1506118 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa. The Tribunal was required to determine whether the parties genuinely intended to live together as spouses at the time of the application.

The central legal issue was the interpretation and application of clause 300.216 of the Migration Regulations 1994, which mandates that at the time of application, the parties must genuinely intend to live together as spouses. The definition of "spouse" under section 5F of the Migration Act 1958 was relevant, requiring a married relationship characterised by mutual commitment to a shared life, genuineness, continuity, and cohabitation, or not living separately and apart on a permanent basis. The Tribunal also considered the factors outlined in regulation 1.15A(3) for spousal relationships, noting that while these factors primarily relate to existing spousal relationships, they could inform an assessment of future intentions.

The Tribunal found that the parties were introduced via Facebook in September 2013, with the introduction facilitated by a mutual acquaintance. While there were initial reservations from the review applicant's parents regarding the genuineness of the relationship, these concerns were resolved by the time of the visa application in June 2014. The Tribunal accepted the evidence that the review applicant's parents had communicated with the visa applicant and were satisfied that the couple genuinely intended to live as husband and wife in Australia.

Consequently, the Tribunal remitted the application for a Subclass 300 visa for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clause 300.216 of Schedule 2 to the Regulations.