1508243 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa. The applicant, a Vietnamese national, sought to enter Australia to marry her sponsor, an Australian citizen. The delegate had refused the application, finding that the parties did not genuinely intend to live together as spouses and expressing concern about the speed with which they decided to commit to marriage. The tribunal was required to determine whether the parties genuinely intended to marry and genuinely intended to live together as spouses at the time of the application.

The tribunal considered the requirements of clause 300.215 of Schedule 2 to the Regulations, which mandates a genuine intention to marry and that the marriage is intended to take place within the visa period. The tribunal found that the parties had planned to marry and had agreed to do so in 2012, with their engagement ceremony delayed until 2015 due to the sponsor's work accident. Despite this delay, they continued to communicate and lodged their application in July 2014. The tribunal accepted that the parties had a genuine intention to marry at the time of application.

Furthermore, the tribunal examined clause 300.216, which requires a genuine intention to live together as spouses. The definition of "spouse" under section 5F of the Act was considered, including the elements of a married relationship, mutual commitment, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. While not assessing whether the parties were spouses at the time of application, the tribunal considered their intentions in light of the legislative definition. The tribunal noted the parties met in October 2012, decided to commit to marriage on that day, and spent a few weeks together. The delegate's concerns regarding the commitment, social, and household aspects of the relationship, and the quick decision to commit, were noted.

Ultimately, the tribunal concluded that the visa applicant met the criteria under clauses 300.211, 300.212, 300.213, 300.214, 300.215, 300.216, and 300.221 of Schedule 2 to the Regulations. Consequently, the tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant met these specified criteria.