1517567 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa made by Ms Norn to the Minister, with Mr Leng identified as the sponsor. The central dispute revolved around whether the parties genuinely intended to live together as spouses at the time of the application, as required by clause 300.216 of the Migration Regulations 1994. The Tribunal, constituted by Member Kate Millar, was tasked with determining the credibility of the evidence presented, particularly in light of inconsistencies between oral testimony and a written statement.

The legal issue before the Tribunal was whether the parties had demonstrated a genuine intention to live together as spouses, a requirement defined by section 5F of the Migration Act 1958. This definition necessitates a married relationship, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and the absence of permanent separation. The Tribunal also considered the factors outlined in regulation 1.15A(3) for spousal relationships, namely financial, household, social, and commitment aspects, to assess the parties' aspirations regarding the definition of spouse.

The Tribunal's reasoning focused on resolving inconsistencies in the evidence. While oral evidence from Mr Leng and Ms Norn differed from Ms Norn's prior written statement, and both parties were inaccurate about dates, their oral testimony was consistent on significant details regarding the inception of their relationship and the agreement to marry. The Tribunal placed greater weight on the oral evidence, finding that the written statement, provided in English and potentially translated without accreditation and without legal representation, was less reliable. The inconsistencies were attributed to the unrepresented status of the parties and potential issues with the translation of the written statement.

Consequently, the Tribunal remitted the application for a Subclass 300 visa to the Minister for reconsideration. The direction was that the visa applicant met the criteria concerning the genuine intention to live together as spouses.