1505411 (Migration)

This matter concerned an application for Prospective Marriage (Temporary) (Class TO) visas. The primary dispute before the Tribunal was whether the parties genuinely intended to live together as spouses at the time of the visa application, as required by clause 300.216 of the Migration Regulations 1994. The Tribunal was tasked with determining the genuineness of the parties' intentions regarding their future marital relationship.

The Tribunal was required to consider the definition of "spouse" as provided in section 5F of the Migration Act 1958. This definition necessitates that parties be married to each other under a marriage recognised as valid for the purposes of the Act, demonstrate a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship be genuine and continuing, with the couple living together or not living separately and apart on a permanent basis. While the Tribunal acknowledged it was not appropriate to assess whether the parties were spouses at the time of application or decision, it considered the parties' aspirations in relation to the legislative definition of a spouse.

In reaching its decision, the Tribunal considered both written and oral evidence. It noted that the review applicant, an Australian citizen born in 1936, had not informed his family in Australia about his relationship with the visa applicant or his intention to sponsor her. The Tribunal also found that the review applicant had previously attempted to sponsor another Filipino woman, but this proposed marriage did not proceed due to difficulties with her "paperwork." The Tribunal accepted the review applicant's statement that this prior relationship ended and occurred after his divorce and before he met the current visa applicant, with both women having been introduced by the same acquaintance. Based on these findings, the Tribunal concluded that the visa applicants did not satisfy the criteria for the grant of the visas.

The Tribunal affirmed the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.