.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
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) of the Act. The couple provided the Department and the Tribunal with a copy of a Certificate of Marriage issued by the Nadi Registry of the Government of the Republic of the Fiji Islands confirming that the couple were married on 19 January 2018 at the Nadi Registry. Photos of the couple’s wedding were lodged with both the Department and the Tribunal. There is nothing before the Tribunal that suggests the certificate is not genuine.
Having regard to evidence provided, the Tribunal accepts 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 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?
The next issue for consideration is whether the parties meet the other requirements of a spouse relationship. Regulation 1.15A states that, in assessing the requirements in a particular case against s 5F(2) of the Act, regard must be had to all of the circumstances of the relationship, including but not limited to the financial aspects of the relationship, the nature of the parties’ household, the social aspects of the relationship and the nature of the person’s commitment to each other. Full details of the statutory requirements are set out in reg 1.15A of the Regulations extracted in the Attachment to this decision.
The Tribunal has considered evidence in the Department’s file as well as evidence before it to determine whether these requirements are met.
Financial aspects of the relationship: reg 1.15A(3)(a)
When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: the joint ownership of assets; and joint liabilities; the extent of pooling of financial resources; and legal obligations owed to the other party; and, and sharing of day-to-day household resources.
As set out in the delegate’s decision, a copy of which was provided to the Tribunal, the delegate acknowledged the couple live in different countries and evidence had been provided of money transfer receipts confirming use of MoneyGram, Western Union and City Forex in the period 20 September 2018 to 10 November 2021. Having considered the evidence provided confirming that Mr Kubukawa sends money to Fiji to financially support his wife Ms Varo, the delegate was not satisfied that the couple had provided evidence of their having joint financial commitments or sharing day-to-day household expenses and, as such, was not satisfied the financial aspects of the relationship were met.
The Tribunal accepts that the couple live in different countries. It also accepts that, based on the evidence provided, Mr Kubukawa has consistently transferred funds to his wife. At the request of the Tribunal, the representative provided after the hearing a Table of money transfers from Mr Kubukawa to his wife in Fiji. In the period 1 February 2018 to 3 October 2024, he has routinely transferred money 2 or 3 times each month ranging from FJD 75[1] up to FJD 765. However, significant amounts have periodically been transferred including in the months of July and August 2020 when Mr Kubukawa transferred FGD 4,461 and FGD 2,735 respectively to his wife due to her special needs at the time and those of his family who had lost their jobs because of border closes due to the COVID-19 pandemic. In November 2022, Mr Kubukawa transferred FJD 6,100 AUD 4,191 to his wife. He explained at the hearing this was to cover the couple’s expenses during his 3-month stay in Fiji from 21 November 2022 to 21 February 2023.
[1] The acronym FJD stands for Fiji Dollar. As confirmed by Oanda FJD 1 currently converts to AUD 0.6869 Currency Converter | Foreign Exchange Rates | OANDA
Ms Varo told the Tribunal the only income generated in Fiji that she receives comes from the lease of a small parcel of land that her family owns. She added that she has actually told her husband many times that he needs to support himself as well, because she is fully aware the cost of living in Australia is much higher.
Based on the evidence provided, the Tribunal accepts that Mr Kubukawa has forwarded funds to his wife over the years and that these funds have also been used by the couple when they have spent time together during Mr Kubukawa’s visits to Fiji. He went to Fiji for 6 weeks from 19 December 2017 during which time the couple married on 19 January 2018, for 3 months from November 2022 to February 2023, 2 weeks from late October 2023 and for 4 weeks from 26 February 2024. Most recently, he travelled to Fiji for a week from 26 October 2024. The Tribunal accepts that, during Mr Kubukawa’s visits to Fiji, the couple pool their financial resources.
The Tribunal accepts that, as the couple live in separate countries, they do not have joint ownership of assets or joint liabilities. However, it does accept Mr Kubukawa has consistently forwarded funds to his wife to support her and that these funds have also been used by the couple for sharing of day-to-day expenses when they spend time together during Mr Kubukawa’s visits to Fiji.
Based on the evidence provided, the Tribunal is satisfied that the financial aspects of the relationship of the couple are 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.
Nature of the household arrangements: reg 1.15A(3)(b)
The Tribunal is required to consider the nature of the parties’ household including any joint responsibility for the care and support of children, their living arrangements and any sharing of housework.
The delegate noted in their decision of 9 December 2021 that the couple had stayed together in Fiji after their wedding on 19 January 2018 for 42 days before Mr Kubukawa returned to Australia. As at the date of the delegate’s decision, he had not returned to Fiji to visit his wife nor had Ms Varo travelled to Australia. Since no evidence had been provided of the coupe sharing living spaces or their joint daily routines, the delegate was not satisfied regarding the nature of the household aspects of the couple’s relationship.
Ms Varo and Mr Kubukawa provided the Tribunal with independent oral evidence about their living arrangements during Mr Kubukawa’s visits to Fiji when the couple spend time with each other. Together, time is spent both at Ms Varo’s home where she lives with her father as well as Mr Kubukawa’s family home. Typically, Ms Varo does all of the household chores including cooking, washing and ironing.
The Tribunal accepts the impact that COVID-19 had on Mr Kubukawa’s ability to return to Fiji to spend time with his wife. Since the time of the delegate’s decision, the Tribunal accepts that Mr Kubukawa has made multiple return trips to Fiji, spent all of his time there with his wife and, during these visits, they established a joint household either in her home or that of Mr Kubukawa’s family. Based on evidence provided, the Tribunal is satisfied that the nature of the couple’s household when they are together in Fiji 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.
The social aspects of the relationship: reg 1.15A(3)(c)
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.
Having considered the extensive photo evidence of the couples’ wedding ceremony as well as the multiple statements provided by family and friends attesting to the genuineness of the relationship, the delegate was satisfied that the couple have satisfactorily demonstrated the social aspects of their relationship.
The Tribunal notes it has been provided with updated captioned photographic evidence of the couple during each of Mr Kubukawa’s return visits to Fiji. Nearly all of the photographs include family and friends.
In addition, the Tribunal has been provided with updated Forms 888 Supporting statement in relation to a Partner or Prospective Marriage visa application from each of Jonetani Savakuru sworn 29 September 2024 and Moape Railo sworn 27 October 2024. Evidence of each of the declarant’s signature has also been provided. Moape Railo and Jonetani Savakuru both live in Griffith, as does Mr Kubukawa. They each warmly attest, in their own words, to the genuineness of the couple’s spousal relationship. Moape Railo works with Mr Kubukawa at Baiada Poultry in Griffith and confirms that, during every morning tea and lunch break, he hears his friend of more than 15 years phone and chat with Ms Varo.

Jonetani Savakuru states in his Form 888 that he has known Mr Kubukawa now for more than 24 years having met him when he first arrived himself in Australia. He adds that his friendship is so close that he sent his kids to the couple’s wedding. As noted above, Jonetani Savakuru travelled to Sydney to appear before the Tribunal to give oral evidence regarding the genuineness of the couple’s relationship. He explained that Mr Kubukawa is a Church leader in the local Griffith area and that he felt he really needed to come to Sydney to support his friend because he has suffered so much due to the lengthy separation from his much-loved wife Ms Varo. Jonetani Savakuru added that every day he hears them talking to each other. When he goes back to Fiji himself, Mr Kubukawa gives him stuff to take to Ms Varo, such as shoes, women’s clothes et cetera.
Mariama Navovo told the Tribunal at the hearing Mr Kubukawa is lonely and that he really needs his wife to be with him: she opines that we will need to have someone with us, especially as we grow older. In her opinion, Mr Kubukawa found himself in the Garden of Eden when he finally met up again with Ms Varo.
After the hearing, the representative provided evidence of Mr Kubukawa’s tax returns as lodged with the Australian Taxation Office (ATO) for each of the years ended 30 June 2018 to 30 June 2024. The tax returns downloaded from the ATO’s website confirm that Mr Kubukawa has declared his spousal relationship to Ms Varo in each of these years.
Based on the extensive evidence lodged with the Department as well as the evidence lodged with the Tribunal including oral evidence at the hearing, the Tribunal accepts - as did the delegate – that the parties represent themselves to others as being married to each other. It also accepts that friends and family members believe the relationship to be genuine. The couple’s spousal relationship has also been disclosed to government agencies.
Having regard to evidence provided, the Tribunal is satisfied as to the social aspects of the couple’s relationship, both at the time of lodgement of the visa application and at the time of this decision.
Nature of the person’s commitment to each other: reg 1.15A(3)(d)
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.
The delegate acknowledged that the couple live in different countries and that they have not lived together on a permanent basis since their marriage. Further, the delegate noted that the couple have known each other for 7 years and had been married for 16 months prior to lodgement of Ms Varo’s Subclass 309 visa application. And, although Ms Varo claims to have daily contacts with her husband, insufficient evidence of such contact had been provided. Whilst acknowledging the duration of the couple’s relationship and the support that Mr Kubukawa (financially) provides his wife, the delegate was not satisfied that sufficient evidence had been provided that they are committed to each other and intend to have a long-term relationship.
At the time of the Tribunal’s decision, the couple have known each other well for over 12 years (albeit they grew up in the same village) and have been married now for 7 years. They each provided a handwritten statement to the Tribunal in response not only to the Tribunal’s s 359(2) Outreach but also a further handwritten statement just prior to the hearing about their relationship. The couple warmly attest to the support provided to each other since being forced to live separately through their daily communications and then when Mr Kubukawa visits his wife in Fiji. Extensive evidence has been provided of multiple daily video calls and online chats between the couple. The Tribunal accepts that the couple provide each other with comfort and emotional support, and they have done this throughout the duration of their spousal relationship. It also accepts that the couple’s relationship is long-term and that they rely on each other for companionship and emotional support.
After the hearing, the Tribunal was provided with a copy of Mr Kubukawa’s Superannuation Fund Statement with Colonial First State nominating Ms Varo as the 100% beneficiary of his superannuation fund.
Having regard to the extensive evidence provided including oral evidence at the hearing, the Tribunal is satisfied that the nature of the parties’ commitment to each other is indicative of a couple in a spousal relationship at the time of lodgement of Ms Varo’s visa application and, further, that they continue to be in a spousal relationship at the time of this decision.
Conclusion
On the basis of the findings above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met, both at the time the visa application was made and the time of this decision. Therefore, Ms Varo meets cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the primary and secondary visa applicants 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
Date(s) of hearing:  10 October 2024
Representative for the Applicant:           Mr Mukesh Chand
ATTACHMENT - Extracts 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.
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