1506993 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, brought by a 33-year-old single male from Vietnam, who was the applicant, and sponsored by a 38-year-old Australian citizen of Vietnamese background. 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 requires that at the time of application, the parties genuinely intend to live together as spouses. The Tribunal considered the definition of "spouse" under section 5F of the Migration Act 1958, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also noted that considerations set out in regulation 1.15A(3) for spousal relationships could be had regard to, although the focus remained on the parties' intentions regarding the legislative definition of spouse.

The Tribunal found that while the parties had met online and engaged in communication, and the sponsor had visited Vietnam twice, there were significant indications that the genuine intention to live together as spouses was not yet firmly established by the applicant. Specifically, the sponsor's hesitation to reciprocate the applicant's expressions of love due to an age difference, and her continued need for time to consider marriage during their joint travel, suggested a lack of mutual commitment to a shared future at the time of application. Consequently, the Tribunal concluded that the applicant met certain criteria, specifically clauses 300.216 and 300.215(a) of Schedule 2 to the Regulations, but that the matter should be remitted for reconsideration by the Minister to consider the remaining criteria for the visa.