Nguyen (Migration) [2023] AATA 3868 (27 July 2023)

Last Updated: 27 November 2023

Nguyen (Migration) [2023] AATA 3868 (27 July 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Thi Hoa Nguyen

VISA APPLICANTS: Mr Quang Tung Dao
Miss Chau Anh Dao
Mr Tri Vy Dao

REPRESENTATIVE: Mr John William Galloway (MARN: 9254439)

CASE NUMBER: 2013098

DIBP REFERENCE(S): BCC2019/4072319

MEMBER: T. Quinn

DATE: 27 July 2023

PLACE OF DECISION: Melbourne

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: clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations;

and

• the secondary applicants meet the following criteria for Subclass 309 (Partner (Provisional)) visas: Clauses 309.311, 309.312 and 309.321(a) of Schedule 2 to the Regulations.

Statement made on 27 July 2023 at 4:41pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – sponsor’s migration history and credibility concerns – sponsor’s marital history – financial aspects – nature of the household – social aspects – nature of the commitment – benefit of the doubt – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221, 309.311, 309.312, 309.321

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. On 16 August 2019, the first named visa applicant (‘the applicant’ or ‘Mr Dao’) applied for a Provisional Partner visa^[1] (‘the visa’) based on his marriage to the review applicant, Ms Thi Hoa Nguyen (‘the sponsor’ or ‘Ms Nguyen’).^[2] The second and third visa applicants are the children of the first named visa applicant.
2. On 9 July 2020, a delegate of the Minister for Immigration (‘the delegate’) refused the applicant’s visa application, not being satisfied that at the time of application the applicant and the sponsor were in a spousal relationship as defined by section 5F of the Act (‘the delegate’s decision’).^[3] It followed that the applications of the second and third applicants also failed, as they are dependent upon the success of the primary visa applicant’s application.
3. On 21 August 2020, the sponsor applied for a review of the delegate’s decision with this Tribunal.^[4]
4. The sponsor was represented in relation to the review.
5. The sponsor appeared in person and the visa applicants appeared via telephone before the Tribunal on 11 July 2023 to give evidence and present arguments. Miss Luong Hong Yen also attended the hearing in person and was ready and prepared to give oral evidence. The sponsor’s representative also attended the hearing via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English language.
6. I have proceeded to a decision to remit this case for reconsideration, having regard to all the information before me. In reaching my decision, I have considered:
   1. all evidence given at hearing;
   2. all material filed by or on behalf of the applicant and sponsor; and
   3. other relevant documents on the Tribunal and Department files.

Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.^[5]

STATUTORY AND LEGAL FRAMEWORK

7. The issue in this case is whether the applicant and the sponsor are in a spouse relationship as defined by section 5F of the Act.
8. Clause 309.211(2) of the Regulations requires that at the time the visa application was made the applicant 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 the visa applicant claims that he is the spouse of the sponsor, who is a Vietnamese born Australian citizen. Based on the information before me I am satisfied that the sponsor is an Australian citizen.^[6]
9. ‘Spouse’ is defined in section 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.^[7]
10. 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.^[8]
11. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
12. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.^[9] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.^[10]
13. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.^[11]
14. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.^[12]

CONSIDERATION OF CLAIMS AND EVIDENCE

Valid marriage

15. If Mr Dao and Ms Nguyen (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married on 16 May 2019.^[13] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).

Sponsor’s Migration History and credibility concerns

16. The sponsor has a very troubled and concerning migration history which raises concerns about her character and credibility. Much of this history is set out in the remittal decision of 10 May 2011 of this Tribunal (see case number 0906159). I put this history to the sponsor at hearing pursuant to section 359AA of the Act. I explained the relevance of the information contained in that decision and specifically took her through her marital and migration history. I explained that this information was adverse to her case and raised concerns that she may not consider marriage as a long-term commitment.
17. I have serious reservations about the sponsor’s credibility, most particularly in relation to her medical history. The decision of 10 May 2011 referred to a serious bladder condition which required surgery. At the hearing of 11 July 2023, the sponsor gave detailed evidence about a painful and traumatic history of degenerative back pain. She was able to give specific details of her regular treatment from a physiotherapist, the needs involved, and the advice of the specialist doctor and excessive cost involved for surgery. I asked the sponsor whether she had had surgery before and she said no. I asked if she had any other health problems apart from her back. I asked if she had had other health problems in the past. She responded in the negative to these questions. I then put to her the health history including the detail in the decision of 2011 about the sponsor being on a waiting list for a bladder operation. The sponsor gave evidence that this was in the past and she did not have those problems anymore. I asked her about whether she had been on a waiting list for a bladder operation and she responded about surgeries she had had on her uterus. I again asked how her bladder had been impacted. She gave evidence that her bladder was normal now. I asked again whether she had had bladder surgery and she said she had, and they had removed some water with scissors inside. I formed the view that the sponsor was not being forthright in the way she was giving evidence or the content of the evidence on this issue. This in turn raised concerns about whether she was being forthright about her medical back history and I requested corroborating evidence about this. The sponsor has since filed a medical certificate from a Dr Jimmy Lee dated 25 July 2023 which states the sponsor has severe chronic back pain and is waiting to see a neurosurgeon. It states that she is unable to work and would benefit from her husband coming to Australia to assist her in her daily activities. This specifies that in February and July 2019 the sponsor had disc bulges. I accept the sponsor’s evidence in relation to her back pain. I remain concerned about whether she has previously been forthright with this Tribunal in relation to her medical history in relation to her bladder and note that this history is also not recorded in Dr Lee’s letter of 25 July 2023.
18. The Tribunal’s decision of 10 May 2011 sets out the sponsor’s previous four marriages prior to her application in 2008 to marry her fifth husband. I put this history to the sponsor and set it out below by way of completeness, the sponsor:
    1. Was first married to a man she met in Hong Kong in 1989 and with whom she migrated to Switzerland; she divorced her first husband in June 1995;
    2. First arrived in Australia in 1995 on a visitor visa and met and married her second husband while in Australia. She was granted a Temporary spouse visa in May 1996 and obtained a permanent spouse visa in January 1998. She divorced her second husband in September 1998 for infidelity, although she gave evidence at hearing in July 2023 that this husband was also a drug addict and physically violent with her and died a long time ago. The sponsor obtained her Australian citizenship in September 2000;
    3. met her third husband in Hong Kong in 2001 and married him in January 2002 but he had criminal associations and was a drug addict and died of drugs. She divorced this man in December 2004;
    4. married her fourth husband in January 2005 who was arrested for criminal activities and was living in Australia unlawfully and she divorced him in November 2006; and
    5. married her fifth husband in January 2010 – her application to sponsor that man was initially unsuccessful before the Department but was remitted by this Tribunal in May 2011. She gave evidence at the hearing of July 2023 that this man was also a drug addict and gambler and she separated from him and was divorced in April 2018 which postdates the time of her claimed meeting the husband which is the subject of this review. The sponsor gave evidence at the hearing of July 2023 that this man is now a permanent resident.
19. I am very troubled by this history and consider it raises serious concerns about the true nature of the sponsor’s marriages, sponsorships, and migration history. I do not have sufficient information before me to form any firm conclusions, however, as this is an investigation which ought to be undertaken by the Department. I am bound to consider the evidence of the case before me which is the marriage between the sponsor and applicant who appeared before me and whether that evidence supports a finding that they are in a genuine spousal relationship. When I asked the sponsor about this history, put to her that it suggests she does not view marriage as a long-term commitment and made enquiries about the drug and criminal history of her previous husbands, she became emotional and said she did not know why these things had happened to her. When I put, more generally, the sponsor’s history of multiple marriage and the suggestion that she may not view marriage as a long-term commitment to the applicant at hearing, he became audibly distressed, was crying throughout his evidence and repeatedly said he needed to be in Australia to care for his wife.

Timeline

20. The sponsor first arrived in Australia in 1995 and became an Australian citizen in 2000.^[14] Her marital history is set out above. She was and is unable to have children. The applicant and sponsor gave consistent evidence about the reasons for this.
21. The applicant married his first wife in 1999. There are two children of that relationship (the second and third visa applicants) who have continued to live with their father, although Miss Dao now resides in university accommodation and returns home for holidays and some weekends.
22. The applicant and sponsor first met at the sponsor’s niece’s wedding in Vietnam in 2017 and exchanged phone numbers.
23. In August 2017, the sponsor visited Vietnam and spent some time with the applicant and thereafter maintained contact.
24. The sponsor divorced her fifth husband in April 2018 and called the applicant to chat and he was also separating, waiting for his divorce which came into effect on 17 May 2018.
25. In May 2018, the sponsor returned to Vietnam and spent time with the applicant for nine days. The applicant and sponsor continued to stay in regular contact after this.
26. The sponsor returned to Vietnam in November 2018 for three weeks - the applicant picked her up from the airport and she stayed with the applicant and his two children as a family.
27. On 25 April 2019, the sponsor returned to Vietnam for one month and married the applicant with a small ceremony with extended relatives on 19 May 2019.
28. The applicant submits, together with many photos, that the sponsor has visited him in Vietnam nine times between 2017 and 2023 (see email dated 15 May 2023 included in submissions of 17 May 2023).

Financial aspects of the Relationship

29. 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; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
30. The applicants have filed evidence of seven money transfers from the applicant to the sponsor between August 2019 and November 2020 for sums between AUD1,000-4,100. The applicants gave consistent evidence at hearing that part of this was to pay their solicitor in relation to the present migration case. The sponsor said that the money was also for her to pay for her doctor in relation to her back condition whereas the applicant said the money was also for ‘her expenses’ and did not specify the doctor’s bills.
31. The applicants gave consistent evidence that the applicant owns a house and vacant block of land in Vietnam which he plans to sell and use the proceeds to buy a farm together with the sponsor which they would use to grow vegetables. They gave consistent evidence that the applicant currently works as the director of a transport company in Vietnam and relatively consistent evidence about his days of work and income in that role. They gave consistent evidence that the second and third visa applicants do not work and are studying and would continue to study if they move to Australia. They gave consistent evidence, together with Miss Dao’s own oral evidence, that the applicant’s daughter (Miss Dao) is studying at university but would like to teach English. The evidence before me about Miss Dao’s university degree (which is a Bachelor of Business) was not consistent – both in relation to the subject matter and duration - but they gave consistent evidence about Miss Dao’s current living arrangements while she is studying.
32. The applicants gave consistent evidence about the sponsor’s work in a broccoli farm, her hours and days of work together with her income.
33. The applicants gave consistent evidence about their future plans and how this would work with the two children studying, although the evidence about where the children would attend school/university and how they would get there was somewhat vague and inconsistent, I consider the applicants had engaged in the level of planning and discussion one would expect of a genuine relationship where there is uncertainty around the outcome of a partner visa application and they are not living together, or even in the same country.
34. The applicants have filed a copy of Mr Dao’s will bequeathing half of his property to the sponsor and one quarter to each of his children. They have filed the sponsor’s insurance nominating her husband as 100% beneficiary.
35. There is very limited pooling of financial resources and sharing of day-to-day expenses in this case, although I acknowledge the consistent evidence about financial circumstances and future plans.
36. The applicants do not have any joint ownership of assets; joint liabilities; or any legal obligations owed to each other.
37. I acknowledge the restraints of residing in separate countries and place some weight in favour of the applicants in relation to the financial aspects of the relationship.

Nature of the Household

38. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
39. The evidence appears to support a finding that the applicants have lived together for various short periods when the sponsor has visited the visa applicants in Vietnam. The evidence at hearing was consistent that the visa applicants have never been to Australia but are positive about moving.
40. The evidence before me is consistent that the sponsor was and is unable to have children and that she views the second and third visa applicants as her children and the relationship gives her a sense of family that she has not had before. The sponsor was relatively well versed in the study and life circumstances of her two stepchildren. Mr and Miss Dao both became emotional in their evidence about wanting to live together as a family and wanting to take care of the sponsor with her health issues.
41. The applicants have filed photos showing video calls as a family, time spent together as a family when the sponsor has been in Vietnam and packages/gifts sent between them, including from the sponsor to her stepchildren. The applicants have filed hundreds of translated text messages exchanges which indicate they share important life events with each other, including the progress the second and third visa applicants are making in their study endeavours.
42. The evidence at hearing was consistent that the sponsor currently lives with her sister in Australia. The evidence at hearing was also consistent in relation to the family’s future household, career and study plans. The applicant and sponsor were able to give sufficient detail in relation to the applicant’s plan to sell his property holdings in Vietnam in order to purchase a farm in Australia where he, the sponsor and his children will live together. This included details around what the farm would produce and that this would be their source of income.
43. The applicants gave consistent evidence that the second and third visa applicants do not work and are studying and would continue to study if they move to Australia. They gave consistent evidence, together with Miss Dao’s own oral evidence, that the applicant’s daughter (Miss Dao) is studying at university but would like to teach English. The evidence before me about Miss Dao’s university degree (which is a Bachelor of Business) was not consistent – both in relation to the subject matter and duration - but the evidence at hearing was consistent about Miss Dao’s current living arrangements while she is studying.
44. The applicants gave relatively consistent evidence about the days and times of their respective employment.
45. The applicants have filed photos and evidence of travel and activities they have undertaken together as a couple and as a family.
46. I acknowledge the restraints of residing in separate countries and have placed some weight in the applicants’ favour in relation to the household aspects of the relationship.

Social Aspects of the Relationship

47. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
48. The applicants have filed many photos of the applicant and the sponsor undertaking shared activities, travel, at home together, out with others (including the second and third applicants and other family members) and photos from their wedding ceremony in Vietnam. They are wearing their wedding rings in these photos which appear to span at least some of the years of their relationship.
49. The applicants gave consistent evidence at hearing about how they met and their respective marital histories, although it appeared both had not overly explored this topic in any depth. The applicant gave evidence that he is not worried about his wife’s past and he is worried about her, loves her and wants to live with her to look after her. As stated above, he became very emotional during some of this evidence.
50. Miss Dao gave evidence at hearing suggesting public recognition of the relationship and family. Mr Dao submits that the sponsor has visited him in Vietnam nine times between 2017 and 2023 (see email dated 15 May 2023 included in submissions of 17 May 2023).
51. The applicant has filed screen shots of his social media including a profile picture which contains the sponsor and three visa applicants (as a family) along with other reels and photos of the couple together and together as a family with his two children.
52. The applicants have filed two statutory declarations dated 2019 (in the Department file) from the sponsor’s sister and a Mr Pham about their relationship. These are considerably dated now and relatively generic in nature. I place little weight on them.
53. The second and third visa applicants were both present at the hearing and prepared to give evidence. Given the third applicant’s age and the evidence I had heard by the time the second applicant had finished her evidence, I did not consider it necessary to take evidence from him.
54. I acknowledge the restraints of residing in separate countries. I place some weight in favour of the applicants in relation to the social aspects of the relationship.

Nature of the applicant and the sponsor’s commitment to each other

55. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
56. The applicants have been married for four years and their regular text message and phone call exchanges (as evidenced in the Tribunal file) seem to express concern for each other and their respective family members (including the second and third visa applicants) and a sharing of significant life events. The applicants have not spent a great deal of time living together because of their geographical circumstances.
57. Mr Dao submits that the sponsor has visited him in Vietnam nine times between 2017 and 2023 (see email dated 15 May 2023 included in submissions of 17 May 2023). I note the support the applicant has provided to the sponsor financially and his, and the second visa applicant’s, concern for the sponsor’s health and wellbeing. The emotional nature of both Mr and Miss Dao’s evidence at hearing about the sponsor’s health and need to be together appeared authentic.
58. Balanced against this, I am very concerned about the sponsor’s marital history as set out in paragraphs 16-19 above. I am concerned that she may not consider marriages are a long-term proposition, particularly where securing a migration outcome may be one of the incentives for the relationship. This appeared to be very much at odds with the visa applicants’ view of the relationship. I note Mr Dao was married to his first wife for 19 years.
59. The applicant and sponsor gave consistent evidence at hearing that the sponsor was and is unable to have children and that she views the second and third visa applicants as her children and the relationship gives her a sense of family that she has not had before. The sponsor was relatively well versed in the study and life circumstances of her two stepchildren. Mr and Miss Dao both became emotional in their evidence about wanting to live together as a family and wanting to take care of the sponsor with her health issues.
60. The applicants have filed photos showing video calls as a family, time spent together as a family when the sponsor has been in Vietnam and packages/gifts sent between them, including from the sponsor to her stepchildren.
61. I find the evidence for and against the applicants in relation to the nature of their commitment to each other finely balanced.

Conclusions

62. I am very concerned about the sponsor’s marital history, health evidence and credibility as set out in paragraphs 16-19 (inclusive) above. I am concerned that the four individuals involved in this visa application may be motivated by a migration outcome – the visa applicants in securing residency in Australia and the sponsor in sourcing financial and practical support.
63. I have carefully considered all of the evidence before me. I find the evidence for and against the applicants in this case closely balanced. I consider it likely that there are aspects of the applicants’ marriage and relationship that have been motivated by securing a migration outcome for the visa applicants and financial and practical support for the sponsor. I note in this regard that the Full Federal Court has held that people enter into marriages with a variety of purposes and motives. 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.^[15]
64. Ultimately, I consider it appropriate to the give the benefit of the doubt to the applicants. I find that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations.
65. As the decision in relation to the primary visa applicant is remitted, the decisions in relation to the second and third visa applicants must also be remitted. In this regard, I note that the second and third applicants are not working and are financially dependent on their father. The evidence at hearing was that Mr Dao is paying Miss Dao’s rent where she lives to attend university in Vietnam.
66. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

DECISION

67. The appropriate course is for this matter to be remitted for reconsideration by the Department.
68. The Tribunal remits the applications for a 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: clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations; and the secondary applicants meet the following criteria for Subclass 309 (Partner (Provisional)) visas: Clauses 309.311, 309.312 and 309.321(a) of Schedule 2 to the Regulations

T. Quinn
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A Spouse

(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).

---

^[1] Specifically, a Partner (Provisional) (Class UF) visa.

^[2] Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
^[3] See clause 309.211(2) of the Regulations.
^[4] Pursuant to sections 338(5) and 347(2)(b) of the Act.

^[5] In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

^[6] See sponsor’s Australian citizenship certificate dated 28 September 2000 in the Department file.
^[7] Section 5F(2)(aa)-(d).
^[8] He v MIBP [2017] FCAFC 206.
^[9] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

^[10] Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

^[11] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407 at [67].

^[12] Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

^[13] See Marriage Certificate at in the Department file. The delegate’s decision appears to record the date incorrectly as 23 April 2019 and I note that the applicants celebrated their wedding on 19 May 2019, but the marriage was actually registered on 16 May 2019.

^[14] See evidence at hearing and sponsor’s Australian citizenship certificate dated 28 September 2000 in the Department file.
^[15] Re MILGEA and Dhillon [1990] FCA 144.