Nguyen (Migration)

[2024] AATA 686

Nguyen (Migration) [2024] AATA 686 (23 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Hoa Nguyen

VISA APPLICANTS:  Ms Thi Hong Dung Nguyen
Mr Nguyen Bao Phong Lam
Miss Nguyen Bao Ngoc Lam

REPRESENTATIVE:  Mr Thang Manh Nguyen (MARN: 1687850)

CASE NUMBER:  2100742

DIBP REFERENCE(S):  BCC2019/6444905

MEMBER:Anne Grant

DATE:23 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with directions that:

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

·cls 309.211, 309.212 and 309.213 of Schedule 2 to the Regulations; and

·cl 309.221 of Schedule 2 to the Regulations; and

·cl 309.222 of Schedule 2 to the Regulations.

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

·cl 309.321 of Schedule 2 to the Regulations.

Statement made on 23 February 2024 at 12:17pm

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 parties’ commitment – sponsorship limitation – two prior approved sponsorships – compelling circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.20J; Schedule 2, cls 309.211, 309.221, 309.222, 309.321

CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
He v MIBP [2017] FCAFC 206
Paduano v Minister for Immigration & Multicultural and Ethnic Affairs [2005] FCA 211

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 20 November 2020 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 (the primary applicant) applied for the visa on 3 December 2019 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa (the second and third named applicants in this case) need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the primary applicant did not satisfy cl 309.211 because they were not satisfied that she was the spouse of the sponsor at the time of application.  In essence, the delegate found that the parties were not in a genuine and continuing married relationship at the time of application.

4. The review applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments by video using the Microsoft Teams application. The Tribunal also received oral evidence from the primary applicant who gave evidence by video from Vietnam.   The hearing was assisted by an interpreter in the Vietnamese and English languages. 

5. The review applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary issue in the present case is whether the visa applicant and sponsor were spouses at the time of application and if so, whether they are spouses at the time of making this decision.  In addition, if satisfied that the parties were spouses at the time of application and the time of decision, as noted by the Department in the process of the application, this is the third spouse sponsorship lodged by the sponsor and so regulation 1.20J must be considered.

8. Regulation 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

9. I had the opportunity to take evidence separately from both the primary visa applicant and the sponsor.  I found them to be genuine and credible witnesses.  In addition, the parties had provided extensive documentary evidence in support of their relationship both to the Department prior to the decision under review, and also to the Tribunal prior to the hearing.   I have had regard to that evidence. Where appropriate, I have referred to the oral and documentary evidence and information below in considering each of the aspects of the relationship, but due to the volume of documentary evidence, it will not be particularised in this statement of reasons.    

   Whether the parties are in a spouse or de facto relationship

10. 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. In the present case the primary applicant claims to be the spouse of the review applicant who is an Australian citizen.   

11. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

    History and background of the relationship

12. According to their evidence and their application, the parties were introduced by the primary applicant’s Aunt who is residing in Australia and is a friend of the sponsor.  They started an online relationship in February 2018 and then started to call each other.  The sponsor proposed in April 2018, but the primary applicant said that she would give him an answer when he came to Vietnam.  The sponsor travelled to Vietnam on 14 June 2018 and again proposed to the primary applicant who accepted the proposal.  The sponsor then returned to Australia.  The sponsor travelled back to Vietnam on 9 June 2019 and their wedding was registered in  on 26 June 2019.   The sponsor returned to Australia on 9 August 2019. 

13. At hearing, the primary applicant gave evidence that she didn’t accept the sponsor’s proposal until she had met him in person and was sure that they had a connection. As soon as she met him, she knew that she would marry him.  The sponsor observed that they didn’t marry straight away because he had to get his divorce finalised first.  He and his former wife had been living separately for some time and so despite the delegate’s concerns about the reasons for his divorce and the rapid onset of this relationship, his second marriage was already over before he was even introduced to the primary applicant.  His second wife cheated on him, and had another man.  They had no children.   His divorce became final on 15 December 2018.

14. In answer to an observation that the marriage event was very quiet, unlike cultural and community events commonly observed for weddings in Vietnamese society, the parties both agreed with this and the primary applicant said that this was not their first marriage and they did not feel the need to hold a big wedding or conform to this community tradition.  What was important to them was that they committed to each other in front of family.  The sponsor said that when the visa applicant is able to be with him in Australia, they will have a party so that his friends can meet his wife properly, and also to celebrate their marriage and future together.  He noted that over the period from 2020 to 2022, he could not travel to be with his wife in Vietnam due to the global pandemic and movement restrictions.

15. Movement records reflect that the sponsor has travelled to Vietnam on one occasion since August 2019.  He travelled to Vietnam on 13 July 2022 and returned on 7 September 2022.  When asked why he hadn’t travelled to see the visa applicants in 2023, the sponsor gave evidence that he took 8 weeks leave in 2022 and so his boss told him he wouldn’t give him leave again until 2024.  This year, he can take at least eight weeks’ leave again.  He is planning to travel this year.  He said that he hopes that the visa will be granted so that when he next goes to Vietnam, they can all then travel back together to Australia. 

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided evidence establishing that the first visa applicant was a widow and that the sponsor was divorced from his second wife on 15 December 2018.  They have provided evidence establishing that their marriage was registered in Quang Binh province, Vietnam, on 5 July 2019.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. I turn now to considering the various aspects of the relationship at the time of application and at the time of making this decision.  Before doing so, I note the delegate’s concerns about the speed with which the visa applicant and sponsor decided to marry and the possibility that the sponsor’s divorce from his second wife was ‘a divorce of convenience’ – implying that the divorce (and the relationship with the primary applicant) were not genuine.  I found nothing in the information or evidence before me in this case which supports such a conclusion.  In fact, the sponsor’s evidence about his separation and later divorce from his second wife strongly suggests that he was greatly hurt by her infidelity. 

18. In order for the divorce from the sponsor’s second wife to become final in December 2018, a minimum period of 12 months separation would have been required, meaning that the sponsor had been separated from her since December 2017 (at the latest).  At the time of application for the visa, (3 December 2019) the parties had known each other and been communicating with each other since February 2018, and been married since 26 June 2019, so there was more than 16 months between them meeting and marrying.  In any event, the issue of whether the parties were spouses is required to be assessed at the time of application and at time of decision.  In that context, how and when (or even how rapidly) a relationship started has limited relevance to that assessment.

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

19. The primary applicant and sponsor live separately due to their respective domiciles and each have independent sources of income.  The sponsor works full time in agriculture and earns around $34,000 per annum.  The primary applicant runs an online business selling foodstuffs and earns sufficient to support herself and her family.  The parties have provided to the Tribunal evidence of many money transfers from the sponsor to the primary applicant of amounts from 2019 to 2024 ranging from AUD$200 - $1200.   At hearing both parties gave evidence that this was to assist in meeting the financial needs of the primary applicant and the children.  I consider this evidence of financial support from the sponsor to the visa applicants to be significant and to indicate some financial reliance by the visa applicants on the sponsor and of his acceptance of a share of financial responsibility for the visa applicants.  Additionally, evidence has been provided of the purchase by the sponsor  and gifting of an IPAD to the second and third applicants.  The primary applicant stated that she receives no pension or financial support from the Vietnamese Government, and she really appreciates the support sent by the sponsor.  She noted that to her, it demonstrates that he is responsible and caring to her and her children.

20. At hearing, and in the application, the parties’ evidence is that they generally share their costs when together, such as for hotels, events, household expenses and groceries.  The sponsor stated that his boss will give the primary applicant work in Australia and when she arrives, they will both work towards their financial future and provide for the family. 

21. Neither party has significant savings, assets or liabilities.  The sponsor does not own any property.  He rents his home and currently subleases to some friends.  He gave evidence that when the visa applicants come to Australia, his friends will find different accommodation so they can all live there as a family.  They each gave evidence that they will share financial resources and decisions ‘like in any marriage’.   They do not have a joint account because they live separately, and it would be impractical.

22. Consideration of the financial aspects of the relationship at the time of application and at the time of making this decision provides a little weight in support of the parties being in a genuine and continuing relationship, because they share financial responsibilities when together, and the sponsor assists in the financial support of the visa applicants by transferring funds to them on a relatively regular basis.   Because of their physical separation and their financial independence, there is otherwise limited pooling of assets and income.  Nonetheless, I accept their evidence that when together they intend to pool their resources, share financial decisions and obligations and jointly meet the family’s financial needs.     

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

23. The parties gave evidence that when together, they have shared chores including cooking and cleaning, but they have not spent a significant time sharing a home as yet.  When they have been together at the home of the primary applicant, they each gave evidence that they shared ordinary household chores.  Photographs have been provided of them together doing chores such as dishes, cleaning floors and walking the children to school which support this evidence. They both indicated that they intend to share all household responsibilities, including household chores and care of the children, when they are together. I accept their evidence on the nature of their household.  Consideration of this aspect can be given a little weight suggesting that the parties are in a genuine relationship.

    Social aspects of the relationship – including whether 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.

24. The parties have provided evidence of their marriage, which was a quiet wedding attended by close family.  I accept that their wedding was celebrated and acknowledged by their friends and family.  They have also provided plane and hotel tickets demonstrating quite extensive travel together within Vietnam. 

25. At the time of application, the applicants provided supporting witness statements certifying the genuineness of the relationship from the primary applicant’s aunt, who introduced them; and a friend of the primary applicant, Pham Minh Dinh, who observed the development of the relationship and attended the wedding.  These statements provide additional weight to the social recognition of the relationship.

26. The primary applicant lives with the mother of her first husband.  The primary applicant was a widow before marrying the sponsor.  She gave evidence that her mother-in-law knows and approves of the sponsor. Photographs have been provided of the visa applicants with the sponsor and this lady. Photographs have also been provided of the couple at social events, and at meals with the primary applicant’s relatives in July 2022, and also celebrating the third applicant’s birthday.  Additional photographs show visiting friends of the sponsor giving the primary applicant gifts sent by him from Australia on a number of occasions.

27. The primary applicant gave evidence that her own parents live around three hours away, but they have also met and approve of the sponsor.  She gave evidence that the child applicants and the sponsor have a very good relationship and have bonded well.  A large number of photographs show them interacting in various social and home settings. The primary applicant expressed her happiness that the sponsor cares for them as well as loving her. 

28. The primary applicant said that all of her friends know that she has married, though they haven’t had a lot of time to socialise with friends due to the fact that they have been apart.  When they are together, they tend to focus on being together with their immediate family.  This was confirmed by the sponsor who said that some of his friends have met the primary applicant ‘on video’ when he has been speaking with her. Extensive video call and chat records have been provided.  Photographs provided by the primary applicant show that she has noted the names of the sponsor’s friends on video chats to help her remember them when she comes to Australia.  As noted above, the sponsor expressed a desire to introduce the primary applicant to his friends in Australia when she arrives.

29. The parties have also provided a large number of photographs of them together, with family and with the child applicants at various locations, including holiday locations in Vietnam. I give these some weight as indicating that they present and socialise as a married couple, and as a family unit.

30. I accept that the parties represent themselves as and are considered to be a married couple to all family members and any social (and official government) contacts in their lives.   

31. Consideration of the social aspects of the relationship will be given some weight in favour of the parties being in a genuine and continuing relationship. 

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. The parties have provided extensive evidence of their contact using phone, video and social media over several years.  Perusal of that information demonstrates that they have had constant and extensive contact with each other over the period of the relationship.  It suggests that they are both committed to maintaining the relationship and connection they share.  The parties each noted at hearing that they have now been married for five years but been forced to live separately in that time.  They each also expressed a desire to be together in Australia (and with the child applicants) to start their married life together properly.

2. I asked the applicant and sponsor separately what would happen to this relationship if the visa was denied.  They each demonstrated that they had considered this possibility and noted that the sponsor would probably travel to Vietnam and stay with the visa applicants there until the visa could be obtained.  It was noted that this would be detrimental to the family’s financial wellbeing because it would be difficult for the sponsor to find work in Vietnam due to his being a citizen of Australia, so their joint incomes might be reduced to one for an uncertain period.  They both separately noted that they plan to spend the rest of their lives together, and would like to do that in Australia. 

3. The primary applicant demonstrated an intimate knowledge of various medical conditions experienced by the sponsor, as might be expected of partners in a long-term relationship. The primary applicant became tearful during the hearing when asked what else she wished to say about her husband and relationship.  She stated that she really hopes that after these long five years that she can be with him and take care of him.  These emotions were echoed by the sponsor who said that they have tried to stay positive over the years waiting for a decision and had looked forward to their day at the Tribunal where they could show that their feelings are very strong and that they want to spend the rest of their lives together.

4. The sponsor added that he loves the children, noting that he had no children of his own so he appreciates the secondary applicants and wants to support and look after them and their education with his wife.

5. Consideration of the nature of the parties’ commitment supports a finding that the primary applicant and sponsor have been in a committed relationship since their marriage, continue to be committed to each other, that they draw emotional support from each other and have planned their future together as a married couple and a family with the second and third applicants.

   Conclusion on spouse relationship

6. Having considered each of the aspects of the relationship, I find that the primary applicant and sponsor share a mutual commitment to a shared life to the exclusion of others, that theirs is a genuine and continuing relationship and that they do not live separately on a permanent basis.  I am satisfied that this was the case at the time of application and at the time of making this decision. On the basis of that conclusion, the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.   

7. Therefore the visa applicant meets cl 309.211 and cl 309.221. 

8. There is no suggestion in this case that the primary visa applicant has ever been granted a Subclass 204 (Woman at Risk) visa.  The sponsor is not prohibited from being a sponsor by subclause 309.212(2), and cl 309.212 is satisfied.

9. The primary applicant is sponsored by her spouse.  Cl 309.213 is satisfied.

   Are the sponsorship requirements met?

10. At the time of decision, this sponsorship must have been approved and still be in force (cl 309.222.) As noted earlier, approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.

11. In this case, the Departmental file reflects that the sponsor has previously sponsored his first two wives.  The issue of limitation of sponsorships was raised with the applicant by a notice under s.59 seeking response to adverse information sent to the applicant on 25 September 2020.  However, the issue was not further addressed in the delegate’s decision statement, because the delegate was not satisfied as to the genuine and continuing relationship.  Nonetheless, as discussed with the applicants at hearing, I consider that this particular issue is before me, given that it had been raised by the delegate in the process of considering the application. 

12. Regulation 1.20J provides as follows: 

    (1AA)  This regulation applies in relation to an application for: 

    (b)   a Partner (Provisional) (Class UF) visa; or
    (c)  a Prospective Marriage (Temporary) (Class TO) visa; or
    (e)  an Extended Eligibility (Temporary) (Class TK) visa; or
    (f)  a Partner (Temporary) (Class UK) visa. 

    (1)  Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that: 

    (a)  not more than 1 other person has been granted a relevant permission as:

    (i)  the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
    (ii)  a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

    (b)  if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) — not less than 5 years has passed since the date of making the application for that relevant permission; and
    (c)  if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission. 

    (1A)  In subregulation (1):

    relevant permission means:
    (a)  in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and
    (b)  in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit. 

    (2)  Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor. 

13. The applicant sponsored his first wife on 25 July 1999.  They divorced on 3 December 2005. 

14. The sponsor sponsored his second wife on 12 November 2012.  They divorced on 15 December 2018.  The application in this case was lodged on 3 December 2019.

15. I am satisfied that in those circumstances, the sponsorship of the current application is affected by regulation 1.20J.  Therefore, even though I have found that the primary applicant and sponsor are in a genuine and continuing spousal relationship, both at the time of application and at the time of decision, the sponsorship could not be approved (and the application could not progress) unless the minister, or a decision maker on review, is satisfied that there are compelling circumstances affecting the sponsor (reg 1.20J(2)). 

16. The expression ‘compelling circumstances’ is not defined in the legislation. Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

17. In the case of Paduano v Minister for Immigration & Multicultural and Ethnic Affairs [2005] FCA 211, the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that forceful reasons may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.

18. Regard has been also given to policy, which provides that compelling circumstances which affect the interest of the sponsor may include, but are not limited to, instances where the parties have a dependent child together, where the sponsor’s previous partner died, where the previous spouse abandoned the sponsor and there are children dependent on the sponsor, or where the new relationship is longstanding.

19. Whilst the applicant had no children with his second wife, he argues (and for these purposes, I accept) that she abandoned him and left him for another man.  It is also noted that more than eleven years have passed since the sponsor sponsored his second wife, which is a significant period of time.  

20. In addition, the parties argue that the current relationship is of longstanding and I accept that to be the case.  The parties have been married since 2019.  In addition, I note the consequences for the sponsor of not having this sponsorship approved, namely, he will be required to make a choice between continuing in reliable employment in Australia (and the financial support that enables him to provide for his own needs and assisting with those of his wife and step children) and travelling to Vietnam, where he may be unable to find reliable work as an Australian citizen.  I accept that the review applicant has strong ties to Australia and would suffer considerable financial hardship if the sponsorship is not approved and he is compelled to travel to Vietnam in order to be with the visa applicants.

21. There has also been an extensive delay in the processing of this review since the application was lodged, and I am satisfied that the parties’ relationship has endured despite the difficulties and separation forced on them by that delay, and by the quite extraordinary pressures caused to separated families by the COVID19 pandemic, border closures and global uncertainty.

22. I consider that the particular combination of circumstances in this case as outlined above are properly considered to be compelling circumstances which affect the sponsor.  Therefore I am satisfied that subregulation 1.20J(2) applies and the sponsorship can be approved despite subregulation (1). Cl 309.222(1) is satisfied and the sponsorship is approved.

23. The sponsor has consented to the disclosure by the department, to each applicant included in the sponsorship, of any conviction for a relevant offence. The applicant satisfies cl 309.222. 

24. In relation to the second and third applicants, they are both members of the family unit of the primary applicant and made a combined application with her.  I have found that the primary applicant satisfies the primary criteria in Subdivision 309.21.  Therefore the second and third applicants each satisfy cl 309.311.

25. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

26. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the directions that:

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

    ·cls 309.211, 309.212, and 309.213 of Schedule 2 to the Regulations; and

    ·cl 309.221 of Schedule 2 to the Regulations; and

    ·cl 309.222 of Schedule 2 to the Regulations; and

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

    ·Cl 309.311 of Schedule 2 to the Regulations.

    Anne Grant
    Member

    
    

    ATTACHMENT  - Extract from 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).