Barwick (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300, made by a 57-year-old woman from Peru, sponsored by Clive James Barwick, an Australian permanent resident. The dispute arose from the Department's refusal of the visa application, which was subsequently remitted by the Tribunal for reconsideration. The primary visa applicant and sponsor claimed to have met in October 2018, committed to a relationship in December 2018, and become engaged in September 2019. The application had been previously refused by the Department on 3 November 2021, due to concerns about the applicant's declared number of children and previous relationships, and a failure to provide a single status certificate. Following a remittal by the Tribunal on 22 December 2022, with a direction that a specific criterion was met, the Department again refused the application on 10 August 2022, this time on the basis that it was not satisfied that the applicant and sponsor genuinely intended to marry and live together as spouses.

The legal issues before the Tribunal were whether the primary visa applicant and sponsor genuinely intended to marry and live together as spouses, and whether the applicants met the remaining criteria for a Subclass 300 visa. The Tribunal was required to consider the evidence presented, including statutory declarations, photographs, social media chats, and a Notice of Intended Marriage, in light of the previous refusal and remittal. The Tribunal also had to determine which specific criteria of the Subclass 300 visa were met by the primary applicant and the secondary applicants.

The Tribunal reasoned that, given the history of the application and the evidence before it, the appropriate course was to remit the application for reconsideration by the Minister. The Tribunal directed that the primary visa applicant met several specified criteria for the visa, including cl.300.211, cl.300.214, cl.300.215, cl.300.216, and cl.300.221 of Schedule 2 to the Regulations. Furthermore, the Tribunal directed that the secondary visa applicants met cl.300.311 of Schedule 2 to the Regulations.

The Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the aforementioned directions regarding the criteria met by the applicants.